Exhibit 10.192
COMMITMENT LETTER
May 31, 2000
Catalina Lighting, Inc. Catalina International PLC
18191 N.W. 68th Ave. 18191 N.W. 68th Ave.
Miami, FL 33015 Miami, FL 33015
Attention: Mr. Dean Rappaport Attention: Mr. Dean Rappaport
Executive Vice President Executive Vice President
Chief Operating Officer Chief Operating Officer
N M Rothschild & Sons Limited ("N M Rothschild")
1 Park Row
Leeds LS1 5NR
Re: $37,000,000 Loan Facilities (the "Credit Facilities") to
Catalina Lighting, Inc. and Catalina International PLC
(collectively and individually the "Company").
Ladies and Gentlemen:
SunTrust Bank ("STB") is pleased to confirm to you that STB, subject to
the terms and conditions set forth in this letter (the "Commitment Letter"),
will, during the Certain Funds Period (as defined in the addendum to this
letter), provide the entire amount of the Credit Facilities which will be used
to finance the acquisition of shares of Ring PLC ("Ring") and will be available
to satisfy the consideration payable under the Offer. As a matter of
information, we advise that the Credit Facilities will constitute a U.S.
$15,000,000 Loan to Catalina International PLC and a U.S. $22,000,000 Loan (U.S.
$15,000,000 Term Loan and U.S. $7,000,000 Revolving Loan) to Catalina Lighting,
Inc. Each Company hereby irrevocably and unconditionally authorizes and directs,
and STB agrees, that all funds to be loaned to Catalina Lighting, Inc. hereunder
will be directly advanced by STB to, or at the direction of, Catalina
International PLC upon the instructions of Catalina International PLC only and
that such funds will not be advanced to or otherwise at the direction of
Catalina Lighting, Inc.
Catalina Lighting, Inc. further irrevocably and unconditionally
undertakes that in relation to any intragroup loan between itself and Catalina
International PLC arising in respect of any funds referred to in the above
paragraph advanced by STB to or at the direction of Catalina International PLC,
it will not during the Certain Funds Period:
(a) be entitled to refuse to advance such intragroup loan(s);
(b) terminate or cancel its obligation to make available such
intragroup loan(s);
(c) exercise any right of rescission or similar right or remedy in
respect of such
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May 31, 2000
Page 2
intragroup loan(s); or
(d) accelerate the repayment of such intragroup loan(s).
The commitments and undertakings of STB and SunTrust Equitable
Securities ("SunTrust Equitable Securities") with respect to the Credit
Facilities are subject only to the conditions outlined in this letter. In the
event of any irreconcilable inconsistency between this Commitment Letter and the
other documentation relating to the Credit Facilities, this Commitment Letter
will prevail in all respects. STB reserves the right, with the assistance of its
arranger, SunTrust Equitable Securities Corporation (SunTrust Equitable
Securities together with STB, "SunTrust"), to use its commercially reasonable
efforts to arrange a syndicate of lenders (collectively with STB, the "Lenders")
to issue several commitments to the Company to fund the Credit Facilities, with
STB acting as sole Agent for such Lenders in connection with the Credit
Facilities. This Commitment Letter shall assume that such a syndicate of Lenders
will be assembled by SunTrust, but does not detract from the commitment by STB
to provide the entire Credit Facilities to finance the acquisition of Ring. In
addition, the formation or completion of a syndicate of Lenders will not be a
condition to advancing the Credit Facilities.
A. Terms and Conditions of the Credit Facilities.
The Credit Facilities shall be used for the acquisition of at least 90%
of the Ordinary Shares and any or all of the Convertible Preference Shares of
Ring; provided Ring may not give financial assistance for such acquisition
unless permitted pursuant to sections 151-158 of the English Companies Act of
1985.
