SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
ADT Limited
----------------
(Name of Issuer)
Common Shares, Par Value $.10 Per Share
---------------------------------------
(Title of Class and Securities)
000915306
-------------------------------------
(CUSIP Number of Class of Securities)
Richard L. Handley
Senior Vice President and General Counsel
Republic Industries, Inc.
450 East Las Olas Boulevard, Suite 1200
Fort Lauderdale, FL 33301
Telephone: (954) 713-5200
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copy to:
Richard L. Easton
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
March 21, 1997
-----------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Statement
because of Rule 13d-1(b)(3) or (4), check the following: ( )
Check the following box if a fee is being paid with this
Statement: ( )
SCHEDULE 13D
CUSIP No. 000915306
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Republic Industries, Inc. I.R.S. ID No. 73-1105145
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) (x)
(b) ( )
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
NA
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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(7) SOLE VOTING POWER
NUMBER OF 15,000,000 See Item 5(b).
SHARES -----------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH -----------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON
WITH 15,000,000
-----------------------------------
(10) SHARED DISPOSITIVE POWER
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,000,000
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(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
9.6%
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(14) TYPE OF REPORTING PERSON
CO
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SCHEDULE 13D
CUSIP No. 000915306
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Triangle Corporation I.R.S. ID No. Applied For
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) (x)
(b) ( )
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
BK
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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(7) SOLE VOTING POWER
NUMBER OF 15,000,000 See Item 5(b).
SHARES -----------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH -----------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON
WITH 15,000,000
-----------------------------------
(10) SHARED DISPOSITIVE POWER
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,000,000
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
-----------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
9.6%
-----------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
CO
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This Amendment No. 2 to the Statement on Schedule 13D dated July
11, 1996 filed by Republic Industries, Inc. ("Republic"), as heretofore
amended (the "Statement"), is filed on behalf of Republic and Triangle
Corporation, a Delaware corporation and a wholly owned subsidiary of
Republic ("Triangle"). Republic and Triangle are collectively referred to
herein as the "Reporting Persons". Capitalized terms used but not defined
herein have the meanings ascribed to them in the Statement.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is hereby amended to add the following:
(a)-(c), (f). The Statement is hereby amended to add Triangle as
a Reporting Person. Triangle is a newly formed wholly owned subsidiary of
Republic that was organized to exercise the Warrant and hold the Common
Shares issued upon exercise thereof. Triangle's principal business address
is 900 Market Street, Suite 200, Wilmington, Delaware 19801. The name,
business address, present principal occupation or employment and
citizenship of each of the directors and executive officers of Triangle are
set forth on Schedule II hereto.
Since the filing of the Statement, Republic has entered the
automotive rental and retailing businesses through its acquisitions of
Alamo Rent-a-Car, Inc., National Car Rental Systems, Inc., AutoNation
Incorporated, and several new car dealerships. Republic's principal
business address is now 450 East Las Olas Boulevard, Suite 1200, Fort
Lauderdale, Florida 33301.
Schedule I to the Statement is hereby amended and restated to
read in its entirety as set forth on Schedule I hereto.
(d)-(e) During the last five years neither Triangle nor to the
best of Republic's and Triangle's knowledge, any of the persons listed on
Schedule II hereto has been (i) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgement, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violations with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is hereby amended to add the following:
The aggregate purchase price of the 15,000,000 Common Shares
purchased by Triangle upon exercise of the Warrant and reported in Item 5
hereof was $300 million. All of such funds were borrowed by Triangle from
NationsBank, N.A. (South) (the "Bank") pursuant to a promissory note dated
March 20, 1997 (the "Note").
Borrowings evidenced by the Note are repayable upon the earlier
to occur of (i) the refinancing by Republic of the borrowings outstanding
under a credit agreement between Republic and the Bank and (ii) June 30,
1997. Borrowings evidenced by the Note bear interest at any one of three
defined rates specified in the Note and selected by Triangle. Pursuant to a
guaranty dated March 20, 1997 (the "Guaranty") issued by Republic in favor
of the Bank, Republic has guaranteed the payment of principal and interest
on, and the performance of all other obligations under, the Note by
Triangle. Copies of the Note and the Guaranty are attached hereto as
Exhibits D and E, respectively, and are incorporated herein by reference.
The Reporting Persons have made no decision as to how they intend
to repay or refinance the Note, and such decision will be made based on a
review from time to time of the advisability of particular transactions, as
well as on prevailing interest rates and financial and economic conditions.
ITEM 4. PURPOSE OF THE TRANSACTION
Item 4 is hereby amended to add the following:
The 15,000,000 Common Shares purchased by Triangle upon exercise
of the Warrant and reported in Item 5 hereof were acquired for investment.
The Reporting Persons believe that, based on current market prices for the
Common Shares, the exercise of the Warrant represented an attractive
investment opportunity.
The Reporting Persons may continue to hold their Common Shares
or, subject to the restrictions imposed by the federal securities laws, may
dispose of some or all of their Common Shares (in open market or privately
negotiated transactions). In this regard, Republic has requested that ADT
cause the Common Shares issued upon exercise of the Warrant to be
registered for resale under the federal securities laws.
The Reporting Persons intend to review on a regular basis their
investment in ADT and, in particular, developments with respect to ADT's
recently announced agreement to be acquired by Tyco International, Ltd. and
Western Resources Inc.'s currently pending exchange offer for all of the
outstanding Common Shares, as well as price levels of the Common Shares,
other business opportunities available to the Reporting Persons, stock
market and general economic conditions and such other factors and future
developments as the Reporting Persons may deem relevant from time to time.
