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EXHIBIT 10.9
THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made this 8th day of July, 1996, by and among FIRST UNION COMMERCIAL
CORPORATION ("Lender"), a North Carolina corporation; and XXXXXXXXXXX SECURITY,
INC. ("Xxxxxxxxxxx Security"), XXXXXXXXXXX, INC. ("Xxxxxxxxxxx
Transportation") (Xxxxxxxxxxx Security and Xxxxxxxxxxx Transportation,
collectively, "U.S. Borrowers"), ADI U.K. LIMITED ("ADI U.K."), AVIATION
DEFENCE INTERNATIONAL GERMANY LIMITED ("ADI Germany") (ADI U.K. and ADI
Germany, collectively, "European Borrowers") (U.S. Borrowers and European
Borrowers, collectively, "Obligated Borrowers"), XXXXXXXXXXX HOLDINGS LIMITED
("U.S. Holdings Guarantor"), ADI GROUP LIMITED ("European Guarantor") (U.S.
Holdings Guarantor and European Guarantor, collectively, "Corporate
Guarantors"), each a corporation with its chief executive office and principal
place of business at the address specified in the Loan and Security Agreement
referred to below, and INTERSEC, INC. ("Intersec"), a District of Columbia
corporation.
WHEREAS, Obligated Borrowers, Corporate Guarantors and Lender have
entered into that certain Loan and Security Agreement, dated as of December 22,
1995 (as amended, the "Loan Agreement"), pursuant to which Lender has extended
to Obligated Borrowers certain credit facilities in the maximum aggregate
amount of up to twenty-six million five hundred thousand dollars ($26,500,000);
and
WHEREAS, as security for the obligations owing to Lender under the
Loan Agreement, U.S. Borrowers and U.S. Holdings Guarantor have granted a
first-priority security interest to Lender in the U.S. Collateral (as defined
in the Loan Agreement); and
WHEREAS, the obligations of U.S. Borrowers and U.S. Holdings Guarantor
to Lender are guaranteed by Xxxxx X. Xxxxxxxxxxx, Xx. ("Individual Guarantor")
pursuant to a Guaranty, dated as of December 22, 1995 (the "Individual
Guaranty") by Individual Guarantor in favor of Lender; and
WHEREAS, as security for the obligations of Individual Guarantor to
Lender under the Individual Guaranty, Individual Guarantor has granted a
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security interest to Lender in all of the issued and outstanding capital stock
of U.S. Holdings Guarantor (the "Individual Guarantor Collateral"); and
WHEREAS, Xxxxxxxxxxx Security has acquired or will acquire all of the
issued and outstanding capital stock of Intersec pursuant to a Stock Purchase
Agreement, dated as of June 13, 1996 (the "Intersec Purchase Agreement"), among
Xxxxxxxxxxx Security, Xxxxxxxx Xxxxxxxxxx and Xxxx Xxxxxxx (Xxxxxxxx Xxxxxxxxxx
and Xxxx Xxxxxxx, collectively, "Sellers"); and
WHEREAS, to finance in part the acquisition of Intersec, U.S. Holdings
Guarantor will incur subordinated indebtedness to Sirrom Capital Corporation
("Sirrom") in the aggregate principal amount not to exceed $3,500,000 pursuant
to a Loan Agreement between Sirrom and U.S. Holdings Guarantor (the "Sirrom
Loan Agreement"); and
WHEREAS, as security for the obligations of U.S. Holdings Guarantor to
Sirrom, U.S. Borrowers, U.S. Holdings Guarantor and Individual Guarantor will
grant a second-priority security interest to Sirrom in certain of the U.S.
