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EXHIBIT 10.01-10
NINTH AMENDMENT dated as of March
1, 2000 (the "Ninth Amendment"), to the
Amended and Restated Credit Agreement dated
as of October 15, 1997, (as amended by the
First Amendment dated as of June 26, 1998,
the Second Amendment dated as of November
13, 1998, the Third Amendment dated as of
March 31, 1999, the Fourth Amendment dated
as of April 30, 1999, the Fifth Amendment
dated as of September 30, 1999, Sixth
Amendment dated as of November 15, 1999,
Seventh Amendment dated as of December 6,
1999, and Eighth Amendment dated as of
December 31, 1999 (the Amended and Restated
Credit Agreement as so amended being
referred to herein as the "Credit
Agreement"), among Firearms Training
Systems, Inc., as Parent (the "Parent"),
FATS, Inc., as Borrower (the "Borrower"),
the lenders listed on the signature pages
thereto (the "Lenders"), Bank of America,
N.A., as Agent, (in such capacity, the
"Agent"), Swingline Lender and Issuing
Bank.
The Borrower has advised the Agent that it does not have sufficient
funds to pay all of the interest on the Loans that is due and payable on
December 31, 1999, including without limitation, the Deferred Interest (as
defined in the Seventh Amendment) and interest which has become due since
December 6, 1999. The failure to pay all of such interest would constitute an
Event of Default under the Credit Agreement. The Borrower also has advised the
Agent that it has used its best efforts to comply with Article VII, subsection
(r) of the Credit Agreement (as extended by letter agreements dated January 27,
2000 and February 11, 2000), but has failed to comply therewith. The Parent and
the Borrower have requested that a portion of interest on the Loans on December
31, 1999 in the aggregate amount of $1,402,395.89 be further deferred and that
further relief from Article VII, subsection (r) of the Credit Agreement be
granted. The parties hereto have agreed, subject to the terms and conditions
hereof, to further amend the Credit Agreement as provided herein.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement (the Credit Agreement,
as amended by, and together with, this Ninth Amendment, and as hereinafter
amended, modified, extended or restated from time to time, being called the
"Amended Agreement").
Accordingly, the parties hereto hereby agree as follows:
SECTION 1.01. Amendment to Section 5.15. Section 5.15 of the Credit
Agreement shall be amended by changing the dates in subsections (b) and (c)
thereof from January 27, 2000 to
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March 31, 2000, by changing the date in subsection (d) thereof from January 31,
2000 to March 31, 2000 and by changing the date in subsection (e) thereof from
February 15, 2000 to May 1, 2000.
SECTION 1.02. Amendment to Article VII. Article VII of the Credit
Agreement is hereby amended by deleting sub-Article VII (s), inserting the
following in lieu thereof:
(s) the agreement described in Section 5.15 (e) above is not
consummated and the investment provided thereunder made on or before
June 1, 2000.
SECTION 1.03. Amendment to Section 1.04 of the Seventh Amendment.
Section 1.04 of the Seventh Amendment is hereby amended to read as follows in
its entirety:
SECTION 1.04. Deferred Payments. Notwithstanding anything contained
in the Amended Agreement or any of the other Loan Documents to the contrary, the
Deferred Interest Payments (hereinafter defined) shall be due and payable in
full on March 31, 2000. For purposes of this Section 1.04, "Deferred Interest
Payments" shall mean all interest and other amounts due on the Loans as listed
on Schedule A-8 attached hereto.
SECTION 1.04 Representations and Warranties. The Borrower hereby
represents and warrants to the Agents and the Lenders, as follows:
(a) The representations and warranties set forth in
Article III of the Amended Agreement, and in each other Loan Document,
including any Schedules thereto, are true and correct in all material
respects on and as of the date hereof and on and as of the Ninth
Amendment Effective Date (as defined below) with the same effect as if
made on and as of the date hereof or the Ninth Amendment Effective
Date, as the case may be, except to the extent such representations and
warranties expressly relate solely to an earlier date.
(b) Each of the Borrower and the other Loan Parties is in
compliance with all the terms and conditions of the Amended Agreement
and the other Loan Documents on its part to be observed or performed
including, without limitation, the obligation to pay all principal and
interest due on and prior to the date hereof and no Default or Event of
Default has occurred or is continuing under the Amended Agreement,
other than the Defaults or Events of Default described in Section 1.02
of the Sixth Amendment.
(c) The execution, delivery and performance by the
Borrower and the Parent of this Ninth Amendment have been duly
authorized by the Borrower.
(d) This Ninth Amendment constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent
conveyance, voidable preference or similar laws and the application of
equitable principles generally.