Except as set forth in this Item 4, neither Republic, Triangle
nor, to the best of Republic's and Triangle's knowledge, any of the persons
listed on Schedules I and II hereto, has any plans or proposals which
relate to or which would result in any of the actions specified in clauses
(a) through (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended to add the following:
(a) Triangle is (and by virtue of its ownership of all of the
outstanding shares of capital stock of Triangle, Republic may be deemed to
be) the beneficial owner of 15,000,000 Common Shares, which shares
represent approximately 9.6 percent of the total number of Common Shares
reported by ADT to be outstanding as of February 28, 1997 (after giving
effect to the issuance of such Common Shares upon exercise of the Warrant).
Except as set forth in this Item 5(a), neither Republic, Triangle
nor, to the best of Republic and Triangle's knowledge, any of the persons
listed on Schedules I and II hereto, beneficially owns any Common Shares.
(b) Triangle has (and by virtue of its ownership of all of the
outstanding shares of capital stock of Triangle, Republic may be deemed to
have or to share) the sole power to vote or to direct to vote, and the sole
power to dispose of or to direct the disposition of, the 15,000,000 Common
Shares beneficially owned by Triangle. Under the terms of the Warrant,
Republic and Triangle are obligated to grant a proxy to the Chairman of ADT
to vote all such Common Shares with respect to any matter that shall be
voted on by the shareholders of ADT. Such proxy is for a term of two years,
but shall automatically be revoked with respect to any of such Common
Shares at such time as such shares are no longer held by Republic or any of
its affiliates or nominees.
(c) On March 20, 1997, Republic transferred the Warrant to
Triangle, and on March 21, 1997, Triangle exercised the Warrant.
Except as set forth in this Item 5(c), neither Republic, Triangle
nor, to the best of Republic's and Triangle's knowledge, any of the persons
listed on Schedules I and II hereto has effected any transaction in the
Common Shares during the past 60 days.
(d) No person other than Triangle (and, indirectly, Republic) has
the right to receive or the power to direct the receipt of dividends from,
or the profits from the sale of, the 15,000,000 Common Shares beneficially
owned by Triangle.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Item 7 is hereby amended to add the following:
Exhibit C -- Press release issued by Republic on Friday,
March 21, 1997
Exhibit D -- Promissory note dated March 20, 1997, issued by
Triangle in favor of NationsBank, N.A. (South)
Exhibit E -- Guaranty dated March 20, 1997, issued by Republic
in favor of NationsBank, N.A. (South)
SIGNATURE
After reasonable inquiry and to the best of their knowledge and
belief, the undersigned certify that the information set forth in this
Statement is true, complete and correct.
Dated: March 26, 1997
REPUBLIC INDUSTRIES, INC.
By: /s/ Richard L. Handley
-------------------------------
Richard L. Handley
Senior Vice President and
General Counsel
TRIANGLE CORPORATION
By: /s/ Richard L. Handley
-------------------------------
Richard L. Handley
Vice President
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
REPUBLIC INDUSTRIES, INC.
Set forth below is the name, current business address, and the
present principal occupation or employment of each director and executive
officer of Republic. Unless otherwise indicated each person identified
below is employed by Republic. The principal address of Republic and,
unless otherwise indicated below, the current business address for each
individual listed below is Republic Industries, Inc., 450 East Las Olas
Boulevard, Suite 1200, Fort Lauderdale, Florida 33301. Each such person is
a citizen of the United States, except for Michael G. DeGroote who is a
citizen of Bermuda.
Name and Address Present Principal Occupation or Employment
- ---------------- ------------------------------------------
H. Wayne Huizenga Chairman of the Board and Co-Chief
Executive Officer.
Steven R. Berrard President, Co-Chief Executive Officer
and a Director.
Harris W. Hudson Vice Chairman, Chairman of Solid
Waste and Security Services Division and a
Director.
J. P. Bryan Director. Mr. Bryan is President
Gulf Canada, Inc. and Chief Executive Officer of Gulf
401 9th Avenue, S.W. Canada, which is engaged in oil
Calgary, Alberta, Canada and gas exploration and production.
Rick L. Burdick Director. Mr. Burdick is the sole
Akin, Gump, Strauss, shareholder of a professional
Hauer & Feld, L.L.P. corporation which is a partner in the
711 Louisiana Street law firm of Akin, Gump, Strauss, Hauer
Suite 1900 & Feld, L.L.P., a limited liability
Houston, TX 77002 partnership including professional
corporations.
Michael G. DeGroote Director. Mr. DeGroote is a private
Victoria Hall investor in various businesses.
11 Victoria Street
Hamilton, Bermuda HMEX
George D. Johnson, Jr. Director. Mr. Johnson is President,
Extended Stay America Chief Executive Officer and a Director
Suite 950 of Extended Stay America.
500 East Broward Boulevard
Fort Lauderdale, FL 33374
John J. Melk Director. Mr. Melk is Chairman and
H20 Plus, Inc. Chief Executive Officer of H20 Plus
676 North Michigan Avenue Inc. a bath and skin care product
39th Floor manufacturer and retail distributor.
Chicago, IL 60611 Mr. Melk is a private investor in
various businesses.
J. Ronald Castell Senior Vice President (Marketing and
Communications).
Robert A. Guerin Senior Vice President and President
and CEO of Security Services Division.
Richard L. Handley Senior Vice President and CEO
Secretary and General Counsel.
Thomas W. Hawkins Senior Vice President (Corporate Devel-
opment).
