<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
-------------
(Amendment No. 4)
Intek Diversified Corporation
- --------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value 458134 10 3
- ----------------------------------- -----------------------------------
(Title of class of securities) (CUSIP number)
Howard Chatzinoff, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
(212) 310-8000
- --------------------------------------------------------------------------
(Name, address and telephone number of person authorized to receive
notices and communications)
December 3, 1996
- --------------------------------------------------------------------------
(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 Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [_].
Note: When filing this statement in paper format, six copies of this
statement, including exhibits, should be filed with the Commission. See
Rule 13d-1(a) for other parties to whom copies are to be sent.
(Continued on following page(s))
(Page 1 of 19 Pages)
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CUSIP No. 458134 10 3 13D Page 2 of 19
1 NAME OF REPORTING PERSON: Securicor Communications Limited
S.S. OR I.R.S. IDENTIFICATION NO. N/A
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
3 SEC USE ONLY
4 SOURCE OF FUNDS: OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
6 CITIZENSHIP OR PLACE OF United Kingdom
ORGANIZATION:
NUMBER OF 7 SOLE VOTING POWER: 25,000,000
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 25,000,000
REPORTING
PERSON WITH 10 SHARED DISPOSITIVE 0
POWER:
11 AGGREGATE AMOUNT BENEFICIALLY 25,000,000
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 62.65%
14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 458134 10 3 13D Page 3 of 19
1 NAME OF REPORTING PERSON: Securicor International Limited
S.S. OR I.R.S. IDENTIFICATION NO. N/A
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
3 SEC USE ONLY
4 SOURCE OF FUNDS: OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
6 CITIZENSHIP OR PLACE OF United Kingdom
ORGANIZATION:
NUMBER OF 7 SOLE VOTING POWER: 937,042
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 937,042
REPORTING
PERSON WITH 10 SHARED DISPOSITIVE 0
POWER:
11 AGGREGATE AMOUNT BENEFICIALLY 937,042
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 2.35%
14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 458134 10 3 13D Page 4 of 19
1 NAME OF REPORTING PERSON: Security Services plc
S.S. OR I.R.S. IDENTIFICATION NO. N/A
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
3 SEC USE ONLY
4 SOURCE OF FUNDS: N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
6 CITIZENSHIP OR PLACE OF United Kingdom
ORGANIZATION:
NUMBER OF 7 SOLE VOTING POWER: 25,937,042
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 25,937,042
REPORTING
PERSON WITH 10 SHARED DISPOSITIVE 0
POWER:
11 AGGREGATE AMOUNT BENEFICIALLY 25,937,042
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 65.00%
14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 458134 10 3 13D Page 5 of 19
1 NAME OF REPORTING PERSON: Securicor Group plc
S.S. OR I.R.S. IDENTIFICATION NO. N/A
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
3 SEC USE ONLY
4 SOURCE OF FUNDS: N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
6 CITIZENSHIP OR PLACE OF United Kingdom
ORGANIZATION:
NUMBER OF 7 SOLE VOTING POWER: 25,937,042
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 25,937,042
REPORTING
PERSON WITH 10 SHARED DISPOSITIVE 0
POWER:
11 AGGREGATE AMOUNT BENEFICIALLY 25,937,042
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 65.00%
14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 458134 10 3 13D Page 6 of 19
1 NAME OF REPORTING PERSON: Securicor plc
S.S. OR I.R.S. IDENTIFICATION NO. N/A
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
3 SEC USE ONLY
4 SOURCE OF FUNDS: N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
6 CITIZENSHIP OR PLACE OF United Kingdom
ORGANIZATION:
NUMBER OF 7 SOLE VOTING POWER: 25,937,042
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 25,937,042
REPORTING
PERSON WITH 10 SHARED DISPOSITIVE 0
POWER:
11 AGGREGATE AMOUNT BENEFICIALLY 25,937,042
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 65.00%
14 TYPE OF REPORTING PERSON: CO
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This amends and supplements the Statement on Schedule 13D filed with
the Securities and Exchange Commission (the "Commission") by Securicor
International Limited ("Securicor International") with respect to its
ownership of common stock, par value $.01 per share (the "Common
Stock"), of Intek Diversified Corporation (the "Issuer"). Unless
otherwise indicated, all capitalized terms used herein shall have the
meanings ascribed to them in the Schedule 13D.
Item 2. Identity and Background
-----------------------
Item 2 is hereby amended and supplemented by the addition of the
following information:
(a) - (c) Securicor Communications Limited ("Securicor
Communications") is a corporation formed under the laws of England and
Wales. Securicor Communications is an affiliate of Securicor
International and a direct or indirect subsidiary of Security Services
plc ("Security Services"), Securicor Group plc ("Securicor Group") and
Securicor plc ("Securicor" and, together with Securicor International,
Securicor Communications, Security Services and Securicor Group, the
"Corporations"). The address of Securicor Communications' principal
place of business is Sutton Park House, 15 Carshalton Road, Sutton,
Surrey SM1 4LD, United Kingdom. The principal business of Securicor
Communications is the provision of cellular services, vehicle
tracking, telecommunications and associated communications services.
7
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The name, business address and principal occupation or employment of
each of the directors and executive officers of Securicor
Communications are as follows:
Position with Principal
Securicor Occupation or
Name and Business Address Communications Employment
------------------------- -------------- -------------
Andrew John Parker Director Managing
Aquila House Director,
35 London Road Securicor
Redhill Cellular
Surrey RH1 1NR Services
Limited
Roger Sydney William Hale Director Chief
Wiggs Executive,
Sutton Park House Securicor plc
15 Carshalton Road
Sutton
Surrey SM1 4LD
Michael Geoffrey Director Finance
Wilkinson Director,
Sutton Park House Securicor plc
15 Carshalton Road Communications
Sutton Division
Surrey SM1 4LD
Dr. Edmund Alan Hough Director Chief
Sutton Park House Executive,
15 Carshalton Road Securicor plc
Sutton Communications
Surrey SM1 4LD Division
Christopher Charles Director Finance
Shirtcliffe Director,
Sutton Park House Securicor plc
15 Carshalton Road
Sutton
Surrey SM1 4LD
Anne Patricia Munson Company Secretary Personal
Sutton Park House Assistant to
15 Carshalton Road Chief
Sutton Executive,
Surrey SM1 4LD Securicor plc
8
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(d) - (e) During the last five years, neither Securicor Communications
nor, to its knowledge, any of the other persons identified pursuant to
Paragraphs (a) through (c) of this Item 2, have been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors) or was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which
such person was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to federal or state securities laws or finding any violation
with respect to such laws.
(f) To the knowledge of Securicor Communications, each of the
individuals identified pursuant to Paragraphs (a) through (c) is a
citizen of the United Kingdom.
Item 4. Purpose of the Transaction.
--------------------------
Item 4 is hereby amended and supplemented by the addition of the
following information:
On December 3, 1996, the transactions contemplated by the Stock
Purchase Agreement, dated as of June 18, 1996 and amended by agreement
of the parties as of September 19, 1996 (the "Stock Purchase
Agreement"), were consummated and Securicor Communications received
25,000,000 shares of Common Stock in exchange for all of the issued
and outstanding securities (other than certain preferred shares) of
Securicor Radiocoms Limited ("Securicor Radiocoms"), formerly a
subsidiary of Securicor Communications.
Separately, pursuant to a Sale of Assets and Trademark License
Agreement, dated as of June 18, 1996 and amended and restated by
agreement of the parties as of September 19, 1996 (the "Asset Sale
Agreement"), among the Issuer, Simmonds Capital Limited ("Simmonds
Capital") and Midland International Corporation ("Midland"), an
indirect wholly-owned subsidiary of Simmonds Capital, 1,685,000 shares
of escrowed Common Stock were released to Simmonds Capital upon the
closing of the transactions contemplated by the Stock Purchase
Agreement. There are 655,000 shares of Common Stock remaining in
escrow for Simmonds Capital pending calculation of possible pricing
adjustments.
The closing of the transactions contemplated by the Stock Purchase
Agreement has resulted in the combination of the narrowband wireless
technology and manufacturing operations of Securicor Radiocoms with
(i) the air time services business of Roamer One, Inc., a subsidiary
of the Issuer, and (ii) the U.S.
9
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Land Mobile Radio business previously owned by Midland and acquired by
the Issuer on September 20, 1996 pursuant to the Asset Sale Agreement.
Upon the consummation of the transactions contemplated by the Stock
Purchase Agreement, the Corporations beneficially owned an aggregate
of 25,937,042 shares of Common Stock, or approximately 65.0% of the
39,902,804 issued and outstanding shares of Common Stock.
Except as set forth herein, the Corporations have no present plans or
proposals which relate to or would result in any of the events
required to be disclosed under this Item 4.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 is hereby amended and supplemented by the addition of
the following information:
(a) As of December 3, 1996, the Corporations beneficially
owned the following shares of Common Stock:
(i) Securicor International is the direct owner of
937,042 shares of Common Stock. The 937,042 shares represent
approximately 2.35% of the 39,902,804 outstanding shares of Common
Stock.
(ii) Securicor Communications is the direct owner of
25,000,000 shares of Common Stock. The 25,000,000 shares represent
approximately 62.65% of the 39,902,804 outstanding shares of Common
Stock.
(ii) By virtue of its ownership of all of the
outstanding shares of Securicor International and Securicor
Communications, Security Services is for purposes of this Schedule 13D
a beneficial owner of all the shares of Common Stock beneficially
owned by Securicor International and Securicor Communications.
(iii) By virtue of its ownership of all of the
outstanding shares of Security Services, Securicor Group is for
purposes of this Schedule 13D a beneficial owner of all the shares of
Common Stock beneficially owned by Security Services.
(iv) By virtue of its ownership of all of the
outstanding shares of Securicor Group, Securicor is for purposes of
this Schedule 13D a beneficial owner of all the shares of Common Stock
beneficially owned by Securicor Group.
10
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(b) Security Services, Securicor Group and Securicor, as
the direct and indirect sole stockholders of Securicor International
and Securicor Communications, can control the voting and dispositive
powers of Securicor International and Securicor Communications with
respect to the 937,042 shares of Common Stock beneficially owned by
Securicor International and with respect to the 25,000,000 shares of
Common Stock beneficially owned by Securicor Communications. As a
result, Security Services, Securicor Group and Securicor have taken
the position that they each have sole voting and dispositive power
with respect to all of such shares.
(c) On December 3, 1996, pursuant to the Stock Purchase
Agreement, Securicor Communications acquired 25,000,000 shares of the
Common Stock in exchange for all of the issued and outstanding
securities (other than certain preferred shares) of Securicor
Radiocoms, formerly a subsidiary of Securicor Communications. The
transaction was closed in the offices of Weil, Gotshal and Manges LLP
at 767 Fifth Avenue, New York, New York 10153.
(d) Not applicable.
(e) As of December 3, 1996, Securicor International ceased
to be the beneficial owner of more than five percent of the Common
Stock due to the issuance of 25,000,000 additional shares of Common
Stock to Securicor Communications.
Item 6. Contracts, Arrangements, Understandings or Relationships
--------------------------------------------------------
with Respect to Securities of the Issuer.
----------------------------------------
Item 6 is hereby amended and supplemented by the addition of the
following information:
There are no contracts, arrangements, understandings or relationships
with respect to any securities of the Issuer (i) among any of the
persons identified pursuant to Item 2 above, and (ii) between (a) any
of the persons identified pursuant to Item 2 and (b) any other person,
other than the following agreements:
On December 3, 1996, the Issuer assumed the outstanding secured
obligations of its wholly-owned subsidiary to Securicor Communications
under the Interim Loan ($5,912,047.22) (as defined in Amendment No. 3
to the Schedule 13D), and such obligations have become unsecured
obligations of the Issuer. In connection with this assumption,
Securicor Communications and the Issuer entered into an Amended and
Restated Loan Agreement (the "Amended Loan Agreement"). Pursuant to
the terms of the Amended Loan
11
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Agreement, the Issuer may borrow up to $15 million and may utilize the
loan proceeds for the general corporate purposes of the Issuer and its
subsidiaries. Interest on borrowings under the Amended Loan Agreement
accrues at the Composite Prime Rate (as defined therein) plus one
percent (1%) per annum until December 31, 1997, and at 11% per annum
thereafter until maturity (on June 30, 2001). Such interest will be
capitalized as set forth in the Amended Loan Agreement. Borrowings
under the Amended Loan Agreement are subordinate to the rights of
certain senior indebtedness.
Also on December 3, 1996, the Issuer, Roamer One Holdings, Inc.,
Securicor Communications, Simmonds Capital, Midland, Anglo York
Industries, Inc., CHOI & CHOI HK Limited and Murray Sinclair entered
into a Registration Rights Agreement (the "Registration Rights
Agreement"). The Registration Rights Agreement provides certain
demand registration rights and incidental registration rights to
certain stockholders, including Simmonds Capital, Midland, Roamer One
Holdings, Inc., Securicor Communications, Securicor International,
Anglo York Industries, Inc. and CHOI & CHOI HK Limited with respect to
shares of Common Stock or options to acquire shares of Common Stock
("Registrable Securities"). Demand registration rights granted to
eligible demand holders are subject to certain qualifications,
including without limitation the following: (i) certain minimum
numbers of Registrable Securities must be tendered to effectuate a
demand registration; and (ii) the reasonably anticipated aggregate
offering price of Registrable Securities offered pursuant to a demand
registration must exceed $3,000,000. The following table illustrates
the number of registrations which each eligible demand holder may
demand and the minimum number of registrable securities which must be
tendered in making a demand registration:
Minimum No. of
Shares To Be
No. of Demand Registered
Eligible Demand Holders Registrations Per Demand
----------------------- ------------- --------------
Securicor 5 2,500,000
Simmonds Capital and 3 1,250,000
Midland, collectively
Roamer One Holdings, Inc. 2 1,250,000
Anglo York 1 No minimum
In addition to the above demand registration rights, eligible demand
holders shall be entitled to register Registrable Securities by "piggy
12
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backing" on any public offering of equity securities by the Issuer,
subject to certain priorities as described in the Registration Rights
Agreement.
Reference is hereby made to the Loan Agreement filed as Exhibit (3) to
----------------------------------------------------------------------
Amendment No. 3 to Schedule 13D, and to the Registration Rights
---------------------------------------------------------------
Agreement, the Amended Loan Agreement and the Promissory Note which
-------------------------------------------------------------------
are filed herewith as Exhibits (2), (3) and (4) respectively.
-------------------------------------------------------------
Item 7. Material to be Filed as Exhibits.
---------------------------------
The following are filed herewith as exhibits to this
Schedule 13D:
(1) Press Release, dated December 3, 1996, of the Issuer and
Securicor Communications.
(2) Registration Rights Agreement, dated as of December 3, 1996,
among the Issuer, Roamer One Holdings, Inc., Securicor
Communications, Simmonds Capital, Midland International
Corporation, Anglo York Industries, Inc., Choi & Choi HK Limited
and Murray Sinclair.
(3) Amended and Restated Loan Agreement, dated as of December 3,
1996, between the Issuer and Securicor Communications.
(4) Promissory Note, dated December 3, 1996, by the Issuer to
Securicor Communications.
(5) Amended and Restated Joint Acquisition Agreement, dated December
3, 1996, by and among Securicor, Securicor Group, Security
Services, Securicor International and Securicor Communications
13
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
SECURICOR COMMUNICATIONS LIMITED
Date: December 11, 1996 /s/ M.G. Wilkinson
----------------------------
Name: M.G. Wilkinson
Title: Director
14
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
SECURICOR INTERNATIONAL LIMITED
Date: December 11, 1996 /s/ Nigel Griffiths
-------------------------------
Name: Nigel Griffiths
Title: Director
15
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
SECURITY SERVICES PLC
Date: December 11, 1996 /s/ Nigel Griffiths
-----------------------------
Name: Nigel Griffiths
Title: Director
16
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
SECURICOR GROUP PLC
Date: December 11, 1996 /s/ Nigel Griffiths
---------------------------------
Name: Nigel Griffiths
Title: Director
17
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
SECURICOR PLC
Date: December 11, 1996 /s/ Nigel Griffiths
--------------------------------
Name: Nigel Griffiths
Title: Director
18
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EXHIBIT INDEX
Exhibit No. Exhibit
----------- -------
(1) Press Release, dated December 3, 1996, of the Issuer and
Securicor Communications.
(2) Registration Rights Agreement, dated as of December 3, 1996,
among the Issuer, Roamer One Holdings, Inc., Securicor
Communications, Simmonds Capital, Midland International
Corporation, Anglo York Industries, Inc., Choi & Choi HK
Limited and Murray Sinclair.
(3) Amended and Restated Loan Agreement, dated as of December 3,
1996, between the Issuer and Securicor Communications.
(4) Promissory Note, dated December 3, 1996, by the Issuer to
Securicor Communications.
(5) Amended and Restated Joint Acquisition Agreement, dated
December 3, 1996, by and among Securicor, Securicor Group,
Security Services, Securicor International and Securicor
Communications.
19
NYFS09...:\73\73273\0003\1748\SCHD026R.11A
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EXHIBIT 1
TO BUSINESS AND TECHNOLOGY EDITORS:
INTEK and Securicor Complete Final Step of Transaction
LOS ANGELES and SURREY, England, Dec. 4/PRNewswire/ -- In a
joint statement today, INTEK Diversified Corporation ("INTEK") (Nasdaq
-----
SmallCap: IDCC) of Los Angeles, California and Securicor
Communications Limited ("Securicor") of Surrey, England announced that
INTEK has acquired all of the issued and outstanding shares of
-----
Securicor Radiocoms Limited ("Radiocoms") of the UK, a wholly owned
subsidiary of Securicor. Included in the acquisition is indirect
ownership of $10 million in preferred stock of E.F. Johnson Co. INTEK
-----
has also established a $15 million loan facility from Securicor for
operation of the consolidated business. In payment for Radiocoms,
INTEK has issued 25 million shares of common stock to Securicor and
-----
the transaction will be accounted for as a reverse merger. This
transaction marks the conclusion of the planned three-way combination,
as previously announced on June 18, 1996, which combines INTEK's
Roamer One specialized mobile radio airtime services business with the
U.S. land mobile radio distribution business of Midland and the linear
modulation wireless technology and manufacturing operations of
--------
Radiocoms.