Collateral and the Individual Guarantor Collateral; and
WHEREAS, to finance in part the acquisition of Intersec, Xxxxxxxxxxx
Security will execute and deliver to Sellers certain Promissory Notes (the
"Sellers Notes") identified on Schedule 1 to Exhibit N of the Intersec Purchase
Agreement, in the aggregate principal amount of $1,155,000; and
WHEREAS, as security for the obligations of Individual Guarantor and
Xxxxxxxxxxx Security to Sellers, Individual Guarantor will grant a
third-priority security interest to Sellers in the Individual Guarantor
Collateral pursuant to a Stock Pledge Agreement among Individual Guarantor and
Sellers; and
WHEREAS, Obligated Borrowers and Corporate Guarantors have requested
the consent of Lender to the execution of the Sirrom Loan Agreement, the
borrowings thereunder and the second-priority security interest in favor of
Sirrom, and to the execution of the Sellers Notes and the third-priority
security interest in favor of Sellers; and
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WHEREAS, the parties wish to amend the Loan Agreement to add Intersec
as an Obligated Borrower thereunder on the terms set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein are to
have the meanings assigned to such terms in the Loan Agreement.
SECTION 2. AMENDMENTS.
Effective on the Amendment Effective Date, the Loan Agreement is
amended in accordance with this Amendment. Except as specifically amended by
this Amendment, all of the original terms and provisions of the Loan Agreement
shall continue in full force and effect.
Section 2.1 Effective on the Amendment Effective Date, all
references to the Loan Agreement in that document or in any other Loan Document
shall mean the Loan Agreement, as heretofore amended and as amended hereby.
Except as expressly provided herein, the execution and delivery of this
Amendment does not and will not amend, modify or supplement any provision of,
or constitute a consent to or a waiver of any noncompliance with the provisions
of, the Loan Agreement, and, except as specifically provided in this Amendment,
the Loan Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
Section 2.2 Effective on the Amendment Effective Date, Intersec
shall become a party to and bound by the Loan Agreement as an Obligated
Borrower. All references in the Loan Agreement and in the other Loan Documents
to "U.S. Borrowers" shall be deemed to include Xxxxxxxxxxx Security,
Xxxxxxxxxxx Transportation, and Intersec, and all references in the Loan
Agreement and in the other Loan Documents to "Obligated Borrowers" shall be
deemed to include each of ADI U.K., ADI Germany, Xxxxxxxxxxx Security,
Xxxxxxxxxxx Transportation and Intersec.
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Section 2.3 The Loan Agreement is hereby amended to add the
following definitions to Section 1.1 thereof:
"Intercreditor Agreement - that certain Intercreditor
Agreement, dated as of July 8, 1996, among Lender, Sirrom and
Sellers."
"Intersec - Intersec, Inc., a District of Columbia
corporation."
"Intersec Purchase Agreement - that certain Stock
Purchase Agreement, among Xxxxxxxxxxx Security and Sellers."
"Put Note - the promissory note to be issued by U.S.
Holdings Guarantor to Sirrom pursuant to Section 9(b) of the
Sirrom Warrant upon the exercise of certain rights granted to
Sirrom under Section 9 of the Sirrom Warrant."
"Sellers - Xxxxxxxx Xxxxxxxxxx and Xxxx X. English."
"Sellers Notes - the promissory notes of Xxxxxxxxxxx
Security to Sellers in the aggregate principal amount of
$1,155,000, made pursuant to the Intersec Purchase Agreement."
"Sirrom - Sirrom Capital Corporation, a Tennessee
corporation."
"Sirrom Indebtedness - the indebtedness of U.S.
Holdings Guarantor to Sirrom under the Sirrom Loan Agreement."
"Sirrom Loan Agreement - that certain Loan Agreement,
dated as of July 9, 1996, between U.S. Holdings Guarantor and
Sirrom."
"Sirrom Warrant - that certain Stock Purchase Warrant
dated July 9, 1996, by U.S. Holdings Guarantor in favor of
Sirrom."
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Section 2.4 The Loan Agreement is hereby amended to
delete in its entirety the definition of "Adjusted Tangible Net Worth"
contained in Section 1.1 thereof and to substitute therefor the
following definition, reading as follows:
"Adjusted Tangible Net Worth - at any date, a sum
equal to: (i) the amount of the Adjusted Tangible Assets of
such Person plus the amount described in Item 13 of the
Financial and Contingency Schedule, less (ii) the amount of
such Person's liabilities (other than capital stock and
surplus) as shown on a balance sheet at such date, and
including as liabilities all reserves shown on the balance
sheet for contingencies and other potential liabilities, plus
(iii) the amount of such Person's liabilities that represent
Subordinated Debt on such date, including, without limitation,
but with respect only to U.S. Holdings Guarantor, the
aggregate outstanding principal amount of the Sirrom
Indebtedness at such date."