Robert J. Henninger, Jr. Senior Vice President.
Michael S. Karsner Senior Vice President and Chief Finan-
cial Officer.
Michael R. Carpenter Vice President and Corporate
Controller
SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS OF
TRIANGLE CORPORATION
Set forth below is the name, current business address, and the
present principal occupation or employment of each director and executive
officer of Triangle. Unless otherwise indicated, the position listed for
each person identified below is with Triangle. Each such person is a
citizen of the United States.
Present Principal
Name and Address Occupation or Employment
- ---------------- ------------------------
Francis B. Jacobs, II President and Director.
Griffin Corporate Services, Inc. Mr. Jacobs is a Vice President of
900 Market Street Griffin Corporate Services, Inc.,
Wilmington, Delaware 19801 a corporate service organization
("Griffin").
Joan L. Dobrzynski Secretary and a Director.
Griffin Corporate Services, Inc. Ms. Dobrzynski is a Commercial
900 Market Street Domicile Officer of Griffin.
Wilmington, Delaware 19801
Victoria L. Garrett Treasurer and a Director.
Griffin Corporate Services, Inc. Ms. Garrett is a Commercial
900 Market Street Domicile Officer of Griffin.
Wilmington, Delaware 19801
Richard L. Handley Vice President. See Schedule I.
Dana E. Sullenberger Vice President. Ms. Sullenberger
Republic Industries, Inc. is a Vice President and Controller
70 Mansell Court, Suite 200 Operations of Republic.
Roswell, Georgia 30076
EXHIBIT INDEX
Exhibit Description
- ------- -----------
C Press release issued by Republic on Friday,
March 21, 1997
D Promissory note dated March 20, 1997, issued by
Triangle in favor of NationsBank, N.A. (South)
E Guaranty dated March 20, 1997, issued by
Republic in favor of NationsBank, N.A. (South)
EXHIBIT C
FOR IMMEDIATE RELEASE Contact: Jim Donahue
(954) 713-5208
REPUBLIC INDUSTRIES EXERCISES ADT WARRANT
FORT LAUDERDALE, FLORIDA (March 21, 1997) -- Republic Industries,
Inc. (NASDAQ:RWIN) announced today that it has exercised a warrant to
purchase 15 million common shares of ADT Limited. The warrant, which was
issued to Republic on July 1, 1996, gave Republic the right to acquire 15
million shares of ADT Limited common shares at a price of $20.00 per share,
the then current market price of the ADT shares.
H. Wayne Huizenga, Chairman and Co-Chief Executive Officer of
Republic Industries, Inc. said, "Republic is now the proud owner of 9.6
percent of ADT common stock. ADT is a quality company. We are pleased with
management's outstanding job in maximizing value for ADT's shareholders. We
fully support the structure and terms of the proposed merger of ADT with
Tyco International, Ltd."
Republic Industries, Inc. is a diversified holding company with
subsidiaries operating in the solid waste services, electronic security
services, automotive rental and automotive retailing industries.
##
EXHIBIT D
PROMISSORY NOTE
$300,000,000.00 Atlanta, Georgia
March 20, 1997
FOR VALUE RECEIVED, the undersigned, TRIANGLE CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of NATIONSBANK,
NATIONAL ASSOCIATION (SOUTH), its successors or assigns (the "Lender"), the
principal sum of THREE HUNDRED MILLION DOLLARS ($300,000,000.00), or so
much thereof as may be advanced and unpaid from time to time, at its office
at Independence Center, 15th Floor, Charlotte, North Carolina 28255,
Attention: Agency Services, or at such other place as may be designated in
writing by the holder of this Note, together with interest thereon from the
date of each advance. So long as no default exists hereunder, the principal
amount of the indebtedness evidenced by this Note may be borrowed, repaid
and reborrowed from time to time at the election of the Borrower. Amounts
borrowed and repaid pursuant hereto shall be in minimum denominations of
$1,000,000 and integral multiples thereof.
PAYMENT OF PRINCIPAL. The principal amount of the indebtedness
evidenced hereby shall be payable upon the Maturity Date, as defined in the
following sentence. The "Maturity Date" shall be the earlier to occur of
(i) the refinancing of indebtedness arising under the Credit Agreement (as
herein defined) or (ii) June 30, 1997.
INTEREST. Interest shall accrue at the election of the Borrower at
either of the Base Rate, Offering Rate or the Eurodollar Rate, as specified
to the Lender in a Borrowing/Interest Selection Notice in the form set
forth in Exhibit 1. Accrued interest shall be paid on the earlier to occur
of the last day of an Interest Period or the Maturity Date of this Note.
Interest shall be computed on the basis of a year of 360 days.
