<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
[X] QUARTERLY REPORT [ ] TRANSITION REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY
PERIOD ENDED DECEMBER 31, 1999 COMMISSION FILE NO. 1-10739
SENSORMATIC ELECTRONICS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 34-1024665
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
951 YAMATO ROAD, BOCA RATON, FLORIDA 33431-0700
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(561) 989-7000
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
SAME
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR,
IF CHANGED SINCE LAST REPORT)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the Registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
The Registrant had outstanding 76,730,404 shares of Common Stock (par value $.01
per share) as of January 31, 2000.
<PAGE> 2
SENSORMATIC ELECTRONICS CORPORATION
INDEX
FORM 10-Q
SIX MONTHS ENDED DECEMBER 31, 1999
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Condensed Balance Sheets................................................ 2
Consolidated Condensed Statements of Operations...................................... 3
Consolidated Condensed Statements of Cash Flows...................................... 4
Notes to Consolidated Condensed Financial Statements................................. 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations................................................ 12
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.................................................................... 18
Item 2. Changes in Securities and Use of Proceeds............................................ 18
Item 4. Submission of Matters to a Vote of Security Holders.................................. 19
Item 6. Exhibits and Reports on Form 8-K..................................................... 19
Signatures ............................................................................................ 20
</TABLE>
<PAGE> 3
SENSORMATIC ELECTRONICS CORPORATION
CONSOLIDATED CONDENSED BALANCE SHEETS
(IN MILLIONS, EXCEPT PAR VALUE AMOUNTS)
<TABLE>
<CAPTION>
(UNAUDITED)
------------------------------
DECEMBER 31, JUNE 30,
1999 1999
-------------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents....................................................... $ 203.4 $ 209.0
Customer receivables, net....................................................... 346.0 318.6
Inventories, net................................................................ 159.4 163.7
Current portion of deferred income taxes........................................ 31.5 31.2
Other current assets............................................................ 39.1 46.0
-------------- ------------
Total current assets......................................................... 779.4 768.5
Customer receivables - noncurrent............................................... 62.1 76.5
Revenue equipment, net.......................................................... 69.2 71.2
Property, plant and equipment, net.............................................. 149.6 137.5
Costs in excess of net assets acquired, net..................................... 435.3 439.7
Deferred income taxes........................................................... 142.9 150.2
Patents and other assets, net................................................... 129.4 132.0
-------------- ------------
Total assets................................................................. $ 1,767.9 $ 1,775.6
============== ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt and short-term debt........................... $ 76.6 $ 80.4
Accounts payable................................................................ 66.0 76.0
Other current liabilities and deferred income taxes............................. 234.2 246.1
-------------- ------------
Total current liabilities.................................................... 376.8 402.5
Long-term debt.................................................................. 424.3 427.7
Other noncurrent liabilities and deferred income taxes.......................... 53.4 55.7
-------------- ------------
Total liabilities............................................................ 854.5 885.9
Stockholders' equity:
Preferred stock, $.01 par value, 10.0 shares authorized
6 1/2% Convertible Preferred Stock, 0.7 shares outstanding................... 166.7 166.7
Common stock, $.01 par value, 125.0 shares authorized, 76.3 and 75.6
shares outstanding at December 31, 1999 and
June 30, 1999, respectively.................................................. 751.2 743.5
Retained earnings............................................................... 150.5 133.4
Treasury stock at cost and other, 1.7 shares at December 31, 1999
and June 30, 1999............................................................ (9.5) (10.4)
Accumulated other comprehensive loss............................................ (145.5) (143.5)
--------------- ------------
Total stockholders' equity................................................... 913.4 889.7
-------------- ------------
Total liabilities and stockholders' equity................................... $ 1,767.9 $ 1,775.6
============== ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
2
<PAGE> 4
SENSORMATIC ELECTRONICS CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
(UNAUDITED) (UNAUDITED)
------------------------ -------------------------
THREE MONTHS ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 31,
------------------------ -------------------------
1999 1998 1999 1998
--------- ---------- ---------- ---------
<S> <C> <C> <C> <C>
Revenues:
Sales ..................................... $ 221.4 $ 202.9 $ 427.4 $ 390.8
Rentals ................................... 8.9 11.3 18.9 22.3
Installation, maintenance and other ....... 40.1 36.2 78.8 64.5
--------- ---------- ---------- ---------
Total revenues ......................... 270.4 250.4 525.1 477.6
Cost of sales ............................. 148.0 147.4 291.6 279.1
--------- ---------- ---------- ---------
Gross margin .............................. 122.4 103.0 233.5 198.5
Operating expenses:
Selling, general and administrative .... 70.6 73.1 144.4 145.2
Provision for doubtful accounts ........ 6.0 5.2 12.0 9.9
Research, development and engineering .. 7.4 6.4 13.7 13.5
Amortization of intangible assets ...... 6.0 5.5 11.8 10.8
--------- ---------- ---------- ---------
Total operating costs and expenses .. 90.0 90.2 181.9 179.4
--------- ---------- ---------- ---------
Operating income .......................... 32.4 12.8 51.6 19.1
--------- ---------- ---------- ---------
Other (expenses) income:
Interest income ........................ 4.8 4.0 9.1 8.0
Interest expense ....................... (10.6) (11.6) (21.0) (22.6)
Litigation recoveries .................. -- 6.3 -- 6.3
Other, net ............................. (2.0) (0.6) (3.2) (1.7)
--------- ---------- ---------- ---------
Total other (expenses) income ....... (7.8) (1.9) (15.1) (10.0)
--------- ---------- ---------- ---------
Income before income taxes ................ 24.6 10.9 36.5 9.1
Provision for income taxes ................ 8.9 3.6 13.4 3.2
--------- ---------- ---------- ---------
Net Income ............................. $ 15.7 $ 7.3 $ 23.1 $ 5.9
========= ========== ========== =========
Earnings applicable to common stockholders $ 12.7 $ 4.6 $ 17.0 $ 0.3
========= ========== ========== =========
Basic and diluted earnings per common share $ 0.17 $ 0.06 $ 0.22 $ 0.00
========= ========== ========== =========
Number of shares used in computation
of Basic earnings per common share ..... 76.1 74.8 76.0 74.6
========= ========== ========== =========
Number of shares used in computation
of Diluted earnings per common share ... 77.1 74.8 76.9 74.6
========= ========== ========== =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE> 5
SENSORMATIC ELECTRONICS CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(IN MILLIONS)
<TABLE>
<CAPTION>
(UNAUDITED)
------------------------------
SIX MONTHS ENDED
DECEMBER 31,
------------------------------
1999 1998
-------------- ------------
<S> <C> <C>
Cash flows from operating activities:
Net income................................................................... $ 23.1 $ 5.9
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization............................................. 31.6 33.4
Net changes in operating assets and liabilities,
net of effects of acquisitions and divestitures:
(Increase)/decrease in receivables and sales-type leases............. (15.0) 23.3
Decrease in inventories.............................................. 3.7 10.0
Decrease in restructuring accruals................................... (2.4) (3.9)
Other operating assets and liabilities, net.......................... (8.8) (23.0)
-------------- ------------
Net cash provided by operating activities................................. 32.2 45.7
-------------- ------------
Cash flows from investing activities:
Capital expenditures......................................................... (25.7) (13.3)
Increase in revenue equipment, net........................................... (6.5) (19.3)
Additional investment in acquisitions........................................ -- (11.3)
Other, net................................................................... 0.2 0.5
-------------- ------------
Net cash used in investing activities..................................... (32.0) (43.4)
-------------- ------------
Cash flows from financing activities:
Bank borrowings and other debt, net of payments.............................. (6.9) (23.5)
Proceeds from issuance of common stock under employee benefit plans......... 2.4 --
Other, net................................................................... (0.8) 0.7
-------------- ------------
Net cash used in financing activities..................................... (5.3) (22.8)
-------------- ------------
Effect of foreign currency translation on cash balances...................... (0.5) 0.9
-------------- ------------
Net decrease in cash............................................................ (5.6) (19.6)
Cash and cash equivalents at beginning of the year.............................. 209.0 127.0
-------------- ------------
Cash and cash equivalents at end of the period.................................. $ 203.4 $ 107.4
============== ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE> 6
SENSORMATIC ELECTRONICS CORPORATION
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(DOLLARS IN MILLIONS)
1. BASIS OF PRESENTATION
The consolidated condensed financial statements include the accounts
of Sensormatic Electronics Corporation and its subsidiaries (the
"Company"). The accompanying unaudited financial statements have been
prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form
10-Q and Article 10 of Regulation S-X. Accordingly, they do not
include all of the information and notes required by generally
accepted accounting principles for complete financial statements. In
the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three and six month period
ended December 31, 1999 are not necessarily indicative of the results
that may be expected for the year ending June 30, 2000. For further
information, refer to the consolidated financial statements and notes
thereto included in the Company's Annual Report on Form 10-K for the
year ended June 30, 1999.
2. RESTRUCTURING
The following tables set forth the details and the activity of the
1996 and 1997/1998 restructuring charge reserves as of December 31,
1999:
1996 RESERVE
<TABLE>
<CAPTION>
ACCRUAL
UTILIZATION BALANCE AT
1996 ------------------------------ JUNE 30,
PROVISION CASH NON-CASH 1996
------------ ------------ ------------ ---------
<S> <C> <C> <C> <C>
Product rationalization, related
equipment charges and other................... $ 45.3 $ -- $ (34.2) $ 11.1
Closure of facilities and related costs.......... 23.5 (1.0) (1.6) 20.9
Employee termination and related costs........... 16.5 (10.4) (0.7) 5.4
------------ ------------ ------------ ---------
Total...................................... $ 85.3 $ (11.4) $ (36.5) $ 37.4
============ ============ ============ =========
Inventory write downs recorded as
a component of cost of sales:................. (19.6) -- 10.6 (9.0)
------------ ------------ ------------ ---------
Total...................................... $ 65.7 $ (11.4) $ (25.9) $ 28.4
============ ============ ============ =========
</TABLE>
5
<PAGE> 7
1996 RESERVE (CONTINUED)
<TABLE>
<CAPTION>
ACCRUAL ACCRUAL
BALANCE AT UTILIZATION BALANCE AT
JUNE 30, ------------------------------- RESERVE JUNE 30,
1996 CASH NON-CASH REALLOCATIONS 1997
------------ ------------- -------------- ------------- ------------
<S> <C> <C> <C> <C> <C>
Product rationalization,
related equipment
charges and other........ $ 11.1 $ -- $ (12.4) $ 2.8 $ 1.5
Closure of facilities
and related costs........ 20.9 (1.4) (6.5) (7.3) 5.7
Employee termination
and related costs........ 5.4 (6.6) -- 4.5 3.3
------------ ------------- -------------- ------------ ------------
Total .................. $ 37.4 $ (8.0) $ (18.9) $ -- $ 10.5
============ ============= ============== ============ ============
Inventory write downs
recorded as a component
of cost of sales......... (9.0) 9.0 --
------------ ------------- -------------- ------------ ------------
Total.................... $ 28.4 $ (8.0) $ (9.9) $ -- $ 10.5
============ ============= ============== ============ ============
</TABLE>
1996 RESERVE (CONTINUED)
<TABLE>
<CAPTION>
ACCRUAL ACCRUAL
BALANCE AT UTILIZATION BALANCE AT
JUNE 30, ------------------------------- JUNE 30,
1997 CASH NON-CASH 1998
------------ ------------ ------------- ---------
<S> <C> <C> <C> <C>
Product rationalization, related
equipment charges and other................... $ 1.5 $ -- $ (1.1) $ 0.4
Closure of facilities and related costs.......... 5.7 (0.7) 0.2 5.2
Employee termination and related costs........... 3.3 (3.3) -- --
------------ ------------ ------------- ---------
Total ....................................... $ 10.5 $ (4.0) $ (0.9) $ 5.6
============ ============ ============ =========
</TABLE>
1996 RESERVE (CONTINUED)
<TABLE>
<CAPTION>
ACCRUAL ACCRUAL
BALANCE AT UTILIZATION BALANCE AT
JUNE 30, ---------------------------- JUNE 30,
1998 CASH NON-CASH 1999
------------ ------------ ---------- ----------
<S> <C> <C> <C> <C>
Product rationalization, related
equipment charges and other................... $ 0.4 $ -- $ -- $ 0.4
Closure of facilities and related costs.......... 5.2 (0.4) -- 4.8
Employee termination and related costs........... -- -- -- --
------------ ------------ ---------- ---------
Total ....................................... $ 5.6 $ (0.4) $ -- $ 5.2
============ ============ ========== =========
</TABLE>
1996 RESERVE (CONTINUED)
<TABLE>
<CAPTION>
ACCRUAL ACCRUAL
BALANCE AT UTILIZATION BALANCE AT
JUNE 30, ---------------------------- DECEMBER 31,
1999 CASH NON-CASH 1999
------------- ------------ ---------- ------------
<S> <C> <C> <C> <C>
Product rationalization, related
equipment charges and other................... $ 0.4 $ -- $ -- $ 0.4
Closure of facilities and related costs.......... 4.8 (0.1) -- 4.7
Employee termination and related costs........... -- -- -- --
------------ ------------ ---------- ---------
Total ....................................... $ 5.2 $ (0.1) $ -- $ 5.1
============ ============= ========== =========
</TABLE>
6
<PAGE> 8
1997/1998 RESERVE
<TABLE>
<CAPTION>
ACCRUAL ACCRUAL
BALANCE AT 1998 UTILIZATION BALANCE AT
1997 JUNE 30, ADDITIONS/ ------------------------- JUNE 30,
PROVISION 1997 (REVERSALS) CASH NON-CASH 1998
--------- ---------- ---------- ----------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Product rationalization, related
equipment charges and other....... $ 2.9 $ 2.9 $ -- $ -- $ (1.6) $ 1.3
Closure of facilities and related
Costs (1)......................... 6.5 3.6 8.8 0.2 (5.6) 7.0
Employee termination and related
costs............................. 0.5 0.5 20.4 (10.4) -- 10.5
Non-core business divestitures....... 16.9 16.9 (7.3) -- -- 9.6
--------- ---------- ---------- ----------- ----------- ---------
Total............................. $ 26.8 $ 23.9 $ 21.9 $ (10.2) $ (7.2) $ 28.4
--------- ---------- ---------- ----------- ----------- ---------
Inventory write downs recorded
as a component of cost of sales... -- (4.2) -- -- 3.6 (0.6)
--------- ---------- ---------- ----------- ----------- ---------
Total............................. $ 26.8 $ 19.7 $ 21.9 $ (10.2) $ (3.6) $ 27.8
========= ========== ========== =========== =========== =========
</TABLE>
1997/1998 RESERVE (CONTINUED)
<TABLE>
<CAPTION>
ACCRUAL ACCRUAL
BALANCE AT UTILIZATION BALANCE AT
JUNE 30, ------------------------------ JUNE 30,
1998 CASH NON-CASH 1999
------------ ------------ ------------ ---------
<S> <C> <C> <C> <C>
Product rationalization, related
equipment charges and other................... $ 1.3 $ -- $ (1.1) $ 0.2
Closure of facilities and related costs.......... 7.0 (1.3) 0.1 5.8
Employee termination and related costs........... 10.5 (6.7) -- 3.8
Non-core business divestitures................... 9.6 (0.4) -- 9.2
------------ ------------ ------------ ---------
Total ....................................... $ 28.4 $ (8.4) $ (1.0) $ 19.0
------------ ------------ ------------ ---------
Inventory write downs recorded
as a component of cost of sales............... (0.6) -- 0.6 --
------------ ------------ ------------ ---------
Total ....................................... $ 27.8 $ (8.4) $ (0.4) $ 19.0
============ ============ ============ =========
</TABLE>
1997/1998 RESERVE (CONTINUED)
<TABLE>
<CAPTION>
ACCRUAL ACCRUAL
BALANCE AT UTILIZATION BALANCE AT
JUNE 30, ------------------------------ DECEMBER 31,
1999 CASH NON-CASH 1999
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Product rationalization, related
equipment charges and other................... $ 0.2 $ -- $ -- $ 0.2
Closure of facilities and related costs.......... 5.8 (1.0) -- 4.8
Employee termination and related costs........... 3.8 (1.4) -- 2.4
Non-core business divestitures................... 9.2 -- (4.7) 4.5
------------ ------------ ------------ ---------
Total ....................................... $ 19.0 $ (2.4) $ (4.7) $ 11.9
============ ============ ============ =========
</TABLE>
(1) The 1997 provision of $6.5 includes $2.9 charged directly to the
impaired assets.
7
<PAGE> 9
3. CUSTOMER RECEIVABLES
Amounts due to the Company in the form of accounts receivable (which
are generally due within 90 days), deferred receivables (which are
generally due within one year), installment receivables (which have
periodic payments over a term of five years, generally) and net
investment in sales-type leases (which have periodic payments over
lease terms of five to six years, principally) at December 31, and June
30, 1999 are summarized as follows:
<TABLE>
<CAPTION>
DECEMBER 31 JUNE 30
----------- -------------
<S> <C> <C>
Trade accounts receivable due within 1 year................... $ 347.9 $ 306.1
Allowance for doubtful accounts............................... (40.7) (30.6)
--------------- -------------
Total trade accounts receivable, net.......................... $ 307.2 $ 275.5
=============== =============
Deferred receivables.......................................... $ 4.5 $ 9.6
Installment receivables....................................... 33.2 34.1
Allowance for doubtful accounts............................... (3.9) (5.2)
Unearned interest and maintenance............................. (17.8) (21.4)
--------------- -------------
Total deferred and installment receivables, net...... 16.0 17.1
Less: Amounts due within 1 year, net................... (13.7) (14.3)
--------------- -------------
Total noncurrent deferred and
installment receivables, net....................... $ 2.3 $ 2.8
=============== =============
Sales-type leases-minimum lease payments receivable........... $ 120.6 $ 144.3
Allowance for uncollectible minimum lease payments............ (8.8) (11.5)
Unearned interest and maintenance............................. (26.9) (30.3)
--------------- -------------
Total sales-type leases, net......................... 84.9 102.5
Less: Amounts due within 1 year, net.......................... (25.1) (28.8)
--------------- -------------
Total noncurrent sales-type leases, net.............. $ 59.8 $ 73.7
=============== =============
Total customer receivables.................................... $ 408.1 $ 395.1
Less: Amounts due within 1 year, net.......................... 346.0 318.6
--------------- -------------
Total noncurrent customer receivables......................... $ 62.1 $ 76.5
=============== =============
</TABLE>
4. INVENTORY
Inventories are summarized as follows:
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1999 1999
--------------- -------------
<S> <C> <C>
Finished goods................................................ $ 130.2 $ 135.7
Parts......................................................... 45.5 45.2
Work-in-process............................................... 12.2 11.2
--------------- -------------
187.9 192.1
Less allowance for excess and obsolete inventory.............. (28.5) (28.4)
--------------- -------------
Total inventories, net............................... $ 159.4 $ 163.7
=============== =============
</TABLE>
<PAGE> 10
5. EARNINGS PER SHARE
The following table sets forth the computation of basic and diluted
earnings per share:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 31,
------------------------ -------------------------
1999 1998 1999 1998
----------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
NUMERATOR:
Net income $ 15.7 $ 7.3 $ 23.1 $ 5.9
Less: Preferred stock dividends (3.0) (2.7) (6.1) (5.6)
----------- ---------- ---------- ----------
Earnings applicable to common stockholders $ 12.7 $ 4.6 $ 17.0 $ 0.3
=========== ========== ========== ==========
DENOMINATOR:
Basic EPS - weighted average shares 76.1 74.8 76.0 74.6
Dilutive effect: Stock options 1.0 0.0 0.9 0.0
----------- ---------- ---------- ----------
Diluted EPS - weighted average shares 77.1 74.8 76.9 74.6
=========== ========== ========== ==========
Basic earnings per share $ 0.17 $ 0.06 $ 0.22 $ 0.00
=========== ========== ========== ==========
Diluted earnings per share $ 0.17 $ 0.06 $ 0.22 $ 0.00
=========== ========== ========== ==========
</TABLE>
6. COMPREHENSIVE INCOME
For the three months ended December 31, 1999 and December 31, 1998,
comprehensive income was $1.7 and $5.3, respectively. For the six
months ended December 31, 1999 and December 31, 1998, comprehensive
income was $21.1 and $15.6, respectively.
9
<PAGE> 11
7. SEGMENT INFORMATION
The Company has changed the organization of its operations as
previously reported. The reportable segments are (i) Americas and Asia
Pacific and (ii) Europe, Middle East, and Africa ("EMEA").
THREE MONTHS
ENDING AMERICAS
DEC. 31 & ASIA PACIFIC EMEA TOTAL
------------ -------------- ---- -----
Revenues:
Retail 1999 $150.5 $70.9 $221.4
1998 $128.6 $76.0 $204.6
Non-Retail 1999 $ 33.2 $15.8 $ 49.0
1998 $ 28.8 $17.0 $ 45.8
Total Revenues 1999 $183.7 $86.7 $270.4
1998 $157.4 $93.0 $250.4
Operating income 1999 $ 32.7 $(0.3) $ 32.4
1998 $ 16.5 $(3.7) $ 12.8
SIX MONTHS
ENDING AMERICAS
DEC. 31 & ASIA PACIFIC EMEA TOTAL
---------- -------------- ------- ------
Revenues:
Retail 1999 $295.0 $134.5 $429.5
1998 $254.3 $137.1 $391.4
Non-Retail 1999 $ 65.1 $ 30.5 $ 95.6
1998 $ 57.0 $ 29.2 $ 86.2
Total Revenues 1999 $360.1 $165.0 $525.1
1998 $311.3 $166.3 $477.6
Operating income 1999 $ 55.8 $ (4.2) $ 51.6
1998 $ 33.4 $(14.3) $ 19.1
10
<PAGE> 12
8. DEBT
The Company is party to a three-year $115,000,000 revolving Credit
Agreement dated as of December 9, 1999 (the "Revolving Credit
Facility") with a syndicate of financial institutions led by Bank
of America, N.A., as Administrative Agent, SunTrust Bank, South
Florida, N.A., as Syndication Agent and Bank One N.A., as
Documentation Agent. The Revolving Credit Facility replaces the
$250,000,000 Amended and Restated Multicurrency Revolving Credit
Agreement dated as of March 18, 1997 with a syndicate of financial
institutions led by BankBoston, N.A., as Agent, and NationsBank,
N.A., as Syndication Agent, which terminated in accordance with its
terms. As of December 15, 1999, $97 million was available for use
under the Revolving Credit Facility.
The credits extended under the Revolving Credit Facility are
unsecured obligations of the Company and the subsidiary borrowers,
ranking the same as with all of their other unsecured,
unsubordinated indebtedness (including, without limitation, the
Senior Notes).
9. LITIGATION AND OTHER MATTERS
An action was brought by AlliedSignal Inc. ("Allied") in the United
States District Court for New Jersey against Vacuumschmelze GmBH, a
wholly owned subsidiary of the Morgan Crucible Company, and its
subsidiary, Vacuumschmelze Corporation ("Vacuumschmelze"), the
supplier of the principal electromagnetic alloy used in the
Company's Ultra*Max labels. The Allied complaint alleges that this
alloy infringes a patent owned by Allied and seeks to enjoin
Vacuumschmelze from making, using or selling infringing alloys. The
complaint also seeks damages, interest and costs. The Company has
brought a separate action against Allied asserting, among other
things, the Company's rights to and interest in the patent at issue
in the Vacuumschmelze litigation and certain related patents. The
Company's action is based on its claim to be a co-inventor of the
inventions claimed in such patents. Allied filed an answer and
asserted counterclaims against the Company for, among other things,
a declaratory judgement concerning the various patent rights at
issue and damages and injunctive relief for alleged patent
infringement, which counterclaims were denied by the Company. The
Company has entered into an agreement with Vacuumschmelze to bear a
substantial part of Vacuumschmelze's costs and damages, if any,
arising from this suit.
The Company also brought an action against Allied in Germany to
establish its co-ownership of the corresponding European patent
applications. The Court in the U.S. action has granted Allied's
motion to amend its answer and counterclaims to add claims for
damages and injunctive relief for the alleged breach by the Company
of a non-disclosure agreement with Allied and for the alleged
misappropriation of certain confidential and proprietary
information of Allied, arising out of the Company's alleged
disclosure to Vacuumschmelze of certain information.
The Company and Honeywell Inc. ("Honeywell"), the corporate
successor to Allied, have reached an agreement in principle to
discontinue all such actions. The agreement in principle provides,
among other things, for the grant by Honeywell to the Company of an
exclusive paid-up license to the patents held by Allied which were
the subject of the suits and related rights, and the payment by the
Company of $8 million to Honeywell. Definitive documentation is
being prepared.
As noted above, Vacuumschmelze is presently the sole supplier of
the principal electromagnetic alloy used in the Company's Ultra*Max
labels. While there are potential alternatives to the supply of
such material by Vacuumschmelze, the loss or disruption of this
source of supply could result in increased costs or product
shortages or otherwise materially adversely affect the Company's
business. The Company has been pursuing development of alternative
materials for use in the Company's Ultra*Max labels and additional
sources of supply.