Section 2.5 The Loan Agreement is hereby amended to delete in its
entirety the final sentence of the definition of the definition of "Eligible
U.S. Account" contained in Section 1.1 thereof and to substitute therefor the
following sentence, reading as follows:
"Notwithstanding anything herein to the contrary, without
limiting the discretion of Lender to apply its sole credit
judgment in determining Eligible U.S. Accounts, Accounts of
Intersec shall not be considered Eligible U.S. Accounts (i) if
they have been billed prior to the effective time of the
closing of the purchase of Intersec pursuant to the Intersec
Purchase Agreement, (ii) if they are Accounts for services
rendered prior to the effective time of such closing but not
yet billed or (iii) if Lender in its sole and absolute
discretion shall have determined that such Accounts are not
billed pursuant to practices and terms that are in accordance
with the then-current practices, as approved by Lender, of
Xxxxxxxxxxx Security."
Section 2.6 The Loan Agreement is hereby amended to add as a new
second sentence of Section 1.2 thereof, regarding Accounting Terms, the
following sentence, reading as follows:
"Notwithstanding the foregoing, no accounting term,
definition, or financial covenant contained in this Agreement
shall incorporate or reflect non-cash accruals, charges or
other items associated with the
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required by GAAP to be recorded with respect to the financial statements of
such Person."
Section 2.7 The Loan Agreement is hereby amended to add as a new
subsection (W) of Section 5.1 thereof the following subsection (W), reading as
follows:
"(W) U.S. Holdings Guarantor owns no assets,
including without limitation, Accounts, rights under contracts
and operating assets, other than (i) capital stock of its
Subsidiaries and (ii) assets used in the administration or
management of the business of U.S. Holdings Guarantor or its
affiliates."
Section 2.8 The Loan Agreement is hereby amended to delete in its
entirety subsection (C) of Section 6.2 thereof and to substitute therefor the
following subsection (C), reading as follows:
"(C) Except as set forth on the Financial and
Contingency Schedule, create, incur, assume, or suffer to
exist, or permit any Subsidiary to create, incur, assume or
suffer to exist, any Indebtedness, except Permitted
Indebtedness, or guarantee, assume, endorse or otherwise, in
any way, become directly or contingently liable, or permit any
Subsidiary to guarantee, assume, endorse or otherwise, in any
way, become directly or contingently liable, with respect to
the Indebtedness of any Person except by endorsement of
instruments or items of payment for deposit or collection;
provided, however, but subject in all respects to the terms
and limitations contained in the Intercreditor Agreement, U.S.
Holdings Guarantor may issue the Put Note if and when required
by Section 9 of the Sirrom Warrant and permitted under the
Intercreditor Agreement."
Section 2.9 The Loan Agreement is hereby amended to delete in its
entirety subsection (D) of Section 6.2 thereof and to substitute therefor the
following subsection (D), reading as follows:
"(D) Enter into, or be a party to, or permit any
Subsidiary to enter into or be a party to, any transaction
with any affiliate or
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stockholder, except (i) transactions with Affiliates or stockholders
entered into in the ordinary course of and pursuant to the reasonable
requirements of each Obligated Borrower, Corporate Guarantor or such
Subsidiary's business and upon fair and reasonable terms which are
fully disclosed to Lender and are no less favorable to such Obligated
Borrower or Corporate Guarantor than would obtain in a comparable
arm's length transaction with a Person not an Affiliate or stockholder
of such Obligated Borrower, Corporate Guarantor or Subsidiary, (ii)
loans and advances to Individual Guarantor in an aggregate principal
amount outstanding at any time not to exceed four hundred fifty
thousand dollars ($450,000), and (iii) the promissory note of U.S.