B. Syndication.
As set forth above, while STB has provided a commitment for the entire
Credit Facilities subject to the terms and conditions hereof, it is the intent
of SunTrust to syndicate the Credit Facilities and, as a material inducement to
STB's issuing the commitment set forth herein, you have agreed to cooperate in
such syndication process. SunTrust Equitable Securities will manage all aspects
of such syndication in consultation with STB and the Company, including the
timing of all offers to potential Lenders, the allocation of commitments, and
the determination of compensation provided and titles (such as co-agent,
managing agent, etc.). As consideration for this undertaking and the obligations
of STB hereunder, the Company agrees that STB shall be the sole agent with
respect to the Credit Facilities and that SunTrust Equitable Securities will act
as sole arranger with respect to the remaining syndicate and that no additional
agents, co-agents or arrangers will be appointed, or other titles conferred,
without the prior written consent of SunTrust.
In addition, the Company agrees to take all action as SunTrust may
reasonably request to assist SunTrust Equitable Securities in forming a
syndicate acceptable to SunTrust and to the Company. The Company's assistance
shall include but not be limited to: (i) making senior
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May 31, 2000
Page 3
management and representatives of the Company and its affiliates available to
participate in meetings and to provide information to potential Lenders and
participants at such times and places as SunTrust Equitable Securities may
reasonably request, (ii) using the Company's existing lending relationships to
assist in the syndication process, and (iii) providing to SunTrust all
information reasonably deemed necessary by SunTrust to complete the syndication,
including an information memorandum with respect to the Credit Facilities and
the Company.
To ensure an orderly and effective syndication of the Credit
Facilities, the Company further agrees that until the earlier of the closing of
the New Facilities or the termination of this Commitment Letter, the Company
will not, and will not permit any of its affiliates or agents to, syndicate or
issue, attempt to syndicate or issue, announce or authorize the announcement of
the syndication or issuance of, or engage in discussions concerning the
syndication or issuance of, any debt facility or debt security (including any
renewals thereof) except with the prior written consent of SunTrust other than
(i) the issuance of commercial paper or other short term debt under programs
currently in place, or (ii) the issuance of any equity.
C. Conditions Precedent.
During the Certain Funds Period, the commitments and undertakings of
STB and SunTrust Equitable Securities are subject only to:
(a) no order being made or resolution passed or legal
proceedings initiated by the Company for the
dissolution, termination of existence, liquidation,
winding up, bankruptcy or other like process of the
Company (other than a solvent liquidation,
dissolution or winding up of the Company to which STB
has consented in writing (such consent not to be
unreasonably withheld));
(b) no application being made for the appointment of an
administrator (as such term is used in the Insolvency
Act 1986) or similar official in relation to the
Company and no effective resolution being passed by
the directors or shareholders of the Company for such
an application to be made and no administrator being
appointed in respect of the Company;
(c) no liquidator, trustee, receiver, administrative
receiver, manager or similar officer having been
appointed in respect of the Company or in respect of
all or any part of its assets with a market or book
value in excess of US $1,000,000 (or its equivalent
in other currencies);
(d) the Company not being declared or deemed pursuant to
any applicable legislation to be insolvent or unable
to pay its debts as they fall due;
(e) there not occurring in relation to the Company in any
country or territory in which it is incorporated or
carries on business or to the jurisdiction of
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May 31, 2000
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whose courts it or any part of its assets is subject,
any event which corresponds in that country or
territory with any of the events mentioned in
paragraphs (a) through (d) above;
(f) the acquisition of Ring not causing or creating a
violation of any applicable statutes, laws or
regulations; and
(g) the Offer in respect of the Ordinary Shares of Ring
having been declared unconditional in all respects
and acceptances of the Offer in respect of the
Ordinary Shares of Ring (being valid acceptances
which are not capable of being withdrawn) having been
received in respect of not less than 90% (or such
lesser percentage as STB may agree in writing) of the
Ordinary Shares of Ring; (provided Ring may not give
financial assistance for such acquisition, unless
permitted pursuant to sections 151-158 of the English
Companies Act of 1985).