Radiocoms has certain intellectual property rights, know-how
and technology expertise that have allowed it to develop and
manufacture a linear modulation technology that is a spectrally
efficient means of two-way wireless communication within in a very
--------
narrow bandwidth. Roamer One, a wholly owned subsidiary of INTEK and
-----
the largest single purchaser of Radiocoms equipment in the U.S., is
primarily engaged as a manager of 220MHz trunked radio systems. As of
December 1, 1996, Roamer One had completed construction of over 1,000
channels utilizing the Radiocoms' equipment. Roamer One plans to
later combine these channels into local and regional roaming groups to
provide wide area coverage including multiple repeater sites.
Newly elected Chairman of the Board, Dr. Edmund Hough
stated, "This transaction marks the beginning of New INTEK, capable of
-----
competing on a global scale as a vertically integrated wireless
--------
communications company. We believe the combination of Radiocoms'
linear modulation technology and expertise in design and manufacture,
together with the established distribution business of Midland and the
airtime business of Roamer One will allow INTEK to gain access to
-----
markets previously dominated by much larger firms."
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INTEK had earlier acquired the U.S. land mobile radio
-----
business of Midland International Corporation, a wholly owned
subsidiary of Simmonds Capital Limited ("SCL"), together with the
------------------------
Midland trademark and certain other assets required to operate the
business. Midland has historically been among the top U.S.
distributors of land mobile radio products and operates primarily
through a well established base of value added resellers and
authorized dealers in the U.S. Management anticipates that Midland
will play an instrumental role in the sale and distribution of linear
modulation products intended for use on the Roamer One network of
specialized mobile radio systems and to other end-users and operators
of wireless communication systems. In connection with the closing of
--------
the Radiocoms acquisition, 1,695,000 shares of INTEK common stock were
-----
released from escrow to SCL. There are 655,000 INTEK shares remaining
-----
in escrow for SCL pending calculation of possible pricing adjustments.
INTEK Diversified Corporation is a publicly traded company
-----
listed on the Nasdaq small cap exchange (symbol: "IDCC"). Through its
wholly owned subsidiaries, Midland USA and Roamer One, INTEK has been
-----
involved with the distribution of land mobile radio products and the
construction, operation and management of specialized mobile radio
systems in the United States.
Securicor plc is a major UK-based international
organization, with core businesses in security services, parcels and
freight distribution, and fixed and mobile telecommunications. Its
telecommunications interests include a 40 percent ownership in
Cellnet, the UK cellular operator which currently has in excess of 2
million subscribers. Securicor's shares are traded on the London
Stock Exchange (symbol: "Securicor").
NYFS09...:\73\73273\0003\1748\EXHD046M.330
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EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
among
INTEK DIVERSIFIED CORPORATION
and
ROAMER ONE HOLDINGS, INC.,
SECURICOR COMMUNICATIONS, LIMITED,
SIMMONDS CAPITAL LIMITED,
MIDLAND INTERNATIONAL CORPORATION,
ANGLO YORK INDUSTRIES, INC.,
CHOI & CHOI, HK LIMITED,
and
MURRAY SINCLAIR
Dated as of December 3, 1996
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TABLE OF CONTENTS
Page
1. Definitions.................................................... 2
2. Demand Registration............................................ 4
a. Demand for Registration.................................. 4
b. Number of Demand Registrations........................... 4
c. Expenses................................................. 6
d. Effective Registration Statement......................... 6
e. Priority in Requested Registrations...................... 6
f. Selection of Underwriters................................ 7
3. Incidental Registration........................................ 7
a. Participation in Incidental Registrations................ 7
b. Priority in Incidental Registrations..................... 8
4. Limitations.................................................... 9
5. Registration Procedures........................................ 10
6. Expenses....................................................... 12
7. Indemnification................................................ 13
a. By the Company........................................... 13
b. By Holders of Registrable Securities..................... 13
c. Notice................................................... 14
d. Contribution............................................. 15
8. Holder to Provide Information.................................. 15
9. Rule 144 Reporting............................................. 16
10. Granting of Registration Rights................................. 16
11. Remedies........................................................ 16
12. MISCELLANEOUS................................................... 17
a. Waivers and Amendments................................... 17
b. Entire Agreement......................................... 17
c. Governing Law............................................ 17
d. Notices.................................................. 17
e. Counterparts............................................. 18
f. Successors and Assigns................................... 18
g. Third Parties............................................ 18
h. Termination of Prior Agreement........................... 18
2
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
December 3, 1996, by and among INTEK DIVERSIFIED CORPORATION, a California
corporation (the "Company"), ROAMER ONE HOLDINGS, INC. ("Roamer"), a Delaware
corporation, SECURICOR COMMUNICATIONS LIMITED, ("Securicor Communications"), a
corporation organized under the laws of England and Wales, SECURICOR
INTERNATIONAL LIMITED ("Securicor International" and, together with Securicor
Communications, "Securicor"), a corporation organized under the laws of England
and Wales, SIMMONDS CAPITAL LIMITED ("Simmonds"), a corporation organized under
the laws of Ontario, Canada, MIDLAND INTERNATIONAL CORPORATION ("Midland"), a
Delaware corporation, ANGLO YORK INDUSTRIES, INC. ("Anglo York"), a Delaware
corporation, CHOI & CHOI, HK LIMITED, a limited liability company organized
under the laws of Hong Kong, MURRAY SINCLAIR, and such other holders of
Registrable Securities (as defined herein) as may execute and deliver a
counterpart of this Agreement to the Company.
Recitals
A. On September 23, 1994, the Company entered into a Registration Rights
Agreement (the "1994 Registration Rights Agreement") granting certain
registration rights to Simmonds, Roamer, Anglo York and Howard Davis.
B. On June 18, 1996, the Company entered into a Stock Purchase Agreement with
Securicor Communications (the "SECURICOR AGREEMENT), pursuant to which the
Company has agreed to acquire all of the stock (other than certain
preferred stock) of Securicor Radiocoms Limited, a wholly-owned subsidiary
of Securicor.
C. On September 18, 1996, the Company entered into an Amended and Restated
Sale of Assets and Trademark Agreement (the "SIMMONDS AGREEMENT; and
collectively with the SECURICOR AGREEMENT, the INVESTOR AGREEMENTS") with
Simmonds and Midland, pursuant to which SIMMONDS AGREEMENT the Company
acquired certain assets of Midland.
D. Pursuant to the terms of the SECURICOR AGREEMENT, upon consummation of the
transactions contemplated in the SECURICOR AGREEMENT Securicor
Communications is to acquire 25,000,000 shares of the common stock, par
value $0.01 per share, of the Company (the "Common Stock"), increasing
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Securicor's holdings of Common Stock to 25,937,042 shares (approximately
63.7% of the then issued and outstanding shares of Common Stock).
E. Pursuant to the terms of the SIMMONDS AGREEMENT, Midland acquired 150,000
shares of Common Stock as of the date hereof, and upon consummation of the
transactions contemplated in the SECURICOR AGREEMENT, Midland is to
acquire up to 2,350,000 additional shares of Common Stock thereby
increasing Midland and Simmonds' beneficial interest in Common Stock to up
to 5,044,183 shares (12.4% of then issued and outstanding shares of Common
Stock).
F. The termination of the 1994 Registration Rights Agreement, the grant of
the registration rights and other shareholder rights contained herein and
the execution and delivery of this Agreement by the parties hereto is a
condition precedent to Securicor Communications' and Simmonds' and
Midland's obligations under the INVESTOR AGREEMENTS.
Agreements
NOW THEREFORE, the parties to this Agreement hereby agree as
follows:
1. Definitions.
For purposes of this Agreement, unless the context otherwise requires, the
following terms have the meanings set forth below:
"COMMISSION" means the Securities and Exchange Commission or any
other United States federal agency at the time administering the Securities Act.
"COMMON STOCK" has the meaning provided in the
recitals.
"DEMAND REGISTRATION" means a registration of Registrable Securities
by the Company pursuant to a Demand Registration Request of a then Eligible
Demand Holder pursuant to Section 2 of this Agreement
"DEMAND REGISTRATION REQUEST" means a written request by a then
Eligible Demand Holder for the registration of Registrable Securities.
"ELIGIBLE DEMAND HOLDER" means (a) each of Securicor, Simmonds,
Midland and Roamer, and (b) Anglo York to the extent
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that Anglo York holds, and only with respect to, Registrable Securities which
are eligible to be registered by the Company under the Securities Act on a Form
S-3 Registration Statement (as determined by agreement between the Company and
the Holder of such Registrable Securities).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission enacted from time to
time in connection therewith, as the same shall be in effect from time to time.
"HOLDER" means, so long as such Person owns a beneficial interest in
Common Stock, Roamer, Securicor, Simmonds, Anglo York and such other holders of
Registrable Securities who are parties hereto, and their respective successors
and assigns.
"PERSON" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization, or
governmental entity (including any department or agency thereof).
"REGISTRATION EXPENSES" means, except as otherwise set forth in this
Agreement, all expenses incident to the Company's performance of or compliance
with its obligations to register Registrable Securities under this Agreement,
including, without limitation, (a) all registration, filing and NASD fees, (b)
all fees and expenses of complying with applicable United States federal and
state securities laws, (c) all word processing, duplicating and printing
expenses, (d) messenger and delivery expenses, (e) the fees and disbursements of
counsel for the Company and of its independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, (f) if shares of Midland, Securicor or
Roamer are being registered pursuant to a Demand Registration under this
Agreement, the reasonable fees and disbursements of counsel retained by Midland,
Securicor or Roamer in connection with such registration, up to an aggregate
maximum amount of $25,000 for such registration (it being understood that if
more than one of Midland, Securicor and Roamer is participating in any such
registration they shall mutually agree on a single counsel to represent all of
them with respect to such registration), (g) premiums and other costs of
policies of insurance against liabilities arising out of the public offering of
Registrable Securities (if the Company elects to obtain any such insurance), and
(h) any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts, commissions and
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transfer taxes, if any, related to the sale of a Holder's Registrable Securities
pursuant to such registration.
"REGISTRABLE SECURITIES" means (a) any share of Common Stock now or
hereafter held by a Holder, (b) any option or other right to acquire Common
Stock, and (c) any securities issued or issuable with respect to Registrable
Securities, whether by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. Registrable Securities shall cease to be such when
(i) such Registrable Securities have been disposed of in accordance with a
registration statement which shall have become effective under the Securities
Act, or (ii) such Registrable Securities shall have been sold in a manner
complying with the resale provisions of Rule 144 under the Securities Act (or
any successor provision thereto), or (iii) such Registrable Securities shall
have been transferred, new certificates evidencing such Registrable Securities
without legends restricting further transfer shall have been delivered by the
Company, and subsequent public distributions of such Registrable Securities
shall neither require registration under the Securities Act nor qualification
(or any similar filing) under any state securities or "blue sky" law then in
effect, or (iv) such Registrable Securities shall have ceased to be issued and
outstanding.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission enacted from time to time in
connection therewith, as the same shall be in effect from time to time.
2. Demand Registration.
a. Demand for Registration. Upon the receipt from a then Eligible Demand
Holder of a Demand Registration Request for the registration of some or all of
the Registrable Securities owned by such Eligible Demand Holder at the time of
such Demand Registration Request, the Company shall, as soon as reasonably
practicable, but in any event within 30 calendar days after receipt of a Demand
Registration Request: (i) file a registration statement the form of which is,
under the rules and regulations of the Commission, suitable for effecting a
public offering in which the Eligible Demand Holders shall be entitled to offer
for sale and to sell, pursuant to such registration statement and in the manner
requested by such Eligible Demand Holder in the Demand Registration Request, the
amount of Registrable Securities as specified in such Demand Registration
Request; and (ii) use its best efforts to cause such registration
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statement to become effective within 90 days after the filing of the
registration statement. The Company shall use its best efforts to cause such
registration statement to remain effective for the lesser of 150 days after the
date such registration statement is declared effective or the period required to
effect such sale of Registrable Securities; provided, however, that if all
shares registered pursuant to such registration statement are to be sold in a
firm commitment underwriting and the underwriter or underwriters determine, in
its or their sole discretion, that a period greater than 150 days is necessary
in order to consummate such offering, the Company shall use commercially
reasonable efforts to cause such registration statement to remain in effect for
the period requested by the underwriter or underwriters.
b. Number of Demand Registrations. Each of the Eligible Demand Holders
shall be entitled to the number of demand registrations under this Section 2(a)
as set forth below opposite their names, PROVIDED, that (i) the minimum number
of Registrable Securities offered for registration pursuant to a Demand
Registration shall be as set forth below opposite the name of the Holder
demanding such registration, and (ii) the reasonably anticipated aggregate
offering price of such Registrable Securities offered pursuant to such Demand
Registration exceeds Three Million Dollars ($3,000,000):
NO. OF DEMAND MINIMUM SHARES
ELIGIBLE DEMAND HOLDER REGISTRATIONS To be Registered
- ---------------------- ------------- ----------------
Securicor 5 2,500,000
Simmonds and Midland, 3 1,250,000
collectively
Roamer 2 1,250,000
Anglo York 1 NO MINIMUM
; provided, however, that the minimum number of shares to be registered by each
Eligible Demand Holder shall be adjusted as appropriate to reflect any stock
dividends, stock splits, combinations, exchanges, reorganizations,
recapitalizations or reclassifications of the Registrable Securities or in
connection with any merger, consolidation or other similar business combination
transaction involving the Company. In the event that an Eligible Demand Holder
delivering a Demand Registration Request determines for any reason (other than
at the request or recommendation of the Company or the managing underwriters)
not
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to proceed with a registration of Registrable Securities requested pursuant to
this Section 2 at any time before the registration statement has been declared
effective by the Commission and such registration statement, if theretofore
filed with the Commission, is withdrawn with respect to the Registrable
Securities covered thereby, and such Eligible Demand Holder reimburses the
Company for the Registration Expenses incurred by it in connection therewith,
then the Eligible Demand Holder shall not be deemed to have exercised one of its
Demand Registration rights. If the Eligible Demand Holder determines not to
proceed with such a Demand Registration upon the request or recommendation of
the Company or the managing underwriters, the Eligible Demand Holder shall not
be required to reimburse the Company for its Registration Expenses and the
Eligible Demand Holder shall not be deemed to have exercised one of its Demand
Registration rights.
The Company shall not, without the prior written consent of Securicor,
Midland, Simmonds and Roamer, effect any registration of its securities (other
than on Form S-4 or Form S-8) from the date the Company receives a Demand
Registration Request until the earlier of (a) 90 days after the date on which
all securities covered by such Demand Registration Request have been sold or (b)
150 days after the effective date of the registration statement covering such
Registrable Securities. If the Company does not effect a registration statement
requested pursuant to a Demand Registration Request under this Section 2 for the
reasons set forth in the immediately preceding sentence, the Eligible Demand
Holders shall not be deemed to have exercised one of their Demand Registration
rights.
c. Expenses. Except as otherwise provided herein, the Company shall bear
all Registration Expenses associated with any Demand Registration undertaken
pursuant to a Demand Registration Request initiated by Securicor, Midland or
Roamer. The Company shall, in the aggregate on a one-time basis, bear only
$25,000 in Registration Expenses incurred by Anglo York for registrations
undertaken pursuant to this Section 2 which were initiated by a Demand
Registration Request of Anglo York, with the balance as reasonably estimated by
the Company, or adequate security therefor as determined in the sole discretion
of the Company, to be provided or paid to the Company by Anglo York at the time
the Company agrees to undertake a Demand Registration at its request. Each
Holder participating in any such registration shall be responsible for, and
shall pay, any transfer taxes and any fees or commissions of underwriters,
selling brokers and dealers relating to the sale or distribution of the
Registrable
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Securities being sold by such Holder pursuant to such registration.
d. Effective Registration Statement. A registration requested pursuant to
this Section 2 shall not be deemed to be effected (i) if a registration
statement with respect thereto shall not have become effective, (ii) if, after
it has become effective, such registration is interfered with for any reason by
any stop order, injunction or other order or requirement of the Commission or
any Person, and the result of such interference is to prevent the Eligible
Demand Holder(s) of Registrable Securities to be sold thereunder from disposing
thereof in accordance with the intended methods of disposition, or (iii) if the
conditions to closing (other than those to be performed by the Eligible Demand
Holder(s)) specified in the purchase agreement or underwriting agreement entered
into in connection with any underwritten registration shall not be satisfied or
waived with the consent of the Eligible Demand Holder(s) of Registrable
Securities that were to have been sold thereunder.
e. Priority in Requested Registrations. If a Demand Registration pursuant
to this Section 2 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a copy to each Person
requesting registration of Registrable Securities) that, in its opinion, the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering within a price range acceptable to the
Eligible Demand Holder(s) demanding such Demand Registration, the Company will
include in such registration to the extent of the number which the Company is so
advised can be sold in such offering (i) first, Registrable Securities requested
to be included in such registration for each Eligible Demand Holder exercising
its right to demand registration pursuant to this Section 2 in an amount
determined pursuant to the following formula: (x) the number of Registrable
Securities which such Eligible Demand Holder's Demand Registration Request
demands be included in such registration, divided by, (y) the aggregate number
of Registrable Securities for which Demand Registration Requests are made with
respect to the subject registration; and (ii) second, securities of the Company
proposed by the Company to be sold for its own account. If two or more Eligible
Demand Holders made demand and pursuant to the foregoing managing underwriters
opinion the aggregate number of Registrable Securities stated in such Eligible
Demand Holders' Demand Requests exceed the number of securities which can be
sold in such offering within a price range acceptable to the Eligible Demand
Holder(s) demanding such Demand Registration, then any such Eligible Demand
Holders may withdraw all of their
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Demand Request being deemed to have exercised a Demand and without being liable
to the Company for any Registration Expenses. If this Section 2 is applicable in
connection with any such registration, (i) no securities other than Registrable
Securities or securities of the Company proposed by the Company to be sold for
its own account shall be covered by such registration, (ii) the Company will not
grant any registration rights inconsistent with the provisions of this Section
2, and (iii) each Eligible Demand Holder selling Registrable Securities pursuant
to such registration shall be deemed to have exercised a Demand right.
f. Selection of Underwriters. In the case of any public offering pursuant
to the exercise of a right for Demand Registration by an Eligible Demand Holder,
the underwriter or underwriters for such offering shall be selected by the
Company.
