Exhibit 10.1
Seventh Amendment to Credit Agreement
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made and
effective as of December 19, 2003, by and among COMPUDYNE CORPORATION (the
"Borrower"), the GUARANTORS party to this Seventh Amendment and the Credit
Agreement referred to below (collectively, the "Guarantors"), the BANKS party to
this Seventh Amendment and the Credit Agreement referred to below (collectively
and together with the Agent, the "Banks") and PNC BANK, NATIONAL ASSOCIATION,
individually and in its capacity as agent for the Banks under the Credit
Agreement referred to below (hereinafter referred to in such capacity as the
"Agent").
WITNESSETH:
WHEREAS, reference is made to (i) that certain Credit Agreement dated
November 16, 2001, as amended by that First Amendment to Credit Agreement dated
as of December 19, 2001, that Second Amendment to Credit Agreement dated as of
April 22, 2002, that Third Amendment to Credit Agreement dated and effective as
of September 30, 2002, that Fourth Amendment to Credit Agreement dated as of
March 21, 2003, that Fifth Amendment to Credit Agreement dated as of June 27,
2003 and that Sixth Amendment to Credit Agreement dated as of July 15, 2003 by
and among the Borrower, the Guarantors party thereto, the Banks party thereto
and the Agent (as the same may be further amended, restated, supplemented or
modified from time to time, the "Credit Agreement") pursuant to which the Banks
made available to the Borrower a $30,000,000 original principal amount revolving
credit facility, now reduced by amendment to $25,000,000 (including an
$8,000,000 letter of credit subfacility and a $2,000,000 swing line of credit)
(the "Line of Credit") and a $5,000,000 original principal amount term loan, now
reduced through amortization to $2,496,666.65 (the "Term Loan"), and (ii) those
Notes of the Borrower evidencing its obligations under the Credit Agreement and
the Loan Documents, comprised of (A) a Second Amended and Restated Term Note in
the stated principal amount of $1,951,666.65 in favor of PNC Bank, National
Association dated June 27, 2003, (B) a Third Amended and Restated Revolving
Credit Note in the stated principal amount of $19,545,000 in favor of PNC Bank,
National Association dated June 27, 2003, (C) a Term Note in the stated
principal amount of $545,000 in favor of SunBank dated June 27, 2003 and (D) a
Revolving Credit Note in the stated principal amount of $5,455,000 in favor of
SunBank dated June 27, 2003 (as the same may be amended, restated, supplemented,
restated or substituted from time to time, collectively, the "Notes");
WHEREAS, the Borrower, the Guarantors, the Agent and the Banks desire to
amend the Credit Agreement to extend the Expiration Date for the Line of Credit
and the maturity date for the Term Loan on the terms and conditions set forth
herein as provided for below.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement is amended as set
forth in Exhibit A. Any and all references to the Credit Agreement in
the Notes or any of the other Loan Documents shall be deemed to refer
to the Credit Agreement as amended hereby. Any initially capitalized
terms used in this Seventh Amendment without definition shall have the
meanings assigned to those terms in the Credit Agreement.
2. Incorporation into Credit Agreement. This Seventh Amendment is deemed
incorporated into each of the Notes and the other Loan Documents. To
the extent that any term or provision of this Seventh Amendment is or
may be deemed expressly inconsistent with any term or provision in any
Loan Document, the terms and provisions hereof shall control.
3. Representations. In order to induce the Banks and the Agent to enter
into this Seventh Amendment and agree to the transactions herein
specified, Borrower and Guarantors represent and warrant as follows:
(a) Borrower and each of the Guarantors is a corporation duly
organized and in good standing under the laws of their respective
states of incorporation. Borrower and each of the Guarantors has
the power to own its property and to carry on its business as now
being conducted. Borrower and each of the Guarantors is duly
qualified to do business in every other jurisdiction in which the
character of the property owned or the nature of the business
conducted makes qualification necessary;
(b) None of Borrower or any of the Guarantors is in violation of its
articles of incorporation or bylaws, or in default in the
performance of any material obligation, agreement, permit or
license agreement to which it is a party or by which it is bound.
The execution and delivery of this Seventh Amendment, and all
other documents
as specified herein, the performance and fulfillment of the terms
herein and therein set forth and the consummation of the
transactions herein or therein contemplated do not and will not
constitute a breach of, or default under, any of Borrower's or
Guarantors' articles of incorporation or bylaws, or any other
agreement, indenture or other instrument by which it is bound, or
any applicable law, administration regulation or court decree.