11
<PAGE> 13
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The Company's consolidated condensed financial statements present a
consolidation of its worldwide operations. This discussion
supplements the detailed information presented in the Consolidated
Condensed Financial Statements and Notes thereto (which should be
read in conjunction with the financial statements and related notes
contained in the Company's 1999 Annual Report on Form 10-K) and is
intended to assist the reader in understanding the financial
results and condition of the Company.
Following the reorganization of the Company's sales regions in
October 1999, the Company now reports performance for two business
segments: (i) Americas and Asia Pacific and (ii) Europe, Middle
East and Africa, or EMEA.
RESULTS OF OPERATIONS - THREE MONTHS AND SIX MONTHS ENDED
DECEMBER 31, 1999 COMPARED TO THREE MONTHS AND SIX MONTHS ENDED
DECEMBER 31, 1998
REVENUES
Revenues of $270.4 for the second quarter of fiscal 2000 increased
8.0%, or $20.0, compared to revenues of $250.4 for the same period
in fiscal 1999. For the first half of fiscal 2000, revenues were
$525.1 million compared to $477.6 million for the first half of
fiscal 1999, a 9.9% increase. This increase was driven by an
increase in product sales in the Americas and Asia Pacific segment.
Results for the second quarter of fiscal 1999 were positively
affected by shipment delays from the first quarter of fiscal 1999
at the Company's Puerto Rico manufacturing operations caused by
Hurricane Georges, resulting in an increase in revenues of
approximately $10.0. First half comparisons were not impacted by
Hurricane Georges.
For the second quarter of fiscal 2000, Americas and Asia revenues
increased 16.7% as compared to the second quarter for fiscal 1999
from $157.4 to $183.7 and revenue increased 15.7% for the first
half as compared with the same period in fiscal 1999 from $311.3 to
$360.1. In the second quarter Americas and Asia were strong without
the benefit of significantly higher levels of shipments to larger
retail customers. The increase in the first half of fiscal 2000
included the benefit of increased product sales and significantly
increased service revenues from large shipments of electronic
article surveillance equipment to major retailers which large sales
occurred primarily in the first quarter.
EMEA reported a 6.8% decline in revenues for the second quarter of
fiscal 2000 as compared to the same period for fiscal 1999 from
$93.0 to $86.7. The primary factor contributing to the revenue
decline in the second quarter was a large shipment to a U.K.
retailer in the prior year period that was not replicated in the
second quarter of fiscal year 2000. For the first half, EMEA
reported a slight revenue decline of 0.8% as compared with the
first half of fiscal year 1999 from $166.3 to $165.0.
Ultra*Max, the Company's flagship anti-shoplifting product line,
video and access control all reported double-digit revenue growth
for the second quarter. Quarterly revenues grew 11.7% for
Ultra*Max, 10.7% for video, and 22.5% in access control. The growth
in access control during the quarter was enhanced somewhat by
orders from customers addressing Year 2000 issues. Revenues in the
first half of fiscal year 2000 grew by product category as follows:
Ultra*Max grew 10.6%; video sales grew 12.7%; and access control
revenues grew 28.6%. These increases were partially offset by
declines in older technologies including Microwave and
Electromagnetic.
12
<PAGE> 14
GROSS MARGINS, OPERATING EXPENSES AND OPERATING INCOME
Gross margins on revenues were 45.3% for the three month period
ended December 31, 1999 and 44.5% for the first half of fiscal
2000. These margins were higher than gross margins of 41.1% for the
second quarter and 41.6% for the first half of fiscal 1999. The
increase in margins during fiscal year 2000 was due primarily to
two factors: reductions in manufacturing costs due to efficiency
improvements in the second quarter and first half of fiscal 2000
and offset by gross margins in fiscal year 1999 which were
negatively affected by volume discounts to certain retailers
placing large orders.
Operating expenses for the second quarter of fiscal 2000 were $90.0
million, or 33.3% of revenues, compared to $90.2 million, or 36.0%
of revenues during the second quarter of fiscal 1999. Operating
expenses for the second quarter of fiscal 2000 as a percentage of
revenues decreased 2.7 percentage points from the second quarter of
fiscal 1999. The decrease in operating expenses is the result of
the Company's ongoing efforts to reduce overall expenses as a
percent of revenue through ongoing cost containment and
rationalization efforts. Operating expenses for the first half of
fiscal 2000 were $181.9 million or 34.6% of revenues including $3.8
million associated with the Company's change of CEOs, compared to
$179.4 million or 37.6% of revenues in the first half of fiscal
1999.
Provision for doubtful accounts, as a percentage of total revenues,
was 2.2% and 2.3% in the second quarter and first six months of
fiscal 2000, respectively, as compared with 2.1% for both the
second quarter and the first six months of fiscal 1999. The
increase during the second quarter and first half of fiscal 2000
resulted from an increase in the reserve for specific customers in
bankruptcy.
Research, development and engineering expenses were 2.7% of revenue
in the three months ended December 31, 1999 as compared to 2.5% for
the same period in fiscal 1999. Research, development and
engineering expenses for the first half of fiscal 2000 were $13.7
million compared with $13.5 million for the same period in fiscal
1999.
Operating income for the second quarter of fiscal 2000 increased
153.1% to $32.4, or 12.0% of revenues, compared to $12.8, or 5.1%
of revenues, in the second quarter of fiscal 1999. Operating income
increased from $19.1 for the first six months of fiscal 1999 to
$51.6 for the comparable period in fiscal 2000. The increase in
operating income was a result of increasing revenues and gross
margin percentages while holding operating expenses flat.
OTHER (EXPENSES) INCOME AND TAXES
Net interest and other expenses of $7.8 and $15.1 for the second
quarter and first six months of fiscal 2000, respectively,
reflected a decrease of $0.4 and $1.2 respectively, from the
comparable period of fiscal 1999 after adjusting for insurance
recoveries of $6.3. This decrease is primarily due to the decrease
in interest expense as a result of lower debt levels, as well as
higher interest income due to increases in the Company's cash
levels and short-term investments throughout fiscal 1999. Cash and
cash equivalents totaled $203.4 million at December 31, 1999
compared to $107.4 million at December 31, 1998. The second quarter
fiscal 1999 insurance recovery of $6.3 ($4.4 after-tax) resulted
from settlement agreements reached with the Company's insurance
carriers related to the shareholder litigation settled in the first
quarter of fiscal 1998.
The provision for income taxes for the second quarter and first six
months of fiscal 2000 is based on an estimated effective annual
consolidated tax rate of 35.0%. The provision for income taxes for
the first quarter and first six months of fiscal 1999 was based on
an estimated effective annual consolidated tax provision of 30.0%.
The increased effective tax rate is due primarily to increased
profitability.
The Company reported earnings applicable to common stockholders of
$12.7 million, or $0.17 per share, for the second quarter of fiscal
2000 as compared to earnings applicable to common stockholders of
$0.2 million, or $0.00 per share before insurance recoveries of
$0.06 per share for the same period of fiscal 1999. Excluding
insurance
13
<PAGE> 15
recoveries, the Company reported earnings applicable to common
stockholders of $17.0 million, or $0.22 per share, for the first
six months of fiscal 2000 as compared with earnings applicable to
common stockholders of $0.3 or 0.00 per share, for the same period
fiscal 1999.
LIQUIDITY AND CAPITAL RESOURCES
During the first six months of fiscal 2000, cash and cash
equivalents decreased $5.6. For the six month period ended December
31, 1999, cash flow provided by operating activities was $32.2
compared with cash provided by operations of $45.7 for the same
period ended December 31, 1998. The decline in operating cash flow
in the six month period ended December 31, 1999 was due to
increased levels of trade receivables resulting in part from
billing delays as the Company implemented its new enterprise-wide
computer system in North America during the fall of 1999. Such
billing delays have now largely been resolved. Additionally,
included in the operating cash flow in the first six months of
fiscal 1999 was an insurance recovery of $6.3 ($4.4 after-tax)
related to settlement agreements reached with the Company's
insurance carriers related to the shareholder litigation settled in
the first quarter of fiscal 1998.
In the first six months of fiscal 2000 the Company used $32.0 of
cash in investing activities compared with $43.4 in the first six
months of fiscal 1999. During the first six months of fiscal 2000,
the Company increased capital expenditures from $13.3 to $25.7 due
to investments in new production equipment to expand label
manufacturing capacity. These increases were offset by lower
expenditures for revenue equipment as well as $11.3 in payments in
fiscal year 1999 relating to prior acquisitions.
For the six month period ended December 31, 1999, $5.3 of cash was
used for financing activities as compared to $22.8 of cash used for
financing activities during the six month period ended December 31,
1998. The principal use of cash in financing activities during the
first half of fiscal 2000 was to repay approximately $6.9 of
short-term debt.
The Company's percentage of total debt to total capital was 35.4%
at December 31, 1999 as compared with 36.4% at June 30, 1999.
Certain of the Company's financial agreements currently prohibit
the payment of cash dividends, as well as the purchase of Company
securities, until certain profit levels are achieved, as reflected
in the Company's annual audited financial statements. Under these
provisions, the Company is precluded from paying cash dividends
until after the preparation of its audited financial statements for
fiscal year 2001 at the earliest. The Company intends to pay any
dividends declared on the Convertible Preferred Stock with shares
of Common Stock prior to the time it is able to pay such cash
dividends. The Company issued approximately 458,697 shares of
common stock in payment of the October 1, 1999 and January 3, 2000
dividends (and certain premium payments) on the Preferred Stock.
The Company uses the U.S. dollar as its reporting currency for
financial statement purposes. The Company conducts business in
numerous countries around the world through its international
subsidiaries that use local currencies to denominate their
transactions, and is, therefore, subject to certain risks
associated with fluctuating foreign currencies. The resulting
changes in the financial statements do not indicate any underlying
changes in the financial position of the international subsidiaries
but merely reflect the adjustment in the carrying value of the net
assets of these subsidiaries at the current U.S. dollar exchange
rate. Due to the long-term nature of the Company's investment in
these subsidiaries, the translation adjustments resulting from
these exchange rate fluctuations are excluded from the results of
operations and are recorded in a separate component of consolidated
stockholders' equity. Currency translation adjustments at December
31, 1999 compared to June 30, 1999, which is reflected in the
balance sheet caption "Accumulated other comprehensive loss",
increased approximately $2.0 million. The Company monitors its
currency exposures but does not hedge its translation exposures due
to the high economic costs of such a program and the long-term
nature of its investment in its international subsidiaries.
14
<PAGE> 16
The Company requires significant cash flow to meet its debt service
and other continuing obligations. As of December 31, the Company
had $500.9 million of total indebtedness outstanding. The Company's
expected principal liquidity requirements are working capital,
financing of customer equipment purchases, investments in revenue
equipment and capital expenditures and interest on the Senior
Notes. In addition, the Company expects to repay approximately
$70.0 million of long-term debt during March of 2000.
During the second quarter of fiscal 2000 the Company successfully
negotiated a new $115 million three-year revolving credit
agreement. No borrowings were outstanding under the facility at the
end of the quarter. The facility was utilized for standby letters
of credit totaling $18 million resulting in $97 million available
for use under the facility. The total cost of the new facility is
comparable to the previous facility. At December 31, 1999, the
Company's principal sources of liquidity are (i) cash on hand, (ii)
cash flow from operations, (iii) borrowings under the new $115.0
million Revolving Credit Facility, and (iv) receivable
securitization facilities. The Company believes that cash flow from
operations, together with borrowings under the Revolving Credit
Facility, will be sufficient to meet its liquidity needs for the
foreseeable future.
RESTRUCTURING
In accordance with restructuring plans announced prior to fiscal
1998, the Company recorded $17.2 in restructuring charges during
the first quarter of fiscal 1998. These charges related primarily
to product rationalization and related equipment impairment
charges, facility closures and severance costs. In addition, during
the third quarter of fiscal 1998 the Company recorded additional
restructuring charges of $4.7 related to the Company's sale of its
U.S. commercial/industrial direct sales and service business to
STG.
YEAR 2000 ISSUE
YEAR 2000
Many computer applications, processor chips embedded in many
products and computers and operating systems that are not Year 2000
compliant are unable to distinguish between the calendar year 1900
and the calendar year 2000 (the "Year 2000 Issue"). The Year 2000
Issue creates potential risks for the Company, including potential
problems in the Company's products as well as in the Information
Technology ("IT") and non-IT systems that the Company uses in its
business operations. The Company may also be exposed to risks from
third parties with whom the Company interacts who fail to
adequately address their Year 2000 Issues. The Company has
recognized the need to ensure that its business operations are not
adversely affected by the calendar year 2000.
THE COMPANY'S STATE OF READINESS
In 1996, the Company began a project to implement a global
enterprise resource planning ("ERP") system. The Company has
completed the implementation of all critical ERP system sites
worldwide and the upgrading and testing of all critical non-ERP
systems. The Company centralized its focus on addressing the Year
2000 Issue by establishing a Year 2000 Program Management Office in
order to implement a consistent approach to minimizing Year 2000
risks across the Company worldwide. The Company also assigned
Project Teams in each Business Unit. The Program Management Office
and the Project Teams were assisted by specialists and consultants.
The inventory and assessment was completed and all critical
components have passed testing. To aid in communication with the
Company's customers and suppliers, the Company developed an
Internet Web site that identifies the current Year 2000 status for
each of the Company's products. In addition, the Company
proactively contacted dealers and customers to enhance their
awareness of Sensormatic product issues and apprised them of any
appropriate action that needed to be taken. A survey of the
Company's suppliers and
15
<PAGE> 17
service providers was conducted to insure they are working on this
effort and will remain viable suppliers through calendar Year 2000.
To track Year 2000 issues during the transition period and to
provide additional focus as needed, the Company established a
worldwide Year 2000 Command Center. This center was staffed from
December 20, 1999 through January 11, 2000.
THE COSTS TO ADDRESS THE COMPANY'S YEAR 2000 ISSUES
The cost of implementing the ERP system is estimated at $40.0
million. In addition to the ERP system, the Company spent
approximately $1.0 million for the cost associated with the
Company's Year 2000 project.
THE RISKS OF THE COMPANY'S YEAR 2000 ISSUES
To date, the Year 2000 issue has not caused material operational
problems for the Company, and the Company presently believes that
the Year 2000 issue will not cause material operational problems
for it. However, there can be no assurance that such problems will
not arise as the Company and its vendors and suppliers operate
their respective businesses in the early part of 2000. If the
Company has not successfully identified all material Year 2000
problems, there may be an interruption in, or failure of, certain
normal business activities or operations. Such interruptions or
failures could have a material adverse impact on the Company's
consolidated results of operations and financial condition or on
its relationships with customers, suppliers or others.
THE COMPANY'S CONTINGENCY PLANS
The Company has developed contingency plans for all major areas of
the Company and situations that may result if the Company or any
of the third parties upon which the Company is dependent is
impacted by the Year 2000 Issue. The Company's Year 2000
compliance program will continue to be evaluated as new
information becomes available.
YEAR 2000 FORWARD-LOOKING STATEMENTS
The foregoing Year 2000 discussion contains "forward-looking
statements" within the meaning of the Private Securities Litigation
Reform Act of 1995. Such statements, including without limitation,
anticipated costs and the dates by which the Company expects to
complete certain actions, are based on management's best current
estimates, which were derived utilizing numerous assumptions about
future events, including the continued availability of certain
resources, representations received from third parties and other
factors. However, there can be no guarantee that these estimates
will be achieved, and actual results could differ materially from
those anticipated. Specific factors that might cause such material
differences include, but are not limited to, the ability to
identify and remediate all relevant IT and non-IT systems, results
of Year 2000 testing, adequate resolution of Year 2000 Issues by
businesses and other third parties who are service providers,
suppliers or customers of the Company, unanticipated system costs,
the adequacy of and ability to develop and implement contingency
plans and similar uncertainties. The "forward-looking statements"
made in the foregoing Year 2000 discussion speak only as of the
date on which such statements are made, and the Company undertakes
no obligation to update any forward-looking statement to reflect
events or circumstances after the date on which such statement is
made or to reflect the occurrence of unanticipated events.
INFORMATION RELATING TO FORWARD-LOOKING STATEMENTS
Except for historical matters, the matters discussed in this Form
10-Q are forward-looking statements that reflect the Company's
current views with respect to future events and financial
performance. These forward-looking statements are subject to
certain risks and uncertainties which could cause actual results to
differ materially from historical results or those anticipated.
Readers are cautioned not to place undue reliance on these
forward-looking
16
<PAGE> 18
statements, which speak only as of their dates. The Company
undertakes no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information,
future events or otherwise. The following factors could cause
actual results to differ materially from historical results or
those anticipated: 1) changes in international operations,
2) exchange rate risk, 3) market conditions for the Company's
products, 4) the Company's ability to provide innovative and
cost-effective solutions, 5) development risks, 6) changes in
regulations or standards applicable to the Company's products,
7) competition and 8) changes in the economic climate.
17
<PAGE> 19
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On May 14, 1999, the Company commenced an action against James E.
Winner, Jr. ("Winner"), Winner & Bagnara, P.C. ("W & B"), and First
National Bank of Pennsylvania, in the United States District Court
for the Western District of Pennsylvania (the "Pennsylvania
Action") with respect to the franchise originally granted to Winner
for the Commonwealth of Pennsylvania (the "Pennsylvania
Franchise"), which has been operated by the Company for the past 20
years pursuant to a lease agreement. The Company seeks, among other
things, a declaratory judgment that the Company is entitled to
exercise its option under that lease agreement to purchase all
right, title and interest in the Pennsylvania Franchise from the
defendants. Winner and W & B interposed a joint answer in the
Pennsylvania Action asserting, among other things, that the Court
could not properly exercise jurisdiction over the matter because
Winner is a Florida resident. In light of this defense, the Company
commenced a second action against the defendants in the Circuit
Court of the Fifteenth Judicial Circuit, Palm Beach County, Florida
(the "Florida Action"), essentially repeating the allegations and
claims for relief of the Pennsylvania Action. In their joint answer
to the Company's complaint in the Florida Action, Winner and W & B
denied the Company's claims and asserted counterclaims seeking,
among other things, a declaration that the Company failed to
properly exercise its option and the Company's rights to operate
the Pennsylvania Franchise ceased on December 1, 1998. The Company
has moved to dismiss that counterclaim and is vigorously pursuing
its rights to the Pennsylvania Franchise.
With respect to the New Jersey, Florida and German actions
involving the Company, AlliedSignal, Inc. ("Allied") and/or
Vacuumschmelze GmBH ("Vacuumschmelze") described in the Company's
Annual Report on Form 10-K for the fiscal year ended June 30, 1999
and Quarterly Report on Form 10-Q for the quarter ended September
30, 1999, the Company and Honeywell Inc. ("Honeywell"), the
corporate successor to Allied, have reached an agreement in
principle to discontinue all such actions. The agreement in
principle provides, among other things, for the grant by Honeywell
to the Company of an exclusive paid-up license to the patents held
by Allied which were the subject of the suits and related rights,
and the payment by the Company of $8 million to Honeywell.
Definitive documentation is being prepared.
Reference is made to Item 3. Legal Proceedings of the Form 10-K for
additional information relating to the actions between the Company
and Allied.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
Pursuant to the terms of the Preferred Stock, the Company issued
256,207 shares of common stock in payment of the dividends payable,
and certain liquidated damages under the registration agreement, on
October 1, 1999. (Registration of these shares is not required
because no additional consideration was paid therefor.)
18
<PAGE> 20
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of Stockholders of the Company was held on
November 12, 1999. The following business was transacted:
Two company directors were voted on for re-election. The re-election
of Ronald G. Assaf was voted on by 88% of the outstanding shares with
98% of those voting for the nominee and 2% voting against. The
re-election of Fred A. Breidenbach was voted on by 88% of the
outstanding shares with 98% of those voting for the nominee and 2%
vote withheld. Accordingly, both were re-elected for a three year
term expiring in the year 2002.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits
10.1) Revolving Credit Agreement, dated as of December
9, 1999, between the Company and Bank of America,
N.A. and other lending institutions.