3. Incidental Registration.
a. Participation in Incidental Registrations. Each time the Company shall
determine to proceed with the preparation and filing of a registration statement
under the Securities Act in connection with the proposed offer and sale for
money of any of its equity securities, whether by the Company or any of its
security holders (other than on Forms S-4 or S-8, or any successor or similar
form), the Company shall give written notice of its determination to the Holders
as soon as practical, but in no event, less than 30 days prior to the filing of
such registration statement with the Commission. Upon the written request of a
Holder given to the Company within 15 days after the mailing of any such notice
by the Company, the Company shall, subject to Section 5 hereof, cause all
Registrable Securities which such Holder has requested to be registered to be
included in such registration statement; provided, however, that if, at any time
after giving written notice of its intention to register any equity securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
either not to register or to delay registration of such equity securities, the
Company may, at its election, give written notice of such determination to the
Holders and, upon the giving of such notice, (i) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but shall pay all Registration
Expenses incurred by Holders of Registrable Securities in connection therewith),
and (ii) in the case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities for the same period as the
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delay in registering such other equity securities. No registration effected
under this Section 3 shall relieve the Company of its obligation to effect any
registration under Section 2, except as contemplated by Section 4. A Holder's
participation in any such incidental registration shall not require that it pay
any portion of the Registration Expenses incurred by the Company, except
transfer taxes, and any fees, discounts and commissions of underwriters, selling
brokers or dealers applicable to shares sold by such Holder.
b. Priority in Incidental Registrations. If (i) a registration pursuant to
this Section 3 involves an underwritten offering of the securities so being
registered to be distributed (on a firm commitment basis) by or through one or
more underwriters of recognized standing under underwriting terms appropriate
for such a transaction, and (ii) the managing underwriter of such underwritten
offering shall inform the Company and the Holders (if any Registrable Securities
held by the Holders have been requested to be included in such underwritten
offering) by letter of its belief that the distribution of all or a specified
number of the Registrable Securities requested to be included concurrently with
the securities being distributed by such underwriters would interfere with the
successful marketing of the securities being distributed by such underwriters
(such writing to state the appropriate number of the Registrable Securities
requested to be included which may be distributed without such effect), then the
Company may, upon written notice to all the Holders, reduce (if and to the
extent stated by such managing underwriter to be necessary to eliminate such
effect) the number of the Registrable Securities requested to be included so
that the resultant aggregate number of the Registrable Securities requested to
be included that will be included in such registration shall be equal to the
maximum number of shares stated by such managing underwriter letter as would not
so interfere; provided, however, that the priority in such registration shall be
as follows, (i) first, securities offered for the account of the Company or, if
such registration is for a security holder exercising a Demand Registration,
then securities offered for the account of such security holder, and (ii)
second, the Registrable Securities of each Holder pro rata in proportion to
their share of the then outstanding Registrable Securities; provided, that
Registrable Securities of Securicor or any of its Affiliates shall not be
included in the first such registration by the Company after the date of this
Agreement unless, and only to the extent that, the aggregate number of
Registrable Securities being offered for the account of the Company, Simmonds,
Midland and Roamer, collectively, do not equal the maximum number of shares
stated by
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such managing underwriter letter; and provided, further, that during the
two-year period following the date hereof Securicor and its Affiliates shall
not, collectively or individually, be entitled to offer for registration
pursuant to the foregoing clause (ii) more than 25% of the number of shares
stated in such managing underwriter's letter. Notwithstanding anything in this
Section 3.b. to the contrary, Holders shall not have any right to include their
Registrable Securities in any distribution or registration of securities by the
Company, which is a result of a (1) merger, (2) consolidation, (3) acquisition,
(4) exchange offer, (5) recapitalization, (6) other reorganization, (7) dividend
reinvestment plan, (8) stock option plan or other employee benefit plan, or (9)
any similar transaction having the same effect.
4. Limitations. Notwithstanding the provisions of Sections 2, and 3 hereof: (a)
the Company shall have the right to delay or suspend the preparation and filing
of a registration statement for up to 90 days if in the reasonable and good
faith judgment of a majority of the Directors on the Board of Directors of the
Company such preparation or filing would impede, delay or interfere in any
material fashion with any material financing or material business transaction
actively being pursued by the Company at time of receipt of the request for such
registration or with the ability of the Company to conduct its affairs or would
have a material adverse effect on the business, properties or financial
condition of the Company; provided, however, that the Company shall use its best
efforts to cause any such registration statement to become effective within 150
days of receipt of the request therefor and shall only be entitled to utilize
this clause once in any 12 month period; (b) if, prior to receiving a request
for registration, the Company is working on an underwritten public offering of
Common Stock (a "Company Initiated Public Offering") and is advised by the
managing underwriter(s) in writing that such offering would in its or their
opinion be adversely affected by such filing, then the Company shall have the
right, upon notice to the Holder requesting registration within 14 days after
receipt of such request, to delay or suspend the filing of the registration
statement requested by such Holder; provided that the Company shall use its best
efforts to cause any such registration statement requested by the Holders to
become effective within 180 days (or, if required by the underwriters for the
Company Initiated Public Offering, within 270 days) after the date on which all
securities covered by the Company Public Offering have been sold, and that the
Company shall use its best efforts to include any Registrable Securities that
are the subject of a notice delivered by Holders under Section 3 in the
registration
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statement for such Company Initiated Public Offering; and (c) the Company shall
not be required to prepare or file a registration statement with respect to any
Demand Request under Section 2 if the reasonably anticipated aggregate offering
price of such Registrable Securities does not exceed Three Million Dollars
($3,000,000) or if the Holders making the Demand Registration Requests would be
able to sell all the Registrable Securities they have requested to sell pursuant
to Rule 144 under the Securities Act.
5. Registration Procedures. If and whenever the Company is required by the
provisions of Sections 2 or 3 to effect the registration of any Registrable
Securities under the Securities Act, the Company will:
a. prepare and file with the Commission a registration statement with
respect to such Registrable Securities, and use its best efforts to cause such
registration statement to become effective as provided herein;
b. prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective until the earlier
of (i) the date on which all Registrable Securities covered by such registration
statement have been sold and (ii) 150 days after the effective date of such
registration statement;
c. use its best efforts to register or qualify the Registrable Securities
for sale under such other securities or blue sky laws of such jurisdictions as
the Holders may reasonably request (such reasonableness being determined on the
basis of factors such as the cost to the Company) and do any and all other acts
and things which may be reasonably necessary or desirable to enable the Holders
to consummate the disposition of the Registrable Securities in such
jurisdictions; provided, however, that the Company shall not be required to
qualify generally to do business as a foreign corporation subject itself to
taxation, or consent to general service of process, in any jurisdiction wherein
it would not, but for the requirements of this Section 5, be obligated to be so
qualified;
d. furnish to the Holders and to the underwriters of the securities being
registered a reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus, and such other documents as the
Holders or underwriters may reasonably request in order to facilitate the public
offering of such securities;
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e. prepare and file with the Commission, promptly upon the request of the
Holders, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for the Holders (and concurred in by
counsel for the Company), is required under the Securities Act or the rules and
regulations thereunder in connection with the distribution of the Registrable
Securities by the Holders;
f. prepare and promptly file with the Commission, and promptly notify the
Holders of the filing of, any amendment or supplement to such registration
statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event shall have occurred
as the result of which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statement therein, in the light of the
circumstances in which they were made, not misleading;
g. notify each seller of any Registrable Securities covered by such
registration statement and the managing underwriter (as such term is defined in
Rule 12b-2 under the Exchange Act), if any, promptly and, if requested by any
such person, confirm such notification in writing, (i) when a prospectus or any
prospectus supplement has been filed with the Commission, and, with respect to a
registration statement or any post-effective amendment thereto, when the same
has been declared effective by the Commission, (ii) of any request by the
Commission for amendments or supplements to a registration statement or related
prospectus, or for additional information, (iii) of the issuance by the
Commission of any stop order or the initiation of any proceedings for such or a
similar purpose (and the Company shall make every commercially reasonable effort
to obtain the withdrawal of any such order at the earliest possible moment),
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose (and the Company shall make every commercially reasonable effort to
obtain the withdrawal of any such suspension at the earliest possible moment),
(v) of the occurrence of any event which requires the making of any changes to a
registration statement or related prospectus so that such documents will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (and
the Company shall promptly
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prepare and furnish to such seller and managing underwriter a reasonable number
of copies of a supplemented or amended prospectus such that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading), and (vi) of the Company's determination that the filing of a
post-effective amendment to the Registration Statement shall be necessary or
appropriate. Each Holder shall be deemed to have agreed by acquisition of
Registrable Securities that upon the receipt of any notice from the Company of
the occurrence of any event of the kind described in clause (v) of this Section
5(g), such Holder shall forthwith discontinue such Holder's offer and
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder shall have received
copies of a supplemented or amended prospectus which is no longer defective as
contemplated by clause (v) of this Section 5(g), and, if so directed by the
Company, shall deliver to the Company, at the Company's expense, all copies
(other than permanent file copies) of the defective prospectus covering such
Registrable Securities which are then in such Holder's possession. In the event
the Company shall provide any notice of the type referred to in the preceding
sentence, the 150-day period mentioned in Section 5.b(ii) shall be extended by
the number of days from and including the date such notice is provided, to and
including the date when each seller of any Registrable Securities covered by
such registration statement shall have received copies of the corrected
prospectus contemplated by clause (v) of this Section 5(g), plus an additional
seven days;
h. at least three days prior to the filing of any amendment or supplement
to such registration statement or prospectus, furnish copies thereof to the
Holders and refrain from filing any such amendment or supplement to which the
Holders shall have reasonably objected on the grounds that such amendment or
supplement does not comply in all material respects with the requirements of the
Securities Act or the rules and regulations thereunder, unless in the opinion of
counsel for the Company the filing of such amendment or supplement is reasonably
necessary to protect the Company from any liabilities under any applicable
federal or state law and such filing will not violate applicable law; and
i. at the request of the Holders, obtain an opinion from
counsel to the Company, and a "cold comfort" letter from an
independent certified public accounting firm of national
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recognition and standing who have certified the Company's financial statements
included in the registration statement or any amendment thereto, in each case in
form and substance satisfactory to the majority in interest of the Holders
participating in the registration ("Majority Holders"), and covering such
matters of the type customarily covered by such opinions and "cold comfort"
letters as the Majority Holders shall reasonably request.
6. Expenses. Except as otherwise provided herein, the Company shall bear all
reasonable Registration Expenses. Each Holder participating in any such
registration shall be responsible for, and shall pay, any transfer taxes and any
fees or commissions of underwriters, selling brokers and dealers relating to the
sale or distribution of the Registrable Securities being sold by such Holder
pursuant to such registration, as well as any fees of counsel to such Holder
that are not specifically designated as Registration Expenses in Section 1
hereof and any fees and disbursements of any accountants retained by such
Holder.
7. Indemnification.
a. By the Company. The Company shall indemnify and hold harmless each
Holder, its officers, directors and employees, and any underwriter (as defined
in the Securities Act) for such Holder and each person, if any, who controls
such Holder or such underwriter within the meaning of the Securities Act, from
and against any and all loss, damage, liability or claims, to which such Holder,
or any officer, director or employee of such holder, or any such underwriter or
controlling person becomes subject under the Securities Act or otherwise, and
subject to the provisions of Section 8(c) hereof to reimburse them, from time to
time upon request, for any legal or other costs or expenses reasonably incurred
by them in connection with investigating any claims or defending any actions (as
provided herein), insofar as such losses, damages, liabilities, claims, costs or
expenses are caused by any untrue statement or alleged untrue statement of any
material fact contained in such registration statement, any prospectus contained
therein or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, damage, liability, claim, cost or expense arises out of or is based upon
(i) an untrue statement or alleged untrue statement or omission or alleged
omission (other than a statement or omission about the
14
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<PAGE>
Company) made in conformity with information furnished by the Holder seeking
indemnification in writing specifically for use in the preparation of a
registration statement or (ii) a Holder's failure to deliver a copy of the
registration statement, prospectus or any amendments or supplements thereto.
b. By Holders of Registrable Securities. Each Holder of Registrable
Securities included in a registration pursuant to this Agreement shall indemnify
and hold harmless the Company, its officers, directors and agents, each other
Holder, any underwriter and each person, if any, who controls the Company, such
other Holder or such underwriter, from and against any and all loss, damage,
liability or claim, to which the Company or its officers, directors or agents,
or such other Holder or any controlling person and/or any underwriter becomes
subject under the Securities Act or otherwise and to reimburse them, from time
to time upon request, for any legal or other costs or expenses reasonably
incurred by them in connection with investigating any claims or defending any
actions, insofar as such losses, damages, liabilities, costs, or expenses are
caused by any untrue or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
strict conformity with written information furnished by such indemnifying Holder
specifically for use in the preparation of such registration statement, provided
that the obligations of the Holder hereunder shall be limited to an amount equal
to the net proceeds to the Holder from the sale of such Holder's Registrable
Securities as contemplated hereunder.
c. Notice. Promptly after receipt by an indemnified party of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will promptly notify the
indemnifying party in writing of the commencement thereof; but the omission to
so notify the indemnifying party will not relieve such indemnifying party from
any liability which it may have to any indemnified party otherwise than
hereunder. In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
15
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assume the defense thereof, with counsel satisfactory to such indemnified
party. Notwithstanding the foregoing, the indemnified party shall have the right
to employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such suit, action, claim or
proceeding, (ii) the indemnifying party shall not have employed counsel
(reasonably satisfactory to the indemnified party) to take charge of the defense
of such action, suit, claim or proceeding within a reasonable time after notice
of commencement of the action, suit, claim or proceeding, or (iii) such
indemnified party shall have reasonably concluded that there may be defenses
available to it which are different from or additional to those available to the
indemnifying party which, if the indemnifying party and the indemnified party
were to be represented by the same counsel, could result in a conflict of
interest for such counsel or materially prejudice the prosecution of the
defenses available to such indemnified party. If any of the events specified in
clauses (ii) or (iii) of the preceding sentence shall have occurred or shall
otherwise be applicable, then the fees and expenses of one counsel or firm of
counsel selected by a majority in interest of the indemnified parties shall be
borne by the indemnifying party. If, in any case, the indemnified party employs
separate counsel, the indemnifying party shall not have the right to direct the
defense of such action, suit, claim or proceeding on behalf of the indemnified
party. Anything in this paragraph to the contrary notwithstanding, an
indemnifying party shall not be liable for the settlement of any action, suit,
claim or proceeding effected without its prior written consent (which consent in
the case of an action, suit, claim or proceeding exclusively seeking monetary
relief shall not be unreasonably withheld). Such indemnification shall remain in
full force and effect irrespective of any investigation made by or on behalf of
an indemnified party.
d. Contribution. If the indemnification from the indemnifying party as
provided in this Section 7 is unavailable or is otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses. The relative fault of such
indemnifying party shall be determined by reference to,
16
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<PAGE>
among other things, whether any action in question, including any untrue (or
alleged untrue) statement of a material fact or omission (or alleged omission)
to state a material fact, has been made, or relates to information supplied by
such indemnifying party or such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 7.c. hereof, any legal
or other fees or expenses reasonably incurred by such party in connection with
any such investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation other than as described above. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
If, however, indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the fullest
extent provided in this Section 7 without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration.
8. Holder to Provide Information. In the event a Holder requests a registration
of Registrable Securities, such Holder shall provide all such information and
materials and shall take all such actions as may be reasonably and customarily
required in order to permit the Company to comply with all applicable
requirements of the Commission and to obtain any desired acceleration of the
effective date of such registration statement. Specifically, the Company may
require a Holder to furnish the Company with such information regarding such
Holder and the distribution of its securities as is customarily required in such
registrations as the Company may from time to time reasonably request in writing
and as shall be required by law or the Commission.
9. Rule 144 Reporting. With a view to making available the benefits of certain
rules and regulations of the Commission which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
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a. Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities
Act;
b. Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
c. So long as a Holder owns any Registrable Securities, furnish to a
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as a Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell any such securities without registration.
10. Granting of Registration Rights. The Company shall not, without the prior
written consent of Holders holding at least 65% of the Registrable Securities
then held by all the Holders, grant to any Person registration rights of any
kind or nature with respect to Registrable Securities or other capital shares or
the Company if such rights would have priority over the rights granted to the
Holders pursuant to this Agreement, whether in terms of the number of shares
which holders may include in any registration, the timing of any registration of
shares, the rights of holders to demand registration of shares held by them at
the time requested by them, or in any other material respect.