Holdings Guarantor to Individual Guarantor in the maximum principal
amount of six hundred fifty thousand dollars ($650,000), which note
from time to time pursuant to the agreement of Individual Guarantor or
any of its Affiliates and U.S. Guarantor may be subject to offset
with respect to the payment obligations of Individual Guarantor to
repay U.S. Holdings Guarantor or any of its Consolidated Subsidiaries
for advances and loans to Individual Guarantor pursuant to clause (ii)
above."
Section 2.10 The Loan Agreement is hereby amended to add as a new
subsection (W) of Section 6.2 thereof the following subsection (W), reading as
follows:
"(W) Permit or cause U.S. Holdings Guarantor to acquire, and
U.S. Holdings Guarantor is not to acquire, any assets, including
without limitation, any Accounts, rights under contracts or operating
assets, other than the (i) capital stock of its Subsidiaries and (ii)
assets used in the administration or management of the business of
U.S. Holdings Guarantor or its affiliates."
Section 2.11 The Loan Agreement is hereby amended to delete in its
entirety subsection (A) of Section 6.3 thereof and to substitute therefor the
following subsection (A), reading as follows:
"(A) U.S. Holdings Guarantor (on a consolidated basis) to
maintain at all times during the fiscal year ending December 31, 1996
of not less than $2,850,000 and, during each fiscal year thereafter,
of not less than the sum of (i) $2,850,000 plus (ii) the greater of (a)
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$1,000,000 or (b) seventy-five percent (75%) of the preceding fiscal
year's net income after tax (computed in accordance with GAAP) plus
(iii) the aggregate of the amounts added pursuant to clause (ii) above
for all previous fiscal years occurring after the fiscal year ending
December 31, 1996."
Section 2.12 The Loan Agreement is hereby amended to add as a new
subsection (O) of Section 8.1 thereof, regarding Events of Default, the
following subsection (O), reading as follows:
"(O) An "Event of Default" (as defined in the
Sellers Notes) occurs under the Sellers Notes or an "Event of
Default" (as defined in the Sirrom Loan Agreement) occurs
under the Sirrom Loan Agreement, whether or not the occurrence
of such event results in the acceleration of the indebtedness
of any U.S. Borrower or U.S. Holdings Guarantor thereunder."
Section 2.13 The Loan Agreement is hereby amended to include the
amendments to the Schedules thereto set forth in the Amendment to Schedules
attached hereto.
SECTION 3. GRANT OF SECURITY INTEREST.
To secure the prompt payment and performance to Lender of the U.S.
Obligations, Intersec hereby grants to Lender a continuing security interest
in, security title to and Lien upon all the U.S. Collateral. Each of
Xxxxxxxxxxx Security, Xxxxxxxxxxx Transportation and U.S. Holdings Guarantor
hereby confirms its continuing grant to Lender under the Loan Agreement of
security interests in the U.S. Collateral as security for the U.S. Obligations.
SECTION 4. CONSENT.
Effective as of the Amendment Effective Date, and only after the
strict satisfaction of the conditions set forth in Section 6, Lender hereby
consents to (i) the
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acquisition by Xxxxxxxxxxx Security of all of the issued and outstanding stock
of Intersec pursuant to and on the terms set forth in the Intersec Purchase
Agreement, (ii) the execution and delivery of the Sellers Notes and the grant
to Sellers of a third-priority security interest in the Individual Guarantor
Collateral pursuant to the Intersec Purchase Documents (as defined in Section
6.4 below), and (iii) the indebtedness of U.S. Holdings Guarantor to Sirrom,
the grant to Sirrom of a second-priority security interest in the Individual
Guarantor Collateral and certain of the U.S. Collateral, and the issuance by
U.S. Holdings Guarantor of the Sirrom Warrant and capital stock upon exercise
of the Sirrom Warrant, in each case pursuant to and on the terms set forth in
the Sirrom Documents (as defined in Section 6.4 below).
SECTION 5. REPRESENTATIONS AND WARRANTIES.
