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Exhibit
10.1
FIRST AMENDMENT
TO
AMENDED AND RESTATED
FINANCING AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO
AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT (this
“Agreement”) is made as of July 3, 2008 by and
among TVI CORPORATION, a Maryland corporation (“TVI”),
CAPA MANUFACTURING CORP., a Maryland corporation
(“Capa”), SAFETY TECH INTERNATIONAL, INC., a Maryland
corporation (“Safety Tech”), and SIGNATURE SPECIAL
EVENT SERVICES, INC., a Maryland corporation (formerly named
“TVI Holdings One, Inc.”) (“Signature
TVI”), jointly and severally (each of TVI, Capa, Safety Tech,
and Signature TVI, a “Borrower”; TVI, Capa, Safety
Tech, and Signature TVI, collectively, the
“Borrowers”); and BRANCH BANKING AND TRUST COMPANY, a
North Carolina banking corporation (the
“Lender”).
RECITALS
A. The Borrowers and the
Lender entered into an Amended and Restated Financing and Security
Agreement dated February 22, 2008 (as amended, restated,
modified, substituted, extended, and renewed from time to time, the
“Financing Agreement”). The Financing Agreement
provides for some of the agreements between the Borrowers and the
Lender with respect to the “Loans” (as defined in the
Financing Agreement), including (i) a revolving credit
facility in the maximum principal amount of $7,000,000 and
(ii) a term loan in the amount of $22,500,000.
B. The Borrowers have
requested that the Lender increase the amount of the Revolving
Credit Committed Amount.
C. The Lender is willing to
agree to the Borrowers’ request on the condition, among
others, that this Agreement be executed.
AGREEMENTS
NOW, THEREFORE, in
consideration of the premises and for other good and valuable
consideration, receipt of which is hereby acknowledged, the
Borrowers, jointly and severally, and the Lender agree as
follows:
1. The Borrowers and the
Lender agree that the Recitals above are a part of this Agreement.
Unless otherwise expressly defined in this Agreement, terms defined
in the Financing Agreement shall have the same meaning under this
Agreement.
2. Each Borrower represents
and warrants to the Lender as follows:
(a) Each Borrower (a) is
a corporation duly organized, existing and in good standing under
the laws of the jurisdiction of its incorporation stated in the
Perfection Certificate and is organized in no other jurisdiction,
(b) has the corporate power to own its property and to carry
on its business as now being conducted, and (c) is duly
qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned by it
therein or in which the transaction of its business makes such
qualification necessary.
(b) Each Borrower has the
power and authority to execute and deliver this Agreement and
perform its obligations hereunder and has taken all necessary and
appropriate corporate action to authorize the execution, delivery
and performance of this Agreement.
(c) The Financing Agreement,
as amended by this Agreement, and each of the other Financing
Documents remain in full force and effect, and each constitutes the
valid and legally binding obligation of the Borrower, enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties,
and general principles of equity regardless of whether applied in a
proceeding in equity or at law.
(d) No Event of Default and
no event which, with notice, lapse of time or both would constitute
an Event of Default, has occurred and is continuing under the
Financing Agreement or the other Financing Documents which has not
been waived in writing by the Lender or which is not waived under
the terms of this Agreement.
(e) The execution, delivery
and performance of the terms of this Agreement will not conflict
with, violate or be prevented by (i) the Borrower’s
charter or bylaws, (ii) any existing mortgage, indenture,
contract or agreement binding on the Borrower or affecting its
property, or (iii) any Laws.
3. The definition of
“Revolving Credit Committed Amount” in Section 1.1
of the Financing Agreement is hereby amended in its entirety to
read as follows:
“Revolving Credit
Committed Amount” means Eleven Million Dollars
($11,000,000).
4. At the time this Agreement
is executed and delivered, (a) the Borrowers shall deliver to
the Lender incumbency certificates with respect to the
Borrowers’ Responsible Officers; (b) the Borrowers shall
deliver to the Lender a Second Amended and Restated Revolving
Credit Note dated of even date herewith from the Borrowers as
makers to the Lender ; (c) the Borrowers shall pay to the
Lender as part of the Obligations the fees of Lender’s
counsel in the amount of $1,500; and (d) the Borrowers shall
pay the Lender an amendment fee in the amount of $25,000, which fee
is fully earned and non-refundable. The Borrowers hereby agree
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