All corporate and other actions, consents or authorizations which
may be necessary or appropriate for the execution, delivery of
and compliance with this Seventh Amendment and all documents and
instruments herein set forth have been taken or obtained. Upon
their execution and delivery, this Seventh Amendment and such
other documents and instruments will constitute the valid and
legally binding obligations of Borrower and Guarantors,
enforceable against Borrower and Guarantors in accordance with
their respective terms.
(c) As of the date hereof, no Event of Default (as defined in the
Credit Agreement) or any event, fact or circumstance which, with
the passage of time or the giving of notice, or both, would
constitute an Event of Default, has occurred and is continuing.
(d) All representations and warranties of Borrower and Guarantors to
the Banks as set forth in the Credit Agreement and each of the
Loan Documents (as defined in the Credit Agreement) are true and
correct as of the date hereof as if fully set forth herein at
length.
(e) None of Borrower or any of the Guarantors has any defense,
set-off, claim or counterclaim to or against, or with respect to,
full and prompt payment and performance by Borrower of all of
Borrower's debts, liabilities or obligations to Agent or any of
the Banks under the Credit Agreement and under the Loan
Documents.
4. Collateral Confirmation. The Borrower and the Guarantors hereby confirm
that any collateral for the Obligations, including but not limited to
liens, security interests, mortgages, and pledges granted by the
Borrower, the Guarantors or third parties (if applicable), shall
continue unimpaired and in full force and effect.
5. Guarantor Reaffirmation. The Guarantors hereby affirm, acknowledge and
agree that their respective guaranty agreements continue in full force
and effect with respect to the Obligations, as modified and amended by
this Seventh Amendment. None of the Guarantors has any defense, offset
or counterclaim to full performance and observance of their respective
liabilities under the guaranty agreements as reaffirmed hereby. Each
Guarantor hereby acknowledges and affirms that it has and will
continue to realize tangible and significant direct economic benefit
from the transactions described in the Credit Agreement, as amended
hereby, the Notes and the other Loan Documents and hereby irrevocably
and unconditionally acknowledge the receipt of good and valuable
consideration for the execution and delivery of their respective
guaranty agreements.
6. Release of Agent and Banks. As additional consideration for the
Agent's and the Banks' entering into this Seventh Amendment, the
Borrower and each Guarantor hereby fully and unconditionally releases
and forever discharges the Agent and the Banks, their respective
agents, employees, directors, officers, attorneys, branches,
affiliates, subsidiaries, successors and assigns and all persons,
firms, corporations and organizations acting on any of their
respective behalves (the "Released Parties") of and from any and all
claims, liabilities, demands, obligations, damages, losses, actions
and causes of action whatsoever which the Borrower or any Guarantor
may now have or claim to have against the Agent or any Bank or any
other Released Parties as of the date hereof, whether presently known
or unknown and of any nature and extent whatsoever, including, without
limitation, on account of or in any way affecting, concerning or
arising out of or founded upon the Credit Agreement, this Seventh
Amendment or any of the Loan Documents, including but not limited to
all such loss or damage of any kind heretofore sustained or that may
arise as a consequence of the dealings between the parties up to and
including the date hereof, including but not limited to, the
administration or enforcement of the Loans, the Notes, the Obligations
or any of the Loan Documents. The obligations of the Borrower and the
Guarantors under the Loan Documents and this Seventh Amendment shall
be absolute and unconditional and shall remain in full force and
effect without regard to, and shall not be released, discharged or in
any way affected by:
(i) any exercise or nonexercise of any right, remedy, power
or privilege under or in respect of this Seventh Amendment, any
Loan Document, any document relating to or evidencing any of the
Agent's or any Bank's liens or applicable law, including, without
limitation, any waiver, consent, extension, indulgence or other
action or inaction in respect thereof; or
(ii) any other act or thing or omission or delay to do any
other act or thing which could operate to or as a discharge of
the Borrower or any Guarantor as a matter of law, other than
payment in full of all
Obligations, including but not limited to all obligations under
the Loan Documents and this Seventh Amendment.
The Borrower and each of the Guarantors further agrees to indemnify
and hold the Agent and the Banks and their respective officers,
directors, attorneys, agents and employees harmless from any loss,
damage, judgment, liability or expense (including attorneys' fees)
suffered by or rendered against the Agent or the Banks, or any of
them, on account of any claims arising out of or relating to the
Obligations. The Borrower and each of the Guarantors further states
that it has carefully read the foregoing release and indemnity, knows
the contents thereof and grants the same as its own free act and deed.