Intersec, each Obligated Borrower, and each Corporate Guarantor
hereby jointly and severally represent and warrant to Lender as follows:
5.1 Due Formation, etc. Intersec is a corporation duly organized,
validly existed and in good standing under the laws of the District of Columbia
and has the power and authority to incur the U.S. Obligations.
5.2 Authorization of Amendment, Etc. Intersec, each Obligated
Borrower and each Corporate Guarantor has the right and power and is duly
authorized and empowered to enter into, execute, deliver and perform this
Amendment in accordance with its terms. This Amendment has been duly executed
and delivered by Intersec, each Obligated Borrower and each Corporate Guarantor
and is a legal, valid and binding obligation of Intersec, each Obligated
Borrower and each Corporate Guarantor, enforceable against Intersec, each
Obligated Borrower and each Corporate Guarantor in accordance with its terms.
5.3 Compliance of Amendment with Laws, Etc. The execution,
delivery and performance of this Amendment in accordance with its terms do not
and will not, by the passage of time, the giving of notice or otherwise,
5.3.1 require any governmental approval or violate any
applicable law relating to Intersec, any Obligated
Borrower or any Corporate Guarantor,
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5.3.2 conflict with, result in a breach of or
constitute a default under the articles or
certificate of incorporation or bylaws of Intersec,
any Obligated Borrower or any Corporate Guarantor, any
material provisions of any indenture, agreement or
other instrument to which Intersec, any Obligated
Borrower or any Corporate Guarantor is a party or by
which Intersec, any Obligated Borrower or any
Corporate Guarantor or any of its properties may be
bound or any governmental approval relating to
Intersec, any Obligated Borrower or any Corporate
Guarantor, or
5.3.3 subject to Section 4 hereof, result in or require the
creation or imposition of any Lien upon or with
respect to any property now owned or hereafter
acquired by any Obligated Borrower or any Corporate
Guarantor other than in favor of Lender.
Section 5.4 Solvency. Intersec is Solvent.
Section 5.5 Representations in the Loan Agreement. Each
Obligated Borrower and each Corporate Guarantor hereby jointly and severally
represent and warrant to Lender that after giving effect to Xxxxxxxxxxx
Security's acquisition of Intersec (i) no Default or Event of Default is in
existence and (ii) all of the representations and warranties of Obligated
Borrowers and Corporate Guarantors contained in this Amendment, the Loan
Agreement and the other Loan Documents are true in all material respects;
provided that, from and after the Amendment Effective Date, all representations
and warranties made or deemed made by an Obligated Borrower or Corporate
Guarantor shall be deemed supplemented to include the transactions consummated
pursuant to the Sirrom Documents and the Intersec Purchase Agreement, including
without limitation the transactions referred to in Section 4 hereof.
SECTION 6. CONDITIONS TO EFFECTIVENESS.
The amendments to the Loan Agreement set forth in Section 2 of this
Amendment are to become effective only as of the first date (the "Amendment
Effective Date") on which this Amendment has been executed by Intersec,
Corporate Guarantors and Obligated Borrowers and all of the conditions to
effectiveness of this Amendment set forth in Sections 6.1 to 6.5 of this
Amendment have been satisfied.
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Section 6.1 Execution. Lender shall have received (i) two
original counterparts of this Amendment, duly executed by Corporate Guarantors,
Obligated Borrowers and Intersec, and (ii) two original consents to this
Amendment, duly executed by Xxxxx X. Xxxxxxxxxxx, Xx.
Section 6.2 Sirrom Transaction. The Sirrom Loan Agreement, and
the borrowings thereunder, shall have been consummated on terms and pursuant to
documentation satisfactory to Lender in its discretion.