DEFINITIONS. For purposes of this Note the following terms when used
herein shall have the following meanings:
"Base Rate" means the greater of (a) the Prime Rate or (b) the
Federal Funds Effective Rate plus one-half of one percent (1/2%);
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Business Day" means any day which is not a Saturday, Sunday or
a day on which banks in the States of North Carolina and Florida are
authorized or obligated by law, executive order or governmental
decree to be closed;
"Credit Agreement" means the Credit Facilities and
Reimbursement Agreement dated as of December 19, 1995, as amended,
among the Guarantor, NationsBank, National Association (South)
(successor by merger of NationsBank of Florida, National
Association), as Agent, and the Lenders party thereto;
"Eurodollar Business Day" means a Business Day on which the
relevant international financial markets are open for the transaction
of the business contemplated by this Agreement in London, England and
New York, New York;
"Eurodollar Rate" means, with respect to any Eurodollar Rate
Loan for the Interest Period applicable thereto, a rate per annum
determined pursuant to the following formula:
Interbank Offered Rate
-----------------------
Eurodollar Rate = 1 - Eurodollar Reserve + .30 basis points
Percentage
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D or any successor regulation, as the maximum
reserve requirement (including, without limitation, any basic,
supplemental, emergency, special, or marginal reserves) applicable
with respect to Eurocurrency liabilities as that term is defined in
Regulation D (or against any other category of liabilities that
includes deposits by reference to which the interest rate of
Eurodollar Rate Loans is determined), whether or not the Lender has
any Eurocurrency liabilities subject to such requirements without
benefits of credits or proration, exceptions or offsets that may be
available from time to time to the Lender. The Eurodollar Rate shall
be adjusted automatically on and as of the effective date of any
change in the Eurodollar Reserve Percentage;
"Guarantor" means Republic Industries, Inc., a Delaware
corporation and owner of all the issued and outstanding capital of
the Borrower;
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the average
(rounded upward to the nearest one-sixteenth (1/16) of one percent)
per annum rate of interest determined by the office of the Lender
then determining such rate (each such determination to be conclusive
and binding) as of two (2) Eurodollar Business Days prior to the
first day of such Interest Period, as the effective rate at which
deposits in immediately available funds in Dollars are being, have
been, or would be offered or quoted by the Lender to major banks in
the applicable interbank market for Eurodollar deposits at any time
during the Eurodollar Business Day which is the second Eurodollar
Business Day immediately preceding the first day of such Interest
Period, for a term comparable to such Interest Period and in the
amount of the Eurodollar Rate Loan. If no such offers or quotes are
generally available for such amount, then the Lender shall be
entitled to determine the Eurodollar Rate by estimating in its
reasonable judgment the per annum rate (as describe above) that would
be applicable if such quote or offers were generally available;
"Interest Period" for each Eurodollar Rate Loan means a period
commencing on the date such Eurodollar Rate Loan is made or converted
and each subsequent period commencing on the last day of the
immediately preceding Interest Period for such Eurodollar Rate Loan,
and ending, at the Borrower's option, on the date seven days or one
month thereafter as notified to the Lender by the Borrower three (3)
Eurodollar Business Days prior to the beginning of such Interest
Period; provided, that,
(i) if the Borrower fails to notify the Lender of the
length of an Interest Period three (3) Eurodollar Business Days
prior to the first day of such Interest Period, the loan for
which such Interest Period was to be determined shall be deemed
to be a Base Rate Loan as of the first day thereof;
(ii) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Eurodollar Business Day, such
Interest Period shall be extended to the next Eurodollar
Business Day (unless such extension would cause the applicable
Interest Period to end in the succeeding calendar month, in
which case such Interest Period shall end on the next preceding
Eurodollar Business Day);
(iii) there shall not be more than three (3) Interest
Periods in effect on any day; and
(iv) no Interest Period shall be selected which shall
result in any portion of the principal amount of a Eurodollar
Rate Loan being paid to the Lender subsequent to the Maturity
Date;
"Offering Rate" means the rate of interest offered by the
Lender to the Borrower for such periods of time as the Borrower and
the Lender may agree;
"Prime Rate" means the per annum rate of interest established
from time to time by the Lender at its principal office as its Prime
Rate. Any change in the interest rate resulting from a change in the
Prime Rate shall become effective as of 12:01 a.m. of the Business
Day on which each change in the Prime Rate is announced by the
Lender. The Prime Rate is a reference rate used by the Lender in
determining interest rates on certain loans and is not intended to be
the lowest rate of interest charged on any extension of credit to any
debtor;
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time;
"Regulatory Change" means any change effective after the date
of this Note in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or the
adoption or making after such date of any interpretations, directives
or requests applying to a class of banks, which includes the Lender,
under any United States federal or state laws or regulations (whether
or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or administration
thereof or compliance by the Lender with any request or directive
regarding capital adequacy;
"Revolving Credit Facility" has the meaning set forth in the
Credit Agreement.
All other capitalized terms not otherwise defined herein shall have
the meaning given to them in the Revolving Agreement.
CONDITIONS TO INITIAL ADVANCE. Prior to the Lender's making any
advances to the Borrower under this Note the Borrower shall have delivered
to the Lender (i) the duly executed original of this Note, (ii) a
certificate of the Secretary or Assistant Secretary of the Borrower as to
articles of incorporation, bylaws, resolutions and incumbency of officers
execution of this Note, and (iii) an opinion of counsel for the Borrower in
form acceptable to the Lender, (iv) a commitment fee of $25,000 and (v)
such other documents, instruments and certificates as reasonably requested
by the Lender and its counsel.
CONDITIONS PRECEDENT. The Lender shall not be obligated to make any
advances under this Note unless, on the date of such advance, no Event of
Default as defined herein, has occurred and is continuing.