7. Counterparts. This Seventh Amendment may be signed in any number of
counterpart copies and by the parties hereto on separate counterparts,
but all such copies shall constitute one and the same instrument.
8. Binding Effect. This Seventh Amendment will be binding upon and inure
to the benefit of the Borrower, the Guarantors, the Banks and the
Agent and their respective heirs, executors, administrators,
successors and assigns.
9. Additional Conditions and Covenants. The following agreements and
covenants constitute additional and substantial consideration for the
Banks' agreement to effect the amendments to the Credit Agreement set
forth herein:
(a) The Borrower shall reimburse the Agent for its out of pocket fees
and expenses incurred in connection with this Seventh Amendment,
including, without limitation, its attorney fees and expenses.
(b) The Borrower and the Guarantors shall execute such reaffirmation
documents and other documents, instruments and agreements that
the Agent may request from time to time in order to evidence,
ratify and affirm its obligations under the Credit Agreement and
the other Loan Documents and the security interests, liens and
pledges effected thereby.
10. Representation by Counsel. The Borrower and each Guarantor represents
and warrants that it is represented by legal counsel of its choice and
that its counsel has had the opportunity to review this Seventh
Amendment, that it is fully aware of the terms contained herein and
that it has voluntarily and without coercion or duress of any kind or
nature whatsoever entered into this Seventh Amendment. The provisions
of this Seventh Amendment shall survive the execution and delivery of
this Seventh Amendment.
11. LIMITATION ON DAMAGES. NEITHER THE AGENT, ANY BANK NOR ANY AGENT OR
ATTORNEY FOR OR OF THE AGENT OR ANY BANK SHALL BE LIABLE TO THE
BORROWER OR ANY GUARANTOR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES ARISING FROM ANY BREACH OF CONTRACT, TORT OR OTHER
WRONG RELATING TO THE ESTABLISHMENT, ADMINISTRATION OR COLLECTION OF
THE OBLIGATIONS, AS DEFINED IN ANY LOAN DOCUMENT OR THE ACTION OR
INACTION OF THE AGENT OR ANY BANK OR THE BORROWER OR ANY GUARANTOR
UNDER THIS SEVENTH AMENDMENT OR ANY LOAN DOCUMENT OR OTHERWISE.
12. Ratification of Loan Documents. Except as amended hereby, the terms
and provisions of the Loan Documents remain unchanged and in full
force and effect, and are hereby ratified and affirmed. Except as
expressly provided herein, this Seventh Amendment shall not constitute
an amendment, waiver, consent or release with respect to any provision
of any Loan Document, a waiver of any default or Event of Default
thereunder, or a waiver or release of any of the Banks' rights and
remedies (all of which are hereby reserved). The Borrower and each of
the Guarantors expressly ratifies and confirms the confession of
judgment (if applicable) and waiver of jury trial provisions contained
in the Loan Documents as if set forth herein in their entirety as of
the date hereof.
[SIGNATURE PAGE FOLLOWS IMMEDIATELY]
WITNESS the due execution hereof as of the day and year first above written.
COMPUDYNE CORPORATION,
a Nevada corporation
By:
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Title: CFO-Treasurer
CORRLOGIC, INC.,
a Nevada corporation
By:
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Title: Vice President
FIBER SENSYS, INC.,
an Oregon corporation
By:
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Title: Vice President
NEW TIBURON, INC.,
a Virginia corporation
By:
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Title: Vice President
XXXXXXX SECURITY GROUP, INC.,
a Delaware corporation
By:
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Title: Vice President
NORSHIELD CORPORATION,
an Alabama corporation
By:
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Title: Vice President
QUANTA SYSTEMS CORPORATION,
a Connecticut corporation
By:
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Title:
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SYSCO SECURITY SYSTEMS, INC., now by name change SECURETRAVEL, INC.
a Nevada corporation
By:
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Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Agent
By:
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Title: Vice President
SUNBANK
By:
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Title: Regional President
EXHIBIT A - 1
AMENDMENTS TO CREDIT AGREEMENT
EXHIBIT A
The Credit Agreement is hereby amended as follows:
I. Background to Amendment
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The Borrower, the Guarantors, the Banks and the Agent desire
to amend the Credit Agreement to extend the Expiration Date for the Line of
Credit and the maturity date for the Term Loan.