27) Financial Data Schedule (for SEC use only)
b) Reports on Form 8-K:
There were no reports on Form 8-K filed during the
three-month period ended December 31, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SENSORMATIC ELECTRONICS CORPORATION
By: /s/ GARRETT E. PIERCE
---------------------------------
Garrett E. Pierce
EXECUTIVE VICE PRESIDENT, CHIEF
ADMINISTRATIVE OFFICER AND
CHIEF FINANCIAL OFFICER
(PRINCIPAL FINANCIAL OFFICER)
Date: February 14, 2000
20
<PAGE> 1
EXHIBIT 10.1
================================================================================
CREDIT AGREEMENT
by and among
SENSORMATIC ELECTRONICS CORPORATION
AND
THE BORROWING SUBSIDIARIES,
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender,
SUNTRUST BANK, SOUTH FLORIDA, N.A.,
as Syndication Agent
and
BANK ONE, N.A.,
as Documentation Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
December 9, 1999
================================================================================
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
ARTICLE I
Definitions and Terms
1.1 Definitions.....................................................................................2
1.2 Rules of Interpretation........................................................................27
1.3 Accounting Principles..........................................................................28
ARTICLE II
The Credit Facilities
2.1 Revolving Loans................................................................................29
2.2 Competitive Bid Loans..........................................................................35
2.3 Use of Proceeds................................................................................40
2.4 Notes..........................................................................................40
2.5 Swing Line.....................................................................................41
2.6 Termination of Total Commitment; Change in Control.............................................42
2.7 Designation of Borrowing Subsidiaries..........................................................43
ARTICLE III
Letters of Credit
3.1 Letters of Credit..............................................................................44
3.2 Reimbursement and Participations...............................................................45
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1 Interest Rate Options..........................................................................49
4.2 Conversions and Elections of Subsequent Interest Periods.......................................49
4.3 Payment of Interest............................................................................50
4.4 Prepayments of Eurodollar Rate Loans and Competitive Bid Loans.................................50
4.5 Manner of Payment..............................................................................51
4.6 Fees...........................................................................................51
4.7 Pro Rata Payments..............................................................................52
4.8 Computation of Rates and Fees..................................................................52
4.9 Deficiency Advances; Failure to Purchase Participations........................................52
4.10 Intraday Funding...............................................................................53
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE V
Change in Circumstances
5.1 Increased Cost and Reduced Return..............................................................55
5.2 Limitation on Types of Loans...................................................................56
5.3 Illegality.....................................................................................57
5.4 Treatment of Affected Loans....................................................................57
5.5 Compensation...................................................................................58
5.6 Taxes..........................................................................................58
5.7 Replacement Lenders............................................................................60
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1 Conditions of Initial Advance and Issuing Letters of Credit....................................62
6.2 Conditions of Revolving Loans and Letter of Credit.............................................64
ARTICLE VII
Representations and Warranties
7.1 Organization and Authority.....................................................................66
7.2 Loan Documents.................................................................................66
7.3 Solvency.......................................................................................67
7.4 Subsidiaries and Stockholders..................................................................67
7.5 Ownership Interests............................................................................67
7.6 Financial Condition............................................................................67
7.7 Title to Properties............................................................................68
7.8 Taxes..........................................................................................68
7.9 Other Agreements...............................................................................68
7.10 Litigation.....................................................................................68
7.11 Margin Stock...................................................................................69
7.12 Investment Company.............................................................................69
7.13 Patents, Etc...................................................................................69
7.14 No Untrue Statement............................................................................69
7.15 No Consents, Etc...............................................................................70
7.16 Employee Benefit Plans.........................................................................70
7.17 No Default.....................................................................................71
7.18 Environmental Laws.............................................................................71
7.19 Employment Matters.............................................................................72
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
7.20 RICO...........................................................................................72
7.21 Year 2000 Compliance...........................................................................72
ARTICLE VIII
Affirmative Covenants
8.1 Financial Reports, Etc.........................................................................73
8.2 Maintain Properties............................................................................74
8.3 Existence, Qualification, Etc..................................................................74
8.4 Regulations and Taxes..........................................................................74
8.5 Insurance......................................................................................75
8.6 True Books.....................................................................................75
8.7 Year 2000 Compliance...........................................................................75
8.8 Right of Inspection............................................................................75
8.9 Observe all Laws...............................................................................75
8.10 Governmental Licenses..........................................................................76
8.11 Covenants Extending to Other Persons...........................................................76
8.12 Officer's Knowledge of Default.................................................................76
8.13 Suits or Other Proceedings.....................................................................76
8.14 Notice of Environmental Complaint or Condition.................................................76
8.15 Environmental Compliance.......................................................................76
8.16 Indemnification................................................................................77
8.17 Further Assurances.............................................................................77
8.18 Employee Benefit Plans.........................................................................77
8.19 Continued Operations...........................................................................78
ARTICLE IX
Negative Covenants
9.1 Financial Covenants............................................................................79
9.2 Acquisitions...................................................................................79
9.3 Liens..........................................................................................80
9.4 Restricted Payments............................................................................81
9.5 Merger or Consolidation........................................................................81
9.6 Sale of Assets.................................................................................82
9.7 Transactions with Affiliates...................................................................82
9.8 Sale and Leaseback.............................................................................82
9.9 Subordinated Debt and Senior Notes.............................................................83
9.10 Indebtedness...................................................................................83
9.11 Compliance with ERISA, the Code and Foreign Benefit Laws.......................................84
9.12 Fiscal Year....................................................................................85
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
9.13. Dissolution, etc.............................................................................. 85
9.14. Rate Hedging Obligations.......................................................................85
9.15. Negative Pledge Clauses........................................................................85
9.16. Restrictions on Investments....................................................................85
ARTICLE X
Events of Default and Acceleration
10.1 Events of Default..............................................................................87
10.2 Administrative Agent to Act....................................................................90
10.3 Cumulative Rights..............................................................................90
10.4 No Waiver......................................................................................90
10.5 Allocation of Proceeds.........................................................................90
ARTICLE XI
The Administrative Agent
11.1 Appointment, Powers, and Immunities............................................................92
11.2 Reliance by Administrative Agent...............................................................92
11.3 Defaults.......................................................................................93
11.4 Rights as Lender...............................................................................93
11.5 Indemnification................................................................................93
11.6 Non-Reliance on Administrative Agent and Other Lenders.........................................94
11.7 Resignation of Administrative Agent............................................................94
11.8 Other Agents...................................................................................94
ARTICLE XII
Miscellaneous
12.1 Assignments and Participations.................................................................95
12.2 Notices........................................................................................97
12.3 Right of Set-off; Adjustments..................................................................98
12.4 Survival.......................................................................................98
12.5 Expenses.......................................................................................98
12.6 Amendments and Waivers.........................................................................99
12.7 Counterparts; Facsimile Signatures.............................................................99
12.8 Termination...................................................................................100
12.9 Indemnification; Limitation of Liability......................................................100
12.10 Severability..................................................................................101
12.11 Entire Agreement..............................................................................101
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
12.12 Agreement Controls...............................................................................101
12.13 Usury Savings Clause.............................................................................101
12.14 Confidentiality..................................................................................102
12.15 GOVERNING LAW; WAIVER OF JURY TRIAL..............................................................103
EXHIBIT A Applicable Commitment Percentages........................................................A-1
EXHIBIT B Form of Assignment and Acceptance........................................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative.......................C-1
EXHIBIT D-1 Form of Borrowing Notice...............................................................D-1-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans.............................................D-2-1
EXHIBIT E Form of Interest Rate Selection Notice...................................................E-1
EXHIBIT F-1 Form of Competitive Bid Note...........................................................F-1-1
EXHIBIT F-2 Form of Revolving Note.................................................................F-2-1
EXHIBIT F-3 Form of Swing Line Note................................................................F-3-1
EXHIBIT G Form of Competitive Bid Quote Request....................................................G-1
EXHIBIT H Form of Competitive Bid Quote............................................................H-1
EXHIBIT I Subordination Provisions.................................................................I-1
EXHIBIT J Form of Opinion of Borrower's Counsel....................................................J-1
EXHIBIT K Compliance Certificate...................................................................K-1
EXHIBIT L Form of Assumption Letter................................................................L-1
EXHIBIT M Form of Amendment Agreement..............................................................M-1
Schedule 1.1(a) Existing Letters of Credit...............................................................S-1
Schedule 1.1(b) Pricing Grid.............................................................................S-2
Schedule 7.4 Subsidiaries and Investments in Other Persons............................................S-3
Schedule 7.6 Indebtedness.............................................................................S-4
Schedule 7.7 Liens....................................................................................S-5
Schedule 7.8 Tax Matters..............................................................................S-6
</TABLE>
v
<PAGE> 7
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 9, 1999 (the "Agreement"),
is made by and among SENSORMATIC ELECTRONICS CORPORATION, a Delaware corporation
having its principal place of business at 951 Yamato Road, Boca Raton, Florida
(the "Parent"), the BORROWING SUBSIDIARIES parties hereto pursuant to SECTION
2.7 herein (the Parent and each Borrowing Subsidiary is individually referred to
as a "Borrower" and collectively as the "Borrowers"), BANK OF AMERICA, N.A., a
national banking association organized and existing under the laws of the United
States, in its capacity as a Lender ("Bank of America"), and each other
financial institution executing and delivering a signature page hereto and each
other financial institution which may hereafter execute and deliver an
instrument of assignment with respect to this Agreement pursuant to SECTION 12.1
(hereinafter such financial institutions may be referred to individually as a
"Lender" or collectively as the "Lenders"), and BANK OF AMERICA, N.A., a
national banking association organized and existing under the laws of the United
States, in its capacity as administrative agent for the Lenders (in such
capacity, and together with any successor agent appointed in accordance with the
terms of SECTION 11.7, the "Administrative Agent");
W I T N E S S E T H:
WHEREAS, the Borrowers have requested that the Lenders make available
to the Borrowers a revolving credit facility of up to $125,000,000, the proceeds
of which are to be used for working capital, capital expenditures and general
corporate purposes, including acquisitions and to repay certain existing
indebtedness and which shall include (i) a letter of credit facility of up to
$50,000,000 for the issuance of standby letters of credit, (ii) a swing line
facility of up to $10,000,000 and (iii) a $25,000,000 multi-currency facility;
and
WHEREAS, the Lenders party hereto are willing to make available to the
Borrowers a revolving credit facility of up to $115,000,000 which includes a
letter of credit facility of up to $50,000,000, a swing line facility of up to
$10,000,000 and a $25,000,000 multi-currency facility upon the terms and
conditions set forth herein and each Lender hereby agrees that the revolving
credit facility may be increased to $125,000,000 at any time so long as no
Default or Event of Default exists without further action or approval of the
Lenders;
NOW, THEREFORE, the Borrowers, the Lenders and the Administrative Agent
hereby agree as follows:
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<PAGE> 8
ARTICLE I
DEFINITIONS AND TERMS
1.1 Definitions. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Absolute Rate" has the meaning assigned to such term in SECTION
2.2(c)(ii)(C) hereof.
"Absolute Rate Loan" means any Loan for which the rate of interest is
determined by reference to the Absolute Rate.
"Acquisition" means the acquisition of (i) a majority equity
interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
majority interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or any material part of the assets of such Person or of a Line or Lines
of Business conducted by such Person.
"Advance" means any of a borrowing under (i) the Revolving
Credit Facility consisting of a Base Rate Loan or a Eurodollar Rate
Loan, (ii) the Swing Line consisting of a Base Rate Loan or (iii) the
Competitive Bid Facility consisting of Competitive Bid Loans.
"Advance Day Exchange Rate" means, with respect to a specified
Advance or Loan of an Alternative Currency, the Spot Rate of Exchange
as of the date two Business Days preceding the date such Advance is
originally made, PROVIDED that, if such Advance or Loan is continued
for a subsequent Interest Period pursuant to SECTIONS 2.1(b) and 4.2
the Advance Day Exchange Rate with respect to such Loan shall be the
Spot Rate of Exchange two Business Days preceding the effective date of
the latest Continuation or Conversion of such Advance or Loan; and the
Dollar Value of such Advance or Loan shall be adjusted as set forth in
SECTION 2.1(c); PROVIDED, further, that in the case of a drawing under
a Letter of Credit issued in an Alternative Currency, the Spot Rate of
Exchange shall be as of the date of such drawing.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Parent; or (ii) which beneficially owns
or holds 5% or more of any class of the outstanding voting stock (or in
the case of a Person which is not a corporation, 5% or more of the
equity interest) of the Parent; or 5% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Parent; PROVIDED, that no Person
shall be deemed to be an Affiliate of any Person solely by virtue of
being an officer, director or employee of such Person.
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<PAGE> 9
"Alternative Currency" means, with respect to Loans under the
Revolving Facility, British Pounds and the euro and, with the prior
written consent of all Lenders and the Administrative Agent, any other
lawful currency other than Dollars which is freely transferable and
convertible into Dollars in the United States currency market;
PROVIDED, however, that an Alternative Currency shall only be available
to the Borrowers if each Lender shall have access to such Alternative
Currency on terms reasonably acceptable to such Lender.
"Alternative Currency Equivalent Amount" means, with respect
to a specified Alternative Currency and a specified Dollar amount, the
amount of such Alternative Currency into which such Dollar amount would
be converted, based on the applicable Advance Day Exchange Rate.
"Alternative Currency Loan" means a Loan made in an
Alternative Currency.
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction, with respect to the Revolving Credit Facility and
the Letter of Credit Facility the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which shall
be the Total Revolving Credit Commitment, which Applicable Commitment
Percentage for each Lender as of the Closing Date is as set forth in
EXHIBIT A; PROVIDED that the Applicable Commitment Percentage of each
Lender shall be increased or decreased to reflect (i) the addition of
one or more Lenders pursuant to SECTION 2.1(f) hereof, (ii) any
assignments to or by such Lender effected in accordance with SECTION
12.1 and (iii) any mandatory payment effected in accordance with
SECTION 2.6.
"Applicable Facility Fee" means that number of basis points
per annum set forth on the Pricing Grid under the heading "Applicable
Facility Fee" which shall be based upon the Borrower's Rating as set
forth on the Pricing Grid.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Administrative Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of
such Type are to be made and maintained.
"Applicable Margin" means that number of basis points per
annum set forth on the Pricing Grid under the heading "Applicable
Eurodollar Margin" for Eurodollar Rate Loans and "Applicable Base Rate
Margin" for Base Rate Loans which shall be based on the Borrower's
Rating as set forth on the Pricing Grid plus the Utilization Amount, if
any.
"Applicable Rate" means the Eurodollar Rate applicable to any
Alternative Currency Loan.
3
<PAGE> 10
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by one or more of the Borrowers from
time to time and delivered to the Issuing Bank to support the issuance
of Letters of Credit.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of EXHIBIT B (with blanks appropriately filled
in) delivered to the Administrative Agent in connection with an
assignment of a Lender's interest under this Agreement pursuant to
SECTION 12.1.
"Associated Costs" means, with respect to Alternative Currency
Loans in British Pounds, a rate per annum equal to the arithmetic mean
of the percentage rates applicable to the Applicable Lending Office of
the relevant Lender according to the following formula:
Associated Costs BY + L(Y-X) + S X 0.01
per annum = ----------------------
100 - (B+L)
where:
B = The percentage of such Lender's eligible liabilities
required, on the first day of the Relevant Period, to
be held in a non-interest-bearing deposit account
with the Bank of England pursuant to the cash ratio
requirements of the Bank of England.
Y = The interest rate at which British Pound deposits in
an amount comparable to the aggregate principal
amount of the relevant Loan are offered by such
Lender to leading banks in the London interbank
market at or about 11:00 a.m. (London time) on the
first day of the Relevant Period for a period
comparable to the Relevant Period.
L = The percentage of eligible liabilities which the Bank
of England, as at the first day of the Relevant
Period, requires such Lender to maintain as interest
bearing special deposits with the Bank of England.
X = The rate per annum payable by the Bank of England to
the Lender on interest bearing special deposits.
S = The rate payable by the Lender to the Financial
Services Authority pursuant to the Fees Regulations
(but, for this purpose, the figure at paragraph
[2.02b]/[2.03b] of the Fees Regulations shall be
deemed to be zero) and expressed in British Pounds
per (pound)1,000,000 of the Fee Base of the Lender.
(a) For the purposes of this definition:
4
<PAGE> 11
(i) "eligible liabilities" and "special deposits"
shall have the meanings ascribed to them from time to time by
the Bank of England;
(ii) "Relevant Period" means, if the Interest Period
with respect to the relevant Loan is three months or less, the
duration of such Interest Period or, if such Interest Period
is longer than three months, each period of three months and
any necessary shorter period in such Interest Period;
(iii) "Fee Regulations" means the Banking Supervision
(Fees) Regulations 1998 or such other regulations as may be in
force from time to time in respect of the payment of fees for
banking supervision; and
(iv) "Fee Base" shall bear the meaning ascribed to
it, and shall be calculated in accordance with, the Fees
Regulations.
(b) In the application of the above formula, B, Y, L, X, S and
Z will be included in the formula as decimal fractions and not as
percentages, e.g. if B = 0.5% and Y = 15%, BY will be calculated as 0.5
x 15 and not as 0.5% x 15%.
(c) Associated Costs shall be computed by the applicable
Lender on the first day of each Relevant Period, and shall, if
necessary, be rounded upward to the nearest 1/10,000 of 1%. If there is
more than one Relevant Period comprised in the relevant Interest
Period, then the Associated Costs for that Interest Period shall be the
weighted average of the amounts so computed for the Relevant Periods
comprised in that Interest Period.
(d) Calculations will be made on the basis of a year of 365
days.
"Assumption Agreement" has the meaning set forth in SECTION
2.7.
"Authorized Representative" means any of the President or any
Vice President of the Parent or, with respect to financial matters, the
chief financial officer of the Parent, or any other Person expressly
designated by the Board of Directors of the Parent (or the appropriate
committee thereof) or the Vice President and Treasurer of the Parent as
an Authorized Representative of the Borrowers, as set forth from time
to time in a certificate in the form of EXHIBIT C.
"Bank of America" means Bank of America, N.A.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the rate per annum equal to
the sum of (a) the higher of (i) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (ii) the Prime Rate for such
day plus (b) the Applicable Margin. Any change in the Base Rate due
5
<PAGE> 12
to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or
Federal Funds Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay Bank of America in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrowers' Account" means a demand deposit account designated
by the Borrower or any successor account with the Administrative Agent,
which may be maintained at one or more offices of the Administrative
Agent or an agent of the Administrative Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line, in the forms of EXHIBITS D-1 AND D-2,
respectively.
"Borrowing Subsidiary" means any Subsidiary of the Parent
which has been designated as a Borrower pursuant to SECTION 2.7.
"British Pound" or "(pound)" means the lawful currency of
England and Wales.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed,
(ii) with respect to the selection, funding, interest rate, payment,
and Interest Period of any Eurodollar Rate Loan or any Competitive Bid
Loan at the Eurodollar Competitive Rate, any day which is a Business
Day, as described in clause (i) above, and that is also a day for
trading by and between banks in Dollar deposits in the applicable
interbank Eurodollar market or in deposits in the Applicable
Alternative Currency in the United States interbank market, as
applicable and (iii) with respect to the selection, funding, interest
rate, payment and Interest Period for any Alternative Currency Loan
denominated in euros, any day which is a Business Day as described in
clause (ii) above, and on which TARGET (Trans-European Automated
Realtime Gross settlement Express Transfer system) or any successor
thereto is scheduled to be open for business, and (iv) with respect to
the selection, funding, interest rate, payment and Interest Period for
any Alternative Currency Loan not denominated in euros, any day which
is a Business Day as described in clause (ii) above, and on which the
relevant Funding Bank is open for the transaction of business
contemplated by this Agreement and on which dealings in the relevant
Alternative Currency are carried on in the
6
<PAGE> 13
applicable offshore foreign exchange interbank market in which
disbursement of or payment in such Alternative Currency will be made or
received hereunder.
"Capital Expenditures" means, with respect to the Parent and
its Subsidiaries, for any period the SUM of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Parent or any Subsidiary during such period for items that would be
classified as "property, plant or equipment" or comparable items on the
consolidated balance sheet of the Parent and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Administrative Agent together with any compliance
certificate delivered pursuant to SECTION 8.1(a) or (b), and (ii) with
respect to any Capital Lease entered into by the Parent or its
Subsidiaries during such period, the present value of the lease
payments due under such Capital Lease over the term of such Capital
Lease applying a discount rate equal to the interest rate provided in
such lease (or in the absence of a stated interest rate, that rate used
in the preparation of the financial statements described in SECTION
8.1(a)), all the foregoing in accordance with GAAP applied on a
Consistent Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) either (A) becomes
the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act), directly or indirectly, of Voting Securities
of the Parent (or securities convertible into or exchangeable
for such Voting Securities) representing 30% or more of the
combined voting power of all Voting Securities of the Parent
(on a fully diluted basis) or (B) otherwise has the ability,
directly or indirectly, to elect a majority of the board of
directors of the Borrower;
(ii) during any period of up to 12 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 12-month period were directors of the Parent
shall cease for any reason (other than the death, disability
or retirement of an officer of the Parent that is serving as a
director at such time so long as another officer of the Parent
replaces such Person as a director) to constitute a majority
of the board of directors of the Borrower; or
(iii) the Parent shall cease to own all of the issued
and outstanding Voting Securities of a Borrowing Subsidiary
(except for nominal local ownership, if any, required by
applicable law) unless the Borrowing Subsidiary shall cease to
be a Borrower hereunder and shall have complied with SECTION
2.7 hereof.
7
<PAGE> 14
"Closing Date" means the date as of which this Agreement is
executed by the Borrowers, the Lenders and the Administrative Agent and
on which the conditions set forth in SECTION 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Competitive Bid Borrowing" has the meaning assigned to such
term in SECTION 2.2 hereof.
"Competitive Bid Facility" means the facility described in
SECTION 2.2 hereof providing for Competitive Bid Loans to the Parent.
"Competitive Bid Loan Commitment" means the amount which a
Lender has offered to loan to the Parent pursuant to a Competitive Bid
Quote by such Lender, the sum of all Competitive Bid Loans not to
exceed in the aggregate one hundred percent (100%) of the Total
Revolving Credit Commitment.
"Competitive Bid Loans" means the Loans bearing interest at an
Absolute Rate or a Eurodollar Competitive Rate provided for in SECTION
2.2 hereof.
"Competitive Bid Notes" means, collectively, the promissory
notes of the Parent with respect to Competitive Bid Loans provided for
by SECTION 2.2 hereof and executed and delivered to the Lenders as
provided in SECTION 2.4 substantially in the form attached hereto as
EXHIBIT F-1 and incorporated herein by reference, with appropriate
insertions as to dates and names of Lenders, and all promissory notes
delivered in substitution or exchange therefor, in each case as the
same shall be amended, modified or supplemented and in effect from time
to time.
"Competitive Bid Quote" means an offer in accordance with
SECTION 2.2 hereof by a Lender to make a Competitive Bid Loan with one
single specified interest rate.
"Competitive Bid Quote Request" has the meaning assigned to
such term in SECTION 2.2 hereof.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Parent referred to as of the
Closing Date in SECTION 7.6(a).
"Consolidated EBIT" means, with respect to the Parent and its
Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the SUM of, without duplication, (i) Consolidated
Net Income net of interest income, (ii) Consolidated Interest
8
<PAGE> 15
Expense, and (iii) taxes on income, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Consolidated Indebtedness" means all Indebtedness of the
Parent and its Subsidiaries, all determined on a consolidated basis.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the Parent
and its Subsidiaries, including without limitation (i) the current
amortized portion of debt discounts to the extent included in gross
interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Rate Hedging Obligations)
payable in connection with the incurrence of Indebtedness to the extent
included in gross interest expense, and (iii) the portion of any
payments made in connection with Capital Leases allocable to interest
expense, all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis.
"Consolidated Interest Coverage Ratio" means the ratio of
Consolidated EBIT to Consolidated Interest Expense net of interest
income, if any, for the Four-Quarter Period ending on the date of
computation thereof.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness
(determined as at such date) to (ii) Consolidated Total Capitalization.
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Parent and its
Subsidiaries (including payments received by the Parent and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement and
not related to an extraordinary event), less all operating and
non-operating expenses of the Parent and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding (for all
purposes other than (x) compliance with SECTION 9.1(a) hereof) as
income: (i) net gains on the sale, conversion or other disposition of
capital assets, (ii) net gains on the acquisition, retirement, sale or
other disposition of capital stock and other securities of the Parent
or its Subsidiaries, (iii) net gains on the collection of proceeds of
life insurance policies, (iv) any write-up of any asset, and (v) any
other net gain or credit of an extraordinary nature as determined in
accordance with GAAP applied on a Consistent Basis; provided, however,
that for purposes of determining compliance with the provisions of
SECTION 9.1(a) hereof, there shall be disregarded any increase in
Consolidated Net Income upon giving effect to any Acquisition which
results from the treatment of such Acquisition as a "pooling of
interests."
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, Consolidated Shareholders' Equity.
9
<PAGE> 16
"Consolidated Senior Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness less
Subordinated Indebtedness (determined as of such date) to (ii)
Consolidated Total Capitalization.
"Consolidated Shareholders' Equity" means, as of any date on
which the amount thereof is to be determined, the sum of the following
in respect of the Parent and its Subsidiaries (determined on a
consolidated basis and excluding any upward adjustment after the
Closing Date due to revaluation of assets): (i) the amount of issued
and outstanding share capital, plus (ii) the amount of additional
paid-in capital and retained earnings (or, in the case of a deficit,
minus the amount of such deficit), plus (iii) the amount of any foreign
currency translation adjustment (if positive, or, if negative, minus
the amount of such translation adjustment), minus (iv) the amount of
any treasury stock, all as determined in accordance with GAAP applied
on a Consistent Basis.
"Consolidated Total Assets" means, as of any date on which the
amount thereof is to be determined, the net book value of all assets of
the Parent and its Subsidiaries as determined on a consolidated basis
in accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Capitalization" means, as of any date on
which the amount thereof is to be determined, the sum of Consolidated
Indebtedness as of such date of determination plus Consolidated
Shareholders' Equity as of the last day of the most recently ended
fiscal quarter.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness,
lease, dividend, guaranty, letter of credit or other obligation, other
than commercial letters of credit and surety bonds, (each a "PRIMARY
OBLIGATION") of another Person (the "PRIMARY OBLIGOR"), whether or not
contingent, (a) to purchase, repurchase or otherwise acquire any such
primary obligation or any property constituting direct or indirect
security therefor, or (b) to advance or provide funds (i) for the
payment or discharge of any such primary obligation, or (ii) to
maintain working capital or equity capital of the primary obligor in
respect of any such primary obligation or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or
financial condition of such primary obligor, or (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 thereof to make payment of such primary obligation, or (d)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss or failure or inability to perform in respect
thereof including the amount of any recourse arising under an asset
securitization or a receivables financing other than a recourse
obligation arising by a breach of representations or warranties
contained therein. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof. For the purposes of clarity,
the obligations of the Parent and Sensor SPC Inc. ("SPC") under the
Purchase and Sale Agreement, dated as of April 16, 1999 (as
supplemented, amended or
10
<PAGE> 17
modified from time to time), by and among First Sierra Financial, Inc.
("First Sierra"), the Parent and SPC (and any obligations under similar
arrangements of the Parent and/or any of its Subsidiaries, whether or
not with First Sierra) shall not be deemed to be Contingent Obligations
in that the only recourse obligation thereunder arises as a result of a
breach of representations and warranties contained therein.
"Continue," "Continuation," and "Continued" shall refer to the
continuation pursuant to SECTION 4.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert," "Conversion," and "Converted" shall refer to a
conversion pursuant to SECTION 4.2 of one Type of Loan denominated in
Dollars into another Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the SUM of the
following (without duplication): (i) the amount of any cash and fair
market value of other property (excluding the unpaid principal amount
of any debt instrument) given as consideration, (ii) the amount
(determined by using the face amount or the amount payable at maturity,
whichever is greater) of any Indebtedness incurred, assumed or acquired
by the Parent or any Subsidiary in connection with such Acquisition,
(iii) all additional purchase price amounts in the form of earnouts and
other contingent obligations that should be recorded at the time of
such Acquisition on the financial statements of the Parent and its
Subsidiaries in accordance with GAAP, and (iv) all amounts paid in
respect of covenants not to compete, consulting agreements that should
be recorded on financial statements of the Parent and its Subsidiaries
in accordance with GAAP, and other affiliated contracts in connection
with such Acquisition.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan and Competitive Bid Loan, until the end of the Interest Period
applicable thereto, a rate of two percent (2%) above the Eurodollar
Rate, Absolute Rate or Eurodollar Competitive Rate, as the case may be,
applicable to such Loan, and thereafter at a rate of interest per annum
which shall be two percent (2%) above the Base Rate, (ii) with respect
to Base Rate Loans, Swing Line Loans, Reimbursement Obligations, fees,
and other amounts payable in respect of Obligations or (except as
otherwise expressly provided therein) the obligations of any other
Person under any of the other Loan Documents, a rate of interest per
annum which shall be two percent (2%) above the Base Rate and (iii) in
any case, the maximum rate permitted by applicable law, if lower.
"Dollar Equivalent Amount" means, with respect to a specified
Alternative Currency amount, the amount of Dollars into which an
Alternative Currency amount would be converted, based on the applicable
Advance Day Exchange Rate.
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<PAGE> 18
"Dollar Value" of an Advance or Loan or Letter of Credit in an
Alternative Currency means the Dollar Equivalent Amount of the
principal amount of such Advance or Loan or stated amount of such
Letter of Credit, as the case may be, as recorded in the Administrative
Agent's records pursuant to SECTION 2.1(b) and SECTION 3.1(b).