NOTICE OF BORROWING. Borrower may, from time to time, elect the rate
of interest to be charged (either Base, Offering Rate or Eurodollar) on the
entire outstanding principal balance of this Note, or if less, an amount of
principal equal to $1,000,000 or an amount in excess of $1,000,000 that is
an integral multiple of $1,000,000, provided, however, there shall not be
more than three (3) Eurodollar Rate Loans outstanding hereunder at any one
time. The Borrower shall give the Lender (i) at least three (3) Eurodollar
Business Days' irrevocable telefacsimile or telephonic notice of its
election of a Eurodollar Rate prior to 10:30 a.m., Charlotte, North
Carolina time; and (ii) irrevocable telephonic notice of its election of
the Base Rate or Offering Rate prior to 10:30 A.M. Charlotte, North
Carolina time on the effective day of such Base Rate or Offering Rate. Each
such interest rate selection notice, which shall be effective upon receipt
by the Lender, shall specify the amount of the borrowing, the type (Base,
Offering Rate or Eurodollar) of Loan, the date of borrowing and, if a
Eurodollar Rate Loan, the Interest Period to be used in the computation of
interest. The Borrower shall provide the Lender written confirmation of
each telephonic notice on the same day by telefacsimile transmission in the
form attached hereto as Exhibit 1, with appropriate insertions, but failure
to provide such confirmation shall not affect the validity of such
telephonic notice.
REQUIRED PAYMENTS. So long as no Event of Default has occurred under
the Credit Agreement, the Borrower agrees to repay the amounts outstanding
under this Note prior to paying principal amounts advanced under the Credit
Agreement.
OPTIONAL PREPAYMENT. The principal amount of this Note may be prepaid
in whole or in part at any time without penalty or premium; provided that
no such prepayment is permitted which would result in or cause any portion
of the principal amount of a Eurodollar Rate Loan to be repaid prior to the
end of the Interest Period with respect thereto, unless accompanied by
payment to the Lender of compensation for each loss, cost or expense
resulting therefrom as determined by the Lender in its sole discretion
absent manifest error.
PAST DUE RATE. If any amount shall not be paid when due (at maturity,
by acceleration or otherwise), such amount shall bear interest thereafter
until paid at a rate of interest per annum which shall be two percent (2%)
above the rate at which interest was payable hereunder on the day
immediately preceding the due date of such principal and interest or the
maximum rate permitted by applicable law, whichever is lower, from the date
such amount was due and payable until the date such amount is paid in full.
COVENANTS. The Guarantor has heretofore entered into the Credit
Agreement. The Borrower and the Lender hereby agree that all of the
covenants set forth in Article VII and Article VIII of the Credit Agreement
are incorporated herein in their entirety as such covenants exist as of the
date of this Note. Any change, modification or amendment to either Article
VII or Article VIII of the Credit Agreement shall not be effective with
respect to the Lender unless the Lender shall have agreed in writing to
such change, modification or amendment. In addition, the Borrower hereby
agrees that the occurrence of any Event of Default, as such term is defined
in the Credit Agreement, shall constitute a default under this Note. Upon
the occurrence of any Event of Default under either Section 8.1(g) or (h)
the entire indebtedness evidenced by this Note shall become immediately due
without presentment or demand.
REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Lender that each of the representations and warranties made
by the Guarantor in Article VI of the Credit Agreement are true on and as
of the date hereof except that the financial statements referred to in
Section 6.01(f) shall be those most recently furnished to the Lender.
EVENTS OF DEFAULT. It shall be an event of default ("Event of
Default") under this Note if any one of the following shall occur:
(a) The Borrower shall fail to make any payment of principal,
interest or other amounts under this Note when due;
(b) Any Event of Default, as such term is defined in the Credit
Agreement, occurs;
(c) Any representation or warranty made by the Borrower or any
Guarantor of this Note under this Note shall be false or incorrect in
any material respect when made or deemed made.
If one or more of the foregoing Events of Default shall occur, the
Lender may, at its option, declare all or any part of the outstanding
principal of this Note plus accrued unpaid interest on this Note and any
other accrued unpaid amount owing under this Note to be immediately due and
payable, and the Lender shall have no further obligation (if any) to make
advances under this Note, and the Lender may exercise any and all available
rights and remedies under applicable law.
YIELD PROTECTION AND INDEMNITY. If at any time after the date hereof,
and from time to time, the Lender determines in good faith and in
accordance with its usual procedures that any Regulatory Change has or
would have the effect of (a) increasing the Lender's costs relating to the
obligation hereunder, or (b) reducing the yield or rate of return of the
Lender on the obligation hereunder to a level below that which the Lender
could have achieved but for such Regulatory Change, then the Borrower
shall, within fifteen (15) days of any request by the Lender, pay to the
Lender such additional amounts (except to the extent that such additional
amounts have already been accounted for in the definition of Base or
Eurodollar Rate) as (in the Lender's sole judgment, after good faith and
reasonable computation) will compensate the Lender for such increase in
costs or reduction in yield or rate of return of the Lender. No failure by
the Lender to demand immediate payment of any additional amounts payable
hereunder shall constitute a waiver of the Lender's right to demand payment
of such amounts at any subsequent time. The Lender shall furnish the
Borrower calculations in reasonable detail setting forth the Lender's
determination of the amount of such compensation.
WAIVER OF JURY TRIAL. In the event of any litigation to enforce or
interpret any of the provisions of this Note, the undersigned hereby waives
any and all right to demand a jury trial on any of the issues.
WAIVERS AND COVENANTS. All persons now or at any time liable for
payment of this Note hereby waive presentment, protest, notice of protest
and dishonor. The undersigned expressly consents to any extensions and
renewals, in whole or in part, to the release of any or all guarantors or
co-makers and any collateral security, and all delays in time of payment or
other performance which the Lender may grant at any time and from time to
time without limitation and without any notice of further consent of the
undersigned.
HEADINGS DESCRIPTIVE. The headings of the several paragraphs of this
Note are inserted for convenience only and shall not in any way affect the
meaning or construction of any provisions of this Note.
GOVERNING LAW. This Note shall be governed by and construed under the
laws of the State of Florida.