II. Credit Agreement Amendments
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(A) The definition of "Expiration Date" appearing in Section 1.1 is
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deleted and restated in its entirety as follows:
"Expiration Date shall mean, with respect to the Revolving Credit
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Commitments, February 16, 2005."
(B) Section 3.3 is deleted and restated in its entirety as follows:
"3.3 Term Loan Notes.
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The Obligation of the Borrower to repay the unpaid principal
amount of the Term Loans made to it by each Bank, together with
interest thereon, shall be evidenced by a Term Note dated the Closing
Date payable to the order of each Bank in a face amount equal to the
Term Loan Commitment of such Bank. The principal amount as provided
therein of the Term Notes shall be payable in equal consecutive
quarterly installments of principal equal to $416,666.67, plus accrued
interest thereon. All outstanding principal and accrued interest shall
be due and payable, and the Term Loans shall mature, on February 16,
2005."
STATE OF ----------------------------- )
) SS:
COUNTY OF )
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On this, the day of December, 2003, before me, a Notary Public,
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the undersigned officer, personally appeared ,
---------------------------------
who acknowledged himself/herself to be the of
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COMPUDYNE CORPORATION and that he/she, as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing on behalf of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
STATE OF ----------------------------- )
) SS:
COUNTY OF )
----------------------------------
On this, the day of December, 2003, before me, a Notary Public,
-----
the undersigned officer, personally appeared ,
--------------------------------
who acknowledged himself/herself to be the of
-------------------------------
CORRLOGIC, INC. and that he/she, as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
on behalf of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
STATE OF ----------------------------- )
) SS:
COUNTY OF )
----------------------------------
On this, the day of December, 2003, before me, a Notary Public,
-----
the undersigned officer, personally appeared ,
--------------------------------
who acknowledged himself/herself to be the of
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FIBER SENSYS, INC. and that he/she, as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
on behalf of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
STATE OF ----------------------------- )
) SS:
COUNTY OF )
----------------------------------
On this, the day of December, 2003, before me, a Notary Public,
-----
the undersigned officer, personally appeared ,
--------------------------------
who acknowledged himself/herself to be the of
-------------------------------
NEW TIBURON, INC. and that he/she, as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
on behalf of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
STATE OF ----------------------------- )
) SS:
COUNTY OF )
----------------------------------
On this, the day of December, 2003, before me, a Notary Public,
-----
the undersigned officer, personally appeared ,
--------------------------------
who acknowledged himself/herself to be the of
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XXXXXXX SECURITY GROUP, INC. and that he/she, as such officer, being authorized
to do so, executed the foregoing instrument for the purposes therein contained
by signing on behalf of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
STATE OF ----------------------------- )
) SS:
COUNTY OF )
----------------------------------
On this, the day of December, 2003, before me, a Notary Public,
-----
the undersigned officer, personally appeared ,
--------------------------------
who acknowledged himself/herself to be the of
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NORSHIELD CORPORATION and that he/she, as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing on behalf of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
STATE OF ----------------------------- )
) SS:
COUNTY OF )
----------------------------------
On this, the day of December, 2003, before me, a Notary Public,
-----
the undersigned officer, personally appeared ,
--------------------------------
who acknowledged himself/herself to be the of
-------------------------------
QUANTA SYSTEMS CORPORATION and that he/she, as such officer, being authorized to
do so, executed the foregoing instrument for the purposes therein contained by
signing on behalf of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
STATE OF ----------------------------- )
) SS:
COUNTY OF )
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On this, the day of December, 2003, before me, a Notary Public,
-----
the undersigned officer, personally appeared ,
--------------------------------
who acknowledged himself/herself to be the of
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SECURETRAVEL, INC., formerly, SYSCO SECURITY SYSTEMS, INC. and that he/she, as
such officer, being authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing on behalf of the corporation as such
officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF )
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On this, the day of December, 2003, before me, a Notary Public,
-----
the undersigned officer, personally appeared Xxxxxx X. Xxxxxxxx, who
acknowledged himself to be the Vice President of PNC BANK, NATIONAL ASSOCIATION
and that he, as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing on behalf of the
corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
STATE OF ----------------------------- )
) SS:
COUNTY OF )
----------------------------------
On this, the day of December, 2003, before me, a Notary Public,
-----
the undersigned officer, personally appeared ,
--------------------------------
who acknowledged himself/herself to be the of
-------------------------------
SUNBANK and that he/she, as such officer, being authorized
to do so, executed the foregoing instrument for the purposes therein contained
by signing on behalf of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