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Subsidiary" means any Subsidiary of the Parent
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Administrative Agent
and, unless an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with SECTION 12.1, the
Parent, such approval not to be unreasonably withheld (provided that
the incurrence by the Parent of additional costs pursuant to ARTICLE V
as a result of such assignment shall constitute a reasonable basis for
withholding such consent) or delayed by the Parent and such approval to
be deemed given by the Parent (in the absence of notice to the
contrary, effective upon receipt) within six Business Days after notice
of such proposed assignment has been provided by the assigning Lender
to the Parent; PROVIDED, HOWEVER, that neither the Parent nor an
affiliate of the Parent shall qualify as an Eligible Assignee.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (A) is maintained for employees of the Parent or any of its ERISA
Affiliates, or any Subsidiary or is assumed by the Parent or any of its
ERISA Affiliates, or any Subsidiary in connection with any Acquisition
or (B) has at any time been maintained for the employees of the Parent,
any current or former ERISA Affiliate, or any Subsidiary and (ii) any
plan, arrangement, understanding or scheme maintained by the Parent or
any Subsidiary that provides retirement, deferred compensation,
employee or retiree medical or life insurance, severance benefits or
any other benefit covering any employee or former employee and which is
administered under any Foreign Benefit Law or regulated by any
Governmental Authority other than the United States of America.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
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<PAGE> 19
"EMU" means the European economic and monetary union.
"EMU Legislation" means (a) a Treaty on European Union (the
Treaty of Rome of March 25, 1957, as amended by the Single European Act
1986 and the Maastricht Treaty (which was signed at Maastricht on
February 1, 1992 and came into force on November 1, 1993)) and (b)
legislative measures of the European Council (including without
limitation European Council regulations) for the introduction of,
changeover to or operation of the euro, in each case as amended or
supplemented from time to time.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate," as applied to the Parent, means any Person
or trade or business which is a member of a group which is under common
control with the Borrower, who together with the Parent, is treated as
a single employer within the meaning of Section 414(b) and (c) of the
Code.
"euro" each means the single official non-legacy currency
denominated as the euro and constituting legal tender for the payment
of public and private debts in the Participating Member States.
"Eurodollar Competitive Rate" has the meaning assigned to such
term in SECTION 2.2(c)(ii)(D).
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = INTERBANK OFFERED RATE + Applicable
Rate ---------------------------- Margin
1 - Reserve Requirement
"Event of Default" means any of the occurrences set forth as
such in SECTION 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
Existing Letters of Credit" means those Letters of Credit
described on SCHEDULE 1.1(a).
"Executive Officer" means any of the following officers of the
Parent, to wit: the Chief Executive Officer, the President, any Senior
Vice President designated in the Parent's
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<PAGE> 20
Form 10-K as an Executive Officer, the Corporate Counsel-Secretary, and
Vice President and Treasurer.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrowers shall have permanently
terminated the Revolving Credit Facility, Competitive Bid Facility and
the Swing Line by payment in full in cash of all outstanding
Competitive Bid Loans, Revolving Credit Outstandings, Letter of Credit
Outstandings and Swing Line Outstandings, together with all accrued and
unpaid interest thereon, except for the undrawn portion of Letters of
Credit as have been fully cash collateralized in a manner consistent
with the terms of SECTION 10.1(b), (b) Revolving Credit Commitments,
Competitive Bid Loan Commitments and Letter of Credit Commitments shall
have terminated or expired and (c) the Borrowers shall have fully,
finally and irrevocably paid and satisfied in full all Obligations
(other than Obligations consisting of continuing indemnities and other
contingent Obligations of any of the Borrowers that may be owing to the
Lenders pursuant to the Loan Documents and expressly survive
termination of this Agreement);
"FASB 133 Adjustments" means entries on or adjustments to any
balance sheet or statement of income in respect of derivatives or
hedging instruments as required or permitted by Statement of Financial
Accounting Standards No. 133.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; PROVIDED
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent (in its individual capacity) on
such day on such transactions as determined by the Administrative
Agent.
"Fiscal Year" means the twelve month fiscal period of the
Parent and its Subsidiaries commencing on July 1 of each calendar year
and ending on June 30 of the next calendar year.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Parent and its Subsidiaries, taken together as
one accounting period.
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<PAGE> 21
"Funding Bank" means any banking institution approved by the
Administrative Agent located within a country which country's currency
constitutes an Alternative Currency; provided that in the case of the
euro, the Funding Bank may be located in any Participating Member
State.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Indebtedness" means as to any Person, without duplication,
(a) all Indebtedness for Money Borrowed of such Person, (b) all
indebtedness secured by any Lien on any property or asset owned or held
by such Person (other than commercial letters of credit) regardless or
whether the indebtedness secured thereby shall have been assumed by
such Person or is non-recourse to the credit of such Person and (c) all
Contingent Obligations of such Person.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases, the deferred purchase price of any property or services, the
aggregate face amount of all bankers acceptances, letters of credit
(other than commercial letters of credit), the amount of off-balance
sheet leases of real estate and large items of equipment which are
treated as Indebtedness for income tax purposes but are treated as
operating leases under GAAP, and (without duplication) all payment and
reimbursement obligations in respect thereof whether or not matured,
evidenced by a promissory note, bond, debenture or similar written
obligation for the payment of money (including reimbursement agreements
and conditional sales or similar title retention agreements), other
than trade payables and accrued expenses incurred in the ordinary
course of business.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan or any Competitive Bid Loan at a Eurodollar Competitive Rate
for the Interest Period applicable
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<PAGE> 22
thereto, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing (x) in the case of Loans in Dollars on
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars and (y) in the case of Loans in an
Alternative Currency, on the applicable Telerate Rate Page as the
London interbank offered rate for deposits in the applicable
Alternative Currency at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "Interbank Offered Rate" shall mean, with respect
to any Eurodollar Rate Loan or any Competitive Bid Loan at a Eurodollar
Competitive Rate for the Interest Period applicable thereto, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered
rate for deposits in Dollars or the applicable Alternative Currency, as
the case may be, at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period for a term
comparable to such Interest Period, PROVIDED, HOWEVER; if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if
necessary, to the nearest 1/100 of 1%).
"Interest Period" means (a) for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date one, two, three or six months thereafter as notified to the
Administrative Agent by the Authorized Representative in accordance
with the terms hereof; PROVIDED that,
(i) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day);
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(iii) on any day, with respect to all Revolving
Credit Loans and Competitive Bid Loans, there shall not be in
effect (x) more than seven (7) Interest Periods, and (y), in
the case of a Competitive Bid Loan, more than one (1) Interest
Period having a term of seven (7) days;
(b) for each Competitive Bid Loan at an Absolute Rate, the
period commencing on the date of such Loan and ending on such date as
may be mutually agreed upon by the Parent and the Lender or Lenders
making such Competitive Bid Loan or Loans, as the case may be,
comprising such Competitive Bid Loan; PROVIDED that no Interest Period
for a
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<PAGE> 23
Competitive Bid Loan at an Absolute Rate shall be for a period of less
than seven or greater than 180 days; and
(c) for each Competitive Bid Loan at a Eurodollar Competitive
Rate, the period commencing on the date such Competitive Bid Loan is
made and ending, at the Parent's option, on the date one week or one,
two, three or six months thereafter as notified by the Parent to such
Lender by the Authorized Representative three (3) Business Days prior
to the beginning of such Interest Period PROVIDED that if an Interest
Period for such Loan would end on a day which is not a Business Day,
such Interest Period shall be extended to the next Business Day (unless
such extension would cause the applicable Interest Period to end in the
succeeding calendar month, in which case such Interest Period shall end
in the next preceding Business Day).
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan denominated in Dollars
into a Base Rate Loan or the Conversion of any Base Rate Loan into a
Eurodollar Rate Loan, in the form of EXHIBIT E.
"Investments" means all expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of stock or
Indebtedness of, or for loans, advances, capital contributions or
transfers of property to, or in respect of any guaranties, or
obligations of, any Person. In determining the aggregate amount of
Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than
the principal amount of the obligations guaranteed and still
outstanding; (b) there shall be included as an Investment all interest
accrued with respect to Indebtedness constituting an Investment unless
and until such interest is paid; (c) there shall be deducted in respect
of each such Investment any amount received as a return of capital (but
only by repurchase, redemption, retirement, repayment, liquidating
dividend or liquidating distribution); (d) there shall not be deducted
in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may
be deducted when paid; and (e) there shall not be deducted from the
aggregate amount of Investments any decrease in the value thereof.
"Issuing Bank" means Bank of America as issuer of Letters of
Credit under ARTICLE III and BankBoston, N.A. as issuer of the Existing
Letters of Credit.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof among the Borrowers and the Administrative Agent, as
amended, modified or supplemented from time to time.
"Letter of Credit" means a standby letter of credit issued by
the Issuing Bank pursuant to Article III hereof for the account of one
or more of the Borrowers in favor of a Person advancing credit or
securing an obligation on behalf of one or more the Borrowers.
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<PAGE> 24
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
ARTICLE III hereof providing for the issuance by the Issuing Bank for
the account of one or more of the Borrowers of Letters of Credit in an
aggregate stated amount at any time outstanding not exceeding the Total
Letter of Credit Commitment minus outstanding Reimbursement
Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Parent and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Line or Lines of Business" means the marketing and sale of
security, sensing, tracking and video systems and components, including
without limitation, electronic article surveillance systems, closed
circuit television systems, radio frequency identification systems and
access control and asset management systems and related services, such
as installation, maintenance and monitoring.
"Loan" or "Loans" means any of the Revolving Loans, Swing Line
Loans or Competitive Bid Loans.
"Loan Documents" means this Agreement, the Notes, the LC
Account Agreement, the Applications and Agreements for Letter of
Credit, and all other instruments and documents heretofore or hereafter
executed or delivered to or in favor of any Lender (including the
Issuing Bank) or the Administrative Agent in connection with the Loans
made and transactions contemplated under this Agreement, as the same
may be amended, supplemented or replaced from the time to time.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, prospects or condition,
financial or otherwise, of Parent and its Subsidiaries, taken as a
whole, (ii) the ability of any Borrower to pay or perform its
18
<PAGE> 25
respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance with
the terms thereof, or (iii) the rights, powers and remedies of the
Administrative Agent or any Lender under any Loan Document or the
validity, legality or enforceability thereof.
"Material Subsidiary" means any Borrowing Subsidiary and any
direct or indirect Subsidiary of the Parent which (i) has Consolidated
Total Assets equal to or greater than 5% of Consolidated Total Assets
(calculated as of the most recent fiscal period with respect to which
the Agent shall have received financial statements required to be
delivered pursuant to SECTIONS 8.1(a) or (b) (or if prior to delivery
of any financial statements pursuant to such Sections, then calculated
with respect to the Fiscal Year end financials statements referenced in
SECTION 7.6) (the "Required Financial Information")) or (ii) has
consolidated total revenues equal to or greater than 5% of consolidated
total revenues of the Parent and its Subsidiaries (calculated for the
most recent period for which the Agent has received the Required
Financial Information); PROVIDED, HOWEVER, that notwithstanding the
foregoing, the term "Material Subsidiary" shall mean each of those
Subsidiaries that together with the Borrower and each other Material
Subsidiary have assets equal to not less than 85% of Consolidated Total
Assets (calculated as described above) and consolidated total revenues
of not less than 85% of consolidated total revenues (calculated as
described above); PROVIDED, FURTHER that if more than one combination
of Subsidiaries satisfies such threshold, then those Subsidiaries so
determined to be "Material Subsidiaries" shall be specified by the
Parent in the Schedule required to be delivered by the Parent to the
Administrative Agent on the Closing Date pursuant to SECTION 6.1 and
thereafter pursuant to SECTION 8.1(a).
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Parent or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"Note Agreement (1993)" means the Note Agreement dated as of
January 15, 1993 pertaining to the Parent's $135,000,000 Principal
Amount 8.21% Senior Notes Due January 30, 2003, as amended by the First
Amendment dated as of May 31, 1993, as heretofore amended and as it may
be amended or supplemented from time to time.
"Note Agreement (1996)" means the Note Agreement dated as of
March 29, 1996, pertaining to Parent's $230,000,000 Principal Amount
7.74% Senior Notes Due March 29, 2006, $50,000,000 Principal Amount
7.11% Senior Notes Due March 29, 2001 and
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<PAGE> 26
$70,000,000 Principal Amount 6.99% Senior Notes Due March 29, 2000, and
as it may be amended or supplemented from time to time.
"Notes" means, collectively, the Competitive Bid Notes, the
Swing Line Note and the Revolving Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of each of the Borrowers with respect to (i) the principal
and interest, including any interest accruing after the commencement of
any bankruptcy or receivership proceedings, on the Loans as evidenced
by the Notes, (ii) the Reimbursement Obligations and otherwise in
respect of the Letters of Credit and (iii) the payment and performance
of all other obligations, liabilities and Indebtedness of each of the
Borrowers to the Lenders (including the Issuing Bank), the
Administrative Agent or BAS hereunder, under any one or more of the
other Loan Documents or with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings, outstanding Competitive
Bid Loans and Revolving Credit Outstandings on such date.
"Participating Member State" means each country which from
time to time becomes a Participating Member State as described in EMU
Legislation.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other
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<PAGE> 27
than Bank of America) and a Swing Line Loan, the extension of credit
represented by the participation of such Lender hereunder in the
liability of Bank of America in respect of a Swing Line Loan made by
Bank of America in accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Parent or
any of its ERISA Affiliates or is assumed by the Parent or any of its
ERISA Affiliates in connection with any Acquisition or (ii) has at any
time been maintained for the employees of the Parent or any current or
former ERISA Affiliate.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pricing Grid" means the table set forth on SCHEDULE 1.1(b)
attached hereto setting forth the Ratings and the number of basis
points to be utilized in calculating each of the Applicable Margin and
the Applicable Facility Fee.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Principal Office" means the principal office of Bank of
America, presently located at 101 North Tryon Street, 15th Floor, NC1
001-15-04, Charlotte, North Carolina 28255, Attention: Agency Services,
or such other office and address as the Administrative Agent may from
time to time designate.
"Quotation Date" has the meaning assigned to such term in
SECTION 2.2 hereof.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Parent or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133;
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<PAGE> 28
and (iii) any and all cancellations, buybacks, reversals, terminations
or assignments of any of the foregoing.
"Rating" means the long-term, unsecured, unenhanced debt
rating assigned to senior Indebtedness of the Parent by S&P, or if S&P
shall cease to provide Ratings of Indebtedness of Persons, such other
rating agency as shall be acceptable to the Required Lenders.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrowers with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to SECTION 2.1(c)(iii)) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating more than 50% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "CREDIT EXPOSURE"
of each Lender shall be equal at all times to the sum of its Revolving
Credit Commitment; PROVIDED that, for the purpose of this definition
only, (A) if any Lender shall have failed to fund its Applicable
Commitment Percentage of any Advance, then the Revolving Credit
Commitment of such Lender shall be deemed reduced by the amount it so
failed to fund for so long as such failure shall continue and such
Lender's Credit Exposure attributable to such failure shall be deemed
held by any Lender making more than its Applicable Commitment
Percentage of such Advance to the extent it covers such failure, (B) if
any Lender shall have failed to pay to the Issuing Bank upon demand its
Applicable Commitment Percentage of any drawing under any Letter of
Credit resulting in an outstanding Reimbursement Obligation (whether by
funding its Participation therein or otherwise), such Lender's Credit
Exposure attributable to all Letter of Credit Outstandings shall be
deemed to be held by the Issuing Bank until such Lender shall pay such
deficiency amount to the Issuing Bank together with interest thereon as
provided in SECTIONS 4.9 and 4.10 and (C) if any Lender shall have
failed to pay to Bank of America on demand its Applicable Commitment
Percentage of any Swing Line Loan (whether by funding its Participation
therein or otherwise), such Lender's Credit Exposure attributable to
all Swing Line Outstandings shall be deemed to be held by Bank of
America until such Lender shall pay such deficiency amount to Bank of
America together with interest thereon as provided in SECTION 2.5.
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"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Parent or any Subsidiary (other than those payable or
distributable solely to the Parent and dividends paid to the holders of
the Parent's 6 1/2% Convertible Preferred Stock with common stock of
the Parent) now or hereafter outstanding, except a dividend payable
solely in shares of a class of stock to the holders of that class; (b)
any redemption, conversion, exchange, retirement or similar payment,
purchase or other acquisition for value, direct or indirect, of any
shares of any class of stock of Parent or any of its Subsidiaries
(other than those payable or distributable solely to the Parent and
other than the redemption of Parent's 6 1/2% Convertible Preferred
Stock with the Parent's Common Stock) now or hereafter outstanding; (c)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of Parent or any securities of its Subsidiaries now or
hereafter outstanding; (d) any issuance and sale of securities of any
Subsidiary of the Parent (or any option, warrant or right to acquire
such stock) other than to the Parent and (e) any payment (which shall
not be deemed to include a conversion), other than a scheduled
mandatory prepayment or payment, on any Subordinated Indebtedness;
PROVIDED, HOWEVER, that payments made with respect to ownership
interests in Subsidiaries required by applicable law to be held by a
Person other than the Parent or a Subsidiary and distributions to
owners of joint ventures or minority interests shall not be deemed
Restricted Payments.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrowers up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
SECTION 2.1 hereof providing for Loans to the Borrowers by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
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"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to SECTION 10.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrowers may voluntarily and
permanently terminate the Revolving Credit Facility and the Competitive
Bid Facility by voluntary termination of the Commitments in full and by
payment in full of all Revolving Credit Outstandings, outstanding
Competitive Bid Loans, Swing Line Outstandings and Letter of Credit
Outstandings and cancellation of all Letters of Credit and Competitive
Bid Loan Commitments, together with all accrued and unpaid interest
thereon; PROVIDED that with the consent of the Administrative Agent
Letters of Credit may be cash collateralized in a manner acceptable to
the Administrative Agent.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with SECTION 2.1.
"Revolving Notes" means, collectively, the promissory notes of
the Borrowers evidencing Revolving Loans executed and delivered to the
Lenders as provided in SECTION 2.4 substantially in the form of EXHIBIT
F-2, with appropriate insertions as to amounts, dates and names of
Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"Senior Notes" means the notes issued prior to the Closing
Date under the Note Agreement (1993) or the Note Agreement (1996).
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(a) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(b) it is then able and expects to be able to pay its
debts as they mature; and
(c) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Spot Rate of Exchange" means, (i) in determining the Dollar
Equivalent Amount or a specified Alternative Currency amount as of any
date, the spot exchange rate determined by the Administrative Agent in
accordance with its usual procedures for the purchase by the
Administrative Agent of Dollars with such Alternative Currency at
approximately 10:00 A.M. on the Business Day that is two (2) Business
Days prior to such date, and (ii) in determining the Alternative
Currency Equivalent Amount of a specified Dollar amount on
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any date, the spot exchange rate determined by the Administrative Agent
in accordance with its usual procedures for the purchase by the
Administrative Agent of such Alternative Currency with Dollars at
approximately 10:00 A.M. on the Business Day that is two (2) Business
Days prior to such date.
"Stated Termination Date" means December 8, 2002.
"Subordinated Indebtedness" means unsecured Indebtedness of
the Parent which (a) is expressly subordinate in right of payment to
the Obligations and the Senior Notes pursuant to a form of
subordination substantially in the form of EXHIBIT G and (b) has a
Weighted Average Life to Maturity extending beyond the Stated
Termination Date in effect from time to time and the latest final
maturity of the Senior Notes.
"Subsequent Participant" means each country that adopts the
euro as its lawful currency after January 1, 1999.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Parent
and/or by one or more of the Borrower's Subsidiaries.
"Swing Line" means the revolving line of credit established by
Bank of America in favor of the Borrowers pursuant to SECTION 2.5.
"Swing Line Loans" means loans made by Bank of America to the
Borrowers pursuant to SECTION 2.5.
"Swing Line Note" means the promissory note of the Borrowers
evidencing the Swing Line executed and delivered to Bank of America as
provided in Section 2.4 substantially in the form of EXHIBIT F-3.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Parent or any ERISA Affiliate from a Pension
Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA or was deemed such under Section
4062(e) of ERISA; or (iii) the termination of a Pension Plan, the
filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section
4041 of ERISA; or (iv) the institution of proceedings to terminate a
Pension Plan by the PBGC; or (v) any other event or condition which
would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan; or (vi) the partial or complete withdrawal of the Parent
or any ERISA Affiliate from
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a Multiemployer Plan; or (vii) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA; or (viii) any event or
condition which results in the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
respectively; or (ix) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by the PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA; or (x) any event or condition with
respect to any Employee Benefit Plan which is regulated by any Foreign
Benefit Law that results in the termination of such Employee Benefit
Plan or the revocation of such Employee Benefit Plan's authority to
operate under the applicable Foreign Benefit Law.
"Total Alternative Currency Commitment" means an amount not to
exceed $25,000,000.
"Total Letter of Credit Commitment" means an amount not to
exceed $50,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to (i) $115,000,000 or (ii) at such time as the existing EXHIBIT
A hereto is amended by the entering into of an Amendment Agreement in
the form of EXHIBIT L by the Borrowers, the Agent and any lending
institution agreeing to provide additional Loans of up to $10,000,000,
an amount equal to up to $125,000,000 as such amounts are reduced from
time to time in accordance with SECTION 2.1(e).
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Utilization Amount" means at such times as the sum of (i)
Revolving Credit Outstandings, (ii) Letter of Credit Outstandings in
excess of $20,000,000, (iii) outstanding Competitive Bid Loans and (iv)
Swing Line Outstandings exceed 25% of the Total Revolving Credit
Commitment, 25 basis points.
"Valuation Date" means any of (i) the date of any Advance or
Continuation of any Loan hereunder, (ii) the date of the issuance of
any Letter of Credit and the date of a drawing on any Letter of Credit,
(iii) in the absence of the occurrence of either of the foregoing
events in a period of three (3) consecutive months, a date selected by
the Administrative Agent at least once in such three month period, and
(iv) any other date when there are outstanding Alternative Currency
Loans or Letters of Credit issued in an Alternative Currency that the
Administrative Agent shall determine the Dollar Equivalent amount of
such Loans and Letters of Credit.
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
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functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Weighted Average Life to Maturity" means, as applied to any
prepayment of principal of the Senior Notes, or to any Subordinated
Consolidated Debt, at any date, the number of years obtained by
dividing (a) the then outstanding principal amount of the Senior Notes
to be prepaid, or the then outstanding principal amount of such
Subordinated Debt, into (b) the sum of the products obtained by
multiplying (i) the amount of each then remaining installment, sinking
fund, serial maturity, or other required payment, including payment at
final maturity, foregone by virtue of such prepayment of the Senior
Notes, or in respect of such Subordinated Debt, by (ii) the number of
years (calculated to the nearest 1/12th) which would have elapsed
between such date and the making of such payment.
"Year 2000 Compliant" means all computer applications
(including those affected by information received from its suppliers
and vendors) that are material to the Parent's or any of its Material
Subsidiaries' business and operations will on a timely basis be able to
perform properly date-sensitive functions involving all dates on and
after January 1, 2000;
"Year 2000 Problem" means the risk that computer applications
used by the Parent or any of its Material Subsidiaries (including those
affected by information received from its suppliers and vendors) may be
unable to recognize and perform properly date-sensitive functions
involving certain dates on and after January 1, 2000.
1.2 RULES OF INTERPRETATION.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the Florida
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
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<PAGE> 34
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and VICE VERSA, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder," "hereto," "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of EJUSDEM GENERIS shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%,"
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(k) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(l) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
1.3 ACCOUNTING PRINCIPLES. If any change after the Closing Date in
GAAP as in effect on the Closing Date shall result in a change in any
calculation required to determine compliance with any provision contained in
this Agreement, the Parent and the Required Lenders will negotiate in good faith
to amend such provision in a manner to reflect such change such that the
determination of compliance with such provision shall yield the same substantive
result as would have obtained prior to such change in GAAP. Until such an
amendment is entered into, covenants shall be calculated in accordance with GAAP
as in effect immediately preceding such change.
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ARTICLE II
THE CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) COMMITMENT. Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make Advances in Dollars or an Alternative
Currency (as specified in the respective Borrowing Notice) to the Borrowers
under the Revolving Credit Facility from time to time from the Closing Date
until the Revolving Credit Termination Date on a pro rata basis as to the total
borrowing requested by such Borrower on any day determined by such Lender's
Applicable Commitment Percentage up to but not exceeding the Revolving Credit
Commitment of such Lender, PROVIDED, however, that the Lenders will not be
required and shall have no obligation to make any such Advance (i) so long as a
Default or an Event of Default has occurred and is continuing or (ii) if the
Administrative Agent has accelerated the maturity of any of the Notes as a
result of an Event of Default; PROVIDED further, however, that immediately after
giving effect to each such Advance, the Dollar Value of Outstandings shall not
exceed the Total Revolving Credit Commitment and the Dollar Value of outstanding
Advances in Alternative Currencies shall not exceed the Total Alternative
Currency Commitment. Within such limits and subject to the other terms and
conditions of this Agreement, the Borrowers may borrow, repay and reborrow under
the Revolving Credit Facility on a Business Day from the Closing Date until, but
(as to borrowings and reborrowings) not including, the Revolving Credit
Termination Date.