Section 6.3 Term Loan. U.S. Borrowers shall prepay the Term Loan
to Lender in the amount of five hundred thousand dollars ($500,000), which
amount shall be in addition to the Scheduled Installments of the Term Loan
which U.S. Borrowers are obligated to repay pursuant to Section 3.3 of the
Loan Agreement. Such prepayment, which is a voluntary prepayment made pursuant
to Section 3.3, shall be applied towards satisfaction of the Scheduled
Installments at the Termination Date and the other dates for payments that are
closest to the Termination Date, being applied first to the Termination Date
and then to the latest payments due under the Term Loan in reverse order of
maturity. Notwithstanding anything to the contrary set forth in the Loan
Agreement, with respect to the $500,000 prepayment of the Term Loan pursuant to
this Section 6.3, U.S. Borrowers shall not be obligated to pay the costs and
charges that otherwise would be due under the Loan Agreement in connection with
voluntary prepayment of the Term Loan, including costs and charges imposed
under Section 4.1(I) of the Loan Agreement relating to LIBOR Rate Loans.
Section 6.4 Closing Documents. Lender shall have received each
of the following, in number, form, scope and substance satisfactory to Lender
and its counsel:
6.4.1 An intercreditor agreement in form and substance satisfactory
to Lender with respect to (i) the subordination of the Sellers
Notes and the indebtedness of U.S. Holdings Guarantor under
the Sirrom Loan Agreement to the Obligations of Obligated
Borrowers and Corporate Guarantors to Lender, and (ii) the
relative priorities of the security interests of Lender,
Sirrom and Sellers in the U.S. Collateral and the Individual
Guarantor Collateral;
6.4.2 A stock pledge agreement duly executed by Xxxxxxxxxxx
Security, pursuant to which Xxxxxxxxxxx Security pledges to
Lender all of the
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capital stock of Intersec, together with the original stock
certificates for such stock and related stock transfer powers
and proxy;
6.4.3 A collateral assignment in favor of Lender of all of
Xxxxxxxxxxx Security's right, title and interest in, and
rights to indemnification under, the Intersec Purchase
Agreement;
6.4.4 Financing statements under the Code, duly executed by
Intersec, and in appropriate form for filing in all
jurisdictions necessary to perfect Lender's security interest
in the U.S. Collateral granted pursuant to Section 3 above (to
the extent that such security interest may be perfected by
filing);
6.4.5 An original promissory note, duly executed by Intersec in
favor of Lender evidencing Intersec's obligations under the
Loan Agreement, as amended hereby;
6.4.6 An opinion of counsel to Obligated Borrowers, Corporate
Guarantors and Intersec, in form and substance satisfactory to
Lender and its counsel, as to such matters as Lender shall
reasonably request;
6.4.7 A secretarial and incumbency certificate of Intersec, with
copies of the corresponding corporate resolutions attached
thereto;
6.4.8 The officer's certificate described in Section 6.5 below;
6.4.9 Good standing certificates of Intersec from its jurisdiction
of incorporation and each jurisdiction in which it is
qualified to transact business as a foreign corporation;
6.4.10 Certified copies of the Intersec Purchase Agreement and each
of the other agreements, documents, instruments and
certificates executed or delivered in connection therewith
(collectively, the "Intersec Purchase Documents");
6.4.11 Certified copies of the Sirrom Loan Agreement and each of the
other agreements, documents, instruments and certificates
executed or delivered in connection therewith (collectively,
the "Sirrom Documents");
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6.4.12 A certificate to the effect that as of the Amendment Effective
Date and after giving effect to the transactions contemplated
hereby, Intersec, each Obligated Borrower and each Corporate
Guarantor is Solvent, together with such supporting evidence
as Lender shall reasonably request;
6.4.13 Evidence of the termination and release of all Liens on the
assets of Intersec other than Permitted Liens;
6.4.14 Such other documents, instruments, agreements and certificates
as Lender shall reasonably request.
Section 6.5 Compliance with Warranty; No Default, etc.
6.5.1 As of the Amendment Effective Date, after giving effect to
Xxxxxxxxxxx Security's acquisition of Intersec and borrowings
by U.S. Holdings Guarantor under the Sirrom Documents, the
representations and warranties set forth in Section 5 of the
Loan Agreement, and the representations and warranties set
forth in each of the other Loan Documents, are to be true and
correct in all material respects.