11. Remedies. The Company recognizes and agrees that if the Company fails to
comply with its obligations under this Agreement, the Holders may not have an
adequate remedy at law. Such failure will cause the Holders irreparable harm for
which there may be no adequate remedy at law, and the Company hereby consents to
the issuance of an injunction in favor of the Holders by any court of competent
jurisdiction. The right of such Holders to obtain an injunction hereunder shall
not be considered a waiver of any right on the part of the Holders to recover
damages and to assert any other claims for remedies which the Holders may have
at law or in equity. The Company agrees to bear any expenses incurred by the
Holders, including reasonable attorneys fees, in enforcing their rights under
this Agreement except in cases in which it is determined that the Company was
not in breach of its obligation to provide such rights.
18
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<PAGE>
12. MISCELLANEOUS.
a. Waivers and Amendments. This Agreement may be amended or modified in
whole or in part only by a writing which makes reference to this Agreement
executed by the Company and Holders holding at least 65% of the Registrable
Securities then held by all the Holders. The obligations of any party hereunder
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the party
claimed to have given the waiver; provided, however, that any waiver by any
party of any violation of, breach of, or default under any provision of this
Agreement or any other agreement provided for herein shall not be construed as,
or constitute, a continuing waiver of such provision, or waiver of any other
violation of, breach of or default under any other provision of this Agreement
or any other agreement provided for herein.
b. Entire Agreement. This Agreement sets forth the entire understanding of
the parties hereto and supersedes all prior contracts, agreements, arrangements,
communications, discussions, representations, and warranties, whether oral or
written, among the parties with respect to the subject matter hereof.
c. Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the internal
substantive laws of the State of New York without giving effect
to the principles of conflicts of law thereof.
d. Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and be deemed to have been duly given if
personally delivered or five business days after being sent by registered or
certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below.
If to the Company: INTEK DIVERSIFIED CORPORATION
970 West 190th Street, Suite 720
Torrence, California 90502
Attn: President
19
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<PAGE>
with a copy to: Kohrman, Jackson & Krantz P.L.L.
One Cleveland Center, 20th Floor
Cleveland, Ohio 44114
Attn: Steven L. Wasserman, Esq.
If to a Holder: To the Person and Address specified
on the signature page for such
Holder.
Any party by written notice to the others may change the address of the persons
to whom notices or copies thereof shall be directed.
e. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
f. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Company may not assign or transfer its rights hereunder
without the prior written consent of the Holders. A Holder that transfers not
less than 100% of the Registrable Securities it then holds to an entity in a
transaction that is not registered under the Securities Act shall be entitled to
assign its rights hereunder to such entity, which entity shall become a "Holder"
for purposes of this Agreement provided that it assumes and agrees to perform
all the obligations of a Holder under this Agreement.
g. Third Parties. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person or entity
other than the parties hereto any rights or remedies under or by reason of this
Agreement.
h. Termination of Prior Agreement. This Registration Rights Agreement
supersedes and replaces that certain Registration Rights Agreement entered into
between the Company, Roamer, Simmonds Capital Limited, a corporation organized
under the laws of Ontario, Canada, Anglo York and Davis as of September 23,
1994.
[Remainder of Page Intentionally Left Blank.]
20
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed, or have caused
their duly authorized representatives to execute, this Registration Rights
Agreement as of the date first written above.
INTEK DIVERSIFIED CORPORATION
By:_______________________________
Name:
Title:
SECURICOR COMMUNICATIONS, LIMITED SECURICOR INTERNATIONAL, LIMITED
By:_____________________________ By:_________________________________
Name: Name:
Title: Title:
Address:__________________________ Address:_____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
With copies to: With copies to:
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
SIMMONDS CAPITAL LIMITED MIDLAND INTERNATIONAL CORPORATION
By:_____________________________ By:_________________________________
Name: Name:
Title: Title:
Address:__________________________ Address:_____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
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<PAGE>
With copies to: With copies to:
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
CHOI & CHOI, HK LIMITED ROAMER ONE HOLDINGS, INC.
By:_____________________________ By:_________________________________
Name: Name:
Title: Title:
Address:__________________________ Address:_____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
With copies to: With copies to:
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
ANGLO YORK INDUSTRIES, INC.
By:_____________________________
Name:
Title:
Address:__________________________
__________________________
__________________________
Tel: __________________________
Fax: __________________________
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<PAGE>
With copies to:
__________________________
__________________________
__________________________
__________________________
Tel: __________________________
Fax: __________________________
MURRAY SINCLAIR
Address:__________________________
__________________________
__________________________
Tel: __________________________
Fax: __________________________
With copies to:
__________________________
__________________________
__________________________
__________________________
Tel: __________________________
Fax: __________________________
23
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<PAGE>
REGISTRATION RIGHTS AGREEMENT
SHAREHOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned have executed, or have caused
their duly authorized representatives to execute, this Registration Rights
Agreement as of the date first written above.
(If a corporation) _________________________________
By: _____________________________
Name:
Title:
(If an Individual) ___________________________________
Name:
Address: __________________________
__________________________
Telephone:__________________________
Facsimile:__________________________
With copies to: __________________________
__________________________
__________________________
Telephone:__________________________
Facsimile:__________________________
24
<PAGE>
EXHIBIT 3
$15,000,000
AMENDED AND RESTATED
LOAN AGREEMENT
Dated as of December 3, 1996
between
INTEK DIVERSIFIED CORPORATION
as Borrower
and
SECURICOR COMMUNICATIONS LIMITED
as Lender
<PAGE>
<PAGE>
TABLE OF CONTENTS
-----------------
SECTION Page
------- ----
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 2
2. AMOUNT AND TERMS OF CREDIT . . . . . . . . . . . . . . . . . 10
2.1. Advances . . . . . . . . . . . . . . . . . . . . . . . 10
2.2. Letters of Credit . . . . . . . . . . . . . . . . . . 11
2.3. Use of Proceeds . . . . . . . . . . . . . . . . . . . 12
2.4. Interest on Loan . . . . . . . . . . . . . . . . . . . 12
2.5. Prepayments . . . . . . . . . . . . . . . . . . . . . 13
2.6. Receipt of Payments . . . . . . . . . . . . . . . . . 14
2.7. Application of Payments . . . . . . . . . . . . . . . 14
2.8. Accounting . . . . . . . . . . . . . . . . . . . . . . 14
2.9. Indemnity . . . . . . . . . . . . . . . . . . . . . . 15
2.10. Access . . . . . . . . . . . . . . . . . . . . . . . . 15
2.11. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 15
3. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . 16
3.1. Conditions to the Effectiveness . . . . . . . . . . . 16
3.2. Further Conditions to Each Advance and Letter of
Credit . . . . . . . . . . . . . . . . . . . . . . . . 18
4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 19
4.1. Corporate Existence; Compliance with Law . . . . . . . 19
4.2. Executive Offices . . . . . . . . . . . . . . . . . . 19
4.3. Subsidiaries . . . . . . . . . . . . . . . . . . . . . 19
4.4. Corporate Power; Authorization; Enforceable
Obligations. . . . . . . . . . . . . . . . . . . . . . 20
4.5. Solvency . . . . . . . . . . . . . . . . . . . . . . . 20
4.6. Labor Matters . . . . . . . . . . . . . . . . . . . . 20
4.7. Investment Company Act . . . . . . . . . . . . . . . . 21
4.8. Margin Regulations . . . . . . . . . . . . . . . . . . 21
4.9. No Litigation . . . . . . . . . . . . . . . . . . . . 21
4.10. Stock Agreement . . . . . . . . . . . . . . . . . . . 21
4.11. Hitachi Supply Agreement . . . . . . . . . . . . . . . 22
4.12. Patents, Trademarks, Copyrights and Licenses . . . . . 22
4.13. No Material Adverse Effect . . . . . . . . . . . . . . 22
5. FINANCIAL STATEMENTS AND INFORMATION . . . . . . . . . . . . 22
5.1. Reports and Notices . . . . . . . . . . . . . . . . . 22
5.2. Communication with Accountants . . . . . . . . . . . . 23
6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . 23
6.1. Maintenance of Existence and Conduct of Business . . . 24
6.2. Payment of Obligations . . . . . . . . . . . . . . . . 24
<PAGE>
<PAGE>
SECTION Page
------- ----
6.3. Books and Records. . . . . . . . . . . . . . . . . . . 25
6.4. Litigation . . . . . . . . . . . . . . . . . . . . . . 25
6.5. Insurance . . . . . . . . . . . . . . . . . . . . . . 25
6.6. Compliance with Law . . . . . . . . . . . . . . . . . 25
6.7. Supplemental Disclosure . . . . . . . . . . . . . . . 25
6.8. Net Worth . . . . . . . . . . . . . . . . . . . . . . 25
7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 26
7.1. Maintenance of Business . . . . . . . . . . . . . . . 26
7.2. Transactions with Affiliates. . . . . . . . . . . . . 26
7.3. Events of Default . . . . . . . . . . . . . . . . . . 26
8. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.1. Termination . . . . . . . . . . . . . . . . . . . . . 26
8.2. Survival of Obligations Upon Termination of Financing
Arrangement. . . . . . . . . . . . . . . . . . . . . . 27
9. EVENTS OF DEFAULT; RIGHTS AND REMEDIES . . . . . . . . . . . 27
9.1. Events of Default . . . . . . . . . . . . . . . . . . 27
9.2. Remedies . . . . . . . . . . . . . . . . . . . . . . . 29
9.3. Waivers by Borrower . . . . . . . . . . . . . . . . . 30
9.4. Right of Set-Off . . . . . . . . . . . . . . . . . . . 30
10. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . 30
10.1. Loan Subordinated to Senior Indebtedness . . . . . . 30
10.2. Priority and Payment Over of Proceeds in Certain
Events. . . . . . . . . . . . . . . . . . . . . . . . 31
10.3. Rights of Holders of Senior Indebtedness Not To Be
Impaired. . . . . . . . . . . . . . . . . . . . . . . 33
10.4. Subrogation . . . . . . . . . . . . . . . . . . . . . 34
10.5. Obligations of Borrower Unconditional . . . . . . . . 34
10.6. Notice to Lender . . . . . . . . . . . . . . . . . . 35
10.7. Right of Lender as Holder of Senior Indebtedness . . 35
10.8. Reinstatement . . . . . . . . . . . . . . . . . . . . 35
11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 36
11.1. Complete Agreement; Modification of Agreement;
Sale of Interest. . . . . . . . . . . . . . . . . . . 36
11.2. Fees and Expenses . . . . . . . . . . . . . . . . . . 36
11.3. No Waiver by Lender . . . . . . . . . . . . . . . . . 37
11.4. Remedies . . . . . . . . . . . . . . . . . . . . . . 37
11.5. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . 37
11.6. Severability . . . . . . . . . . . . . . . . . . . . 37
11.7. Parties . . . . . . . . . . . . . . . . . . . . . . . 38
11.8. Conflict of Terms . . . . . . . . . . . . . . . . . . 38
11.9. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . 38
11.10. Notices . . . . . . . . . . . . . . . . . . . . . . . 38
11.11. Survival . . . . . . . . . . . . . . . . . . . . . . 40
<PAGE>
<PAGE>
SECTION Page
------- ----
11.12. Section Titles. . . . . . . . . . . . . . . . . . . . 40
11.13. Counterparts . . . . . . . . . . . . . . . . . . . . 40
SCHEDULES
Schedule 4.1 Corporate Matters
Schedule 4.2 Executive Office
Schedule 4.3 Subsidiaries
Schedule 4.12 Patents, Trademarks, Copyrights and Licenses
Schedule 7.3 Certain Transactions
EXHIBITS
Exhibit A-Form of Notice of Advance
Exhibit B-Form of Note
<PAGE>
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT, dated as of December 3,
1996, between INTEK DIVERSIFIED CORPORATION, a Delaware corporation
having an office at 970 West 190th Street, Torrance, California 90502
(the "Borrower"), and SECURICOR COMMUNICATIONS LIMITED, a company
incorporated under the laws of England and Wales having an office at
15 Carshalton Road, Sutton, Surrey, SM1 4LD, England ("Lender").
W I T N E S S E T H :
-------------------
WHEREAS, Midland International Corporation, a Delaware
corporation ("Midland"), Borrower and Simmonds Capital Limited, an
Ontario corporation ("Simmonds"), entered into an Amended and Restated
Sale of Assets and Trademark License Agreement, dated as of September
19, 1996 (the "Asset and Trademark Agreement"), pursuant to which
Midland sold to Borrower the Trademark (as defined herein) and certain
other assets, as described therein (collectively, the "Acquired
Assets"), in consideration for up to 2,500,000 shares of common stock,
par value $0.01 per share of Intek, an assumption of certain
liabilities of Midland (the "Assumed Liabilities") and a cash payment,
all as set forth in the Asset and Trademark Agreement (the "Midland
Transaction"); and
WHEREAS, Borrower assigned and transferred all of its right,
title and interest in and to the Acquired Assets and the Asset and
Trademark Agreement (and certain other agreements) to its wholly-owned
Subsidiary, Midland USA, Inc. ("MUSA"), and MUSA has conducted the
U.S. LMR Distribution Business since the consummation of the Midland
Transaction;
WHEREAS, Borrower and Lender entered into a Stock Purchase
Agreement, dated as of June 18, 1996, as amended by agreement of the
parties dated as of September 19, 1996 (the "Stock Agreement"),
pursuant to which Lender agreed to sell to Borrower all of the
outstanding securities (other than certain preferred shares) of
Lender's wholly-owned subsidiary, Securicor Radiocoms Limited
("Radiocoms"), in consideration for 25,000,000 shares of Common Stock
(the "Securicor Transaction"); and
WHEREAS, pursuant to the Stock Agreement, Lender has agreed,
among other things, to advance up to $15 million to Borrower following
the consummation of the Securicor Transaction to finance the combined
business of Borrower, the U.S. LMR Distribution Business and
Radiocoms;
<PAGE>
<PAGE>
WHEREAS, it is currently contemplated that the Securicor
Transaction will be consummated on or about December 3, 1996; and
WHEREAS, in connection with the consummation of the Midland
Transaction on September 20, 1996, Lender and Midland USA, Inc.
("MUSA"), a wholly owned subsidiary of Borrower, entered into that
certain Loan Agreement, dated as of September 19, 1996 (the "MUSA Loan
Agreement"), wherein Lender agreed, among other things, to loan up to
$15 million to MUSA to fund Borrower's operations until the closing of
the Securicor Transaction; and
WHEREAS, Lender, Borrower and MUSA have agreed that upon the
consummation of the Securicor Transaction, the "Obligations" (as
defined in the MUSA Loan Agreement) of MUSA outstanding under the MUSA
Loan Agreement on the date of such consummation will be assumed by
Borrower and become obligations under this Amended and Restated Loan
Agreement (subject to the terms hereof), as set forth in that certain
letter agreement between the parties, dated September 19, 1996 (the
"Intek Loan Assumption Agreement"); and
WHEREAS, the aggregate amount outstanding under the MUSA
Loan Agreement, including accrued interest thereon, as of the date
hereof, is $5,912,047.22 and
WHEREAS, the parties wish to amend and restate the MUSA Loan
Agreement as set forth herein to, among other things, confirm the
substitution of Borrower as the obligor with respect to all
Obligations (rather than MUSA) and provide for certain other changes;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, the parties hereto agree as
follows:
1. DEFINITIONS
In addition to the defined terms appearing above,
capitalized terms used in this Agreement shall have (unless otherwise
provided elsewhere in this Agreement) the following respective
meanings when used herein:
"Acquired Assets" shall have the meaning ascribed to it in
the recitals hereof.
<PAGE>
<PAGE>
"Advance" shall have the meaning ascribed to it in Section
2.1(a) hereof.
"Affiliate" shall mean, with respect to any Person, any
other Person that controls such Person or is controlled by or under
common control with such Person.
"Agreement" shall mean this Loan Agreement, including all
amendments, modifications and supplements hereto and any appendices,
exhibits or schedules to any of the foregoing, and shall refer to the
Agreement as the same may be in effect at the time such reference
becomes operative.
"Ancillary Agreements" shall mean any and all supplemental
agreements, undertakings, instruments, documents or other writings
executed by Borrower.
"Asset and Trademark Agreement" shall have the meaning
ascribed to it in the recitals hereof.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which banks are required or permitted to be closed
in the State of New York.
"Cash Equivalents" shall mean (i) marketable direct
obligations issued or unconditionally guaranteed by the United States
of America or any agency thereof maturing within one year from the
date of acquisition thereof; (ii) commercial paper maturing no more
than one year from the date of creation thereof and at the time of
their acquisition having the highest rating obtainable from either
Standard & Poor's Corporation or Moody's Investors Service, Inc.; and
(iii) certificates of deposit, maturing no more than one year from the
date of creation thereof, issued by commercial banks incorporated
under the laws of the United States of America, each having combined
capital, surplus and undivided profits of not less than $200,000,000
and having a rating of "A" or better by a nationally recognized rating
agency.
"Change of Control" shall mean any acquisition, directly or
indirectly, in one transaction or a series of transactions, by any
Person, other than Lender or any Affiliate thereof, of greater than
(i) 50% or more of the issued and outstanding Common Stock, or (ii)
50% or more of the assets of Borrower and its Subsidiaries, taken as a
whole (including without limitation the sale by Borrower of the stock
of a Subsidiary or Subsidiaries whose combined assets represent 50% or
more of the assets of Borrower and its Subsidiaries, taken as a
whole).
<PAGE>
<PAGE>
"Charges" shall mean all federal, state, county, city,
municipal, local, foreign or other governmental taxes at the time due
and payable, levies, assessments, charges, liens, claims or
encumbrances upon or relating to (i) the Collateral, (ii) the
Obligations, (iii) Borrower's or any of its Subsidiaries' ownership or
use of any of its assets, or (iv) any other aspect of Borrower's or
any of the Subsidiaries' business.