(b) (i) Each request by a Borrower for an Advance of an Alternative
Currency under a Borrowing Notice shall constitute the respective Borrower's
request for a Revolving Loan of the Dollar Value of the amount of the
Alternative Currency specified in such Borrowing Notice and for such Revolving
Loan to be made available by the Lenders to such Borrower in the Alternative
Currency Equivalent Amount of such Dollar Value (determined based on the Advance
Day Exchange Rate applicable to such Advance). The principal amount outstanding
on any Revolving Loan shall be recorded in the Administrative Agent's records in
Dollars, based on the Dollar Value of the initial Advance of such Loan in such
Alternative Currency, as reduced from time to time by the Dollar Equivalent
Amount (based on the Advance Day Exchange Rate applicable to such Advance) of
any principal payments with respect to such Advance. Advances in an Alternative
Currency shall be limited to Eurodollar Rate Loans. A Borrower may elect to
Continue an Alternative Currency Loan pursuant to the terms of SECTION 4.2(b)
and subject to the provisions of this SECTION 2.1(b). In the event a Eurodollar
Rate Loan of an Alternative Currency is Continued, such election to Continue the
Eurodollar Rate Loan shall be treated as an Advance and the Administrative Agent
shall notify the Borrowers and the Lenders of the Advance Day Exchange Rate,
Interest Period and the Eurodollar Rate for such Continued Eurodollar Rate Loan.
The Lenders shall each be deemed to have made an Advance to the respective
Borrower of its Applicable Commitment Percentage of such Revolving Loan of an
Alternative Currency and the Administrative Agent shall apply the Advance Day
Exchange Rate for such new Interest Period to such Continued Alternative
Currency Equivalent Amount to determine the new Dollar Value of such Eurodollar
Rate Loan and shall adjust its books and the Revolving Credit Outstandings. In
the event that such
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adjustment with respect to a Continued Loan would cause either the total Dollar
Value of Revolving Credit Outstandings to exceed the Total Revolving Credit
Commitment or the Dollar Value of such Continued Alternative Currency Equivalent
Amount to exceed the Total Alternative Currency Commitment, the respective
Borrower shall, immediately on the effective date of such Continuation, repay (a
"Rate Adjustment Payment") the portion of such Continued Revolving Loan (without
regard to any minimum amounts set forth in clause (ii) of this SECTION 2.1(b))
(applying the new Advance Day Exchange Rate) necessary to ensure that the total
Dollar Value on such date of all Revolving Credit Outstandings does not exceed
the Total Revolving Credit Commitment and that the Dollar Value on such date of
such Continued Alternative Currency Equivalent Amount does not exceed the Total
Alternative Currency Commitment, PROVIDED, HOWEVER, that the Borrowers shall not
be required to pay any additional compensation pursuant to SECTION 5.5 with
respect to a prepayment of a Revolving Loan required by this sentence if such
prepayment is made immediately on the effective date of the Continuation giving
rise to such prepayment and no notice of such prepayment shall be required. If
the Administrative Agent does not receive an Interest Rate Selection Notice
giving notice of election of the duration of an Interest Period or Continuation
of an Alternative Rate Loan by the time prescribed in SECTION 2.1(c) or 4.2(b),
as applicable, the Borrowers shall be deemed to have elected to repay such
Alternative Currency Rate Loan and if such Alternative Currency Loan is not
repaid on the last day of the applicable Interest Period, together with accrued
interest thereon, such Alternative Currency Loan shall be converted to a Base
Rate Loan in the Dollar Equivalent Amount of such Alternative Currency Loan. For
the purposes of determining the maximum amount of Revolving Credit Outstandings
hereunder, it is intended by the parties that all Revolving Loans shall be the
functional equivalent of Loans made and repaid (based on the applicable Advance
Day Exchange Rate for each Advance) in Dollars. It is recognized that one or
more Lenders may elect to record Loans or Advances in Alternative Currencies.
The Administrative Agent shall maintain records sufficient to identify at any
time, (A) the Advance Day Exchange Rate with respect to each Advance, and (B)
the portion of the Revolving Credit Outstandings attributable to each Advance.
(ii) The amount of Outstandings (including with respect to
Loans of Alternative Currencies the total Dollar Value) shall not
exceed at any time the Total Revolving Credit Commitment, and, in the
event there shall be outstanding any such excess, the Borrowers shall
immediately make such payments and prepayments as shall be necessary to
comply with this restriction. The Lenders and Borrowers acknowledge and
agree that the Dollar Equivalent Value of Alternative Currency Loans
will only be determined on Valuation Dates and the Administrative Agent
shall give the Borrower notice if the Dollar Value of Outstandings
shall exceed either the Total Revolving Credit Commitment or the Total
Alternative Currency Commitment. Each Advance under the Revolving
Credit Facility, other than Base Rate Refunding Loans, shall be in an
amount of at least $2,500,000 (or the equivalent thereof if in any
Alternative Currency), and, if greater than $2,500,000 (or the
equivalent thereof if in any Alternative Currency), an integral
multiple of $500,000 (or the equivalent thereof if in any Alternative
Currency).
(iii) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and without
prejudice to (i) the liabilities for
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Indebtedness of the Borrowers to the Lenders under or pursuant to this
Agreement or (ii) each Lender's Revolving Credit Commitment, any
reference in this Agreement to a minimum amount (or an integral
multiple thereof) in a national currency of a Subsequent Participant,
be replaced by a reference to such reasonably comparable amount in the
euro unit as the Administrative Agent may determine based on the
applicable exchange rate of such national currency for the euro.
(iv) The Agent may from time to time further modify the terms
of, and practices contemplated by, this Agreement with respect to the
euro to the extent the Administrative Agent determines, in its
reasonable discretion, that such modifications are necessary or
convenient to reflect new laws, regulations, customs or practices
developed in connection with the euro. The Administrative Agent may
effect such modifications, and this Agreement shall be deemed so
amended, without the consent of the Borrowers or Lenders to the extent
such modifications are not materially disadvantageous to the Borrowers
and the Lenders, upon notice thereto.
(c) ADVANCES.
(i) An Authorized Representative shall give the Administrative
Agent (1) at least three (3) Business Days' irrevocable telephonic
notice of each Eurodollar Rate Loan denominated in Dollars (whether
representing an additional borrowing or the Conversion of a borrowing
hereunder or the Conversion of a borrowing hereunder from a Base Rate
Loan to a Eurodollar Rate Loan denominated in Dollars) prior to 10:30
A.M., (2) at least four (4) Business Days' irrevocable notice by
telephonic notice of each Alternative Currency Loan (whether
representing an additional borrowing hereunder or the Continuation or
Conversion of a borrowing hereunder) prior to 10:30 A.M. and (3)
irrevocable telephonic notice of each Base Rate Loan (other than Base
Rate Refunding Loans to the extent the same are effected without notice
pursuant to SECTION 2.1(c)(iii) and whether representing an additional
borrowing hereunder or the Conversion of borrowing hereunder from
Eurodollar Rate Loans to Base Rate Loans) prior to 10:30 A.M. on the
day of such proposed Revolving Loan. Each such notice shall be
effective upon receipt by the Administrative Agent, shall specify the
amount of the borrowing, whether Dollar or Alternative Currency, the
type of Revolving Loan (Base Rate or Eurodollar Rate), the date of
borrowing and, if a Eurodollar Rate Loan, the Interest Period to be
used in the computation of interest. The Authorized Representative
shall provide the Administrative Agent written confirmation of each
such telephonic notice in the form of a Borrowing Notice or Interest
Rate Selection Notice (as applicable) with appropriate insertions but
failure to provide such confirmation shall not affect the validity of
such telephonic notice. Notice of receipt of such Borrowing Notice or
Interest Rate Selection Notice, as the case may be, together with the
amount of each Lender's portion of an Advance requested thereunder,
shall be provided by the Administrative Agent to each Lender by
telefacsimile transmission with reasonable promptness, but (provided
the Administrative Agent shall have received such notice by 10:30 A.M.)
not later than 1:00 P.M. on the same day as the Administrative Agent's
receipt of such notice. At approximately 10:00 A.M. two (2) Business
Days preceding the date specified for an
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Advance of an Alternative Currency, the Administrative Agent shall
determine the Advance Day Exchange Rate and the applicable Eurodollar
Rate. Not later than 10:45 A.M. two (2) Business Days preceding the
date specified for each Advance of an Alternative Currency, the
Administrative Agent shall provide the Borrowers and each Lender notice
by telefacsimile transmission of the Advance Day Exchange Rate
applicable to such Advance, and the applicable Alternative Currency
Equivalent Amount of the Loan or Loans required to be made by each
Lender on such date, and the Dollar Value of such Loan or Loans and the
applicable Eurodollar Rate.
(ii) (A) In the case of Advances in Dollars, not later than
2:00 P.M. on the date specified for each borrowing under this SECTION
2.1, each Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the Advance or
Advances to be made by it on such day available by wire transfer to the
Administrative Agent in the amount of its pro rata share, determined
according to such Lender's Applicable Commitment Percentage of the
Revolving Loan or Revolving Loans to be made on such day. Such wire
transfer shall be directed to the Administrative Agent at the Principal
Office and shall be in the form of Dollars constituting immediately
available funds. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made
available to the Borrowers by delivery of the proceeds thereof to the
Borrowers' Account or otherwise as shall be directed in the applicable
Borrowing Notice by the Authorized Representative and reasonably
acceptable to the Administrative Agent.
(B) In the case of Advances of an Alternative Currency, not
later than 10:00 A.M. on the date specified for each Advance, each
Lender shall, pursuant to the terms and subject to the conditions of
this Agreement, make the amount of the Loan or Loans to be made by it
on such day available to the Borrowers at the Funding Bank, to the
account of the Administrative Agent with the Funding Bank. The amount
so received by the Funding Bank shall, subject to the terms and
conditions of the Loan Documents and upon instruction from the
Administrative Agent to the Funding Bank on the same day or immediately
preceding day but no later than 10:00 A.M., be made available to the
Borrowers by delivery of the Alternative Currency Equivalent Amount to
the Borrowers' account with the Funding Bank.
(iii) Notwithstanding the foregoing, if a drawing is made
under any Letter of Credit, such drawing is honored by the Issuing
Bank, and the Borrowers shall not immediately fully reimburse the
Issuing Bank in respect of such drawing from other funds available to
the Borrowers, (A) provided that the conditions to making a Revolving
Loan as herein provided shall then be satisfied, the Reimbursement
Obligation arising from such drawing shall be paid to the Issuing Bank
by the Administrative Agent without the requirement of notice to or
from the Borrowers from immediately available funds which shall be
advanced as a Base Rate Refunding Loan to the Administrative Agent at
its Principal Office by each Lender under the Revolving Credit Facility
in an amount equal to such Lender's Applicable Commitment Percentage of
such Reimbursement Obligation, and (B) if the conditions to making a
Revolving Loan as herein provided shall not then be satisfied, each of
the Lenders shall fund by payment to the Administrative Agent (for the
benefit of the
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Issuing Bank) at its Principal Office in immediately available funds
the purchase from the Issuing Bank of their respective Participations
in the related Reimbursement Obligation based on their respective
Applicable Commitment Percentages of the Total Letter of Credit
Commitment. If a drawing is presented under any Letter of Credit in
accordance with the terms thereof and the Borrowers shall not
immediately reimburse the Issuing Bank in respect thereof, then notice
of such drawing or payment shall be provided promptly by the Issuing
Bank to the Administrative Agent and the Administrative Agent shall
provide notice to each Lender by telephone or telefacsimile
transmission. If notice to the Lenders of a drawing under any Letter of
Credit is given by the Administrative Agent at or before 12:00 noon on
any Business Day, each Lender shall either make a Base Rate Refunding
Loan or fund the purchase of its Participation as specified above in
the amount of such Lender's Applicable Commitment Percentage of such
drawing or payment and shall pay such amount to the Administrative
Agent for the account of the Issuing Bank at the Principal Office in
Dollars and in immediately available funds before 2:30 P.M. on the same
Business Day. If such notice to the Lenders is given by the
Administrative Agent after 12:00 noon on any Business Day, each Lender
shall either make such Base Rate Refunding Loan or fund such purchase
before 12:00 noon on the next following Business Day.
(d) REPAYMENT OF REVOLVING LOANS The principal amount of each Revolving
Loan shall be due and payable by the respective Borrowers to the Administrative
Agent for the benefit of each Lender in full on the Revolving Credit Termination
Date, or earlier as specifically provided herein. The principal amount of any
Revolving Loan may be prepaid in whole or in part on any Business Day, upon (A)
at least three (3) Business Days' irrevocable telephonic notice in the case of
each Revolving Loan that is a Eurodollar Rate Loan from an Authorized
Representative (effective upon receipt) to the Administrative Agent prior to
10:30 A.M. and (B) irrevocable telephonic notice in the case of each Revolving
Loan that is a Base Rate Loan from an Authorized Representative (effective upon
receipt) to the Administrative Agent prior to 10:30 A.M. on the day of such
proposed repayment. The Authorized Representative shall provide the
Administrative Agent written confirmation of each such telephonic notice but
failure to provide such confirmation shall not effect the validity of such
telephonic notice. All prepayments of Revolving Loans made by the Borrowers
shall be in the amount of $2,500,000 (or the Alternative Currency Equivalent
Amount thereof if in any Alternative Currency), or such greater amount which is
an integral multiple of $500,000 (or the Alternative Currency Equivalent Amount
thereof if in any Alternative Currency), or the amount equal to all Revolving
Credit Outstandings, or such other amount as necessary to comply with SECTION
2.1(b).
(e) REDUCTIONS. The Parent shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than three (3) Business Days' written
notice to the Administrative Agent, effective upon receipt, to reduce the Total
Revolving Credit Commitment. The Administrative Agent shall give each Lender,
within one (1) Business Day of receipt of such notice, telefacsimile notice, or
telephonic notice (confirmed in writing), of such reduction. Each such reduction
shall be in the aggregate amount of $2,500,000 or such greater amount which is
in an integral multiple of $500,000, or the entire remaining Total Revolving
Credit Commitment, and shall permanently reduce the Total Revolving Credit
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Commitment. Each reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the Revolving Loans (and, if necessary, effective
cancellations of Letters of Credit) to the extent that the principal amount of
Outstandings exceeds the Total Revolving Credit Commitment after giving effect
to such reduction, together with accrued and unpaid interest on the amounts
prepaid.
(f) INCREASE IN FACILITY. The Borrowers shall be entitled to increase
the Revolving Credit Facility to up to $125,000,000 without further action of
the Lenders by one or more lenders (approved by the Administrative Agent and the
Borrowers) the Administrative Agent and the Borrowers entering into an Amendment
Agreement in substantially the form attached hereto as EXHIBIT L whereby such
lender or lenders agree to provide additional Revolving Credit Commitments of up
to $10,000,000.
(g) PARENT OBLIGATION. The Parent, hereby irrevocably, absolutely and
unconditionally guarantees the full and punctual payment or performance when
due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of each other Borrower now
existing or hereafter arising under the Loan Documents. This guarantee
constitutes a guaranty of payment and not of collection.
It is the intention of the parties that with respect to the Parent its
obligations under the immediately preceding paragraph shall be absolute,
unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability of this
Agreement, any Note, or any other Loan Document as to any other
Borrower;
(ii) the failure of the Administrative Agent or the Lenders:
(A) to enforce any right or remedy against
any other Borrower or any other Person under the
provisions of this Agreement, any Note, any other
Loan Document or otherwise, or
(B) to exercise any right or remedy against
any guarantor of, or collateral securing, any
Obligations;
(iii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations, or any other
extension, compromise or renewal of any Obligations with respect to any
other Borrower;
(iv) any reduction, limitation, impairment or termination of
any Obligations with respect to any other Borrower or any other Person
for any reason including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and the Parent
hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness,
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irregularity, compromise or unenforceability of, or any other event or
occurrence affecting, any Obligations with respect to any other
Borrower;
(v) any addition, exchange, release, surrender or
nonperfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any guaranty,
held by the Agent or any holder of any Note securing any of the
Obligations; or
(vi) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any other
Borrower, any surety or any guarantor other than the defense of payment
in full of the Obligations.
The Parent agrees that its joint and several liability hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations is rescinded or must
be restored by the Administrative Agent, any Lender or any holder of any Note,
upon the insolvency, bankruptcy or reorganization of any other Borrower as
though such payment had not been made.
The Parent hereby expressly waives: (a) notice of the Administrative
Agent's or any Lender's acceptance of this Agreement; (b) notice of the
existence or creation or non-payment of all or any of the Obligations; (c)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever other than notices expressly provided for in this Agreement or by
applicable law and (d) all diligence in collection or protection of or
realization upon the Obligations or any thereof, any obligation hereunder, or
any security for or guaranty of any of the foregoing.
No delay on any of the Administrative Agent or any Lender's part in the
exercise of any right or remedy shall operate as a waiver thereof, and no single
or partial exercise by the Administrative Agent or any Lender of any right or
remedy shall preclude any other or further exercise thereof or the exercise of
any other right or remedy. No action of the Administrative Agent or any Lender
permitted hereunder shall in any way affect or impair any of its rights or any
of its obligations to any of the Borrowers under this Agreement (except as
otherwise waived, modified, or amended).
(g) Notwithstanding anything herein to the contrary, the Borrowing
Subsidiaries shall be liable hereunder only for Advances, Loans and
Reimbursement Obligations made to it or on its behalf hereunder together with
interest relating thereto and fees and expenses arising hereunder.
2.2 COMPETITIVE BID LOANS.
(a) In addition to Revolving Loans, at any time prior to the
Revolving Credit Termination Date and provided no Default or Event of
Default exists hereunder, the Parent may, as set forth in this SECTION
2.2, request the Lenders to make offers to make Competitive Bid Loans
to the Parent in Dollars. The Lenders may, but shall have no obligation
to, make such offers and the Parent may, but shall have no obligation
to, accept any such offers in the manner set forth in this SECTION 2.2.
There may be no more than seven (7) different Interest Periods, plus
one (1) seven day Interest Period (in the case of
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a Competitive Bid Loan) for both Eurodollar Rate Loans and Competitive
Bid Loans outstanding at the same time (for which purpose Interest
Periods for each Eurodollar Rate Loan and each Competitive Bid Loan
shall be deemed to be different Interest Periods even if they are
coterminous). Neither the aggregate Dollar Value of all Outstandings
nor the aggregate principal amount of all outstanding Competitive Bid
Loans shall exceed one hundred percent (100%) of the Total Revolving
Credit Commitment at any time.
(b) When the Parent wishes to request offers to make
Competitive Bid Loans, it shall give the Administrative Agent and the
Lenders notice (a "Competitive Bid Quote Request") to be received no
later than 11:00 a.m. on (A) the fourth Business Day prior to the date
of borrowing proposed therein, in the case of a Competitive Bid Quote
Request for Competitive Bid Loans at the Eurodollar Competitive Rate or
(B) the Business Day prior to the date of borrowing proposed therein,
in the case of a Competitive Bid Quote Request for Competitive Bid
Loans at the Absolute Rate (or, in any such case, such other time and
date as the Parent and the Administrative Agent, with the consent of
the Required Lenders, may agree). The Parent may request offers to make
Competitive Bid Loans for up to three (3) different Interest Periods in
a single notice; PROVIDED that the request for each separate Interest
Period shall be deemed to be a separate Competitive Bid Quote Request
for a separate borrowing (a "Competitive Bid Borrowing") and there
shall not be outstanding at any one time more than three (3)
Competitive Bid Borrowings. Each such Competitive Bid Quote Request
shall be substantially in the form of EXHIBIT G attached hereto and
shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such borrowing, which shall
be a Business Day;
(ii) the aggregate amount of such Competitive Bid
Borrowing, which shall be at least $5,000,000 (or in
increments of $1,000,000 in excess thereof) but shall not
cause the limits specified in SECTION 2.2(a) hereof to be
violated;
(iii) the duration of the Interest Period applicable
thereto;
(iv) whether the Competitive Bid Quote Request for a
particular Interest Period is seeking quotes for Competitive
Bid Loans at the Absolute Rate or the Eurodollar Competitive
Rate;
(v) whether the Parent shall have the right to prepay
a requested Competitive Bid Loan; and
(vi) the date on which the Competitive Bid Quotes are
to be submitted if it is before the proposed date of borrowing
(the date on which such Competitive Bid Quotes are to be
submitted is called the "Quotation Date").
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Except as otherwise provided in this SECTION 2.2(b), no more than two
(2) Competitive Bid Quote Requests shall be given within five (5)
Business Days (or such other number of days as the Borrower and the
Administrative Agent, with the consent of the Required Lenders, may
agree) of any other Competitive Bid Quote Request.
(c) (i) Each Lender may submit one or more Competitive Bid
Quotes, each containing an offer to make a Competitive Bid Loan in
response to any Competitive Bid Quote Request; PROVIDED that, if the
Parent's request under SECTION 2.2(b) hereof specified more than one
Interest Period, such Lender may make a single submission containing
one or more Competitive Bid Quotes for each such Interest Period. Each
Competitive Bid Quote must be submitted to the Borrower not later than
9:30 a.m. on (A) the third Business Day prior to the proposed date of
borrowing, in the case of a Competitive Bid Quote Request for
Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the
Quotation Date, in the case of a Competitive Bid Quote Request for
Competitive Bid Loans at the Absolute Rate (or, in any such case, such
other time and date as the Parent and the Administrative Agent, with
the consent of the Required Lenders, may agree) PROVIDED that if Bank
of America is receiving quotes as provided in SECTION 2.2(g), any
Competitive Bid Quote may be submitted by Bank of America (or its
applicable Lending Office) only if Bank of America (or such applicable
Lending Office) notifies the Parent of the terms of the offer contained
therein not later than 9:15 a.m. on the Quotation Date. Subject to
ARTICLES VI, VII AND XI hereof, any Competitive Bid Quote so made shall
be irrevocable except with the consent of the Administrative Agent
given on the instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be substantially in the
form of EXHIBIT H attached hereto and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal
amount shall be at least $2,500,000 (or in increments of
$500,000 in excess thereof); PROVIDED that the aggregate
principal amount of all Competitive Bid Loans for which a
Lender submits Competitive Bid Quotes (x) may not exceed the
Revolving Credit Commitment of such Lender and (y) may not
exceed the principal amount of the Competitive Bid Borrowing
for a particular Interest Period for which offers were
requested;
(C) in the case of a Competitive Bid Quote for
Competitive Bid Loans at an Absolute Rate, the rate of
interest per annum (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) offered for each such Competitive
Bid Loan (the "Absolute Rate");
(D) in the case of a Competitive Bid Quote for
Competitive Bid Loans at the Eurodollar Competitive Rate, the
positive or negative margin to be added to
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or deducted from the Interbank Offered Rate offered for each
such Competitive Bid Loan (the "Eurodollar Competitive Rate");
and
(E) the identity of the quoting Lender.
Unless otherwise agreed by the Administrative Agent and the Parent, no
Competitive Bid Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Competitive Bid Quote Request and, in particular, no
Competitive Bid Quote may be conditioned upon acceptance by the
Borrower of all (or some specified minimum) of the principal amount of
the Competitive Bid Loan for which such Competitive Bid Quote is being
made. Any subsequent Competitive Bid Quote submitted by a Lender that
amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request shall be disregarded by the Borrower
unless such subsequent Competitive Bid Quote is submitted solely to
correct a manifest error in such former Competitive Bid Quote.
(d) The Parent shall (A) in the case of a Competitive Bid Loan
at an Absolute Rate, as promptly as practicable after the Competitive
Bid Quote is submitted (but in any event not later than 10:30 a.m. on
the Quotation Date (or such other time and date as the Parent and the
Administrative Agent, with the consent of the Required Lenders, may
agree) or (B) in the case of a Competitive Bid Loan at a Eurodollar
Competitive Rate, the third Business Day prior to the proposed date of
borrowing), notify the Administrative Agent and Lenders of (A) the
aggregate principal amount of the Competitive Bid Borrowing for which
Competitive Bid Quotes have been received as well as the ranges of bids
submitted for each Interest Period requested, (B) the respective
principal amounts and Absolute Rates or Eurodollar Competitive Rates,
as the case may be, so offered by each Lender (identifying the Lender
that made each Competitive Bid Quote), and (C) its acceptance or
nonacceptance of the Competitive Bid Quotes. In the case of acceptance,
such notice shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrowers may accept any
Competitive Bid Quote in whole or in part (PROVIDED that any
Competitive Bid Quote accepted in part shall be at least $2,500,000 or
in increments of $500,000 in excess thereof); PROVIDED that:
(i) the aggregate principal amount of each
Competitive Bid Borrowing may not exceed the applicable amount
set forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each
Competitive Bid Borrowing shall be at least $5,000,000 (or an
increment of $1,000,000 in excess thereof) but shall not cause
the limits specified in SECTION 2.2(a) hereof to be violated;
(iii) except as provided below, acceptance of
Competitive Bid Quotes for any Interest Period may be made
only in ascending order of Absolute Rates or
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Eurodollar Competitive Rates, as the case may be, beginning
with the lowest rate so offered; and
(iv) the Parent may not accept any Competitive Bid
Quote where such Competitive Bid Quote fails to comply with
SECTION 2.2(c)(ii) hereof or otherwise fails to comply with
the requirements of this Agreement (including, without
limitation, SECTION 2.2(a) hereof).