6.5.2 As of the Amendment Effective Date, after giving effect to
Xxxxxxxxxxx Security's acquisition of Intersec and borrowings
by U.S. Holdings Guarantor under the Sirrom Loan Agreement, no
Default or Event of Default shall have occurred and be
continuing.
6.5.3 Lender shall have received from an authorized officer of each
Obligated Borrower and Corporate Guarantor a certificate,
dated the Amendment Effective Date, certifying the matters set
forth in subsections 1 and 2 of this Section 6.5.
SECTION 7 MISCELLANEOUS
Section 7.1 Document Pursuant to Loan Agreement. This Amendment
is a Loan Document executed pursuant to the Loan Agreement and, unless
otherwise expressly indicated herein, is to be construed, administered and
applied in accordance with all of the terms and provisions of the Loan
Agreement. Except as otherwise expressly provided for herein, all
representations, warranties, terms, covenants and conditions of the Loan
Agreement are to remain unamended and unwaived.
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Section 7.2 Fees. As additional consideration for the Amendment,
Obligated Borrowers are to pay Lender, in addition to interest and other
amounts due Lender under the Loan Agreement, an amendment fee of thirty-seven
thousand five hundred dollars ($37,500), payable in full in advance on the
Amendment Effective Date. The amendment fee is to be fully earned by Lender at
the time of payment thereof and is not to be subject to rebate upon repayment
of the Obligations or the termination of the Loan Agreement.
Section 7.3 Expenses. Obligated Borrowers are to pay to Lender
its attorneys fees and expenses incurred in connection with the preparation of
this Amendment and the other documents, instruments and agreements executed or
delivered in connection herewith and the consummation of the transactions
contemplated hereby promptly upon receipt of billing therefor.
Section 7.4 Counterparts. This Amendment may be executed by each
party to this Amendment upon a separate copy, and in such case one counterpart
of this Amendment shall consist of enough of such copies to reflect the
signature of all of the parties to this Amendment. This Amendment may be
executed in two or more counterparts, each of which shall be deemed an
original, and it shall not be necessary in making proof of this Amendment or
its terms to produce or account for more than one of such counterparts.
Section 7.5 Governing Law. This Amendment shall be governed by,
and construed in accordance with, the internal laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers hereunder duly authorized as of the
day and year first written above.
XXXXXXXXXXX SECURITY, INC.
("OBLIGATED BORROWER")
By: /s/
----------------------------------
Title:
-------------------------------
XXXXXXXXXXX, INC.
("OBLIGATED BORROWER")
By: /s/
----------------------------------
Title:
-------------------------------
ADI U.K. LIMITED
("OBLIGATED BORROWER")
By: /s/
----------------------------------
Title:
-------------------------------
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AVIATION DEFENCE
INTERNATIONAL GERMANY LIMITED
("OBLIGATED BORROWER")
By: /s/
----------------------------------
Title:
-------------------------------
INTERSEC, INC.
("INTERSEC")
By: /s/
----------------------------------
Title:
-------------------------------
XXXXXXXXXXX HOLDINGS LIMITED
("U.S. HOLDINGS GUARANTOR")
By: /s/
----------------------------------
Title:
-------------------------------
THE ADI GROUP LIMITED
("EUROPEAN GUARANTOR")
By: /s/
----------------------------------
Title:
-------------------------------
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FIRST UNION COMMERCIAL
CORPORATION
("LENDER")
By: /s/
----------------------------------
Title:
-------------------------------
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CONSENT AND CONFIRMATION
The undersigned, a guarantor of the Obligations of Obligated
Borrowers to Lender, hereby consents to the terms and conditions of the THIRD
AMENDMENT TO LOAN AND SECURITY AGREEMENT by and among the Corporate Guarantors
and Obligated Borrowers party thereto and FIRST UNION COMMERCIAL CORPORATION,
and the undersigned hereby confirms and agrees that the Guaranty by the
undersigned in favor of Lender continues to be in full force and effect and is
hereby ratified and confirmed.
/s/ XXXXX X. XXXXXXXXXXX, XX.
-----------------------------
XXXXX X. XXXXXXXXXXX, XX.
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