In addition, the commitments and undertakings of STB and SunTrust
Equitable Securities are subject to the Company, without the prior written
consent of STB (in addition to any consents by the Panel):
(h) not waiving, amending, varying or replacing the whole
or any part of any term (in particular the price of
0.50 pounds for each Ordinary Share and 0.224 pounds
(assuming a dividend of 0.024 pounds has not been
paid on or before 1 July 2000; or if such dividend
has been paid, the price of 0.200 pounds) for each
Convertible Preference Share of Ring) or condition of
the Offer (as defined in the addendum to this letter)
save as required by the Panel (as defined in the
addendum to this letter) (subject to the Company's
obligations under Note 2, Rule 13 of the Code (as
defined in the addendum to this letter));
(i) not making and procuring that no person with whom the
Company is, for the purposes of the Code, acting in
concert, makes any purchase of shares in or exercise
any conversion or subscription rights or options in
relation to, Ring or taking any other steps which, in
any such case, would oblige the Company to make an
offer for the issued share capital of Ring pursuant
to Rule 9 of the Code;
(j) not doing or permitting to be done (otherwise than on
the instructions of the Panel and otherwise for the
purposes of permitting the Offer to become or
declaring the Offer unconditional as to acceptances
or in all respects without any breach of this
paragraph) anything which would cause the Panel to
regard any material term or condition of the Offer as
having been waived or withdrawn in whole or in part;
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May 31, 2000
Page 5
(k) not, save as required by the Panel, waiving,
withdrawing or agreeing or deciding not to enforce in
whole or in part any material term or condition of
the Offer;
(l) not, save as required by the Panel, exercising any
discretion without the prior written consent of STB
in declaring or accepting or treating as satisfied in
whole or in part any condition of the Offer;
(m) not taking or permitting to be taken any step as a
result of which the Offer price stated in the Offer
is, or may be required by the Panel to be, increased
beyond the level agreed between the Company and STB
from time to time; and
(n) complying with the Code (subject to any waivers
granted by the Panel), where breach of this clause
(n) would have a material adverse effect on the
ability of the Company to repay the Credit
Facilities.
D. Mechanics
1. Drawdown
In accordance with the first two paragraphs of this letter, Catalina
International PLC may, so long as each of the conditions outlined in clauses
C(h) through (n) (inclusive) and clauses C(a) through (g) (inclusive) are
satisfied, draw the Credit Facilities by prior notice (if by telephone, promptly
confirmed in writing) (i) prior to 1:00 p.m. on the date prior to the date of
borrowing with respect to Base Rate advances and (ii) at least three business
days in advance with respect to LIBOR advances. LIBOR advances shall be in
minimum amounts of $500,000 and in integral multiples of $100,000. The Lenders
shall make their funds available to the STB not later than 1:00 p.m. (Atlanta,
Georgia time) on the funding date. STB shall pay the amount of the relevant
advances to Catalina International PLC in cleared funds on the funding date to
such account or accounts as Catalina International PLC shall notify to STB in
such prior notice.
2. Interest
The Company shall be entitled to select between the following interest
rate options (i) Base Rate plus 1.75%, or (ii) LIBOR plus 2.75%.
As used herein:
(a) Base Rate shall mean the higher of (i) the rate which STB announces
from time to time as its prime lending rate, as in effect from time to
time, and (ii) the Federal Funds rate, as in effect from time to time,
plus one-half of one percent (0.5%) per annum (any changes in such
rates to be effective as of the date of any change in such rate.) The
STB prime lending rate is a reference rate and does not
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May 31, 2000
Page 6
necessarily represent the lowest or best rate actually charged to any
customer. STB may make commercial loans or other loans at rates of
interest at, above, or below the STB prime lending rate.
(b) Interest Period shall mean with respect to LIBOR loans, the period
of 1, 2 or 3 months selected by the Company and subject to customary
adjustments in duration.
(c) LIBOR shall mean, for any Interest Period, the offered rates for
deposits in US dollars for a period comparable to the Interest Period
appearing on Telerate Screen Page 3750, as of 11.00 a.m. London time,
on the day that is two business days prior to the Interest Period. Such
rates may be adjusted for any applicable reserve requirements and such
advances shall be subject to customary breakage fees and increased cost
and capital adequacy provisions relating to STB.