Any of the conditions above notwithstanding, the Parent may, in its
sole discretion, accept a Competitive Bid Quote that does not contain
the lowest Absolute Rate or Eurodollar Competitive Rates, as the case
may be, where acceptance of the Competitive Bid Quote containing the
lowest Absolute Rate or Eurodollar Competitive Rate, as the case may
be, would either (x) cause the principal amount of Outstandings payable
to a Lender or Lenders offering the lowest Absolute Rate or Eurodollar
Competitive Rate, as the case may be, to exceed the Revolving Credit
Commitment of any Lender or (y) result in any increased costs to the
Borrower under ARTICLE V.
If Competitive Bid Quotes are made by two or more Lenders with
the same Absolute Rates or Eurodollar Competitive Rates, as the case
may be, for a greater aggregate principal amount than the amount in
respect of which Competitive Bid Quotes are accepted for the related
Interest Period after the acceptance of all Competitive Bid Quotes, if
any, of all lower Absolute Rates or Eurodollar Competitive Rates, as
the case may be, offered by any Lender for such related Interest
Period, the principal amount of Competitive Bid Loans in respect of
which such Competitive Bid Quotes are accepted shall be allocated by
the Parent among such Lenders as nearly as possible (in amounts of at
least $1,000,000 or in increments of $100,000 in excess thereof) in
proportion to the aggregate principal amount of such Competitive Bid
Quotes. Determinations by the Parent of the amounts of Competitive Bid
Loans and the lowest bid after adjustment as provided in SECTION
2.2(d)(iii) shall be conclusive in the absence of manifest error.
(e) Any Lender whose offer to make any Competitive Bid Loan
has been accepted shall, not later than 1:00 p.m. on the date specified
for the making of such Loan, make the amount of such Loan available to
the Parent at the Borrowers' Account or otherwise as shall be directed
by the Authorized Representative in Dollars and in immediately
available funds.
(f) From time to time, the Parent shall furnish such
information to the Administrative Agent as the Administrative Agent may
request relating to the making of Competitive Bid Loans, including the
amounts, interest rates, dates of borrowings and maturities thereof.
(g) The Parent may request the Administrative Agent to receive
the Competitive Bid Quotes, in which event the Administrative Agent
shall (A) in the case of a Competitive Bid Loan at the Absolute Rate,
as promptly as practicable after the Competitive Bid Quote
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is submitted (but in no event later than 10:00 a.m. on the Quotation
Date) or (B) in the case of a Competitive Bid Loan at the Eurodollar
Competitive Rate, by 10:00 a.m. on the date a Competitive Quote is
submitted, notify the Parent of the terms of any Competitive Bid Quote
submitted by a Lender that is in accordance with SECTION 2.2(c) hereof.
The Administrative Agent's notice to the Parent shall specify (A) the
aggregate principal amount of the Competitive Bid Borrowing for which
Competitive Bid Quotes have been received and (B) the respective
principal amounts and Absolute Rates or Eurodollar Competitive Rate, as
the case may be, offered by each Lender (identifying the Lender that
made each Competitive Bid Quote). Not later than 10:30 a.m. on (A) the
third Business Day prior to the proposed date of borrowing, in the case
of Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the
Quotation Date (or, in any such case, such other time and date as the
Parent and the Administrative Agent, with the consent of the Required
Lenders, may agree), the Parent shall notify the Administrative Agent
of its acceptance or nonacceptance of the Competitive Bid Quotes so
notified to it (and the failure of the Parent to give such notice by
such time shall constitute nonacceptance) and the Administrative Agent
shall promptly notify each affected Lender. Together with each notice
of a request for Competitive Bid Quotes, which the Borrower requires
the Administrative Agent to issue pursuant to this paragraph (g), the
Borrower shall pay to the Administrative Agent for the account of the
Administrative Agent a bid administration fee of $2,000.00.
(h) The principal amount of each Competitive Bid Loan shall be
due and payable to the Lender making such Loan on the last day of the
Interest Period therefor.
2.3 USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility and Competitive Bid Facility and Swing Line hereunder
shall be used by the Borrowers (i) for general working capital needs, Capital
Expenditures, Acquisitions and other corporate purposes and (ii) to repay the
Existing Indebtedness.
2.4 Notes.
(a) REVOLVING NOTES. Revolving Loans made by each Lender shall
be evidenced by the Revolving Note payable to the order of such Lender
in the respective amount of its Applicable Commitment Percentage of the
Total Revolving Credit Commitment, which Revolving Note shall be dated
the Closing Date or a later date pursuant to an Assignment and
Acceptance or the increase in the Total Revolving Credit Commitment and
shall be duly completed, executed and delivered by the Borrower.
(b) COMPETITIVE BID NOTES. The portion of the Competitive Bid
Loans made by each Lender shall be evidenced by the Competitive Bid
Note payable to the order of such Lender in the respective amount of
its Revolving Credit Commitment, which Competitive Bid Notes shall be
dated the Closing Date or a later date pursuant to an Assignment and
Acceptance or the increase in the Total Revolving Credit Commitment and
shall be duly completed, executed and delivered by the Borrower.
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(c) SWING LINE NOTE. The Swing Line Outstandings shall be
evidenced by a separate Swing Line Note payable to the order of the
Bank of America in the amount of the Swing Line, which Note shall be
dated the Closing Date and shall be duly completed, executed and
delivered by the Borrower.
2.5 SWING LINE.
(a) Notwithstanding any other provision of this Agreement to
the contrary, in order to administer the Revolving Credit Facility in
an efficient manner and to minimize the transfer of funds between the
Administrative Agent and the Lenders, Bank of America shall make
available Swing Line Loans in Dollars only to the Borrowers prior to
the Revolving Credit Termination Date. Bank of America shall not be
obligated to make any Swing Line Loan pursuant hereto (i) if to the
actual knowledge of Bank of America the respective Borrower is not in
compliance with all the conditions to the making of Revolving Loans set
forth in this Agreement, (ii) if after giving effect to such Swing Line
Loan, the Swing Line Outstandings exceed $10,000,000, or (iii) if after
giving effect to such Swing Line Loan, the Dollar Value of Outstandings
exceeds the Total Revolving Credit Commitment. The Borrowers may,
subject to the conditions set forth in the preceding sentence, borrow,
repay and reborrow under this SECTION 2.5. Unless notified to the
contrary by Bank of America, borrowings under the Swing Line shall be
made in the minimum amount of $250,000 or, if greater, in amounts which
are integral multiples of $50,000, or in the amount necessary to effect
a Base Rate Refunding Loan, upon written request by telefacsimile
transmission, effective upon receipt, by an Authorized Representative
of the Borrower made to Bank of America not later than 12:30 P.M. on
the Business Day of the requested borrowing. Each such Borrowing Notice
shall specify the amount of the borrowing and the date of borrowing,
and shall be in the form of EXHIBIT D-2, with appropriate insertions.
Unless notified to the contrary by Bank of America, each repayment of a
Swing Line Loan shall be in an amount which is an integral multiple of
$50,000 or the aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the
account of Bank of America. Swing Line Loans shall bear interest solely
at the Base Rate. Upon the occurrence of an Event of Default Swing Line
Loans shall accrue interest at the Default Rate. All accrued and unpaid
interest on Swing Line Loans shall be payable, on the dates and in the
manner provided in SECTIONS 4.3 with respect to interest on Base Rate
Loans.
(c) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from Bank of America a Participation therein
in an amount equal to that Lender's Applicable Commitment Percentage of
such Swing Line Loan. Upon demand made by Bank of America, each Lender
shall, according to its Applicable Commitment Percentage of such Swing
Line Loan, promptly provide to Bank of America its purchase price
therefor in an amount equal to its Participation therein. Any Advance
made by a Lender pursuant to demand of Bank of America of the purchase
price of its Participation shall when made be deemed to be (i) provided
that the conditions to making Revolving Loans shall be satisfied,
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a Base Rate Refunding Loan under SECTION 2.1, and (ii) in all other
cases, the funding by each Lender of the purchase price of its
Participation in such Swing Line Loan. The obligation of each Lender to
so provide its purchase price to Bank of America shall be absolute and
unconditional and shall not be affected by the occurrence of an Event
of Default or any other occurrence or event.
The Borrowers, at their option and subject to the terms hereof, may
request an Advance pursuant to SECTION 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Administrative Agent shall provide
from the proceeds of such Advance to Bank of America the amount necessary to
repay such Swing Line Outstandings (which Bank of America shall then apply to
such repayment) and credit any balance of the Advance in immediately available
funds in the manner directed by the Borrowers pursuant to SECTION 2.1(c)(ii).
The proceeds of such Advances shall be paid to Bank of America for application
to the Swing Line Outstandings and the Lenders shall then be deemed to have made
Loans in the amount of such Advances. The Swing Line shall continue in effect
until the Revolving Credit Termination Date, at which time all Swing Line
Outstandings and accrued interest thereon shall be due and payable in full.
2.6 TERMINATION OF TOTAL COMMITMENT; CHANGE IN CONTROL. The Parent
shall give written notice to the Administrative Agent of the occurrence of any
Change in Control promptly after the senior management of the Parent obtains
knowledge thereof, and shall offer to terminate the commitments of all of the
Lenders and repay all outstanding Obligations on a date specified in such
notice, which shall be not less than thirty (30) nor more than forty-five (45)
days after the date of such notice, or such earlier time as provided for such
notice in the change of control provision of any other instrument relating to
Indebtedness or agreement for the securitization or other sale of receivables to
which the Parent or any Subsidiary is a party, but in any event shall not be
later than the effective date of the Change in Control. The Administrative Agent
shall provide to each Lender a copy of such written notice promptly after its
receipt thereof. Such notice by the Parent also shall specify the date by which
each Lender that wishes to accept such offer must deliver notice to the Parent
(with a copy to the Administrative Agent) of such acceptance, which date shall
be no earlier than twenty (20) and no later than ten (10) days prior to the date
of the proposed termination, or such earlier time as provided for such notice in
the change of control provision of any other instrument relating to Indebtedness
or agreement for the securitization or other sale of receivables to which the
Parent or any Subsidiary is a party. If any Lender shall accept such offer, then
on the date so specified, or such earlier time as provided for repayment in the
change of control provision of any other instrument relating to Indebtedness or
agreement for the securitization or other sale of receivables to which the
Parent or any Subsidiary is a party, the commitment of such Lender shall
terminate on the date so specified in the Parent's notice (which date shall
become the Revolving Credit Termination Date for those Lenders for all purposes
hereunder), any Loans owing to such Lenders (together with accrued interest
thereon and all accrued fees, including, without limitation any fees incurred
pursuant to SECTION 12.9) then outstanding shall be due and payable on such
date, all Reimbursement Obligations of such Lender and such Participations shall
be cash collateralized and the Revolving Credit Commitment of such Lender shall
automatically and permanently be reduced by all such amounts.
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2.7 DESIGNATION OF BORROWING SUBSIDIARIES. The Parent may within the
six month period following the Closing Date designate either or both of
Sensormatic, B.V., a subsidiary organized under the laws of the Netherlands, or
Sensormatic Cayman, L.P., a limited partnership organized under the laws of the
Cayman Islands as a "Borrowing Subsidiary" hereunder by causing (i) such
Subsidiary to execute and deliver a duly completed Assumption Letter in
substantially the form attached hereto as EXHIBIT K (the "Assumption Letter") to
the Administrative Agent, with the written consent of the Parent at the foot
thereof and (ii) the delivery to the Administrative Agent of those items with
respect to such Borrowing Subsidiary described in SECTION 6.1(a). A Subsidiary
may cease to be a Borrowing Subsidiary hereunder by payment in full of all
Obligations of such Borrowing Subsidiary and written notice to the
Administrative Agent of its termination of its rights hereunder as provided in
the Assumption Letter.
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ARTICLE III
LETTERS OF CREDIT
3.1 LETTERS OF CREDIT. (a) The Issuing Bank agrees, subject to the
terms and conditions of this Agreement, upon request of any Borrower to issue
from time to time for the account of such Borrower Letters of Credit upon
delivery to the Issuing Bank of an Application and Agreement for Letter of
Credit relating thereto in form and content acceptable to the Issuing Bank;
PROVIDED, that (i) the Issuing Bank shall not be obligated to issue (or renew)
any Letter of Credit if it has been notified by the Administrative Agent or has
actual knowledge that a Default or Event of Default has occurred and is
continuing, (ii) the Letter of Credit Outstandings shall not exceed the Total
Letter of Credit Commitment and (iii) no Letter of Credit shall be issued (or
renewed) if, after giving effect thereto, the Dollar Value of Outstandings shall
exceed the Total Revolving Credit Commitment. No Letter of Credit shall have an
expiry date (including all rights of the respective Borrower or any beneficiary
named in such Letter of Credit to require renewal) or payment date occurring
later than the earlier to occur of one year after the date of its issuance or
the seventh Business Day prior to the Stated Termination Date. The Borrowers,
the Administrative Agent and the Lenders acknowledge and agree that the Existing
Letters of Credit are deemed Letters of Credit issued under and pursuant to this
Agreement as if they had been issued on the Closing Date, provided, Bank Boston,
N.A. shall have no obligation to extend or renew any Existing Letters of Credit.
(b) Upon completion of a proper Application and Agreement for Letter of
Credit, the Issuing Bank may issue upon request and for the account of one or
more of Borrowers' Letters of Credit payable in an Alternative Currency. For
purposes of determining Letters of Credit Outstandings, any Letter of Credit
issued in an Alternative Currency shall be recorded in the Administrative
Agent's account in Dollars based on the Alternative Currency Equivalent Amount
on the date of issuance of such Letter of Credit; PROVIDED, HOWEVER, that the
Administrative Agent shall determine the Dollar Equivalent Amount of any Letter
of Credit issued in an Alternative Currency on the date of any drawing under a
Letter of Credit or any Advance or Continuation for the purpose of determining
the Dollar Value of Letter of Credit Outstandings. Any draw on a Letter of
Credit issued in an Alternative Currency shall be repaid in the same Alternative
Currency in an amount equal to the amount of the draw in such Alternative
Currency. To the extent that the Administrative Agent shall determine at any
time that the sum of (i) the Dollar Value of Outstandings, in each case
determined on any Valuation Date, made or issued in Alternative Currencies
exceeds the Total Alternative Currency Commitment, the Borrowers shall
immediately repay Alternative Currency Loans so that after giving effect to such
payment the Dollar Value outstanding Alternative Currency Loans plus the Dollar
Value of outstanding Letters of Credit issued in Alternative Currencies does not
exceed the Total Alternative Currency Commitment. If at any time the Letter of
Credit Outstandings shall exceed the Total Letter of Credit Commitment the
Borrower shall, in its discretion, either (i) cause to be terminated Letters of
Credit or (ii) cash collateralize Letters of Credit so that as a result the
amount of Letter of Credit Outstandings do not exceed the Total Letter of Credit
Commitment.
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3.2 REIMBURSEMENT AND PARTICIPATIONS.
(a) The Borrower for whose account a Letter of Credit has been
issued hereby unconditionally agrees to pay to the Issuing Bank
immediately on demand at the Principal Office (i) in Dollars with
respect to Letters of Credit issued in Dollars, and (ii) in the
applicable Alternative Currency, in the case of Letters of Credit
issued in Alternative Currencies all amounts required to pay all drafts
drawn or purporting to be drawn under such Letters of Credit and all
reasonable expenses incurred by the Issuing Bank in connection with the
Letters of Credit, and in any event and without demand to place in
possession of the Issuing Bank (which shall include Advances under the
Revolving Credit Facility if permitted by SECTION 2.1 and Swing Line
Loans if permitted by SECTION 2.5) sufficient funds to pay all drawings
arising under any Letter of Credit. The Issuing Bank agrees to give the
Borrowers prompt notice of any request for a draw under a Letter of
Credit. To the extent permitted by SECTION 2.1(c)(iii) and SECTION 2.5,
all amounts the Issuing Bank pays under a Letter of Credit, plus
charges and reasonable expenses as time to time agreed to by the
Issuing Bank and the Borrower shall be paid pursuant to Advances under
the Revolving Credit Facility or, if the Borrower shall elect, by Swing
Line Loans. The Borrowers agree to pay the Issuing Bank interest on any
Reimbursement Obligations not paid when due hereunder at the Default
Rate.
(b) In accordance with the provisions of SECTION 2.1(c), the
Issuing Bank shall notify the Administrative Agent of any drawing under
any Letter of Credit promptly following the receipt by the Issuing Bank
of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation
in the liability of the Issuing Bank in respect of each Letter of
Credit in an amount equal to the Dollar Value such Lender's Applicable
Commitment Percentage of such liability, and to the extent that any
Borrower is obligated to pay the Issuing Bank under SECTION 3.2(a),
each Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally
obligated to pay to the Issuing Bank in Dollars, its Applicable
Commitment Percentage of the liability of the Issuing Bank under such
Letter of Credit in the manner and with the effect provided in SECTION
2.1(c)(iii).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to SECTION 2.1(c)(iii)(B), such Lender
shall, automatically and without any further action on the part of the
Issuing Bank or such Lender, acquire a Participation in an amount equal
to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrowers. Each Lender's obligation to
make payment to the Administrative Agent for the account of the Issuing
Bank pursuant to SECTION 2.1(c)(iii) and SECTION 3.2(c), and the right
of the Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
shall be made without any offset, abatement, withholding or reduction
whatsoever. In the event the Lenders have purchased Participations in
any Reimbursement Obligation as set forth above, then at any time
payment (in fully collected, immediately available funds) of such
Reimbursement Obligation, in
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whole or in part, is received by the Issuing Bank from the Borrowers,
the Issuing Bank shall promptly pay to each Lender an amount equal to
its Applicable Commitment Percentage of such payment from the
Borrowers.
(e) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Administrative Agent a notice
describing the aggregate undrawn amount of all Letters of Credit at the
end of such quarter. Upon the request of any Lender from time to time,
the Issuing Bank shall deliver to the Administrative Agent, and the
Administrative Agent shall deliver to such Lender, any other
information reasonably requested by such Lender with respect to each
outstanding Letter of Credit.
(f) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in ARTICLE VI,
be subject to the conditions that such Letter of Credit be in such form
and contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and procedures
of the Issuing Bank with respect to similar letters of credit, and the
Borrowers shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as the Issuing Bank shall
have reasonably requested consistent with such practices and
procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits,
1993 revision, International Chamber of Commerce Publication No. 500
or, if the Issuing Bank and the respective Borrower shall agree by
express reference in an affected Letter of Credit, the International
Chamber of Commerce International Standby Practices commonly referred
to as "ISP98," or any subsequent amendment or revision of either
thereof.
(g) Each Borrower agrees that the Issuing Bank may, in its
sole discretion, accept or pay, as complying with the terms of any
Letter of Credit, any drafts or other documents otherwise in order
which may be signed or issued by an administrator, executor, trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors, liquidator, receiver, attorney in fact or other legal
representative of a party who is authorized under such Letter of Credit
to draw or issue any drafts or other documents.
(h) Without limiting the generality of the provisions of
SECTION 12.9, the Parent and the Borrower (if other than the Parent)
for whose account a Letter of Credit is issued hereby agrees to
indemnify and hold harmless the Issuing Bank, each other Lender and the
Administrative Agent from and against any and all claims and damages,
losses, liabilities, reasonable costs and expenses which the Issuing
Bank, such other Lender or the Administrative Agent may incur (or which
may be claimed against the Issuing Bank, such other Lender or the
Administrative Agent) by any Person by reason of or in connection with
the issuance or transfer of or payment or failure to pay under such
Letter of Credit; provided that the Borrowers shall not be required to
indemnify the Issuing Bank, any other Lender or the Administrative
Agent for any claims, damages, losses, liabilities, costs or expenses
to the extent, but only to the extent, (i) caused by the willful
misconduct or gross negligence of the party to be indemnified or (ii)
caused by the failure of the Issuing Bank to pay under any
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Letter of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of
Credit, unless such payment is prohibited by any law, regulation, court
order or decree. The indemnification and hold harmless provisions of
this SECTION 3.2(h) shall survive repayment of the Obligations,
occurrence of the Revolving Credit Termination Date, the Facility
Termination Date and expiration or termination of this Agreement.
(i) Without limiting Borrowers' rights as set forth in SECTION
3.2(h), the obligation of each Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit issued for the
account of such Borrower and the Issuing Bank's right to receive such
payment shall be absolute, unconditional and irrevocable, and such
obligations of the Borrowers shall be performed strictly in accordance
with the terms of this Agreement and such Letters of Credit and the
related Application and Agreement for any Letter of Credit, under all
circumstances whatsoever, including the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
provided that the Issuing Bank shall not amend a Letter of
Credit without the written consent of the Borrower for whose
benefit such Letter of Credit is issued;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrowers
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Administrative Agent, the Lenders or any other Person, whether
in connection with the Loan Documents, the Related LC
Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the
Administrative Agent, the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Administrative Agent, with
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or without notice to or approval by the Borrowers in respect
of any of Borrowers' Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
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ARTICLE IV
EURODOLLAR FUNDING, FEES, AND PAYMENT CONVENTIONS
4.1 INTEREST RATE OPTIONS. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrowers shall have the
option to elect the Type of Loan and the duration of the initial and any
subsequent Interest Periods and to Convert Revolving Loans in accordance with
SECTIONS 2.1(c)(i) AND 4.2, as applicable; PROVIDED, HOWEVER, (a) there shall
not be outstanding at any one time Eurodollar Rate Loans and Competitive Bid
Loans having more than seven (7) different Interest Periods, (b) each Eurodollar
Rate Loan (including each Conversion into and each Continuation as a Eurodollar
Rate Loan) shall be in an amount of $5,000,000 (or the equivalent thereof if in
any Alternative Currency) or, if greater than $5,000,000, an integral multiple
of $1,000,000 (or the equivalent thereof if in any Alternative Currency), and
(c) no Eurodollar Rate Loan shall have an Interest Period that extends beyond
the Stated Termination Date. If the Parent's senior, unsecured, unenhanced
Indebtedness ceases to have a Rating, the Borrowers shall not be entitled to
select Eurodollar Rate Loans and at the end of any then existing Interest Period
for a Eurodollar Rate Loan, such Loan shall convert to Base Rate Loan. If the
Administrative Agent does not receive a Borrowing Notice or an Interest Rate
Selection Notice giving notice of election of the duration of an Interest Period
or of Conversion of any Loan to or Continuation of a Loan as a Eurodollar Rate
Loan by the time prescribed by SECTIONS 2.1(c)(i) and 4.2, as applicable (x) in
the case of Loans denominated in Dollars, the respective Borrower shall be
deemed to have elected to obtain or Convert such Loan to (or Continue such Loan
as) a Base Rate Loan until such Borrower notifies the Administrative Agent in
accordance with SECTION 4.2 and (y) in the case of Alternative Currency Loans,
the provisions of SECTION 2.1(b) shall apply. The Borrowers shall not be
entitled to elect to Continue any Loan as or Convert any Loan into a Eurodollar
Rate Loan or a Competitive Bid Loan if a Default or Event of Default shall have
occurred and be continuing.
4.2 CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject
to the limitations set forth in the definition of "Interest Period" and in
SECTION 4.1 and ARTICLE V, the Borrower may:
(a) upon delivery of telephonic notice to the Administrative
Agent (which shall be irrevocable) on or before 10:30 A.M. on any
Business Day, Convert any Eurodollar Rate Loan (other than an
Alternative Currency Loan) to a Base Rate Loan on the last day of the
Interest Period for such Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery of telephonic notice to the
Administrative Agent (which shall be irrevocable) on or before 10:30
A.M. three (3) Business Days', or in the case of Alternative Currency
Loans, four (4) Business Days' prior to the date of such Conversion or
Continuation:
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(i) elect a subsequent Interest Period for any
Eurodollar Rate Loan to begin on the last day of the then
current Interest Period for such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate
Loan on any Business Day.