INDEMNIFICATION. The Borrower hereby agrees to provide to the Lender
with respect to the loans made pursuant to this Note the same
indemnification provided by the Guarantor to the Agent and the Lenders
pursuant to Section 11.05 and Section 11.11 of the Credit Agreement and to
that end the provisions of Section 11.05 and Section 11.11 are hereby
incorporated in this Note by reference thereto.
All payments of principal and interest shall be made in lawful money
of the United States which shall be legal tender in payment of all debts,
public and private, at the time of payment.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed by its duly authorized officer on the date first above written.
TRIANGLE CORPORATION
WITNESS:
/s/ Cecelia Nantz
- -----------------
By: /s/ Dana Egan-Sullenberger
- ------------------ ------------------------------
Name: Dana Egan-Sullenberger
Title: Vice President
EXHIBIT 1
Form of Borrowing/Interest Selection Notice
To: NationsBank, N.A. (South)
Independence Center, 15th Floor
Charlotte, North Carolina 28255
Telefacsimile: 704/386-8694
Attention: _______________, Agency Services
Reference is hereby made to the Promissory Note dated as of March
__, 1997 (the "Note") from TRIANGLE CORPORATION (the "Borrower") to the
order of NATIONSBANK, N.A. (SOUTH), or its assignee (the "Lender").
Capitalized terms used but not defined herein shall have the respective
meanings therefor set forth in the Note.
The Borrower hereby confirms its prior notice of a request to
borrow and/or a selection of a type of loan and Interest Period given to
the Lender by telephone at __________ __.m. on _________________, 199__ to
the following effect:
Type of Loan
Interest Effective
(Check One) Period (1) Amount (2) Date
----------- ---------- ---------- ---------
Date (3)
--------
Base
Rate Loan ______
Eurodollar
Rate Loan ______
Offering
Rate Loan ______
- -----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $1,000,000 or if greater an integral multiple of
$1,000,000.
(3) At least three (3) Eurodollar Business Days later if a Eurodollar
Rate Loan.
TRIANGLE CORPORATION
By: ________________________________
Name: ______________________________
Title: _____________________________
Date: _______________________________
ACKNOWLEDGEMENT OF EXECUTION
ON BEHALF OF
TRIANGLE CORPORATION
STATE OF GEORGIA
COUNTY OF FULTON
Before me, the undersigned, a Notary Public in and for said County
and State on this 20th day of March, 1997, personally appeared Dana
Egan-Sullenberger, being by me duly sworn says he works at 450 East Las
Olas Boulevard, Suite 1200, Fort Lauderdale, Florida 33301, known to be the
Vice President of Triangle COrporation, (the "Company"), who, being by me
duly sworn, says that by authority duly given by, and as the act of the
Company, the foregoing and annexed Note dated March 20, 1997, was signed by
him as said Vice President on behalf of the Company.
Witness my hand and official seal this 20th day of March, 1997.
/s/ Cecelia Nantz
--------------------
Notary Public
(SEAL)
My Commission Expires: September 22, 1998
AFFIDAVIT OF DANA EGAN-SULLENBERGER
-----------------------------------
The undersigned, being first duly sworn, deposes and says that:
1. She is a Vice President of Triangle Corporation and works at 450
East Las Olas Boulevard, Suite 1200, Ft. Lauderdale, FL 33301.
2. The Promissory Note of Triangle Corporation to NationsBank,
National Association (South) (the "Bank") in the principal amount of
$300,000,000 dated March 20, 1997 was executed before him/her and delivered
to him/her on behalf of the Bank in Atlanta, Georgia on March 20, 1997.
This the 20th day of March, 1997.
/s/ Dana Egan-Sullenberger
---------------------------
[Signature of Affiant]
Acknowledgement of Execution
STATE OF GEORGIA
COUNTY OF FULTON
Before me, the undersigned, a Notary Public in and for said County
and State on the 20th day of March, 1997 A.D., personally appeared Dana
Sullenberger being and by me duly sworn affixed his/her signature to the
above Affidavit.
Witness my hand and official seal this 20th day of March, 1997.
Cecelia Nantz
-------------------
Notary Public
(SEAL)
My Commission Expires: September 22, 1998
EXHIBIT E
Triangle Corporation
Promissory Note with NationsBank, N.A. (South)
EXECUTION COPY
GUARANTY
THIS GUARANTY ("Guaranty") is made as of the 20th day of March, 1997,
by REPUBLIC INDUSTRIES, INC., a Delaware corporation ("Guarantor"), in
favor of NATIONSBANK, N.A. (SOUTH), as lender under the Promissory Note
referred to below (the "Lender").
R E C I T A L S:
A. Lender and TRIANGLE CORPORATION, a Delaware corporation
("Borrower"), have entered into a Promissory Note dated as of March 20,
1997, between the Borrower and the Lender, as amended and modified from
time to time (the "Promissory Note"), pursuant to which Lender has agreed
to make loans to Borrower.
B. Guarantor has a financial and ownership interest in Borrower and
will benefit from the transactions under the Promissory Note.
C. Lender will require, as security for Borrower's obligations under
the Promissory Note, an unconditional and irrevocable guaranty of payment
and performance from Guarantor respecting any obligations of Borrower under
the Promissory Note.
NOW THEREFORE, in consideration of the premises, the sum of $10.00
and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, and in order to be of material benefit and
assistance to Borrower and in order to induce Lender to extend credit to
Borrower, Guarantor guarantees and agrees as follows:
1. Recitations. Each and all of the foregoing recitals are true and
correct and are incorporated herein by reference.