3. Repayment
The Credit Facilities and all other outstanding amounts under this
Commitment Letter shall be repaid in full without set off, counterclaim,
deduction or withholding on the earlier of (a) the expiry of the Certain Funds
Period (b) the first drawdown of the New Facilities or (c) there being a breach
by the Company of any of the provisions of clauses C(h) through (n) (inclusive)
which remains unremedied or unwaived for a period of seven days or there failing
to be satisfied any of the conditions outlined in clauses C(a) through (f)
(inclusive). All payments hereunder must be free and clear of any withholdings
or deductions for taxes.
E. Representations.
You represent and warrant that information made available to SunTrust
Equitable Securities and STB by you or any of your representatives with respect
to the Company in connection with the transactions contemplated hereby is
complete and correct in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein not materially misleading in light of
the circumstances under which such statements were made. You represent that you
have no knowledge of financial information inconsistent with the audited
financial information concerning Ring that you have provided to us. You agree to
supplement the information provided to SunTrust from time to time so that the
representations and warranties contained in this paragraph remain correct.
Without limiting the conditions precedent, breach of any representation or
warranty will not prevent funding of the Credit Facilities during the Certain
Funds Period (as defined in the addendum to this letter).
In issuing the commitments and undertakings hereunder and in arranging
and syndicating the Credit Facilities, SunTrust Equitable Securities and STB are
relying on the accuracy of such information furnished to them by you without
independent verification thereof.
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May 31, 2000
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F. Indemnities, Expenses, Etc.
1. Indemnification. You further agree to indemnify and hold harmless
SunTrust Equitable Securities and each Lender (including STB) and each director,
officer, employee, affiliate, and agent thereof (each, an "Indemnified Person")
against, and to reimburse each Indemnified Person, upon its demand, for any
losses, claims, damages, liabilities or other expenses ("Losses") incurred by
such Indemnified Person insofar as such Losses arise out of or in any way relate
to or result from this Commitment Letter or the financing contemplated hereby,
including, without limitation, Losses participating in any legal proceeding
relating to any of the foregoing (whether or not such Indemnified Person is a
party thereto); provided that the foregoing will not apply to any Losses to the
extent that such losses result from the gross negligence or willful misconduct
of such Indemnified Person. Your obligations under this paragraph shall remain
effective whether or not definitive financing documentation is executed and
notwithstanding any termination of this Commitment Letter.
2. CONSEQUENTIAL DAMAGES. NEITHER STB NOR SUNTRUST EQUITABLE SECURITIES
SHALL BE RESPONSIBLE OR LIABLE TO THE COMPANY OR ANY OTHER PERSON OR ENTITY FOR
ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS COMMITMENT LETTER, ANY FEE LETTER, DOCUMENTS IN RESPECT OF THE
CREDIT FACILITIES OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
3. Expenses. In further consideration of the commitments and
undertakings of SunTrust hereunder, and recognizing that in connection herewith
SunTrust will be incurring substantial costs and expenses (including, without
limitation, fees and disbursements of counsel, due diligence, syndication,
transportation, computer, duplication, messenger, appraisal, audit, and
insurance costs and expenses), you hereby agree to pay, or reimburse SunTrust on
demand for, all such reasonable costs and expenses (whether incurred before or
after the date hereof), regardless of whether any of the transactions
contemplated hereby are consummated. You also agree to pay all reasonable costs
and expenses of SunTrust (including, without limitation, fees and disbursements
of counsel) incurred in connection with the enforcement of any of their rights
and remedies hereunder. Your obligation in respect of costs and expenses shall
survive the expiration or termination of this Commitment Letter.
G. Special Disclosure.
SunTrust Equitable Securities is a wholly owned subsidiary of SunTrust
Banks, Inc. and an affiliate of STB. SunTrust Equitable Securities is a
broker/dealer registered with the Securities and Exchange Commission ("SEC") and
a member of the National Association of Securities Dealers, Inc. ("NASD") and
the Securities Investor Protection Corporation ("SIPC"). Although it is a
subsidiary of SunTrust Banks, Inc., SunTrust Equitable Securities is not a bank
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May 31, 2000
Page 8
and is separate from any affiliated SunTrust Bank. SunTrust Equitable Securities
is solely responsible for its contractual obligations and commitments.