"Closing Date" shall mean the date on which all of the
conditions precedent to the effectiveness of this Agreement have been
satisfied.
"Code" shall mean the Uniform Commercial Code of the
jurisdiction with respect to which such term is used, as in effect
from time to time.
"Commitment Termination Date" shall mean December 31, 1997.
"Common Stock" shall mean common stock, par value $0.01, of
Borrower.
"Composite Prime Rate" shall mean the average of the rate of
interest per annum publicly announced from time to time by each of The
Chase Manhattan Bank, The Bank of New York, N.A. and Citibank, N.A. as
its prime rate in effect at its principal office in New York City
(each change in any such prime rate to be effective on the date such
change is publicly announced).
"Default" shall mean any event which, with the passage of
time or notice or both would, unless cured or waived, become an Event
of Default.
"Event of Default" shall have the meaning ascribed to it in
Section 9.1 hereof.
"Federal Reserve Board" shall have the meaning ascribed to
it in Section 4.8 hereof.
"Fiscal Year" shall mean the calendar year. Subsequent
changes of the fiscal year of Borrower shall not change the term
"Fiscal Year," unless Lender shall consent in writing to such changes.
"GAAP" shall mean generally accepted accounting principles
in the United States of America as in effect from time to time.
<PAGE>
<PAGE>
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranteed Indebtedness" shall mean, as to any Person, any
obligation of such Person guaranteeing any indebtedness, lease,
dividend, or other obligation ("primary obligations") of any other
Person (the "primary obligor") in any manner including, without
limitation, any obligation or arrangement of such Person (a) to
purchase or repurchase any such primary obligation, (b) to advance or
supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency
or any balance sheet condition of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation, or (d) to
indemnify the owner of such primary obligation against loss in respect
thereof.
"Hitachi Supply Agreement" shall mean the agreement between
Midland and Hitachi Denshi Ltd., a Japanese corporation ("Hitachi"),
dated as of May 12, 1994 and pursuant to which Hitachi agreed, among
other things, to manufacture and sell to Midland certain mobile
radios.
"Indebtedness" of any Person shall mean (i) all indebtedness
of such Person for borrowed money or for the deferred purchase price
of property or services (including, without limitation, reimbursement
and all other obligations with respect to surety bonds, letters of
credit and bankers' acceptances, whether or not matured, but not
including obligations to trade creditors incurred in the ordinary
course of business), (ii) all obligations evidenced by notes, bonds,
debentures or similar instruments, (iii) all indebtedness created or
arising under any conditional sale or other title retention agreements
with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such prop-
erty), (iv) all Guaranteed Indebtedness, (v) all Indebtedness referred
to in clause (i), (ii), (iii) or (iv) above secured by (or for which
the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including,
without limitation, accounts and contract rights) owned by such
Person, even though such
<PAGE>
<PAGE>
Person has not assumed or become liable for the payment of such
Indebtedness, and (vi) the Obligations.
"Intek Loan Assumption Agreement" shall have the meaning
ascribed to it in the recitals hereof.
"Letter of Credit Obligations" shall mean all outstanding
obligations incurred by Lender at the request of Borrower, whether
direct or indirect, contingent or otherwise, due or not due, in
connection with the issuance or guarantee, by Lender or another, of
letters of credit, bank acceptances in respect of letters of credit,
or the like. The amount of such Letter of Credit Obligations shall
equal the maximum amount which may be payable by Lender thereupon or
pursuant thereto.
"Letters of Credit" shall mean commercial or standby letters
of credit issued at the request and for the account of Borrower, and
bankers' acceptances issued by Borrower, for which Lender has incurred
Letter of Credit Obligations pursuant thereto.
"Lien" shall mean any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, lien, charge, claim,
security interest, easement or encumbrance, or preference, priority or
other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any lease or title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or
agreement to give, any financing statement perfecting a security
interest under the Code or comparable law of any jurisdiction).
"Loan" shall mean the aggregate amount of Advances
outstanding at any time plus the amount of any interest capitalized
with respect thereto.
"Loan Documents" shall mean this Agreement, the Note, and
any other Ancillary Agreements as to which Lender is a party or a
beneficiary and all other agreements, instruments, documents and
certificates, including, without limitation, pledges, powers of
attorney, consents, assignments, contracts, notices, and all other
written matter whether heretofore, now or hereafter executed by or on
behalf of Borrower or any of its Affiliates, or any employee of
Borrower or any of its Affiliates, and delivered to Lender in
connection with this Agreement or the transactions contemplated
hereby.
<PAGE>
<PAGE>
"Material Adverse Effect" or "Material Adverse Change" shall
mean an event or circumstance which materially adversely affects the
business, properties, financial condition or operations of Borrower
and its Subsidiaries (taken as a whole).
"Maximum Lawful Rate" shall have the meaning ascribed to it,
in Section 2.4(c) hereof.
"Midland" shall have the meaning ascribed to it in the
recitals hereof.
"MUSA" shall have the meaning ascribed to it in the recitals
hereof.
"MUSA Loan Agreement" shall have the meaning ascribed to it
in the recitals hereof.
"Net Worth" shall mean the total assets less the total
liabilities of Borrower and its consolidated Subsidiaries as
determined in accordance with GAAP; provided, however, that in no
-------- -------
event shall the par value of the Radiocoms Preferred Stock be counted
as a liability in making such calculation.
"Note" shall have the meaning ascribed to it in Section
2.1(b).
"Obligations" shall mean all loans, advances, debts,
liabilities, and obligations, for monetary amounts (whether or not
such amounts are liquidated or determinable) owing by Borrower to
Lender (including all Letter of Credit Obligations), and all covenants
and duties regarding such amounts, of any kind or nature, present or
future, whether or not evidenced by any note, agreement or other
instrument, arising under any of the Loan Documents. This term in-
cludes, without limitation, all interest (whether capitalized or
otherwise), charges, expenses, attorneys' fees and any other sum
chargeable to Borrower under any of the Loan Documents.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation,
entity or government (whether federal, state, county, city, municipal
or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
"Radiocoms" shall have the meaning ascribed to it in the
recitals hereof.
<PAGE>
<PAGE>
"Radiocoms Preferred Stock" shall mean the 20,000 shares of
Preference Stock of Radiocoms, par value $1,000 per share, which are
issued and outstanding as of the date hereof.
"Repayment Date" means June 30, 2001.
"Securicor Transaction" shall have the meaning ascribed to
it in the recitals hereof.
"Senior Debt" shall mean all Indebtedness of Borrower
(including without limitation all principal of and premium, if any,
and interest on, and all other amounts of any nature whatsoever owing
in respect of such Indebtedness, as the same may be amended, modified
or supplemented and any refinancing thereof from time to time) other
than Indebtedness which, in accordance with its terms, ranks pari
passu or junior to the Loan.
"Senior Indebtedness" shall have the meaning ascribed to it
in Section 10.1 hereof.
"Simmonds" shall have the meaning ascribed to it in the
recitals hereof.
"Solvent" shall mean, when used with respect to any Person,
that:
(a) the present fair saleable value of such Person's
assets (including, without limitation, the fair saleable value of
the goodwill arising in connection with the Midland Transaction
and other intangible assets) is in excess of the total amount of
such Person's liabilities;
(b) such Person is able to pay its debts as they
become due; and
(c) such Person does not have unreasonably small
capital to carry on such Person's business as theretofore
operated and all businesses in which such Person is about to
engage.
"Stock" shall mean all shares, options, warrants, general or
limited partnership interests, participations or other equivalents
(regardless of how designated) of or in a corporation, partnership or
equivalent entity whether voting or nonvoting, including, without
limitation, common stock, preferred stock, or any other "equity
security" (as such term is defined in Rule 3a11-1 of the General Rules
and Regulations promulgated by
<PAGE>
<PAGE>
the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended).
"Subordinated Indebtedness" shall have the meaning ascribed
to it in Section 10.1 hereof.
"Subsidiary" shall mean any Person 50% or more of whose
issued and outstanding voting securities is owned or controlled,
directly or indirectly, by the specified Person.
"Taxes" shall have the meaning ascribed thereto in Section
2.11 hereof.
"Trademarks" shall mean the Trademarks described on Schedule
4.12(b) hereto and the trade name "Midland" and similar variations
thereof, and all registrations, applications and renewals thereof and
all logos, whether or not registered, used in connection therewith.
"US LMR Distribution Business" shall mean the business
consisting of the sale and distribution of land mobile radio products
bearing the Trademarks within the US LMR Distribution Territory as
conducted by MUSA.
"US LMR Distribution Territory" shall mean the United States
of America and the territories and possessions thereof.
Any accounting term used in this Agreement shall have,
unless otherwise specifically provided herein, the meaning customarily
given such term in accordance with GAAP, and all financial
computations hereunder shall be computed, unless otherwise
specifically provided herein, in accordance with GAAP consistently
applied. That certain terms or computations are explicitly modified
by the phrase "in accordance with GAAP" shall in no way be construed
to limit the foregoing. All other undefined terms contained in this
Agreement shall, unless the context indicates otherwise, have the
meanings provided for by the Code as in effect in the State of New
York to the extent the same are used or defined therein. The words
"herein," "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole, including the Exhibits and
Schedules hereto, as the same may from time to time be amended, modi-
fied or supplemented, and not to any particular section, subsection or
clause contained in this Agreement.
Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and
the plural, and pronouns stated in the masculine,
<PAGE>
<PAGE>
feminine or neuter gender shall include the masculine, the feminine
and the neuter.
2. AMOUNT AND TERMS OF CREDIT
--------------------------
2.1. Advances. (a) Upon and subject to the terms and
--------
conditions hereof, Lender shall make available, from time to time,
until the Commitment Termination Date, for Borrower's use and upon the
request of Borrower therefor, advances (each, an "Advance") in an
aggregate amount (which amount shall include all outstanding Letter of
Credit Obligations, whether or not then due and payable) which shall
not exceed $15,000,000 (less the amounts outstanding as of the Closing
Date, as set forth in Section 2.1(b)). Each Advance shall be made on
notice, given no later than 1:00 P.M. (New York City time) on the
second Business Day prior to the proposed Advance, by Borrower to
Lender and no Advance shall be requested unless the amount thereof is
equal to the lesser of (i) $500,000 and (ii) a whole number multiple
of $500,000 in excess thereof unless the availability under this
Agreement is less than $500,000 in which case such Advance shall equal
such amount; provided, however, that there shall be no minimum Advance
-------- -------
with respect to any Letter of Credit Obligations to be incurred
pursuant to Section 2.2. Each such notice (a "Notice of Advance")
shall be in writing in substantially the form of Exhibit A hereto,
executed by any duly authorized officer of Borrower, specifying there-
in the requested date and amount of such Advance. Lender shall,
before 5:00 P.M. (New York City time) on the date of the proposed
Advance, upon fulfillment of the applicable conditions set forth in
Section 3, wire to a bank in the United States or the United Kingdom
designated by Borrower and reasonably acceptable to Lender the amount
of such Advance.
(b) The Loan made by Lender shall be evidenced by a
promissory note to be executed and delivered by Borrower at or prior
to the Closing Date, the form of which is attached hereto and made a
part hereof as Exhibit B (the "Note"). The Note shall be payable to
the order of Lender and shall represent the obligation of Borrower to
pay the amount of the Loan, with interest thereon as prescribed in
Section 2.4. The date and amount of each Advance and each payment of
principal and interest or any capitalization of interest with respect
thereto shall be recorded on the books and records of Lender, which
books and records shall constitute prima facie evidence of the
-----------
accuracy of the information therein recorded. Borrower acknowledges
that, (i) as of the date hereof, the amount outstanding under the MUSA
Loan Agreement is $5,912,047.22, (ii) that such amount constitutes the
amount outstanding under this Agreement as of the date hereof, and
(iii) that the amount of the Loan shall be
<PAGE>
<PAGE>
increased by the amount of any payments on or pursuant to any Letter
of Credit Obligations that Lender incurred pursuant to the MUSA Loan
Agreement, regardless of the date of such payments. The entire unpaid
balance of the Loan and all other Obligations shall be due and payable
on the Repayment Date.
2.2. Letters of Credit. (a) Lender shall, subject to the
-----------------
terms and conditions hereinafter set forth, (i) incur Letter of Credit
Obligations in respect of the issuance, on the Closing Date, of such
Letters of Credit supporting obligations of Borrower or its
Subsidiaries, as Borrower shall request by written notice to Lender
executed by any duly authorized officer of Borrower, which is received
by Lender not less than 2 Business Days prior to the Closing Date, and
(ii) incur from time to time on written request of Borrower or its
Subsidiaries, additional Letter of Credit Obligations in respect of
Letters of Credit supporting obligations of Borrower or its
Subsidiaries; provided, however, that no such Letter of Credit shall
-------- -------
have an expiry date which is after March 31, 1998. It is understood
that the determination of the bank or other legally authorized Person
(including Lender) which shall issue or accept, as the case may be,
any letter of credit or bankers acceptance contemplated by this
Section 2.2(a) shall be made by Lender, in its sole discretion.
(b) In the event that Lender shall make any payment on or
pursuant to any Letter of Credit Obligation, such payment shall then
be deemed to constitute an Advance under Section 2.1(a) hereof
(whether or not Borrower is then permitted to request Advances at such
time).
(c) In the event that Lender shall incur any Letter of
Credit Obligations pursuant hereto at the request or on behalf of
Borrower hereunder, Borrower shall pay to Lender, as compensation to
Lender for such Letter of Credit Obligation, all fees and charges paid
by Lender on account of such Letter of Credit Obligation to the issuer
or like party. Fees payable in respect of Letter of Credit Obliga-
tions shall be paid to Lender, in arrears, on the first day of each
month for the preceding month.
2.3. Use of Proceeds. Borrower shall apply the proceeds of
---------------
the Advances for the general corporate purposes of Borrower and its
Subsidiaries.
2.4. Interest on Loan. (a)(i) From the Closing Date
----------------
through and including the Commitment Termination Date, interest
accrues on the amount outstanding from time to time under the Loan at
the Composite Prime Rate plus one percent (1%) per annum,
<PAGE>
<PAGE>
calculated on the basis of a 360 day year for the number of days
elapsed. Interest will be capitalized on the Commitment Termination
Date and shall be added to the principal amount outstanding at such
time under the Loan.
(ii) Following the Commitment Termination Date, interest
accrues on the amount outstanding from time to time under the Loan at
the rate of 11% per annum, calculated on the basis of a 360 day year
for the number of days elapsed. Interest will be capitalized on a
monthly basis and shall be added to the principal amount outstanding
from time to time under the Loan. Interest accrued and uncapitalized
on the Repayment Date shall be payable on such date.
(b) So long as any Event of Default shall be continuing,
the interest rate applicable to the Loan shall be increased by 3% per
annum above the rate otherwise applicable.
(c) Notwithstanding anything to the contrary set forth in
this Section 2.4, if at any time until payment in full of all of the
Obligations, the applicable rate of interest under this Agreement
exceeds the highest rate of interest permissible under any law which a
court of competent jurisdiction shall, in a final determination, deem
applicable hereto (the "Maximum Lawful Rate"), then in such event and
so long as the Maximum Lawful Rate would be so exceeded, the rate of
interest payable hereunder shall be equal to the Maximum Lawful Rate;
provided, however, that if at any time thereafter the applicable rate
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of interest under this Agreement is less than the Maximum Lawful Rate,
Borrower shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Lender
from the making of advances hereunder is equal to the total interest
which Lender would have received had the applicable rate of interest
under this Agreement been (but for the operation of this paragraph)
the interest rate payable since the Closing Date. Thereafter, the
interest rate payable hereunder shall be the applicable rate of
interest under this Agreement, unless and until such rate shall again
exceed the Maximum Lawful Rate, in which event this paragraph shall
again apply.
2.5. Prepayments. (a) Upon the occurrence of a Change of
-----------
Control of Borrower, the commitment of Lender to make Advances under
this Agreement shall immediately terminate, and Borrower shall
immediately pay to Lender the full amount of the Loan then
outstanding, together with any accrued but uncapitalized interest
thereon.
<PAGE>
<PAGE>
(b) Borrower shall have the right, at any time, to prepay
the Loan, in whole or in part, without premium or penalty, upon at
least three Business Days irrevocable notice to Lender specifying (i)
the amount to be repaid and (ii) the date of such repayment. If any
such notice is given, Borrower shall make the prepayment specified
therein, and such prepayment shall be due and payable as specified
therein. Amounts prepaid may not be reborrowed. Each partial
prepayment of the Loan pursuant to this Section 2.5(b) shall be in an
amount equal to the lesser of $500,000 or a whole number multiple of
$500,000 in excess thereof or such lesser amount outstanding.
2.6. Receipt of Payments. Borrower shall make each payment
-------------------
under this Agreement not later than 11:00 A.M. (New York City time) on
the day when due in lawful money of the United States of America in
immediately available funds to Lender's depositary bank as designated
by Lender from time to time for deposit in Lender's depositary
account. For purposes only of computing interest hereunder, all
payments shall be applied by Lender on the day payment has been
credited by Lender's depository bank to Lender's account in
immediately available funds. For purposes of determining the amount
of funds available for borrowing by Borrower pursuant to Section
2.1(a) hereof, such payments shall be applied by Lender against the
outstanding amount of the Loan at the time they are credited to its
account.