2. Guaranteed Obligations. Guarantor hereby absolutely, irrevocably
and unconditionally guarantees (as primary obligor and not merely as
surety) to Lender, its successors and assigns, the full and prompt payment
(whether at stated maturity, by acceleration, or otherwise) and performance
of the "Guaranteed Obligations" (as hereinafter defined). "Guaranteed
Obligations" shall mean:
(a) Any and all indebtedness of Borrower to Lender, whether now
existing or hereafter incurred, including, but not limited to all
principal, interest, fees, attorneys' fees, liabilities for costs and
expenses and other indebtedness, obligations and liabilities of Borrower to
Lender at any time created or arising in connection with the Promissory
Note or any amendment, extension, renewal, or modification thereto or
substitution therefor;
(b) All agreements, covenants, indemnities, terms, conditions,
and other obligations to be performed by, or on behalf of Borrower under
the Promissory Note; and
(c) All costs, expenses and fees, including but not limited to
court costs and reasonable attorneys' fees and paralegal fees, arising in
connection with, or as a consequence of the non-payment, non-performance or
non-observance by Borrower or Guarantor of all amounts, indebtedness,
obligations and liabilities of Borrower to Lender described in this Section
2.
3. Financial Statements and Information. The Guarantor agrees that
it will deliver to the Lender, promptly upon their becoming publicly
available, copies of all 10-K and 10-Q reports which Guarantor shall file
with the Securities and Exchange Commission (or any successor thereto) or
any securities exchange.
4. Guaranty of Payment; Right to Proceed Directly Against Guarantor.
This is an irrevocable, absolute, continuing guaranty of payment (inter
alia) and not a guaranty of collection; and the Guarantor waives any right
to require that any action be brought against Borrower, any other guarantor
of the Promissory Note obligations, or any other person or to require that
resort be had to any security. Lender may, at its option, proceed against
the Guarantor individually, in the first instance to collect any monies the
payment of which is guaranteed hereby, without first proceeding against
Borrower or any other person or guarantor of the Promissory Note
obligations, and without first resorting to any security held by it as
collateral or to any other remedies, at the same or different times, as it
may deem advisable; and the liability of the Guarantor hereunder shall be
in no way affected or impaired by any acceptance or release by Lender of
any security for, or other guarantors upon, any indebtedness, liability or
obligation of Borrower to the Lender, or by any failure, delay, neglect or
omission by Lender to realize upon or protect any such indebtedness,
liability or obligation or any notes or other instruments evidencing same
or any collateral or security therefor.
5. Waivers by Guarantor. Guarantor hereby waives: (a) notice of
acceptance of this Guaranty by Lender, or of the creation, renewal or
accrual of any liability or Borrower, present or future, or of the reliance
of Lender upon this Guaranty (it being understood that every indebtedness,
liability and obligation of Borrower to Lender forming a part of the
Guaranteed Obligations shall conclusively be presumed to have been created,
contracted or incurred in reliance upon this Guaranty); (b) demand of
payment from any person indebted in any manner or for any of the
liabilities or obligations hereby guaranteed; (c) presentation for payment
of any instrument of Borrower or any other person, protest thereof and
notice of its dishonor to any party thereto and to Guarantor; (d) any duty
on the part of Lender to disclose to Guarantor any facts which Lender may
now or hereafter know about Borrower, regardless of whether Lender has
reason to believe that any such facts materially increase the risk beyond
that which Guarantor intends to assume or has reason to believe that such
facts are unknown to Guarantor or have a reasonable opportunity to
communicate such facts to Guarantor, it being understood and agreed that
Guarantor is fully responsible for being and keeping informed of the
financial condition of Borrower and of all circumstances bearing on the
risk of non-payment of all obligations hereby guaranteed.
6. Effect of Bankruptcy. In the event that, pursuant to any
insolvency, bankruptcy, reorganization, receivership or other debtor relief
law, or any judgment, order or decision thereunder, Lender must rescind or
restore any payment, or any part thereof, received by Lender in
satisfaction of the Guaranteed Obligations, as set forth therein, any prior
release or discharge from the terms of this Guaranty given to Guarantor by
Lender shall be without effect, and this Guaranty shall remain in full
force and effect. It is the intention of Lender that the Guaranteed
Obligations hereunder shall not be discharged except by Guarantor's
performance of all such obligations and then only to the extent of such
performance.
7. Notification of Default. The Guarantor shall immediately notify
the Lender of any event of default, whether or not declared, under the
Guarantor's revolving Credit Facilities and Reimbursement Agreement, dated
as of December 19, 1995, among the Guarantor, as borrower, NationsBank,
N.A. (South), successor by merger to NationsBank of Florida, N.A. , as
agent for the lenders named therein, and the lenders named therein, as such
revolving credit facility may be amended or modified from time to time.
8. Remedies. In the event that Guarantor shall fail to perform
promptly as herein provided, Lender shall have the right (from time to
time, without first requiring performance on the part of Borrower) to
require performance by the Guarantor of any Guaranteed Obligations, by
action at law or in equity or both, and further to collect in any such
action reasonable compensation for all loss, costs, damage, injury and
expense sustained or incurred by Lender as a consequence of such breach.
9. Interest and Expenses of Enforcement. Any sum required to be paid
by Guarantor to Lender pursuant to the terms hereof shall bear interest at
the post default rate of interest calculated in accordance with the
Promissory Note, until paid. Guarantor agrees to pay any and all costs and
expenses incurred by Lender in enforcing any rights or remedies under this
Guaranty, including, without limitation, all reasonable fees and expenses
of the Lender's attorneys, including reasonable fees and expenses of any
appeals and in any bankruptcy proceedings, regardless of whether any
specific legal proceedings should be commenced or initiated.