Securities and financial instruments sold, offered, or recommended by
SunTrust Equitable Securities are not bank deposits, are not insured by the
Federal Deposit Insurance Corporation ("FDIC"), or the SIPC, or any governmental
agency and are not obligations of or endorsed or guaranteed in any way by any
bank affiliated with SunTrust Equitable Securities or any other bank unless
otherwise stated.
You authorize SunTrust Equitable Securities and its affiliates,
including STB and any other SunTrust affiliated bank, to share with each other
credit and other confidential or non-public information regarding you and your
accounts. It is the policy of STB, SunTrust Equitable Securities, and all other
SunTrust affiliates to strictly protect confidential client information.
Therefore, any information shared by us will be on a limited basis and only to
people within our organization who are part of our relationship team, except as
otherwise provided in this letter.
H. Miscellaneous.
1. Effectiveness. This Commitment Letter shall constitute a binding
obligation of SunTrust for all purposes immediately upon the acceptance hereof
by the Company in the manner provided herein. Notwithstanding any other
provision of this Commitment Letter, SunTrust's commitments and undertakings as
set forth herein shall not be or become effective for any purpose unless and
until this Commitment Letter shall have been accepted by the Company in the
manner specified below. Furthermore, this Commitment Letter cannot be used to
evidence financing to fund the acquisition of Ring. without acceptance of the
Commitment Letter by the Company in the manner specified below.
2. Acceptance by the Company. If you are in agreement with the
foregoing, please sign and return the enclosed copy of the Commitment Letter to
SunTrust Equitable Securities at its office located at 303 Peachtree Street,
N.E., 24th Floor, MC 3956, Atlanta, Georgia 30308, Attention: Ms. Jenna Kelly,
the enclosed copy of this Commitment Letter.
3. Termination. Unless you have signed and returned the enclosed copy
of this Commitment Letter prior to 5:00 p.m., Atlanta, Georgia time, on May 31,
2000, SunTrust's obligations hereunder shall terminate on such date. In addition
to the foregoing, this Commitment Letter may be terminated only by mutual
agreement of all parties to this letter at any time prior to the Company's
announcing its final intention to make an offer for Ring. In no event shall STB
or any other Lender have any obligation to make the Credit Facilities available
unless the Offer is made by June 2, 2000.
4. No Third-Party Beneficiaries. This Commitment Letter is solely for
the benefit of the Company, N M Rothschild and SunTrust, no provision hereof
shall be deemed to confer rights on any other person or entity; provided, it is
agreed that N M Rothschild is party to this Commitment Letter only for the
purpose of obtaining the benefits of clauses H3 and H6,
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May 31, 2000
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references to "you" shall not include N M Rothschild and N M Rothschild shall
have no liabilities or obligations of any kind hereunder.
5. Special Provisions. For the avoidance of any doubt, no guarantee
will be required from any company where the giving of that guarantee would
constitute unlawful financial assistance under any applicable legislation in any
relevant jurisdiction. For the avoidance of any doubt, no security will be
required from any company where the giving of that security would constitute
unlawful financial assistance under any applicable legislation in any relevant
jurisdiction.
6. No Assignment. This Commitment Letter may not be assigned by
SunTrust without the consent of N M Rothschild or by the Company to any other
person or entity, but all of the obligations of the Company hereunder shall be
binding upon the successors and assigns of the Company. This Commitment Letter
shall not be amended, supplemented, novated, replaced or varied in any way prior
to the expiry of the Certain Funds Period without the prior written consent of N
M Rothschild. The Credit Facilities may not, subject to the provisions of
paragraph 11 of clause H and clause 3(a) or 3(c) of paragraph D, be repaid or
refinanced prior to the expiry of the Certain Funds Period without the consent
of N M Rothschild.