Each such notice shall be effective upon receipt by the Administrative Agent,
shall specify the Borrower, the amount of the Eurodollar Rate Loan affected, the
type of Loan affected, and, if a Continuation as or Conversion into a Eurodollar
Rate Loan, the Interest Period to be used in the computation of interest. The
Authorized Representative shall provide the Administrative Agent written
confirmation of each such telephonic notice in the form of a Borrowing Notice or
Interest Rate Selection Notice (as applicable) with appropriate insertions but
failure to provide such confirmation shall not affect the validity of such
telephonic notice. Notice of receipt of such Borrowing Notice or Interest Rate
Selection Notice, as the case may be, shall be provided by the Administrative
Agent to each Lender by telefacsimile transmission with reasonable promptness,
but (provided the Administrative Agent shall have received such notice by 10:30
A.M.) not later than 1:00 P.M. on the same day as the Administrative Agent's
receipt of such notice. All such Continuations or Conversions of Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the Lenders.
4.3 PAYMENT OF INTEREST. The Borrowers shall pay interest on the
outstanding and unpaid principal amount of each Loan, commencing on the first
date of such Loan until such Loan shall be repaid, at the applicable Base Rate
or Eurodollar Rate as designated by a Borrower in the related Borrowing Notice
or Interest Rate Selection Notice or as otherwise provided hereunder. Interest
on each Loan shall be paid on the earlier of (a) in the case of any Base Rate
Loan, quarterly in arrears of the last Business Day of each March, June,
September and December, commencing on December 31, 1999, until the Revolving
Credit Termination Date, at which date as applicable the entire principal amount
of and all accrued interest on the Revolving Loans shall be paid in full, (b) in
the case of any Eurodollar Rate Loan and Competitive Bid Loan, on last day of
the applicable Interest Period for such Eurodollar Rate Loan and Competitive Bid
Loan and if such Interest Period extends for more than three (3) months, at
intervals of three (3) months after the first day of such Interest Period, and
(c) the Revolving Credit Termination Date; PROVIDED, HOWEVER, that if any Event
of Default shall occur and be continuing, all amounts outstanding hereunder
shall bear interest thereafter until paid in full at the Default Rate.
4.4 PREPAYMENTS OF EURODOLLAR RATE LOANS AND COMPETITIVE BID LOANS.
Whenever any payment of principal shall be made in respect of any Loan
hereunder, whether at maturity, on acceleration, by optional or mandatory
prepayment or as otherwise required or permitted hereunder, with the effect that
any Eurodollar Rate Loan or Competitive Bid Loan shall be prepaid in whole or in
part prior to the last day of the Interest Period applicable to such Eurodollar
Rate Loan or Competitive Bid Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by SECTION 5.5.
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4.5 MANNER OF PAYMENT.
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
by or on behalf of the Borrowers to the Lenders, the Issuing Bank, the
Administrative Agent, or Bank of America with respect to any (i) Loan
(other than a Competitive Bid Loan and a Revolving Loan in an
Alternative Currency), Letter of Credit (other than one denominated in
an Alternative Currency), Reimbursement Obligation or Swing Line Loan,
shall be made to the Administrative Agent at the Principal Office in
Dollars, (ii) Loan or Letter of Credit in an Alternative Currency,
shall be made in the Alternative Currency, and (iii) Competitive Bid
Loan shall be made to the Lender making each Competitive Bid Loan at
its Applicable Lending Office, in each case in immediately available
funds without condition or deduction for any setoff, recoupment,
deduction or counterclaim on or before 12:30 P.M. on the date such
payment is due.
(b) Any payment made by or on behalf of a Borrower that is not
made in Dollars or the applicable Alternative Currency, as the case may
be, in immediately available funds and prior to 12:30 P.M. on the date
such payment is to be made shall constitute a non-conforming payment.
Any such non-conforming payment shall not be deemed to be received
until the later of (i) the time such funds become available funds and
(ii) the next Business Day. Any non-conforming payment may constitute
or become a Default or Event of Default as otherwise provided herein.
Interest shall continue to accrue at the Default Rate on any principal
or fees as to which no payment or a non-conforming payment is made from
the date such amount was due and payable until the later of (i) the
date such funds become available funds or (ii) the next Business Day.
(c) In the event that any payment hereunder or under any of
the Notes becomes due and payable on a day other than a Business Day,
then such due date shall be extended to the next succeeding Business
Day unless provided otherwise under the definition of "Interest
Period"; PROVIDED, however, that interest shall continue to accrue
during the period of any such extension; and PROVIDED further, however,
that in no event shall any such due date be extended beyond the
Revolving Credit Termination Date.
4.6 Fees.
(a) FACILITY FEES. For the period beginning on the Closing
Date and ending on the Revolving Credit Termination Date, the Borrowers
agree to pay to the Administrative Agent, for the benefit of each
Lender a facility fee equal to the Applicable Facility Fee multiplied
by the Revolving Credit Commitment of such Lender. Such fees shall be
due in arrears on the last Business Day of each March, June, September
and December commencing December 31, 1999 to and on the Revolving
Credit Termination Date. Notwithstanding the foregoing, so long as any
Lender fails to make available any portion of its Revolving Credit
Commitment when requested, such Lender shall not be entitled to receive
payment of its pro rata share of such fees until such Lender shall make
available such portion.
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(b) LETTER OF CREDIT FACILITY FEES. The Borrowers shall pay to
the Administrative Agent, for the pro rata benefit of the Lenders based
on their Applicable Commitment Percentages, a fee on the aggregate
Dollar Value of the amount available to be drawn on each outstanding
Letter of Credit at a rate equal to the Applicable Margin for
Eurodollar Rate Loans. Such fees shall be due with respect to each
Letter of Credit quarterly in arrears on the last day of each March,
June, September and December, the first such payment to be made on the
first such date occurring after the date of issuance of a Letter of
Credit.
(c) LETTER OF CREDIT FRONTING AND ADMINISTRATIVE FEES. The
Borrowers shall pay to the Issuing Bank a fronting fee of one-eighth
percent per annum (1/8%) on the aggregate amount available to be drawn
on each outstanding Letter of Credit (other than the Existing Letters
of Credit), such fee to be payable quarterly in arrears with respect to
each Letter of Credit on the dates established in SECTION 4.6(b) for
the payment of Letter of Credit facility fees with respect to such
Letter of Credit. The Borrowers shall also pay to the Issuing Bank such
administrative fee and other fees, if any, in connection with the
Letters of Credit in such amounts and at such times as the Issuing Bank
and the Borrowers shall agree from time to time.
(d) AGENT FEES. The Borrowers agree to pay to the
Administrative Agent, for the Administrative Agent's individual
account, an annual Administrative Agent's fee as set forth in the
letter dated October 29, 1999 from the Administrative Agent to the
Parent.
4.7 PRO RATA PAYMENTS. Except as otherwise specified herein, (a) each
payment on account of the principal of and interest on Loans, the fees described
in SECTION 4.6(a) and (b), and Swing Line Loans and Reimbursement Obligations as
to which the Lenders have funded their respective Participations which remain
outstanding, shall be made to the Administrative Agent for the account of the
Lenders pro rata based on their Applicable Commitment Percentages, and (b) the
Administrative Agent will promptly distribute to the Lenders in immediately
available funds payments received in fully collected, immediately available
funds from the Borrower.
4.8 COMPUTATION OF RATES AND FEES. Except as may be otherwise expressly
provided, all interest rates (including the Base Rate, each Eurodollar Rate,
Absolute Rate and Eurodollar Competitive Rate and the Default Rate) and fees
shall be computed on the basis of a year of 360 days and calculated for actual
days elapsed.
4.9 DEFICIENCY ADVANCES; FAILURE TO PURCHASE PARTICIPATIONS. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment or Letter of Credit Commitment of any Lender hereunder be increased
as a result of such default of any other Lender. Without limiting the generality
of the foregoing or the provisions of SECTION 4.10, in the event any Lender
shall fail to advance funds to the Borrower as herein provided, the
Administrative Agent may in its discretion, but shall not be obligated to,
advance under the applicable Note in its favor as a Lender all or any portion of
such amount or amounts (each, a "deficiency advance") and shall thereafter be
entitled to payments from
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the Borrower of principal of and interest on such deficiency advance in the same
manner and at the same interest rate or rates to which such other Lender would
have been entitled had it made such Advance under its Note; provided that, (i)
such defaulting Lender shall not be entitled to receive payments of principal,
interest or fees with respect to such deficiency advance until such deficiency
advance (together with interest thereon as provided in clause (ii)) shall be
paid by such Lender and (ii) upon payment to the Administrative Agent from such
other Lender of the entire outstanding amount of each such deficiency advance,
together with accrued and unpaid interest thereon, from the most recent date or
dates interest was paid to the Administrative Agent by a Borrower on each Loan
comprising the deficiency advance at the Federal Funds Rate, then such payment
shall be credited against the applicable Note of the Administrative Agent in
full payment of such deficiency advance and such Borrower shall be deemed to
have borrowed the amount of such deficiency advance from such other Lender as of
the most recent date or dates, as the case may be, upon which any payments of
interest were made by such Borrower thereon. In the event any Lender shall fail
to fund its purchase of a Participation after notice from the Issuing Bank or
Bank of America as the Swing Line lender, as applicable, such Lender shall pay
to the Issuing Bank or Bank of America as the Swing Line lender, as applicable,
such amount on demand, together with interest at the Federal Funds Rate on the
amount so due from the date of such notice to the date such purchase price is
received by the Issuing Bank or Bank of America as the Swing Line lender, as
applicable.
4.10 INTRADAY FUNDING. Without limiting the provisions of SECTION 4.9,
unless the Borrowers or any Lender has notified the Administrative Agent not
later than 12:00 Noon on the Business Day before the date any payment (including
in the case of Lenders any Advance) to be made by it is due, that it does not
intend to remit such payment, the Administrative Agent may, in its discretion,
assume that a Borrower or each Lender, as the case may be, has timely remitted
such payment in the manner required hereunder and may, in its discretion and in
reliance thereon, make available such payment (or portion thereof) to the Person
entitled thereto as otherwise provided herein. If such payment was not in fact
remitted to the Administrative Agent in the manner required hereunder, then:
(i) if a Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the amount
of such assumed payment made available to such Lender, together with
interest thereon in respect of each day from and including the date
such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative Agent at
the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the
Administrative Agent shall be entitled to recover such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent promptly shall notify the respective Borrower, and
such Borrower shall promptly pay such corresponding amount to the
Administrative Agent in immediately available funds upon receipt of
such demand. The Administrative Agent also shall be entitled to recover
interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative
Agent to a Borrower to the date such corresponding amount is recovered
by the
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Administrative Agent, (A) from such Lender at a rate per annum equal to
the daily Federal Funds Rate or (B) from the Borrowers, at a rate per
annum equal to the interest rate applicable to the Loan which includes
such corresponding amount. Until the Administrative Agent shall recover
such corresponding amount together with interest thereon, such
corresponding amount shall constitute a deficiency advance within the
meaning of SECTION 4.9. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its commitments hereunder or to
prejudice any rights which the Administrative Agent or the Borrowers
may have against any Lender as a result of any default by such Lender
hereunder. Any Lender which shall fail to make available its portion of
any Advance shall not be entitled to receive any payment pursuant to
SECTION 5.5(b) by reason of the failure of the Borrower to borrow
hereunder.
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ARTICLE V
CHANGE IN CIRCUMSTANCES
5.1 INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect
to any Eurodollar Rate Loans or Competitive Bid Loans, its
Notes, or its obligation to make Eurodollar Rate Loans or
Competitive Bid Loans, or change the basis of taxation of any
amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or its Notes in respect of any
Eurodollar Rate Loans or Competitive Bid Loans (other than
taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or
such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Revolving Credit
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting this Agreement or its Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Note with respect to any Eurodollar Rate Loans or
Competitive Bid Loans, then the Borrowers shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by the
Borrowers under this SECTION 5.1(a), the Borrowers may, by notice to
such Lender (with a copy to the Administrative Agent), suspend the
obligation of such Lender to make or Continue Loans of the Type with
respect to which such compensation is requested, or to Convert Loans of
any other Type into Loans of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the
provisions
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of SECTION 5.4 shall be applicable); PROVIDED that such suspension
shall not affect the right of such Lender to receive the compensation
so requested; PROVIDED, FURTHER, that the Borrowers shall not be liable
for payment of any such amount if the Lender does not demand payment of
such amount within 180 days of such lender becoming aware of the event
giving rise to the reduction of the rate or return.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand
the Borrowers shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction; provided
that the Borrowers shall not be liable for payment of any such amount
if the Lender does not demand payment of such amount within 180 days of
such Lender becoming aware of the event giving rise to the reduction of
the rate or return.
(c) Without limiting the foregoing but without duplication for
any Associated Costs reimbursed pursuant to SECTION 5.1(a) or (b), as
to any Alternative Currency Loan denominated in British Pounds, the
Borrowers will pay the Associated Costs. In addition, the Associated
Costs shall be increased by an amount which the applicable Lender shall
determine from time to time to be necessary to compensate such Lender
for the cost or loss to it of complying with any liquidity, monetary
control or prudential requirements of The Bank of England existing from
time to time.
(d) Each Lender shall promptly notify the Borrowers and the
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to this SECTION 5.1 and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such
Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this SECTION 5.1 shall furnish to the Borrowers and
the Administrative Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive
in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
5.2 LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
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(a) the Administrative Agent determines (which determination
shall be conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Administrative Agent that the Eurodollar
Rate will not adequately and fairly reflect the cost to the Lenders of
funding Eurodollar Rate Loans for such Interest Period;
then the Administrative Agent shall give the Borrowers prompt notice thereof
specifying the relevant Type of Loans and the relevant amounts or periods, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Loans of such Type, Continue Loans of such Type,
or to Convert Loans of any other Type into Loans of such Type and the Borrowers
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected Type, either prepay such Loans or Convert such
Loans into another Type of Loan in accordance with the terms of this Agreement.
5.3 ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans or Competitive Bid Loans
at a Eurodollar Competitive Rate hereunder, then such Lender shall promptly
notify the Borrowers thereof and such Lender's obligation to make or Continue
Eurodollar Rate Loans or Competitive Bid Loans at a Eurodollar Competitive Rate
and to Convert other Types of Loans into Eurodollar Rate Loans or Competitive
Bid Loans at a Eurodollar Competitive Rate shall be suspended until such time as
such Lender may again make, maintain, and fund Eurodollar Rate Loans or
Competitive Bid Loans at a Eurodollar Competitive Rate (in which case the
provisions of SECTION 5.4 shall be applicable).
5.4 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Rate Loan or a Competitive Bid Loan or to Continue, or to
Convert Loans of any other Type into, Loans of a particular Type shall be
suspended pursuant to SECTION 5.2 OR 5.3 hereof (Loans of such Type being herein
called "Affected Loans" and such Type being herein called the "Affected Type"),
such Lender's Affected Loans shall be (i), in the case of Loans denominated in
Dollars, automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by SECTION 5.3 hereof, on such earlier date as such Lender
may specify to the Borrowers with a copy to the Administrative Agent) and,
unless and until such Lender gives notice as provided below that the
circumstances specified in SECTION 5.2 OR 5.3 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all
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Loans of such Lender that would otherwise be Converted into Loans of
the Affected Type shall be Converted instead into (or shall remain as)
Base Rate Loans; and
(ii) in the case of a Loan denominated in an Alternative Currency, paid in full
on the last day of the Interest Period for such Loan.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in SECTION 5.2 OR 5.3 hereof that gave
rise to the Conversion of such Lender's Affected Loans pursuant to this SECTION
5.4 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the Affected Type made
by other Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders
holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective Revolving Credit Commitments.
5.5 COMPENSATION. Upon the request of any Lender, the Borrowers shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan or a Competitive Bid Loan for any reason (including, without
limitation, the acceleration of the Loans pursuant to SECTION 10.1) on
a date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrowers for any reason (including,
without limitation, the failure of any condition precedent specified in
ARTICLE VI to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Rate Loan or a Competitive Bid Loan on the date for such
borrowing, Conversion, Continuation, or prepayment specified in the
relevant notice of borrowing, prepayment, Continuation, or Conversion
under this Agreement.
5.6 TAXES.
(a) Any and all payments by the Borrowers to or for the
account of any Lender or the Administrative Agent hereunder or under
any other Loan Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, in the case of each Lender and the
Administrative Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender
(or its Applicable Lending Office) or the Administrative Agent (as the
case may be) is organized or maintains an Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, duties,
levies, imposts, deductions, charges, withholdings, and
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liabilities being hereinafter referred to as "Taxes"). If any Borrower
shall be required by law to deduct any Taxes from or in respect of any
sum payable under this Agreement or any other Loan Document to any
Lender or the Administrative Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
SECTION 5.6) such Lender or the Administrative Agent receives an amount
equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions, (iii) such
Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and
(iv) such Borrower shall furnish to the Administrative Agent, at its
address referred to in SECTION 12.2, the original or a certified copy
of a receipt evidencing payment thereof.
(b) In addition, each Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from
the execution or delivery by such Borrower of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter
referred to as "Other Taxes").
(c) Each Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable by such Borrower under
this SECTION 5.6) paid by such Lender or the Administrative Agent (as
the case may be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Parent or the Administrative
Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrowers and the Administrative Agent with (i)
Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying
that such Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 (including Form W-8BEN or W-8EC1) or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payments
pursuant to this Agreement or any of the other Loan Documents.
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(e) For any period with respect to which a Lender has failed
to provide the Borrowers and the Administrative Agent with the
appropriate form pursuant to SECTION 5.6(d) (unless such failure is due
to a change in treaty, law, or regulation occurring subsequent to the
date on which a form originally was required to be provided), or if any
information on such forms is false or inaccurate in any material
respect such Lender shall not be entitled to indemnification under
SECTION 5.6(a) OR 5.6(b) with respect to Taxes imposed by the United
States; PROVIDED, HOWEVER, that should a Lender, which is otherwise
exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required
hereunder, the Borrowers shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
(f) If a Borrower is required to pay additional amounts to or
for the account of any Lender pursuant to this SECTION 5.6, then such
Lender will agree to use reasonable efforts to change the jurisdiction
of its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the
judgment of such Lender, is not otherwise disadvantageous to such
Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrowers shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this SECTION 5.6 shall survive the termination
of the Revolving Credit Commitments and the payment in full of the
Notes and the Facility Termination Date.
(i) Notwithstanding any provision contained in this SECTION
5.6 to the contrary, the Borrowers shall not be obligated to reimburse
any Lender which is obligated to pay Florida documentary stamp taxes by
reason of the fact that it has brought its Note or Notes or other Loan
Documents into the State of Florida, other than for the reason of
enforcing its rights under its Note or Notes or other Loan Documents.
5.7 REPLACEMENT LENDERS. In the event a Lender shall be unable to make
a Loan by reason of any provision of this ARTICLE V or shall seek compensation
pursuant to this ARTICLE V (other than SECTION 5.5), the Parent may, in its sole
discretion, on ten (10) Business Days' prior written notice to the
Administrative Agent and such Lender, cause such Lender to (and such Lender
shall) assign pursuant to SECTION 12.1 hereof, all of its rights and obligations
under this Agreement (other than with respect to outstanding Competitive Bid
Loans) to an Eligible Assignee designated by the Parent which is willing to
become a Lender for a purchase price equal to the outstanding principal amount
of the Loans payable to such Lender, together with any accrued but unpaid
interest on such Loans, any accrued but unpaid fees with respect to such
Lender's Revolving Credit Commitment and any other amounts payable to such
Lender under this Agreement; PROVIDED, that any expenses or other amounts which
would be owing to such Lender pursuant to any indemnification provision
hereunder shall be payable by the Parent as if the
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respective Borrower had prepaid the Loans of such Lender rather than such Lender
having assigned its interest thereunder. The Borrowers or the Eligible Assignee
under this Section shall pay the applicable processing fee under SECTION 12.1.
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ARTICLE VI
CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT
6.1 CONDITIONS OF INITIAL ADVANCE AND ISSUING LETTERS OF CREDIT. The
obligation of the Lenders to make the initial Advance under the Revolving Credit
Facility, and of the Issuing Bank to issue any Letter of Credit, and of Bank of
America to make any Swing Line Loan, is subject to the conditions precedent
that:
(a) the Administrative Agent shall have received on the
Closing Date, in form and substance satisfactory to the Administrative
Agent, the following:
(i) executed originals of each of this Agreement for
each Lender, the Notes of each Lender, the LC Account
Agreement, the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of counsel to the Borrowers dated the
Closing Date, addressed to the Administrative Agent and the
Lenders and satisfactory to Smith Helms Mulliss & Moore,
L.L.P., special counsel to the Administrative Agent,
substantially in the form of EXHIBIT J;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Borrower certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Borrowers, certified by the secretary or
assistant secretary of such Borrower;
(v) the Organizational Documents of each of the
Borrowers certified as of a recent date by the Secretary of
State of its state of organization;
(vi) Operating Documents of each of the Borrowers
certified as of the Closing Date as true and correct by its
secretary or assistant secretary;
(vii) certificates, if available, issued as of a
recent date by the Secretaries of State of the respective
jurisdictions of formation of each of the Borrowers as to the
due existence and good standing of such Person;
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(viii) appropriate certificate of qualification to do
business, good standing and, where appropriate, authority to
conduct business under assumed name, issued in respect of each
Borrower as of a recent date by the Secretary of State of
Florida;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) certificate of an Authorized Representative dated
the Closing Date demonstrating compliance with the financial
covenants contained in SECTIONS 9.1(a) through 9.1(d) as of
the end of the fiscal quarter most recently ended prior to the
Closing Date, substantially in the form of EXHIBIT K;
(xi) evidence of all insurance required by the Loan
Documents;
(xii) an initial Borrowing Notice, and, if elected by
the Borrowers, an Interest Rate Selection Notice;
(xiii) evidence that all fees payable by the
Borrowers on the Closing Date to the Administrative Agent, BAS
and the Lenders have been paid in full;
(xiv) Uniform Commercial Code search results showing
only those Liens as are acceptable to the Administrative
Agent; and
(xv) such other documents, instruments, certificates
and opinions as the Administrative Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the transactions
contemplated hereby; and
(b) In the good faith judgment of the Administrative Agent and
the Lenders:
(i) there shall not have occurred or become known to
the Administrative Agent or the Lenders any event, condition,
situation or status since the date of the information
contained in the financial and business projections, budgets,
pro forma data and forecasts concerning the Parent and its
Subsidiaries delivered to the Administrative Agent prior to
the Closing Date that has had or could reasonably be expected
to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be likely to
result in a Material Adverse Effect; and
(iii) the Borrowers shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation,
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order or decree of any Governmental Authority or arbitral
authority or (B) any agreement, document or instrument to
which any Borrower is a party or by which any of them or their
properties is bound.
6.2 CONDITIONS OF REVOLVING LOANS AND LETTER OF CREDIT. The obligations
of the Lenders to make any Revolving Loans, and the Issuing Bank to issue (or
renew) Letters of Credit and Bank of America to make Swing Line Loans, hereunder
on or subsequent to the Closing Date are subject to the satisfaction of the
following conditions:
(a) the Administrative Agent or, in the case of Swing Line
Loans, Bank of America shall have received a Borrowing Notice if
required by ARTICLE II;
(b) the representations and warranties of the Borrowers set
forth in ARTICLE VII and in each of the other Loan Documents shall be
true and correct in all material respects on and as of the date of such
Advance, Swing Line Loan or Letter of Credit issuance or renewal, with
the same effect as though such representations and warranties had been
made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in SECTION 7.6(a)
shall be deemed (solely for the purpose of the representation and
warranty contained in such SECTION 7.6(a) but not for the purpose of
any cross reference to such SECTION 7.6(a) or to the financial
statements described therein contained in any other provision of
SECTION 7.6 or elsewhere in ARTICLE VII) to be those financial
statements most recently delivered to the Administrative Agent and the
Lenders pursuant to SECTION 8.1 from the date financial statements are
delivered to the Administrative Agent and the Lenders in accordance
with such Section;
(c) in the case of the issuance of a Letter of Credit, a
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in ARTICLE X shall have occurred and be
continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Revolving Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all
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Participations in Letters of Credit and Reimbursement
Obligations of other Lenders) for each Lender and in the
aggregate shall not exceed, respectively, (X) such Lender's
Letter of Credit Commitment or (Y) the Total Letter of Credit
Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $10,000,000; and
(iv) a Revolving Loan, Competitive Bid Loan, Swing
Line Loan or a Letter of Credit or renewal thereof, the sum of
Outstandings shall not exceed the Total Revolving Credit
Commitment.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
7.1 ORGANIZATION AND AUTHORITY.
(a) The Parent and each Material Subsidiary is a corporation
or partnership duly organized and validly existing under the laws of
the jurisdiction of its formation;
(b) The Parent and each Material Subsidiary (x) has the
requisite power and authority to own its properties and assets and to
carry on its business as now being conducted and as contemplated in the
Loan Documents, and (y) is qualified to do business in every
jurisdiction in which failure so to qualify would have a Material
Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) When executed and delivered, each of the Loan Documents to
which any Borrower is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Borrower,
enforceable against such Borrower in accordance with its terms, subject
to the effect of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general principles of
equity (whether considered in a proceeding at law or in equity).