10. No Waiver. No failure on the part of Lender to pursue any remedy
hereunder or under the Promissory Note, shall constitute a waiver on its
part of the right to pursue said remedy on the basis of the same or a
subsequent breach, nor shall failure give rise to an estoppel against
Lender, nor excuse the Guarantor from its obligations hereunder. No
extension, substitution, modification, amendment or renewal of the
Promissory Note or the provisions hereof shall operate to discharge the
Guarantor from any obligation herein contained in whole or in part, except
to the extent expressly provided by Lender in writing.
11. Guaranty Independent. Guarantor agrees that the obligations
hereunder are independent of and in addition to the undertakings of the
Borrower pursuant to the Promissory Note and any other obligations of
Guarantor to Lender. A separate action may be brought to enforce the
provisions hereof against Guarantor, whether or not Borrower, or any other
guarantor, is a party in any such action. Borrower and/or Guarantor and/or
any other guarantor may be sued together, or any of them may be sued
separately without first or contemporaneously suing the other.
12. Amendments, Etc. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by
Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which such waiver or
consent has been given.
13. Subordination. Any unsecured indebtedness of the Borrower now or
hereafter directly held by Guarantor ("Subordinated Indebtedness") is
hereby subordinated to the indebtedness of Borrower to Lender under the
Promissory Note, and such indebtedness of Borrower to Guarantor shall,
after an Event of Default (as defined in the Promissory Note), if Lender so
requests, be received by Guarantor as trustee for Lender and be paid over
to Lender on account of the indebtedness of Borrower to Lender under the
Promissory Note, but without reducing or limiting in any manner the
liability of Guarantor under the other provisions of this Guaranty. After
an Event of Default (as defined in the Promissory Note), Guarantor shall
not collect and will take no action to collect any such Subordinated
Indebtedness from Borrower until such time as the Guaranteed Obligations
have been paid in full.
14. Notices, Demands and Other Instruments. All notices, offers,
acceptances, rejections, consents, requests and other communications
hereunder shall be in writing and shall be deemed to have been given (i)
when delivered in person, or (ii) when sent by telecopier, telex or other
telegraphic means (with receipt confirmed), or (iii) on receipt after being
sent by express mail or delivery service guaranteeing overnight delivery,
provided that in each of (i), (ii) and (iii) a copy is mailed by first
class registered or certified mail, postage prepaid, return receipt
requested, in each case addressed as follows:
If to Guarantor: Republic Industries, Inc.
450 East Las Boulevard, Suite 1200
Fort Lauderdale, FL 33301
Attn: Richard L. Handley, Esq.
Telecopier: (954) 713-2111
If to Lender: NationsBank, N.A. (South)
100 Southeast Second Street
NationsBank Tower, 14th Floor
Miami, FL 33131
Attn: Richard M. Starke, Vice President
Telecopier: (305) 533-2437
or to such other person or address as any such party shall furnish by
notice to the other parties in writing. Notices need not be given or made
by an officer of either party but shall be deemed sufficiently given if
made by the counsel of such party, and all of such notices shall be deemed
in compliance hereof provided only that they be given in the manner
specified herein.
15. Miscellaneous.
(a) This Guaranty shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to
principles of conflicts of law.
(b) The obligations and promises set forth herein shall be
joint and several undertakings of each party now or hereafter executing
and/or joining in this Guaranty, or any other guarantor of the Promissory
Note obligations, and Lender may proceed hereunder against any one or more
of said parties without waiving its right to proceed against any or all of
the other parties hereto.
(c) If any term, provision, covenant or condition hereof or any
application thereof should be held by a court of competent jurisdiction to
be invalid, void or unenforceable, all terms, provisions, covenants and
conditions hereof, and all applications thereof not held invalid, void or
unenforceable shall continue in full force and effect and shall in no way
be affected, impaired or invalidated thereby.
(d) The use of the words "herein", "hereof", "hereunder" and
any other words of similar import refer to this Guaranty as a whole and not
to any particular paragraph, subparagraph or other subdivision of this
Guaranty unless specifically noted otherwise in this Guaranty.
(e) The title of this Guaranty and the headings of the
paragraphs of this Guaranty are for convenience of reference only, and are
not to be considered a part of the substance of this Guaranty, and shall
not limit or expand or otherwise affect any of the terms hereof.
(f) In this Guaranty, wherever the context so requires, the
neuter gender includes the masculine and/or feminine gender, the singular
numbers include the plural, and the plural numbers include the singular.
(g) This Guaranty creates a continuing obligation and the
obligation of Guarantor hereunder shall be binding upon Guarantor and its
successors, heirs, representatives and assigns, and shall inure to the
benefit of and be enforceable by Lender and its successors and assigns.
(h) GUARANTOR AND LENDER DO HEREBY KNOWINGLY VOLUNTARILY,
INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON
OR PARTY AND RELATED TO THIS TRANSACTION; THIS IRREVOCABLE WAIVER OF THE
RIGHT TO A JURY TRIAL BEING A MATERIAL INDUCEMENT FOR LENDER TO MAKE LOANS
TO BORROWER AND TO ACCEPT THIS GUARANTY.
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of
the day and year first above written.
REPUBLIC INDUSTRIES, INC.
By: /s/ Dana Egan-Sullenberger
----------------------------
Name: Dana Egan-Sullenberger
Title: Vice President,
Controller Operations