2.7. Application of Payments. Borrower irrevocably waives
-----------------------
the right to direct the application of any and all payments at any
time or times hereafter received by Lender from or on behalf of
Borrower, and Borrower irrevocably agrees that Lender shall have the
continuing exclusive right to apply any and all such payments against
the then due and payable Obligations of Borrower and in repayment of
the Loan as Lender may deem advisable. Lender is authorized to, and
at its option may, make advances on behalf of Borrower for payment of
all fees, expenses, charges, costs, principal and interest incurred by
Borrower hereunder when and as Borrower fails to promptly pay any such
amounts. At Lender's option and to the extent permitted by law, any
advances so made may be deemed Advances constituting part of the Loan
hereunder.
2.8. Accounting. Lender will, upon Borrower's request,
----------
provide a monthly accounting of transactions under the Loan to
Borrower within 10 days of the end of the month. Each and every such
accounting shall (absent manifest error) be deemed final, binding and
conclusive upon Borrower in all respects as to all matters reflected
therein, unless Borrower, within 20 days after the date any such
accounting is rendered, shall notify
<PAGE>
<PAGE>
Lender in writing of any objection which Borrower may have to any such
accounting, describing the basis for such objection with specificity.
In that event, only those items expressly objected to in such notice
shall be deemed to be disputed by Borrower. Lender's determination,
based upon the facts available, of any item objected to by Borrower in
such notice shall (absent manifest error) be final, binding and
conclusive on Borrower, unless Borrower shall commence a judicial
proceeding to resolve such objection within 45 days following Lender's
notifying Borrower of such determination.
2.9. Indemnity. Borrower shall indemnify and hold Lender
---------
and its officers, directors, employees, agents, Affiliates and
shareholders (collectively, the "Indemnified Persons") harmless from
and against any and all suits, actions, proceedings, claims, damages,
losses, liabilities and expenses (including, without limitation,
reasonable attorneys' fees and disbursements, including those incurred
upon any appeal) which may be instituted or asserted against or
incurred by any Indemnified Person as the result of the execution of
the Loan Documents or extension of credit hereunder; provided,
--------
however, that Borrower shall not be liable for such indemnification to
-------
such Indemnified Person to the extent that any such suit, action,
proceeding, claim, damage, loss, liability or expense results from
such Indemnified Person's negligence or willful misconduct.
2.10. Access. Lender and any of its officers, employees
------
and/or agents shall have the right, exercisable as frequently as
Lender determines to be appropriate, during normal business hours (or
at such other times as may reasonably be requested by Lender), to
inspect the properties and facilities of Borrower and to inspect,
audit and make extracts from all of Borrower's records, files and
books of account. Borrower shall deliver any document or instrument
reasonably necessary for Lender, to obtain records from any service
bureau maintaining records for Borrower, and shall maintain duplicate
records or supporting documentation on media, including, without
limitation, computer tapes and discs owned by Borrower. Borrower
shall instruct its banking and other financial institutions to make
available to Lender such information and records as Lender may
reasonably request.
2.11. Taxes. (a) Any and all payments by Borrower
-----
hereunder or under the Note shall be made, in accordance with this
Section 2.11, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding
taxes imposed on or measured by the net income
<PAGE>
<PAGE>
of Lender by the jurisdiction under the laws of which Lender is
organized or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If Borrower
shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under the Note to Lender, (i) the sum payable
shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional
sums payable under this Section 2.11) Lender receives an amount equal
to the sum it would have received had no such deductions been made,
(ii) Borrower shall make such deductions, and (iii) Borrower shall pay
the full amount deducted to the relevant taxing or other authority in
accordance with applicable law.
(b) In addition, Borrower shall pay any present or future
stamp or documentary taxes or any other sales, transfer, excise,
mortgage recording or property taxes, charges or similar levies that
arise from any payment made hereunder or under the Note or from the
execution, sale, transfer, delivery or registration of, or otherwise
with respect to the Loan Documents and any other agreements and
instruments contemplated thereby (hereinafter referred to as "Other
Taxes").
(c) Borrower shall indemnify Lender for the full amount of
Taxes or Other Taxes (including without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this
Section 2.11) paid by Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the
date such Lender makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
Borrower shall furnish to Lender, at its address referred to in
Section 11.10, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Without prejudice to the survival of any other
agreement of Borrower hereunder, the agreements and obligations of
Borrower contained in this Section 2.11 shall survive both (i) the
payment in full of principal and interest hereunder and under the Note
and (ii) the termination of this Agreement.
<PAGE>
<PAGE>
3. CONDITIONS PRECEDENT
--------------------
3.1. Conditions to the Effectiveness. Notwithstanding any
-------------------------------
other provision of this Agreement and without affecting in any manner
the rights of Lender under the MUSA Loan Agreement, this Agreement
shall not be effective, and Borrower shall have no rights under this
Agreement, and Lender shall not be obligated to make available any
Advance or Letter of Credit hereunder, unless and until Borrower shall
have delivered to Lender, in form and substance satisfactory to Lender
and (unless otherwise indicated) each dated not later than the Closing
Date:
(a) The Note to the order of Lender duly executed by
Borrower.
(b) Resolutions of the board of directors of Borrower
certified by the Secretary or Assistant Secretary of Borrower, as of
the Closing Date, to be duly adopted and in full force and effect on
such date, authorizing (i) the consummation of each of the
transactions contemplated by the Loan Documents and (ii) specific
officers to execute and deliver this Agreement and the other Loan
Documents.
(c) A copy of the organizational charter and all amendments
thereto of Borrower and each of its Subsidiaries, certified as of a
recent date by the Secretary of State of the jurisdiction of its
organization, and copies of Borrower's by-laws, certified by the
Secretary or Assistant Secretary of Borrower as true and correct as of
the Closing Date.
(d) Governmental certificates, dated the most recent
practicable date prior to the Closing Date, with telegram updates
where available, showing that the Borrower and each of its
Subsidiaries is organized and in good standing in the jurisdiction of
its organization and is qualified as a foreign corporation and in good
standing in all other jurisdictions in which it is qualified to
transact business.
(e) (i) Copies of all closing documents and certificates
delivered in connection therewith; and
(ii) a certificate from the chief executive officer of
Borrower certifying that the transactions contemplated by
the Stock Agreement have been completed.
(f) A certificate of the chief executive officer of
Borrower stating that all of the representations and warranties of the
Borrower contained herein or in any of the Loan Documents are correct
on and as of the Closing Date as though made on and
<PAGE>
<PAGE>
as of such date, and no event has occurred and is continuing, or would
result from any Advance, if made on the Closing Date, which con-
stitutes or would constitute a Default or an Event of Default.
(g) Certificates of the Secretary or an Assistant Secretary
of Borrower, dated the Closing Date, as to the incumbency and
signatures of the officers of, respectively, Borrower executing any of
the Loan Documents and any other certificate or other document to be
delivered pursuant hereto or thereto, together with evidence of the
incumbency of such Secretary or Assistant Secretary.
(h) Such additional information and materials as Lender may
reasonably request, including, without limitation, copies of any debt
agreements, security agreements and other material contracts.
3.2. Further Conditions to Each Advance and Letter of
------------------------------------------------
Credit. It shall be a further condition to the funding of each
------
subsequent Advance and incurrence of Letter of Credit Obligations that
the following statements shall be true on the date of each such
Advance or incurrence:
(a) All of the representations and warranties of Borrower
contained herein or in any of the Loan Documents shall be correct on
and as of the Closing Date and the date of each such Advance as though
made on and as of such date, except to the extent that any such
representation or warranty expressly relates to an earlier date and
for changes therein permitted or contemplated by this Agreement.
(b) No event shall have occurred and be continuing, or
would result from the funding of any Advance, which constitutes or
would constitute a Default or an Event of Default.
(c) The aggregate principal amount of the Advances made to
Borrower hereunder after giving effect to such Advance, plus the
aggregate amount of all outstanding Letter of Credit Obligations
(whether or not then due or payable), shall not exceed $15,000,000.
The acceptance by Borrower of the proceeds of any Advance or
the incurrence by Lender of Letter of Credit Obligations shall be
deemed to constitute, as of the date of such acceptance, a
representation and warranty by Borrower that the conditions in this
Section 3.2 have been satisfied.
<PAGE>
<PAGE>
4. REPRESENTATIONS AND WARRANTIES
------------------------------
To induce Lender to make the Loan, as herein provided for,
Borrower makes the following representations and warranties to Lender,
each and all of which shall be true and correct as of the date of
execution and delivery of this Agreement:
4.1. Corporate Existence; Compliance with Law. Borrower
----------------------------------------
and each Subsidiary of Borrower (i) is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation; (ii) except as indicated on Schedule 4.1(ii) hereto, is
duly qualified to do business and is in good standing under the laws
of each jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification (except for
jurisdictions in which such failure to so qualify or to be in good
standing would not have a Material Adverse Effect); (iii) has the
requisite corporate power and authority and the legal right to own,
pledge, mortgage or otherwise encumber and operate its properties, to
lease the property it operates under lease, and to conduct its
business as now, heretofore and proposed to be conducted; (iv) except
as indicated on Schedule 4.1(iv) hereto, has all material licenses,
permits, consents or approvals from or by, and has made all material
filings with, and has given all material notices to, all Governmental
Authorities having jurisdiction, to the extent required for such
ownership, operation and conduct; (v) is in compliance with its
certificate of incorporation and by-laws; and (vi) is in compliance
with all applicable provisions of law where the failure to comply
would have a Material Adverse Effect.
4.2. Executive Offices. The location of Borrower's
-----------------
executive offices and principal place of business is set forth in
Schedule 4.2 hereto, and, after the Closing Date, as set forth in a
written amendment thereto delivered by Borrower to Lender.
4.3. Subsidiaries. There exist, and upon consummation of
------------
the Securicor Transaction there shall exist, no Subsidiaries of
Borrower other than (a) as set forth on Schedule 4.3 hereto, which
sets forth such Subsidiaries, together with their respective
jurisdictions of organization, and the authorized and outstanding
capital Stock of each such Subsidiary, by class and number and
percentage of each class legally owned by Borrower or a Subsidiary of
Borrower or any other Person, or to be owned by the Closing Date or
(b) after the Closing Date, as set forth in a written amendment to
Schedule 4.3 delivered by Borrower to Lender. There are no options,
warrants, rights to purchase or similar rights covering capital Stock
for any such Subsidiary.
<PAGE>
<PAGE>
4.4. Corporate Power; Authorization; Enforceable
-------------------------------------------
Obligations. The execution, delivery and performance by Borrower of
-----------
the Loan Documents, Ancillary Agreements and all instruments and
documents to be delivered by Borrower, to the extent it is a party
thereto, hereunder and thereunder: (i) are within Borrower's corporate
power; (ii) have been duly authorized by all necessary or proper
corporate action; (iii) are not in contravention of any provision of
Borrower's certificates or articles of incorporation or by-laws;
(iv) will not violate any law or regulation, or any order or decree of
any court or governmental instrumentality in any material respect;
(v) will not conflict with or result in the breach or termination of,
constitute a default under or accelerate any performance required by,
any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which Borrower or any of its Subsidiaries is a party or
by which Borrower or any of its Subsidiaries or any of their
respective properties is bound; (vi) will not result in the creation
or imposition of any Lien upon any of the property of Borrower or any
of its Subsidiaries; and (vii) do not require the consent or approval
of any Governmental Authority or any other Person. Each of the Loan
Documents has been duly executed and delivered for the benefit of or
on behalf of Borrower and each constitutes a legal, valid and binding
obligation of Borrower, to the extent it is a party thereto,
enforceable against it in accordance with its terms.
4.5. Solvency. After giving effect to the assumption by
--------
Borrower of MUSA's obligation under the MUSA Loan Agreement and the
initial Advance, if made on the Closing Date, and the payment of all
estimated legal, investment banking, accounting and other fees related
hereto or to the Stock Agreement, Borrower will be Solvent as of and
on the Closing Date (it being understood that in making such
representation Borrower has relied on the projections previously
provided to Lender, which are based on assumptions that Borrower
believes are reasonable).
4.6. Labor Matters. There are no strikes or other labor
-------------
disputes against Borrower pending or, to Borrower's knowledge,
threatened which would have a Material Adverse Effect.
4.7. Investment Company Act. Neither Borrower nor any of
----------------------
its Subsidiaries is an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended. The making of the Advances by Lender, the
application of the proceeds and repayment thereof by Borrower and the
consummation of the transactions contemplated by this Agreement and
the other Loan Documents will not violate any
<PAGE>
<PAGE>
provision of such Act or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder.
4.8. Margin Regulations. Neither Borrower nor any of its
------------------
Subsidiaries owns any "margin security," as that term is defined in
Regulations G and U of the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board"), and the proceeds of the Advances
will be used only for the purposes contemplated hereunder. The
Advances will not be used, directly or indirectly, for the purpose of
purchasing or carrying any margin security, for the purpose of
reducing or retiring any indebtedness which was originally incurred to
purchase or carry any margin security or for any other purpose which
might cause any of the loans under this Agreement to be considered a
"purpose credit" within the meaning of Regulations G, T, U or X of the
Federal Reserve Board. Borrower will not take or permit any
Subsidiary or agent acting on its behalf to take any action which
might cause this Agreement or any document or instrument delivered
pursuant hereto to violate any regulation of the Federal Reserve
Board.
4.9. No Litigation. No action, claim or proceeding is now
-------------
pending or, to the knowledge of Borrower, threatened against Borrower
or any of its Subsidiaries at law, in equity or otherwise, before any
court, board, commission, agency or instrumentality of any federal,
state, or local government or of any agency or subdivision thereof, or
before any arbitrator or panel of arbitrators, which, if determined
adversely, could have a Material Adverse Effect, nor to the knowledge
of Borrower does a state of facts exist which is reasonably likely to
give rise to such proceedings.
4.10. Stock Agreement. The closing of the Securicor
---------------
Transaction and the consummation of the transactions contemplated
thereby will occur immediately prior to the Closing Date.
4.11. Hitachi Supply Agreement. MUSA is a "Midland
------------------------
Affiliate" under the Hitachi Supply Agreement and entitled to make
purchases thereunder.
4.12. Patents, Trademarks, Copyrights and Licenses.
--------------------------------------------
Borrower and each of its Subsidiaries owns all material patents,
patent applications, copyrights, trademarks, trademark applications,
and know-how (collectively, "Intangible Property") necessary to
continue to conduct its business as heretofore conducted by it, now
conducted by it and proposed to be conducted by it, each of which is
listed, together with Patent and Trademark Office application or
registration numbers, where applicable, on Schedule 4.12(a) hereto.
Further, (i) Borrower
<PAGE>
<PAGE>
and each of its Subsidiaries has good and lawful title to the
Intangible Property owned by it (subject to the licenses set forth on
Schedule 4.12(d) hereto); (ii) to Borrower's knowledge, the Intangible
Property is valid and subsisting and is enforceable; (iii) to
Borrower's knowledge, there are no actual or threatened claims by
third parties regarding the Intangible Property; (iv) to Borrower's
knowledge, the Intangible Property does not infringe or otherwise
violate any rights of any third party, except where any violation or
infringement would not have a Material Adverse Effect.
4.13. No Material Adverse Effect. No event has occurred
--------------------------
and is continuing which has had or could have a Material Adverse
Effect.
5. FINANCIAL STATEMENTS AND INFORMATION
------------------------------------
5.1. Reports and Notices. Borrower covenants and agrees
-------------------
that from and after the Closing Date and until the Commitment
Termination Date, it shall deliver to Lender:
(a) Within 45 days after the end of each fiscal quarter,
(i) a copy of the unaudited consolidated balance sheets of Borrower as
of the end of such month and the related statements of income and cash
flows for that portion of the Fiscal Year ending as of the end of such
month, and (ii) a copy of the unaudited consolidated statements of
income of Borrower for such month, all prepared in accordance with
GAAP (subject to normal year-end adjustments), accompanied by the
certification of the chief executive officer or chief financial
officer of Borrower that all such financial statements are complete
and correct and present fairly in accordance with GAAP (subject to
normal year-end adjustments), the financial position, the results of
operations and the statements of cash flows of Borrower as at the end
of such month and for the period then ended, and that there was no
Default or Event of Default in existence as of such time.
(b) As soon as practicable, but in any event within two (2)
Business Days after Borrower becomes aware of the existence of any
Default or Event of Default, or any development or other information
which would have a Material Adverse Effect, telephonic or telegraphic
notice specifying the nature of such Default or Event of Default or
development or information, including the anticipated effect thereof,
which notice shall be promptly confirmed in writing within five (5)
days.
<PAGE>
<PAGE>
(c) If requested by Lender, copies of all federal, state,
local and foreign tax returns and reports in respect of income,
franchise or other taxes on or measured by income (excluding sales,
use or like taxes) filed by Borrower or any of its Subsidiaries.
(d) Such other information respecting Borrower's or its
Subsidiaries' business (including with respect to orders received and
inventory purchased), financial condition or prospects as Lender may,
from time to time, reasonably request.
5.2. Communication with Accountants. Borrower authorizes
------------------------------
Lender to communicate directly with its (or any of its Subsidiaries')
independent certified public accountants and tax advisors and author-
izes those accountants to disclose to Lender any and all financial
statements and other supporting financial documents and schedules
including copies of any management letter with respect to the
business, financial condition and other affairs of Borrower or any of
its Subsidiaries. At Lender's request, Borrower shall deliver a
letter addressed to such accountants and tax advisors instructing them
to comply with the provisions of this Section 5.2.
6. AFFIRMATIVE COVENANTS
---------------------
Borrower covenants and agrees that, unless Lender shall
otherwise consent in writing, from and after the date hereof and until
the Repayment Date:
6.1. Maintenance of Existence and Conduct of Business.
------------------------------------------------
Borrower shall: (a) do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate existence,
and the rights and franchises of Borrower and each of its
Subsidiaries; (b) transact business on behalf of itself or any
Subsidiary only in such names as Borrower shall specify to Lender in
writing not less than thirty days prior to the first date such name is
used by Borrower and (c) at all times maintain, preserve and protect
all of its Trademarks and any tradenames.