7. GOVERNING LAW. THIS COMMITMENT LETTER WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
8. WAIVERS OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE COMPANY AND SUNTRUST HEREBY WAIVES JURY TRIAL IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATED TO THIS COMMITMENT LETTER OR ANY OTHER
DOCUMENTS CONTEMPLATED HEREBY.
9. Counterparts. This Commitment Letter may be executed in any number
of separate counterparts, each of which shall collectively and separately,
constitute one agreement.
10. Entire Agreement. Upon acceptance by you as provided herein, this
Commitment Letter shall supersede all understandings and agreements between the
parties to this Commitment Letter in respect of the transactions contemplated
hereby.
11. Certain Funds Period. During the Certain Funds Period, neither STB
(nor any other lender to whom part or all of the Credit Facilities have been
syndicated) will be entitled to:
(a) refuse to advance the Credit Facilities;
(b) terminate or cancel its obligation to make available
the Credit Facilities;
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May 31, 2000
Page 10
(c) exercise any right of rescission or similar right or
remedy in respect of the Commitment Letter; or
(d) accelerate the repayment of the Credit Facilities,
unless there is a breach of any of the provisions of clauses C(h) through (n)
(inclusive) which remains unremedied or unwaived for a period of seven days or
there is a failure to satisfy any of the conditions outlined in clauses C(a)
through (f) (inclusive) and in the case of 11(a) above only, clause C(g).
12. Notices. The Company agrees that it will issue notice under section
429 of the English Companies Act of 1985 within 30 days of the satisfaction of
the condition in paragraph C(g).
STB acknowledges that the purpose of this Commitment Letter is to
create, subject to the terms and conditions set forth herein, a binding
commitment to provide the Credit Facilities to pay for shares in Ring which the
Company is offering to acquire under the Offer, for the purposes of the Code.
Nothing in this Commitment Letter is intended to or will prevent the Company
from drawing under the Credit Facilities for the purposes of acquiring shares in
Ring pursuant to the Offer, except as set forth herein.
We look forward to working with you on this transaction.
Very truly yours,
SUNTRUST BANK
By: /s/ Stephen B. Derby
Name: Stephen B. Derby
Title: Vice President
SUNTRUST EQUITABLE SECURITIES
CORPORATION
By: /s/ Peter C. Vaky
Name: Peter C. Vaky
Title: Managing Director
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May 31, 2000
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ACCEPTED AND AGREED:
CATALINA LIGHTING, INC.
By: /s/ Thomas M. Bluth
Name: Thomas M. Bluth
Title: Senior Vice President
CATALINA INTERNATIONAL PLC
By: /s/ Thomas M. Bluth
Name: Thomas M. Bluth
Title: Director
N M ROTHSCHILD & SONS LIMITED
By: /s/ David Forbes
Name: David Forbes
Title: Director
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ADDENDUM
In this Commitment Letter:
"Certain Funds Period" means the period beginning on the date of acceptance of
the Commitment Letter and ending on the first to occur of:
(a) the date on which the Offer lapses or is withdrawn (except where
replaced by a new Offer with the written agreement of the STB);
(b) the date which is 21 days after the date on which the Offer has closed;
or (if the Company issues notices under section 429 of the English Companies Act
of 1985 before (b) above) such longer period as is necessary to acquire the
remaining shares pursuant to such section 429;
provided, however that in no event shall the Certain Funds Period extend beyond
December 29, 2000.
"Code" means The City Code on Take-overs and Mergers issued by the English Panel
on Takeovers and Mergers.
"New Facilities" means credit facilities to be arranged by SunTrust Equitable
Securities pursuant to, and subject to the terms and conditions of, a commitment
letter of even date herewith among SunTrust, SunTrust Equitable Securities and
the Company, the proceeds of which are to be used amongst other things to
refinance the Credit Facilities.
"Offer" means the recommended offer for each class of shares in Ring to be made
by N.M. Rothschild & Sons Limited on behalf of the Company including any
amended, revised or increased offer made in accordance with this Commitment
Letter and approved in writing by STB.
"Panel" means The English Panel on Takeovers and Mergers.