(e) The execution, delivery and performance by the
Borrower of this Ninth Amendment (i) does not conflict with or violate
(A) any provision of law, statute, rule or regulation, or of the
articles of incorporation or by-laws of the Borrower, (B) any order of
any Governmental Authority or (C) any provision of any indenture,
agreement or other
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instrument to which the Borrower is a party or by which it or any of
its property may be bound and (ii) does not require any consents under,
result in a breach of or constitute (alone or with notice or lapse of
time or both) a default or give rise to increased, additional,
accelerated or guaranteed rights of any person under any such
indenture, agreement or instrument.
SECTION 1.05. Effectiveness. This Ninth Amendment shall become
effective as of March 1, 2000 (the "Ninth Amendment Effective Date") upon
satisfaction of the following conditions precedent:
(a) The Agent shall have received duly executed
counterparts of this Ninth Amendment which, when taken together, bear
the authorized signatures of the Parent, the Borrower and all the
Lenders.
(b) The Lenders shall be satisfied that the
representations and warranties set forth in Section 1.04 hereof are
true and correct on and as of the Ninth Amendment Effective Date.
(c) There shall not be any action pending or any
judgment, order or decree in effect which, in the judgment of the
Lenders or their counsel, is likely to restrain, prevent or impose
materially adverse conditions upon performance by the Borrower or any
other Loan Party of its obligations under the Loan Documents.
(d) The Lenders shall have received such other documents,
legal opinions, instruments and certificates as they shall reasonably
request and such other documents, legal opinions, instruments and
certificates shall be satisfactory in form and substance to the Lenders
and their counsel. All corporate and other proceedings taken or to be
taken in connection with this Ninth Amendment and all documents
incidental thereto, whether or not referred to herein, shall be
satisfactory in form and substance to the Lenders and their counsel.
(e) The Agent shall have received payment of and all fees
and expenses set forth in Section 1.07.
SECTION 1.06. APPLICABLE LAW. THIS NINTH AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, EXCEPT TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA
MAY APPLY.
SECTION 1.07. Fees and Expenses. The Borrower shall pay all
reasonable out-of-pocket expenses incurred by the Agent and the Lenders in
connection with the preparation, negotiation, execution, delivery and
enforcement of this Ninth Amendment, including, but not limited to, the
reasonable fees and disbursements of counsel.
SECTION 1.08. Counterparts. This Ninth Amendment may be executed in
any number of counterparts, each of which shall constitute an original but all
of which when taken together shall constitute but one agreement. Delivery by
facsimile by any of the parties hereto of an executed counterpart of this Ninth
Amendment shall be as effective as an original executed counterpart
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hereof and shall be deemed a representation that an original executed
counterpart hereof will be delivered, but the failure to deliver a manually
executed counterpart shall not affect the validity, enforceability or binding
effect of this Ninth Amendment.
SECTION 1.09. Credit Agreement. Except as expressly set forth
herein, the amendments provided herein shall not by implication or otherwise
limit, constitute a waiver of, or otherwise affect the rights and remedies of
the Lenders, the Agent or the other Secured Parties under the Amended Agreement
or any other Loan Document, nor shall they constitute a waiver of any Default or
Event of Default, nor shall they alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in the
Amended Agreement or any other Loan Document. Each of the amendments provided
herein shall apply and be effective only with respect to the provisions of the
Amended Agreement specifically referred to by such amendment. Except as
expressly amended herein, the Amended Agreement shall continue in full force and
effect in accordance with the provisions thereof. As used in the Amended
Agreement, the terms "Agreement", "herein", "hereinafter", "hereunder", "hereto"
and words of similar import shall mean, from and after the date hereof, the
Amended Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Amendment
to be duly executed by their duly authorized officers, all as of the date first
above written.
FIREARMS TRAINING SYSTEMS, INC.
as Parent
By:
---------------------------------------
Name:
Title:
FATS, INC.
as Borrower
By:
---------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Agent, Swingline
Lender and Issuing Bank and individually as
a Lender
By:
---------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
Title:
FIRST SOURCE FINANCIAL LLP, by First Source
Financial, Inc., as Agent/Manager
By:
---------------------------------------
Name:
Title:
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BHF (USA) CAPITAL CORPORATION
By:
---------------------------------------
Name:
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC. (FKA
CREDITANSTALT CORPORATE
FINANCE, INC.)
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
AGREED and CONSENTED,
as of the date first above written:
DART INTERNATIONAL, INC.
By:
-----------------------------------
Name:
Title:
FIREARMS TRAINING SYSTEMS, INC.
By:
-----------------------------------
Name:
Title:
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SCHEDULE A-8
REVOLVER:
Base Rate Interest Due on 12/31/99 $240,505.36
TERM A:
Libor Interest Due on 12/1/99 $372,576.75
TERM B:
Libor Interest Due on 12/1/99 $789,313.78