6.2. Payment of Obligations. (a) Borrower shall: (i) pay
----------------------
and discharge or cause to be paid and discharged all its and its
Subsidiaries' Indebtedness, including, without limitation, all the
Obligations as and when due and payable, and (ii) pay and discharge or
cause to be paid and discharged promptly all (A) Charges imposed upon
it, its income and profits, or any of its property (real, personal or
mixed), and (B) lawful claims for labor, materials, supplies and
services or otherwise before any thereof shall become in default.
<PAGE>
<PAGE>
(b) Borrower, on behalf of itself or any Subsidiary, may in
good faith contest, by proper legal actions or proceedings diligently
pursued, the validity or amount of any Charges or claims arising under
Section 6.2(a)(ii), provided that at the time of commencement of any
such action or proceeding, and during the pendency thereof
(i) adequate reserves with respect thereto are maintained on the books
of Borrower, in accordance with GAAP; (ii) such contest operates to
suspend collection of the contested Charges or claims and is
maintained and prosecuted continuously with diligence; (iii) no Lien
shall exist for such Charges or claims during such action or
proceeding; (iv) Borrower shall promptly pay or discharge such
contested Charges and all additional charges, interest, penalties and
expenses, if any, and shall deliver to Lender evidence acceptable to
Lender of such compliance, payment or discharge, if such contest is
terminated or discontinued adversely to Borrower; and (v) Lender has
not advised Borrower in writing that Lender reasonably believes that
nonpayment or nondischarge thereof would have a Material Adverse
Effect.
(c) Notwithstanding anything to the contrary contained in
Section 6.2(b) above, Borrower shall have the right to pay the charges
or claims arising under Section 6.2(a)(ii) and in good faith contest,
by proper legal actions or proceedings, the validity or amount of such
Charges or claims.
6.3. Books and Records. Borrower shall keep, and shall
-----------------
cause its Subsidiaries to keep, all books, accounts and records in the
ordinary course of business.
6.4. Litigation. Borrower shall notify Lender in writing,
----------
promptly upon learning thereof, of any litigation commenced against
Borrower or any of its Subsidiaries, and of the institution against
any of them of any suit or administrative proceeding that may have a
Material Adverse Effect.
6.5. Insurance. Borrower shall maintain insurance
---------
covering, without limitation, fire, theft, burglary, public liability,
property damage, product liability and insurance on all property and
assets of Borrower and its Subsidiaries, all in amounts customary for
its business and in any event with a lender's loss payable clause for
the benefit of Lender.
6.6. Compliance with Law. Borrower shall, and shall cause
-------------------
its Subsidiaries to, comply in all material respects with all federal,
state and local laws and regulations applicable to it.
<PAGE>
<PAGE>
6.7. Supplemental Disclosure. From time to time as may be
-----------------------
necessary (in the event that such information is not otherwise
delivered by Borrower to Lender pursuant to this Agreement), so long
as there are Obligations outstanding hereunder, Borrower will
supplement each Schedule (if any) or representation herein with
respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to
be set forth or described in such Schedule or as an exception to such
representation or which is necessary to correct any information in
such Schedule or representation which has been rendered inaccurate
thereby; provided, however, that such supplement to such Schedule or
-------- -------
representation shall not be deemed an amendment thereof unless
otherwise consented to by the Lender.
6.8. Net Worth. Borrower shall maintain at all times, on a
---------
consolidated basis with its Subsidiaries, a Net Worth of not less than
$20 million.
7. NEGATIVE COVENANTS
------------------
Borrower covenants and agrees that, without Lender's prior
written consent, from and after the date hereof and until the
Repayment Date:
7.1. Maintenance of Business. Borrower shall not and shall
-----------------------
not permit any of its subsidiaries to engage in any business other
than the business currently engaged in by Borrower or such Subsidiary.
7.2. Transactions with Affiliates. (a) Except as set
-----------------------------
forth on Schedule 7.2(b), Borrower shall not, and shall not permit any
of its Subsidiaries to, enter into or be a party to any transaction
with any Affiliate of Borrower, other than with Securicor, and then
only in the ordinary course of and pursuant to the reasonable
requirements of Borrower's or such Subsidiary's business and upon fair
and reasonable terms that are fully disclosed to Lender and are no
less favorable to Borrower or such Subsidiary than would be obtained
in a comparable arm's-length transaction with a Person not an
Affiliate of Borrower.
(b) Except as set forth on Schedule 7.2(b) hereto, Borrower
shall not enter into any agreement or transaction to pay to any Person
any management or similar fee based on or related to Borrower's
operating performance or income or any percentage thereof, nor pay any
management or similar fee to an Affiliate.
<PAGE>
<PAGE>
7.3. Events of Default. Borrower shall not, and shall not
-----------------
permit any of its Subsidiaries to, take or omit to take any action,
which act or omission would constitute (i) a default or an event of
default pursuant to, or noncompliance with any of, the terms of any of
the Loan Documents or (ii) a material default or an event of default
pursuant to, or noncompliance with any other contract, lease,
mortgage, deed of trust or instrument to which it is a party or by
which it or any of its property is bound, or any document creating a
Lien, unless such default, event of default or non-compliance would
not have a Material Adverse Effect.
8. TERM
----
8.1. Termination. Subject to the provisions of Section 2
-----------
hereof, the financing arrangement contemplated hereby in respect of
the Loan shall be in effect until the Commitment Termination Date.
8.2. Survival of Obligations Upon Termination of Financing
-----------------------------------------------------
Arrangement. Except as otherwise expressly provided for in the Loan
-----------
Documents, no termination or cancellation (regardless of cause or
procedure) of any financing arrangement under this Agreement shall in
any way affect or impair the powers, obligations, duties, rights and
liabilities of Borrower or the rights of Lender relating to any
transaction or event occurring prior to such termination. Except as
otherwise expressly provided herein or in any other Loan Document, all
undertakings, agreements, covenants, warranties and representations
contained in the Loan Documents shall survive such termination or
cancellation and shall continue in full force and effect until such
time as all of the Obligations have been paid in full in accordance
with the terms of the agreements creating such Obligations, at which
time the same shall terminate.
9. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
--------------------------------------
9.1. Events of Default. The occurrence of any one or more
-----------------
of the following events (regardless of the reason therefor) shall
constitute an "Event of Default" hereunder:
(a) Borrower shall fail to make any payment of principal
of, or interest on or any other amount owing in respect of, the Loan
or any of the other Obligations when due and such failure continues
for a period of five (5) days.
<PAGE>
<PAGE>
(b) Borrower shall fail or neglect to perform, keep or
observe any of the provisions of Section 6.8 or Section 7 hereof.
(c) Borrower shall fail or neglect to perform, keep or
observe any other provision of this Agreement or of any of the other
Loan Documents and the same shall remain unremedied for a period
ending on the first to occur of twenty (20) days after Borrower shall
receive written notice of any such failure from any Lender or forty
five (45) days after Borrower shall become aware thereof.
(d) A default shall occur under any other agreement,
document or instrument to which Borrower or any of its Subsidiaries is
a party or by which Borrower's or any of its Subsidiaries' property is
bound, and such default causes (or permits any holder of such
Indebtedness or a trustee to cause) such Indebtedness or a portion
thereof in an aggregate amount exceeding $50,000, to become due prior
to its stated maturity or prior to its regularly scheduled dates of
payment.
(e) Any representation or warranty herein or in any Loan
Document or in any written statement pursuant thereto or hereto,
report, financial statement or certificate made or delivered to Lender
by Borrower shall be untrue or incorrect in any material respect, as
of the date when made or deemed made (including those made or deemed
made pursuant to Section 3.2).
(f) Any of the assets of Borrower or any of its
Subsidiaries shall be attached, seized, levied upon or subjected to a
writ or distress warrant, or come within the possession of any
receiver, trustee, custodian or assignee for the benefit of creditors
of Borrower or any Subsidiary of Borrower and shall remain unstayed or
undismissed for thirty (30) consecutive days; or any Person other than
Borrower shall apply for the appointment of a receiver, trustee or
custodian for any of the assets of Borrower or any Subsidiary of
Borrower and shall remain unstayed or undismissed for thirty (30)
consecutive days; or Borrower or any Subsidiary of Borrower shall have
concealed, removed or permitted to be concealed or removed, any part
of its property, with intent to hinder, delay or defraud its creditors
or any of them or made or suffered a transfer of any of its property
or the incurring of an obligation which may be fraudulent under any
bankruptcy, fraudulent conveyance or other similar law.
(g) A case or proceeding shall have been commenced against
Borrower or any Subsidiary of Borrower in a court having competent
jurisdiction seeking a decree or order in respect of Borrower or any
Subsidiary of Borrower (i) under title 11 of the
<PAGE>
<PAGE>
United States Code, as now constituted or hereafter amended, or any
other applicable federal, state or foreign bankruptcy or other similar
law, (ii) appointing a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or similar official) of Borrower or any
Subsidiary of Borrower or of any substantial part of its or their
properties, or (iii) ordering the winding-up or liquidation of the
affairs of Borrower or any Subsidiary of Borrower and such case or
proceeding shall remain undismissed or unstayed for thirty (30)
consecutive days or such court shall enter a decree or order granting
the relief sought in such case or proceeding.
(h) Borrower or any Subsidiary of Borrower shall (i) file a
petition seeking relief under title 11 of the United States Code, as
now constituted or hereafter amended, or any other applicable federal,
state or foreign bankruptcy or other similar law, (ii) consent to the
institution of proceedings thereunder or to the filing of any such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or similar
official) of Borrower or any Subsidiary of Borrower or of any
substantial part of its or their properties, (iii) fail generally to
pay its debts as such debts become due, or (iv) take any corporate
action in furtherance of any such action.
9.2. Remedies. If any Event of Default specified in
--------
Section 9.1 shall have occurred and be continuing, Lender may, by
written notice to Borrower and the lender with respect to any Senior
Debt (the "Senior Lender") declare all Obligations to be forthwith due
and payable, whereupon all such Obligations, without presentment,
demand, protest or further notice of any kind, all of which are
expressly waived by Borrower, shall become due and payable (x) if none
of the Senior Debt is outstanding, immediately and (y) if any Senior
Debt is outstanding, upon the first to occur of (1) acceleration of
any Senior Debt or (2) the fifth Business Day after receipt by
Borrower and the Senior Lender of such written notice given hereunder,
unless on or prior to the date such amounts become due and payable
Borrower shall have cured the default, event or condition resulting in
such Event of Default and no other Event of Default is then continuing
and Borrower shall have given notice of such cure to Agent and
Lenders; provided, however, that upon the occurrence of an Event of
-------- -------
Default specified in Section 9.1(f), (g) or (h) hereof, such
Obligations shall become due and payable without declaration, notice
or demand by Lender. Notwithstanding the above, at any time after
such declaration of acceleration has been made and before payment in
full of the Obligations, Lender, by written notice to Borrower, may
rescind and annul such declaration and
<PAGE>
<PAGE>
its consequences if all Events of Default, other than the non-payment
of principal of the Loan which has become due solely by such
declaration of acceleration, have been cured or waived.
9.3. Waivers by Borrower. Except as otherwise provided for
-------------------
in this Agreement and applicable law, Borrower waives (i) presentment,
demand and protest and notice of presentment, dishonor, notice of
intent to accelerate, notice of acceleration, protest, default,
nonpayment, maturity, release, compromise, settlement, extension or
renewal of any or all commercial paper, accounts, contract rights,
documents, instruments, chattel paper and guaranties at any time held
by Lender on which Borrower may in any way be liable and hereby
ratifies and confirms whatever Lender may do in this regard, (ii) all
rights to notice and a hearing prior to Lender's taking possession or
control of, or to Lender's replevy, attachment or levy upon, any bond
or security which might be required by any court prior to allowing
Lender to exercise any of its remedies, and (iii) the benefit of all
valuation, appraisal and exemption laws. Borrower acknowledges that
it has been advised by counsel of its choice with respect to this
Agreement, the other Loan Documents and the transactions evidenced by
this Agreement and the other Loan Documents.
9.4. Right of Set-Off. Upon the occurrence and during the
----------------
continuance of any Event of Default, Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other
indebtedness at any time owing by Lender to or for the credit or the
account of Borrower against any and all of the obligations of Borrower
now or hereafter existing under this Agreement, and the Note held by
Lender irrespective of whether or not Lender shall have made any
demand under this Agreement or such Note and although such obligations
may be unmatured. Lender agrees promptly to notify Borrower after any
such set-off and application made by Lender; provided, however, that
-------- -------
the failure to give such notice shall not affect the validity of such
set-off and application. The rights of Lender under this Section are
in addition to other rights and remedies (including, without
limitation, other rights of set-off) which Lender may have.
10. SUBORDINATION
-------------
10.1. Loan Subordinated to Senior Indebtedness. Borrower
----------------------------------------
covenants and agrees, and Lender likewise covenants and agrees, that
all payments of the principal of (and premium, if
<PAGE>
<PAGE>
any), and interest on, the Loan and all other Obligations by Borrower
pursuant to this Agreement (collectively the "Subordinated
Indebtedness") shall be subordinated in accordance with the provisions
of this Section 10 to the prior payment in full of all Senior
Indebtedness of Borrower. For purposes of this Section 10, the term
"Senior Indebtedness" shall mean the Senior Debt of Borrower and shall
include principal of and premium, if any, and interest (including
interest accruing at the rate provided for in the documents evidencing
such Senior Indebtedness after the commencement of any proceeding of
the type referred to in Section 10.2(a) hereof, whether or not an
allowed claim in such proceeding) on all loans and other extensions of
credit under, and all expenses, fees, reimbursements, indemnities and
other amounts owing pursuant to, all such Senior Debt of the Borrower.
10.2. Priority and Payment Over of Proceeds in Certain
------------------------------------------------
Events.
------
(a) Upon payment or distribution of assets or securities of
Borrower of any kind or character, whether in cash, property or
securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of Borrower, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other
proceedings or upon an assignment for the benefit of creditors or any
other marshalling of the assets and liabilities of Borrower, all
Senior Indebtedness shall first be paid in full in cash, or payment
provided for in cash or cash equivalents in a manner satisfactory to
the holders of Senior Indebtedness, before any direct or indirect
payments or distributions, including, without limitation, by exercise
of set-off, of any cash, property or securities on account of
principal of (or premium, if any) or interest on the Subordinated
Notes and to that end the holders of Senior Indebtedness shall be
entitled to receive (pro rata on the basis of the respective amounts
of Senior Indebtedness held by them) directly, for application to the
payment thereof (to the extent necessary to pay all Senior
Indebtedness in full after giving effect to any substantially
concurrent payment or distribution to or provision for payment to the
holders of such Senior Indebtedness), any payment or distribution of
any kind or character, whether in cash, property or securities, in
respect of the Subordinated Indebtedness. The holders of Senior
Indebtedness are hereby authorized to file an appropriate claim for
and on behalf of Lender if they or any of them do not file, and there
is not otherwise filed on behalf of the Holders, a proper claim or
proof of claim in the form required in any such proceeding prior to 30
days before the expiration of the time to file such claim or claims.
<PAGE>
<PAGE>
(b) No direct or indirect payment by or on behalf of
Borrower of principal of (premium, if any), or interest on, the Loan,
whether pursuant to the terms of this Agreement, upon acceleration or
otherwise, shall be made if at the time of such payment there exists
(i) a default in the payment of all or any portion of principal of
(premium, if any), interest on, fees or other amounts owing in
connection with any Senior Indebtedness, or (ii) any other default or
event of default under any document or instrument evidencing the
Senior Indebtedness as the same may be amended, modified or otherwise
refinanced (and Lender has received notice thereof from the agent for
or representative of the holders of a majority of the outstanding
principal amount of the Senior Indebtedness (the "Representative") as
provided below), and in either case such default or event of default
shall not have been cured or waived in writing; provided, however,
-------- -------
that if within the period specified in the next sentence with respect
to a default or event of default referred to in clause (ii) above, the
holders of Senior Indebtedness have not declared the Senior
Indebtedness to be immediately due and payable (or have declared such
Senior Indebtedness to be immediately due and payable and within such
period have rescinded such acceleration), then and in that event,
payment of principal of, and interest on, the Loan shall be resumed.
With respect to any default or event of default under clause (ii)
above the period referred to in the preceding sentence shall commence
upon receipt by Lender of a written notice or notices (which shall
specify all defaults and events of default existing under such
documents or instruments on the date of such notice and of which the
Representative, whichever is giving such notice, had actual knowledge
at such time) of the commencement of such period from the
Representative, and shall end at the completion of the 180th day after
the beginning of such period. Only one such 180 day period may
commence within any 360 consecutive days. Upon termination of any
such period, Borrower shall resume payments on account of the
principal of (premium, if any), and interest on, the Loan, and on
account of all other Subordinated Indebtedness, subject to the
provisions of Sections 10.1 and 10.2 hereof.
(c) (i) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, Lenders
shall have received any payment on account of the
Subordinated Indebtedness at a time when such payment is
prohibited by such provision before the Senior Indebtedness
is paid in full, then and in such event, such payment or
distribution shall be received and held in trust by Lender
apart from its other assets and paid over or delivered to
the holders of the Senior Indebtedness remaining unpaid to
the
<PAGE>
<PAGE>
extent necessary to pay in full in cash the principal of
(premium, if any), and interest on, such Senior Indebtedness
in accordance with its terms and after giving effect to any
concurrent payment or distribution to the holders of such
Senior Indebtedness.
(ii) Nothing contained in this Section 10 will limit
the right of the Lender to take any action to accelerate the
maturity of the Subordinated Indebtedness pursuant to
Section 9.2 hereof.
(iii) Upon any payment or distribution of assets or
securities referred to in this Section 10, Lender shall be
entitled to rely upon any order or decree of a court of
competent jurisdiction in which such dissolution, winding
up, liquidation or reorganization proceedings are pending,
and upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person
making any such payment or distribution, delivered to Lender
for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of Senior
Indebtedness and other Indebtedness of Borrower, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or
to this Section 10.
10.3. Rights of Holders of Senior Indebtedness Not To Be
--------------------------------------------------
Impaired. No right of any present or future holder of any Senior
--------
Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act
by any such holder, or by any noncompliance by Borrower with the terms
and provisions and covenants herein regardless of any knowledge
thereof such holder may have or otherwise be charged with.
The provisions of this Section 10 are intended to be for the
benefit of, and shall be enforceable directly by, the holders of the
Senior Indebtedness. Borrower and Lender acknowledges that the
holders of the Senior Indebtedness are or will be relying upon the
provisions of this Section 10 in extending such Senior Indebtedness.
10.4. Subrogation. Upon the payment in full of all Senior
-----------
Indebtedness, Lender shall be subrogated to the extent of the payments
or distributions made to the holders of, or otherwise applied to
payment of, the Senior Indebtedness pursuant to the provisions of this
Section 10 and to the rights of the
<PAGE>
<PAGE>
holders of Senior Indebtedness to receive payments or distributions of
assets of Borrower made on the Senior Indebtedness until Loan shall be
paid in full; and for the purposes of such subrogation, no payments or
distributions to holders of Senior Indebtedness of any cash, property
or securities to which Lender would be entitled except for the
provisions of this Section 10, and no payment over pursuant to the
provisions of this Section 10 to holders of Senior Indebtedness by
Lender, shall, as between Borrower, their creditors other than holders
of Senior Indebtedness and Lender, be deemed to be payment by Borrower
to or on account of Senior Indebtedness, it being understood that the
provisions of this Section 10 are solely for the purpose of defining
the relative rights of the holders of Senior Indebtedness, on the one
hand, and Lender, on the other hand.
If any payment or distribution to which Lender would
otherwise have been entitled but for the provisions of this Section 10
shall have been applied, pursuant to the provisions of this Section
10, to the payment of Senior Indebtedness, then and in such case,
Lender shall be entitled to receive from the holders of Senior
Indebtedness at the time outstanding any payments or distributions
received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all Senior Indebtedness in full.
10.5. Obligations of Borrower Unconditional. Nothing
-------------------------------------
contained in this Section 10 or elsewhere in this Agreement or in the
Note is intended to or shall impair, as between Borrower and Lender,
the obligations of Borrower, which are absolute and unconditional, to
pay to Lender the principal of (premium, if any), and interest on, the
Loan as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative
rights of Lender and creditors of Borrower other than the holders of
the Senior Indebtedness, nor shall anything herein or therein prevent
any Holder from exercising all remedies otherwise permitted by
applicable law upon the occurrence of a default or event of default
under this Agreement, subject to the rights, if any, under this
Section 10 of the holders of Senior Indebtedness in respect of cash,
property or securities of Borrower received upon the exercise of any
such remedy.
The failure to make a payment on account of principal of, or
interest on, the Loan by reason of any provision of this Section 10
shall not be construed as preventing the occurrence of a Default or an
Event of Default hereunder.
<PAGE>
<PAGE>
10.6. Notice to Lender. Borrower shall give prompt written
----------------
notice to Lender of any fact known to Borrower which would prohibit
the making of any payment on or in respect of the Loan, but failure to
give such notice shall not affect the subordination of the
Subordinated Indebtedness to the Senior Indebtedness provided in this
Section 10. Notwithstanding the provisions of this Section 10 or any
other provision of this Agreement or the Loan, Lender shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or in respect of the Loan,
unless and until Lender shall have received written notice thereof
from Borrower, the Representative or other holder of Senior
Indebtedness, and, prior to the receipt of any such written notice,
subject to the provisions of this Section 10, Lender shall be entitled
in all respects to assume no such facts exist. Nothing contained in
this Section 10.6 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by Sections 10.1 and
10.2.
10.7. Right of Lender as Holder of Senior Indebtedness.
------------------------------------------------
Lender in its individual capacity shall be entitled to all the rights
set forth in this Section 10 with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Agreement shall
deprive Lender of any of its rights as such holder.
10.8. Reinstatement. The provisions of this Section 10
-------------
shall continue to be effective or be reinstated, and the Senior
Indebtedness shall not be deemed to be paid in full, as the case may
be, if at any time any payment of any of the Senior Indebtedness is
rescinded or must otherwise be returned by the holder thereof upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise,
all as though such payment had not been made.
11. MISCELLANEOUS
-------------
11.1. Complete Agreement; Modification of Agreement; Sale
---------------------------------------------------
of Interest. (a) The Loan Documents constitute the complete
-----------
agreement between the parties with respect to the subject matter
hereof and may not be modified, altered or amended except by an
agreement in writing signed by Borrower and Lender. Borrower may not
sell, assign or transfer any of the Loan Documents or any portion
thereof including, without limitation, Borrower's rights, title,
interests, remedies, powers and duties hereunder or thereunder.
Borrower hereby consents to Lender's sale of participations,
assignment, transfer or other
<PAGE>
<PAGE>
disposition, at any time or times, of any of the Loan Documents or of
any portion thereof or interest therein, including, without limita-
tion, Lender's rights, title, interests, remedies, powers or duties
thereunder, whether evidenced by a writing or not. Borrower agrees
that it will use its best efforts to assist and cooperate with Lender
in any manner reasonably requested by Lender to effect the sale of
participations in or assignments of any of the Loan Documents or of
any portion thereof or interest therein.
(b) In the event Lender assigns or otherwise transfers all
or any part of the Note Borrower shall, upon the request of Lender,
issue a new Note to effectuate such assignment or transfer.
11.2. Fees and Expenses. If, at any time or times,
-----------------
regardless of the existence of an Event of Default, Lender shall
employ counsel or other advisors for advice or other representation or
shall incur reasonable legal or other costs and expenses in connection
with any litigation, contest, dispute, suit, proceeding or action
(whether instituted by Lender, Borrower or any other Person) in any
way relating to any of the Loan Documents or any other agreements to
be executed or delivered in connection herewith, then, and in any such
event, the attorneys' and other parties' fees reasonably arising from
such services, including those of any appellate proceedings, and all
expenses, costs, charges and other fees reasonably incurred by such
counsel and others in any way or respect arising in connection with or
relating to any of the events or actions described in this Section
shall be payable, on demand, by Borrower to Lender and shall be
additional Obligations secured under this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, such
expenses, costs, charges and fees may include: paralegal fees, costs
and expenses; accountants' and investment bankers' fees, costs and
expenses; court costs and expenses; photocopying and duplicating
expenses; court reporter fees, costs and expenses; long distance
telephone charges; air express charges; telegram charges; secretarial
overtime charges; and expenses for travel, lodging and food paid or
incurred in connection with the performance of such legal services.
11.3. No Waiver by Lender. Lender's failure, at any time
-------------------
or times, to require strict performance by Borrower of any provision
of this Agreement any of the other Loan Documents shall not waive,
affect or diminish any right of Lender thereafter to demand strict
compliance and performance therewith. Any suspension or waiver by
Lender of an Event of Default by Borrower
<PAGE>
<PAGE>
under the Loan Documents shall not suspend, waive or affect any other
Event of Default by Borrower under this Agreement and any of the other
Loan Documents whether the same is prior or subsequent thereto and
whether of the same or of a different type. None of the undertakings,
agreements, warranties, covenants and representations of Borrower
contained in this Agreement or any of the other Loan Documents and no
Event of Default by Borrower under this Agreement and no defaults by
Borrower under any of the other Loan Documents shall be deemed to have
been suspended or waived by Lender, unless such suspension or waiver
is by an instrument in writing signed by an officer of Lender and
directed to Borrower specifying such suspension or waiver.
11.4. Remedies. Lender's rights and remedies under this
--------
Agreement shall be cumulative and nonexclusive of any other rights and
remedies which Lender may have under any other agreement, including
without limitation, the Loan Documents, by operation of law or
otherwise.
11.5. WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL
--------------------
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THE LOAN DOCUMENTS.
11.6. Severability. Wherever possible, each provision of
------------
this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
11.7. Parties. This Agreement and the other Loan Documents
-------
shall be binding upon, and inure to the benefit of, the successors of
Borrower and Lender and the assigns, transferees and endorsees of
Lender.
11.8. Conflict of Terms. Except as otherwise provided in
-----------------
this Agreement or any of the other Loan Documents by specific
reference to the applicable provisions of this Agreement, if any
provision contained in this Agreement is in conflict with, or
inconsistent with, any provision in any of the other Loan Documents,
the provision contained in this Agreement shall govern and control.
11.9. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY
-------------
PROVIDED IN ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
<PAGE>
<PAGE>
AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE,
WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS,
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. LENDER AND
BORROWER AGREE TO SUBMIT TO PERSONAL JURISDICTION AND TO WAIVE ANY
OBJECTION AS TO VENUE IN THE COUNTY OF NEW YORK, STATE OF NEW YORK.
SERVICE OF PROCESS ON BORROWER OR LENDER IN ANY ACTION ARISING OUT OF
OR RELATING TO ANY OF THE LOAN DOCUMENTS SHALL BE EFFECTIVE IF MAILED
TO SUCH PARTY AT THE ADDRESS LISTED IN SECTION 11.10 HEREOF. NOTHING
HEREIN SHALL PRECLUDE LENDER OR BORROWER FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION.
11.10. Notices. Except as otherwise provided herein,
-------
whenever it is provided herein that any notice, demand, request,
consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by another, or whenever any
of the parties desires to give or serve upon another any communication
with respect to this Agreement, each such notice, demand, request,
consent, approval, declaration or other communication shall be in
writing and either shall be delivered in person with receipt
acknowledged or by registered or certified mail, return receipt
requested, postage prepaid, or telecopied and confirmed by telecopy
answerback addressed as follows:
(a) If to Lender at:
15 Carshalton Road
Sutton
Surrey SM1 4LD
England
Attention: Edmund Hough
Telecopy No. (0181) 661 0205
With copies to:
Weil, Gotshal & Manges LLP
99 Bishopsgate
London, EC2M 3XD
Attention: David Lefkowitz, Esq.
Telecopy No. 0171 426 0990
<PAGE>
<PAGE>
(b) If to Borrower, at:
Intek Diversified Corporation
970 West 190th Street, Suite 720
Torrance
California 90502
Attention: David Neibert
Telecopy No. 310 366 7712
With copies to:
Manatt, Phelps & Phillips, LLP
11355 West Olympic Boulevard
Los Angeles
California 90064
Attention: Nancy Wojtas
Telecopy No. 310 312 4224
or at such other address as may be substituted by notice given as
herein provided. The giving of any notice required hereunder may be
waived in writing by the party entitled to receive such notice. Every
notice, demand, request, consent, approval, declaration or other
communication hereunder shall be deemed to have been duly given or
served on the date on which personally delivered, with receipt acknow-
ledged, telecopied and confirmed by telecopy answerback or seven (7)
Business Days after the same shall have been deposited (i) in the
United States mail (in the case of notice being given by Borrower or
any other Person in the United States) or (ii) in the United Kingdom
mail (in the case of notice being given by Lender or any other Person
located in the United Kingdom). Failure or delay in delivering copies
of any notice, demand, request, consent, approval, declaration or
other communication to the persons designated above to receive copies
shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other
communication.
11.11. Survival. The representations and warranties of
--------
Borrower in this Agreement shall survive the execution, delivery and
acceptance hereof by the parties hereto and the closing of the
transactions described herein or related hereto.
11.12. Section Titles. The Section titles and Table of
--------------
Contents contained in this Agreement are and shall be without
substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto.
<PAGE>
<PAGE>
11.13. Counterparts. This Agreement may be executed in any
------------
number of separate counterparts, each of which shall, collectively and
separately, constitute one agreement.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first written above.
INTEK DIVERSIFIED CORPORATION
By:_______________________________
Name:
Title:
SECURICOR COMMUNICATIONS LIMITED
By:_______________________________
Name:
Title:
The undersigned hereby guarantees to Borrower the performance by
Lender of all of its obligations under this Agreement.
SECURITY SERVICES PLC
By:_______________________________
Name:
Title:
Date: December 3, 1996
<PAGE>
<PAGE>
EXHIBIT A
---------
NOTICE OF ADVANCE
------------------
_____________, 199_
Securicor Communications Limited
15 Carshalton Road
Sutton, Surrey
SM1 4LDAttention:Michael Wilkinson
Gentlemen:
The undersigned, INTEK DIVERSIFIED CORPORATION, refers to
the Amended and Restated Loan Agreement, dated as of December 3, 1996
(the "Loan Agreement", the terms defined therein being used herein as
therein defined), between the undersigned and SECURICOR COMMUNICATIONS
LIMITED, and hereby gives you notice, irrevocably, pursuant to Section
2.1 of the Loan Agreement, that the undersigned hereby requests an
Advance under the Loan Agreement, and in that connection sets forth
below the information relating to such Advance as required by Section
2.1(a) of the Loan Agreement:
(i) The date of the requested Advance shall be
_______________, 199_.
(ii) The aggregate amount of the requested Advance is
$___________ (minimum: $500,000).
(iii) The Advance shall be used solely as permitted by
Section 2.3 of the Loan Agreement.
<PAGE>
<PAGE>
The undersigned hereby certifies that the statements
contained in Section 3.2 of the Loan Agreement are true on the date
hereof, and will be true on the date of the requested Advance, before
and after giving effect thereto and to the application of the proceeds
therefrom.
Very truly yours,
INTEK DIVERSIFIED CORPORATION
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
NYFS09...:\73\73273\0003\1224\AGRN216U.07D
<PAGE>
EXHIBIT 4
PROMISSORY NOTE
---------------
$15,000,000 New York, New York
December 3, 1996
FOR VALUE RECEIVED, the undersigned, INTEK DIVERSIFIED
CORPORATION, a Delaware corporation (hereinafter referred to as
"Borrower"), hereby PROMISES TO PAY to the order of SECURICOR
COMMUNICATIONS LIMITED, a corporation formed under the laws of England
and Wales ("Lender"), at 15 Carshalton Road, Sutton, Surrey, SM1 4LD,
or at such other place as the holder of this Note may designate from
time to time in writing, in lawful money of the United States of
America and in immediately available funds, the amount of fifteen
million dollars ($15,000,000), or such lesser principal amount of
outstanding Advances under the Loan Agreement (as hereinafter defined)
PLUS the unpaid amount of any capitalized interest arising pursuant to
----
the terms of the Loan Agreement, together with interest on the unpaid
principal amount of this Note (including capitalized interest)
outstanding from time to time from the date hereof at the rate or
rates provided in the Loan Agreement.
This Note is issued pursuant to that certain Amended and
Restated Loan Agreement dated as of December 3, 1996 between Borrower
and Lender (the "Loan Agreement"), to which reference is hereby made
for a statement of all of the terms and conditions under which the
Advances evidenced hereby are made. All capitalized terms, unless
otherwise defined herein, shall have the meanings ascribed to them in
the Loan Agreement.
The principal amount of the indebtedness evidenced hereby
shall be payable on the Repayment Date. Interest thereon shall accrue
on a daily basis at the rate specified in the Loan Agreement and shall
be capitalized on the Commitment Termination Date and thereafter on a
monthly basis. All accrued interest (whether or not capitalized)
shall be due and payable on the Repayment Date.
If any payment on this Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall continue to accrue at the then
applicable rate during such extension.
<PAGE>
<PAGE>
The rights of Lender under this Note are subordinate and
junior to the rights of the holders of Senior Debt, as defined in, and
to the extent set forth in, Article 10 of the Loan Agreement. This
Note is subject to the provisions of such Article 10, and any payment
pursuant hereto shall be made in accordance with the provisions
thereof.
Upon and after the occurrence of an Event of Default, this
Note may, as provided in the Loan Agreement, and without demand,
notice or legal process of any kind, be declared or may automatically
become, and immediately shall become, due and payable.
Demand, presentment, protest and notice of nonpayment and
protest are hereby waived by Borrower.
THIS NOTE HAS BEEN EXECUTED, DELIVERED AND ACCEPTED AT NEW
YORK, NEW YORK AND SHALL BE INTERPRETED, GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
INTEK DIVERSIFIED CORPORATION
By:
--------------------------------
Name:
Title:
NYFS09...:\73\73273\0003\1224\NOTN216R.24A
<PAGE>
EXHIBIT 5
AMENDED AND RESTATED JOINT ACQUISITION AGREEMENT
This will confirm the agreement by and among all the
undersigned that the Schedule 13D filed on or about this date with
respect to the beneficial ownership of the undersigned of common stock
of Intek Diversified Corporation is being filed on behalf of each of
the entities named below. This agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
Dated: December 11, 1996
SECURICOR PLC SECURITY SERVICES PLC
By:/s/ Nigel Griffiths By:/s/ Nigel Griffiths
--------------------- ----------------------
Name: Nigel Griffiths Name: Nigel Griffiths
Title: Director Title: Director
SECURICOR INTERNATIONAL LIMITED SECURICOR GROUP PLC
By:/s/ Nigel Griffiths By:/s/ Nigel Griffiths
---------------------- ----------------------
Name: Nigel Griffiths Name: Nigel Griffiths
Title: Director Title: Director
SECURICOR COMMUNICATIONS LIMITED
By:/s/ Michael Wilkinson
-----------------------
Name: Michael Wilkinson
Title: Director
NYFS09...:\73\73273\0003\1748\AGRD066T.39A