7.2 LOAN DOCUMENTS. The execution, delivery and performance by each
Borrower of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Borrower required for the lawful execution, delivery and
performance thereof;
(b) do not violate any provisions of (i) any applicable law,
rule or regulation, (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral
authority binding on such Borrower or its properties, or (iii) the
Organizational Documents or Operating Documents of such Borrower;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document
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to which such Borrower is a party, or by which the properties or assets
of such Borrower are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Borrower or
any Subsidiary.
7.3 SOLVENCY. Each Borrower is Solvent after giving effect to the
transactions contemplated by the Loan Documents.
7.4 SUBSIDIARIES AND STOCKHOLDERS. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in SCHEDULE 7.4 and additional
Subsidiaries created or acquired after the Closing Date; SCHEDULE 7.4 states as
of the date hereof the organizational form of each entity, whether such
Subsidiary is a Material Subsidiary and if it is a Material Subsidiary its
percent of Consolidated Total Assets and consolidated net revenues and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in SCHEDULE
7.4, free and clear of any Lien.
7.5 OWNERSHIP INTERESTS. The Parent owns no interest in one or more
Persons, which interest in such Persons has an aggregate fair market value in
excess of $750,000, other than the Persons listed in SCHEDULE 7.4, equity
investments in Persons not constituting Subsidiaries permitted under SECTION 9.6
and additional Subsidiaries created or acquired after the Closing Date.
7.6 FINANCIAL CONDITION.
(a) The Parent has heretofore furnished to each Lender an
audited consolidated balance sheet of the Parent and its Subsidiaries
as at June 30, 1999 and the notes thereto and the related consolidated
statements of income, stockholders' equity and cash flows for the
Fiscal Year then ended as examined and certified by
PricewaterhouseCoopers, and unaudited consolidated interim financial
statements of the Parent and its Subsidiaries consisting of a
consolidated balance sheets and related consolidated statements of
income, stockholders' equity and cash flows, in each case without
notes, for and as of the end of the three month period ending September
30, 1999. Except as set forth therein, such annual financial statements
(including the notes thereto) present fairly the consolidated financial
condition of the Parent and its Subsidiaries as of the end of such
Fiscal Year and three month period and results of their operations and
the changes in its stockholders' equity for the Fiscal Year then ended,
and in the case of such interim financial statements, reflect all
adjustments constituting only normal recurring accruals necessary for a
fair presentation of the consolidated financial condition of the Parent
and its Subsidiaries as of such date and the consolidated results of
their operations and changes in cash flows all in conformity with
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GAAP applied on a Consistent Basis, subject however, in the case of
unaudited interim statements to year end audit adjustments;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to SECTION 7.6(a) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
SECTION 8.1(a) hereof, there has been no material adverse change in the
condition, financial or otherwise, of the Parent or any of its Material
Subsidiaries or in the businesses, properties, performance, prospects
or operations of the Parent or its Material Subsidiaries, nor have such
businesses or properties been materially adversely affected as a result
of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God; and
(c) except as set forth in the financial statements referred
to in SECTION 7.6(a) or in SCHEDULE 7.6 or permitted by SECTION 9.10,
neither the Parent nor any Subsidiary has incurred, other than in the
ordinary course of business, any material Indebtedness, Contingent
Obligation or other commitment or liability which remains outstanding
or unsatisfied.
7.7 TITLE TO PROPERTIES. The Parent and each of its Material
Subsidiaries has good and marketable title to all its real and personal
properties, subject to no transfer restrictions or Liens of any kind, except for
the transfer restrictions and Liens described in SCHEDULE 7.7 and Liens
permitted by SECTION 9.3.
7.8 TAXES. Except as set forth in SCHEDULE 7.8, the Borrower and each
of its Subsidiaries has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in SECTION 7.6(a) or SECTIONS 8.1(a) or (b) and satisfactory to the
Parent's independent certified public accountants have been established, have
paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become due.
7.9 OTHER AGREEMENTS. Neither the Borrower nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Borrower or any Subsidiary is a
party, which default has, or if not remedied within any applicable
grace period could reasonably be likely to have, a Material Adverse
Effect.
7.10 LITIGATION. Except as set forth in the Parent's Annual Report on
Form 10-K for the period ended June 30, 1999 or Quarterly Report on Form 10-Q
for the period ended September 30,
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1999, as to which the ultimate outcome, and whether such proceeding could have a
Material Adverse Effect cannot be determined at this time, there is no action,
suit, investigation or proceeding at law or in equity or by or before any
governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or affecting the Borrower or any Subsidiary or any properties or
rights of the Borrower or any Subsidiary, which could reasonably be likely to
have a Material Adverse Effect.
7.11 MARGIN STOCK. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
(12 C.F.R. Part 224) or Regulation X (12 C.F.R. Part 221) of the Board. Neither
the Borrower nor any agent acting in its behalf has taken or will take any
action which might cause this Agreement or any of the documents or instruments
delivered pursuant hereto to violate any regulation of the Board or to violate
the Securities Exchange Act of 1934, as amended, or the Securities Act of 1933,
as amended, or any state securities laws, in each case as in effect on the date
hereof.
7.12 INVESTMENT COMPANY. The Parent is not 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 (15 U.S.C. ss. 80a-1, et seq.). The application of the proceeds
of the Loans and repayment thereof by the Borrowers and the performance by the
Borrowers of the transactions contemplated by the Loan Documents will not
violate any provision of said Act, or any rule, regulation or order issued by
the Securities and Exchange Commission thereunder, in each case as in effect on
the date hereof.
7.13 PATENTS, ETC. Except as set forth in the Parent's Annual Report on
Form 10-K for the period ended June 30, 1999 or Quarterly Report on Form 10-Q
for the period ended September 30, 1999, as to which the ultimate outcome, and
whether such proceeding could have a Material Adverse Effect cannot be
determined at this time, the Parent owns or has the right to use, under valid
license agreements or otherwise, all material patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights, trade secrets and
copyrights necessary to or used in the conduct of its businesses as now
conducted and as contemplated by the Loan Documents, without known conflict with
any patent, license, franchise, trademark, trade secret, trade name, copyright,
other proprietary right of any other Person.
7.14 NO UNTRUE STATEMENT. Neither (a) this Agreement nor any other Loan
Document or certificate or document executed and delivered by or on behalf of
the Borrower in accordance with or pursuant to any Loan Document nor (b) any
statement, representation, or warranty provided by the Parent or any of its
Subsidiaries to the Administrative Agent in connection with the negotiation or
preparation of the Loan Documents taken together, and taken together with the
Parent's Annual Reports on Form 10-K for periods ending on and prior to June 30,
1999 and Quarterly Reports on Form 10-Q for periods ending on and prior to
September 30, 1999, contains any misrepresentation
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or untrue statement of material fact or omits to state a material fact
necessary, in light of the circumstance under which it was made, in order to
make any such warranty, representation or statement contained therein not
misleading, except that projections and estimates reflected therein constitute
good faith estimates of the Parent or such Subsidiary based on then current
information and assumptions believed by the Parent or such Subsidiary to be
reasonable.
7.15 NO CONSENTS, ETC. Neither the respective businesses or properties
of the Parent or any Material Subsidiary, nor any relationship among the Parent
or any Material Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan Documents
and the transactions contemplated thereby, is such as to require a consent,
approval or authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person on the part of the Parent as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by the Loan Documents, which, if not obtained or
effected, would be reasonably likely to have a Material Adverse Effect, or if
so, such consent, approval, authorization, filing, registration or qualification
has been duly obtained or effected, as the case may be.
7.16 EMPLOYEE BENEFIT PLANS.
(a) The Parent and each ERISA Affiliate is in substantial
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder and in substantial compliance
with all Foreign Benefit Laws with respect to all Employee Benefit
Plans, except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet
expired. Each Employee Benefit Plan that is intended to be qualified
under Section 401(a) of the Code, except with respect to said remedial
period, has been determined or the Borrower or its Subsidiaries is in
the process of obtaining a determination by the Internal Revenue
Service to be so qualified, each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code, and each
Employee Benefit Plan subject to any Foreign Benefit Law has received
the required approvals by any Governmental Authority regulating such
Employee Benefit Plan. No material liability has been incurred by the
Parent or any ERISA Affiliate which remains unsatisfied for any taxes
or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
(b) Neither the Parent nor any ERISA Affiliate has (i) engaged
in a nonexempt prohibited transaction described in Section 4975 of the
Code or Section 406 of ERISA affecting any of the Employee Benefit
Plans or the trusts created thereunder which could subject any such
Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency under
Section 412 of the Code or Section 302 of ERISA with respect to any
Employee Benefit Plan, whether or not waived, or any other liability to
the PBGC which remains outstanding other than the payment of premiums
and there are no premium payments which are due and unpaid, (iii)
failed to make a required contribution or payment to a Multiemployer
Plan, (iv) failed to make a required installment or other required
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payment under Section 412 of the Code, Section 302 of ERISA or the
terms of such Employee Benefit Plan, or (v) failed to make a required
contribution or payment, or otherwise failed to operate in compliance
with any Foreign Benefit Law regulating any Employee Benefit Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Parent nor any ERISA Affiliate has incurred any
unpaid withdrawal liability under Title IV of ERISA with respect to any
Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, or
where the funding of which is regulated by any Foreign Benefit Law did
not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan which is subject to Title IV of ERISA or the funding of
which is regulated by any Foreign Benefit Law, maintained by the Parent
or any ERISA Affiliate, has been administered in accordance with its
terms in all material respects and is in compliance in all material
respects with all applicable requirements of ERISA, applicable Foreign
Benefit Law and other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
7.17 NO DEFAULT. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
7.18 ENVIRONMENTAL LAWS. Except as listed on SCHEDULE 7.18, the
Borrower and each Subsidiary is in compliance in all material respects with all
applicable Environmental Laws and has been issued and currently maintains all
required federal, state and local permits, licenses, certificates and approvals.
Except as listed on SCHEDULE 7.18, neither the Borrower nor any Subsidiary has
been notified of any pending or threatened action, suit, proceeding or
investigation, and neither the Borrower nor any Subsidiary is aware of any
facts, any of which could reasonably be expected to have a Material Adverse
Effect, which (a) calls into question, or could reasonably be expected to call
into question, compliance by the Borrower or any Subsidiary with any
Environmental Laws, (b) seeks, or could reasonably be expected to form the basis
of a meritorious proceeding, to suspend, revoke or terminate any license, permit
or approval necessary for the operation of the Borrower's
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or any Subsidiary's business or facilities or for the generation, handling,
storage, treatment or disposal of any Hazardous Materials, or (c) seeks to
cause, or could reasonably be expected to form the basis of a meritorious
proceeding to cause, any property of the Borrower or any Subsidiary to be
subject to any restrictions on ownership, use, occupancy or transferability
under any Environmental Law.
7.19 EMPLOYMENT MATTERS.
(a) None of the employees of the Borrower or any Subsidiary is
subject to any collective bargaining agreement and there are no
strikes, work stoppages, election or decertification petitions or
proceedings, unfair labor charges, equal opportunity proceedings, or
other material labor/employee related controversies or proceedings
pending or, to the best knowledge of the Borrower, threatened against
the Borrower or any Subsidiary or between the Borrower or any
Subsidiary and any of its employees, other than employee grievances
arising in the ordinary course of business which could not reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect; and
(b) Except to the extent a failure to maintain compliance
would not have a Material Adverse Effect, the Borrower and each
Subsidiary is in compliance in all respects with all applicable laws,
rules and regulations pertaining to labor or employment matters,
including without limitation those pertaining to wages, hours,
occupational safety and taxation and there is neither pending or
threatened any litigation, administrative proceeding nor, to the
knowledge of the Borrower, any investigation, in respect of such
matters which, if decided adversely, could reasonably be likely,
individually or in the aggregate, to have a Material Adverse Effect.
7.20 RICO. Neither the Borrower nor any Subsidiary is engaged in or has
engaged in any course of conduct that could reasonably subject any of their
respective properties to any Lien, seizure or other forfeiture under any
criminal law, racketeer influenced and corrupt organizations law, civil or
criminal, or other similar laws.
7.21 YEAR 2000 COMPLIANCE. The Borrower and its Material Subsidiaries
have (i) initiated a review and assessment of all areas within its and each of
its Subsidiaries' business and operations (including those affected by
information received from suppliers and vendors) that could reasonably be
expected to be adversely affected by the Year 2000 Problem, (ii) developed a
plan and timeline for addressing the Year 2000 Problem on a timely basis, and
(iii) to date, implemented that plan substantially in accordance with that
timetable. The Borrower reasonably believes that all computer applications
(including those affected by information received from its suppliers and
vendors) that are material to its or any of its Subsidiaries' business and
operations will on a timely basis be Year 2000 Compliant, except to the extent
that a failure to do so could not reasonably be expected to have Material
Adverse Effect.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Parent will, and where applicable will cause
each Material Subsidiary to:
8.1 FINANCIAL REPORTS, ETC.
(a) As soon as practical and in any event within 105 days
after the end of each Fiscal Year of the Parent, deliver or cause to be
delivered to the Administrative Agent and each Lender (i) a
consolidated balance sheet of the Parent and its Subsidiaries as at the
end of such Fiscal Year, and the notes thereto, and the related
consolidated statements of income, stockholders' equity and cash flows,
and the respective notes thereto, for such Fiscal Year, setting forth
comparative financial statements for the preceding Fiscal Year, all
prepared in accordance with GAAP applied on a Consistent Basis and
containing, with respect to the consolidated financial statements,
opinions of PricewaterhouseCoopers, or other such independent certified
public accountants selected by the Parent and approved by the
Administrative Agent, which are unqualified as to the scope of the
audit performed and as to the "going concern" status of the Parent and
without any exception not acceptable to the Lenders, (ii) a certificate
of an Authorized Representative demonstrating compliance with SECTIONS
9.1(a) through 9.1(e), which certificate shall be in the form of
EXHIBIT K and (iii) a schedule containing a list of Material
Subsidiaries as at the end of the Fiscal Year which schedule shall set
forth the percentage of Consolidated Total Assets and Consolidated Net
Income of each such Subsidiary;
(b) as soon as practical and in any event within 55 days after
the end of each fiscal quarter (except the last fiscal quarter of the
Fiscal Year), deliver to the Administrative Agent and each Lender (i) a
consolidated balance sheet of the Parent and its Subsidiaries as at the
end of such fiscal quarter, and the related consolidated statements of
income, stockholders' equity and cash flows for such fiscal quarter and
for the period from the beginning of the then current Fiscal Year
through the end of such reporting period, and accompanied by a
certificate of an Authorized Representative to the effect that such
financial statements reflect all adjustments constituting only normal
recurring accruals necessary for a fair presentation of the
consolidated financial condition of the Parent and its Subsidiaries as
of the end of such fiscal period and the consolidated results of their
operations and the changes in their financial position for such fiscal
period, (ii) a certificate of an Authorized Representative containing
computations for such quarter comparable to that required pursuant to
SECTION 8.1(a)(ii) and (iii) a schedule containing a list of Material
Subsidiaries as of the end of such fiscal quarter similar to that
required pursuant to SECTION 8.1(a)(iii).
(c) together with each delivery of the financial statements
required by SECTION 8.1(a)(i), deliver to the Administrative Agent and
each Lender a letter from the Parent's accountants specified in SECTION
8.1(a)(i) stating that in performing the audit
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necessary to render an opinion on the financial statements delivered
under SECTION 8.1(a)(i), they obtained no knowledge of any Default or
Event of Default by the Parent in the fulfillment of the terms and
provisions of this Agreement insofar as they relate to financial
matters (which at the date of such statement remains uncured); or if
the accountants have obtained knowledge of such Default or Event of
Default, a statement specifying the nature and period of existence
thereof;
(d) promptly upon their becoming available to the Parent, the
Parent shall deliver to the Administrative Agent and each Lender a copy
of (i) all regular or special reports or effective registration
statements which Parent or any Subsidiary shall file with the
Securities and Exchange Commission (or any successor thereto) or any
securities exchange, (ii) any proxy statement distributed by the Parent
or any Subsidiary to its shareholders, bondholders or the financial
community in general, and (iii) any management letter or other report
submitted to the Parent or any Subsidiary by independent accountants in
connection with any annual, interim or special audit of the Borrower or
any Subsidiary;
(e) not later than the last Business Day of the first month of
each Fiscal Year, deliver to the Administrative Agent and each Lender a
capital and operating expense budget and consolidated financial
projections for the Parent and its Subsidiaries for the next Fiscal
Year, prepared in accordance with GAAP applied on a Consistent Basis;
and
(f) promptly, from time to time, deliver or cause to be
delivered to the Administrative Agent and each Lender such other
information regarding Parent's and any Subsidiary's operations,
business affairs and financial condition as the Administrative Agent or
such Lender may reasonably request.
8.2 MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and other
intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as
currently conducted or as contemplated hereby, all in accordance with customary
and prudent business practices, except in each case to the extent that failure
to maintain any of the foregoing is not reasonably like to have a Material
Adverse Effect.
8.3 EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under SECTION 9.5, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary except where the failure to so qualify would not be
reasonably likely to have a Material Adverse Effect.
8.4 REGULATIONS AND TAXES. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges,
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claims for labor, supplies, rent and any other obligation which, if unpaid,
would become a Lien against any of its properties except liabilities being
contested in good faith by appropriate proceedings diligently conducted and
against which adequate reserves acceptable to the Parent's independent certified
public accountants have been established unless and until any Lien resulting
therefrom attaches to any of its property and becomes enforceable against its
creditors.
8.5 INSURANCE. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated,
(b) maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property and (c) maintain insurance under all applicable workers' compensation
laws (or in the alternative, maintain required reserves if self-insured for
workers' compensation purposes) and against loss by reason by business
interruption such policies of insurance to have such limits, deductibles,
exclusions, co-insurance and other provisions providing no less coverages than
are maintained by similar businesses that are similarly situated, such insurance
policies to be in form reasonably satisfactory to the Administrative Agent. Each
of the policies of insurance described in this SECTION 8.5 shall provide that
the insurer shall give the Administrative Agent not less than thirty (30) days'
prior written notice before any such policy shall be terminated, lapse or be
altered in any manner.
8.6 TRUE BOOKS. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
8.7 YEAR 2000 COMPLIANCE. The Borrower will promptly notify the
Administrative Agent and the Lenders in the event the Borrower discovers or
determines that any computer application (including those affected by
information received from its suppliers and vendors) that is material to its or
any of its Subsidiaries' business and operations will not be Year 2000 Compliant
on a timely basis, except to the extent that such failure could not reasonably
be expected to have a Material Adverse Effect.
8.8 RIGHT OF INSPECTION. Permit any Person designated by any Lender at
such Lender's expense or the Administrative Agent at the Administrative Agent's
expense to visit and inspect any of the properties, corporate books and
financial reports of the Borrower or any Subsidiary and to discuss its affairs,
finances and accounts with its principal officers and independent certified
public accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice. From and after the occurrence and during the
continuance of an Event of Default, the Parent shall be obligated to pay the
expenses of the Lender and Administrative Agent incurred in connection with any
such visit and inspection.
8.9 OBSERVE ALL LAWS. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the
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conduct of its business, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
8.10 GOVERNMENTAL LICENSES. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
8.11 COVENANTS EXTENDING TO OTHER PERSONS. Cause each of its Material
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrowers in SECTIONS 8.2 through 8.11, and 8.20
inclusive.
8.12 OFFICER'S KNOWLEDGE OF DEFAULT. Upon any Executive Officer of the
Borrower obtaining knowledge of any Default or Event of Default hereunder or
under any other obligation of the Borrower or any Subsidiary to any Lender, or
any event, development or occurrence which could reasonably be expected to have
a Material Adverse Effect, cause such officer or an Authorized Representative to
promptly notify the Administrative Agent of the nature thereof, the period of
existence thereof, and what action the Borrower or such Subsidiary proposes to
take with respect thereto.
8.13 SUITS OR OTHER PROCEEDINGS. Upon any Executive Officer of the
Borrower obtaining knowledge of any litigation or other proceedings being
instituted against the Borrower or any Subsidiary, or any attachment, levy,
execution or other process being instituted against any assets of the Parent or
any Subsidiary, making a claim or claims in an aggregate amount greater than
$10,000,000 not otherwise covered by insurance, promptly deliver to the
Administrative Agent written notice thereof stating the nature and status of
such litigation, dispute, proceeding, levy, execution or other process.
8.14 NOTICE OF ENVIRONMENTAL COMPLAINT OR CONDITION. Promptly provide
to the Administrative Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims or citations received by the
Borrower or any Material Subsidiary relating to any (a) violation or alleged
violation by the Borrower or any Subsidiary of any applicable Environmental Law;
(b) release or threatened release by the Borrower or any Material Subsidiary, or
by any Person handling, transporting or disposing of any Hazardous Material on
behalf of the Borrower or any Material Subsidiary, or at any facility or
property owned or leased or operated by the Borrower or any Material Subsidiary,
of any Hazardous Material, except where occurring legally pursuant to a permit
or license; or (c) liability or alleged liability of the Borrower or any
Material Subsidiary for the costs of cleaning up, removing, remediating or
responding to a release of Hazardous Materials, which in any of the foregoing
instances would reasonably be expected to have a Material Adverse Effect.
8.15 ENVIRONMENTAL COMPLIANCE. If the Borrower or any Material
Subsidiary shall receive any letter, notice, complaint, order, directive, claim
or citation alleging that the Borrower or any Subsidiary has violated any
Environmental Law, has released any Hazardous Material, or is liable
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for the costs of cleaning up, removing, remediating or responding to a release
of Hazardous Materials, the Borrower and any Subsidiary shall, within the time
period permitted and to the extent required by the applicable Environmental Law
or the Governmental Authority responsible for enforcing such Environmental Law,
remove or remedy, or cause the applicable Subsidiary to remove or remedy, such
violation or release or satisfy such liability, unless and only during the
period that the applicability of the Environmental Law, the fact of such
violation or liability or the action required to remove or remedy such violation
is being contested by the Borrower or the applicable Subsidiary by appropriate
proceedings diligently conducted and all reserves with respect thereto as may be
required under Generally Accepted Accounting Principles, if any, have been made,
and no Lien in connection therewith shall have attached to any property of the
Borrower or the applicable Subsidiary which shall have become enforceable
against creditors of such Person.
8.16 INDEMNIFICATION. Without limiting the generality of SECTION 12.9,
the Parent hereby agrees to indemnify and hold the Administrative Agent and the
Lenders and any affiliate of any Lender party to a Swap Agreement, and their
respective officers, directors, employees and agents, harmless from and against
any and all claims, losses, penalties, liabilities, damages and expenses
(including assessment and cleanup costs and reasonable attorneys', consultants'
or other expert fees, expenses and disbursements) arising directly or indirectly
from, out of or by reason of (a) the violation of any Environmental Law by the
Borrower or any Subsidiary or with respect to any property owned, operated or
leased by the Borrower or any Subsidiary or (b) the handling, storage,
transportation, treatment, emission, release, discharge or disposal of any
Hazardous Materials by or on behalf of the Borrower or any Subsidiary, or on or
with respect to property owned or leased or operated by the Borrower or any
Subsidiary. The provisions of this SECTION 8.16 shall survive repayment of the
Obligations and expiration or termination of this Agreement.
8.17 FURTHER ASSURANCES. At the Borrower's cost and expense, upon
request of the Administrative Agent, duly execute and deliver or cause to be
duly executed and delivered, to the Administrative Agent such further
instruments, documents and certificates, and do and cause to be done such
further acts that may be reasonably necessary or advisable in the reasonable
opinion of the Administrative Agent to carry out more effectively the provisions
and purposes of this Agreement, the Security Instruments and the other Loan
Documents.
8.18 EMPLOYEE BENEFIT PLANS.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Administrative Agent of (a) the
establishment of any new Pension Plan (which notice shall include a
copy of such plan), (b) the commencement of contributions to any
Employee Benefit Plan to which the Parent or any of its ERISA
Affiliates was not previously contributing, (c) any material increase
in the benefits of any existing Employee Benefit Plan, (d) each funding
waiver request filed with respect to any Pension Plan and all
communications received or sent by the Parent or any ERISA Affiliate
with respect to such request and (e) the failure of the Parent or any
ERISA Affiliate to make a required installment or payment under Section
302 of ERISA or Section 412 of the Code (in the case of Employee
Benefit Plans regulated by the Code or ERISA) or under any Foreign
Benefit
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Law (in the case of Employee Benefit Plans regulated by any Foreign
Benefit Law) by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Employee Benefit Plan or any trust created
thereunder, deliver to the Administrative Agent a notice specifying the
nature thereof, what action the Parent or any ERISA Affiliate has
taken, is taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Administrative Agent copies of (a) any unfavorable determination letter
from the Internal Revenue Service regarding the qualification of an
Employee Benefit Plan under Section 401(a) of the Code, (b) all notices
received by the Parent or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to
have a trustee appointed to administer any Pension Plan, (c) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by the Parent or any ERISA Affiliate with the Internal
Revenue Service with respect to each Employee Benefit Plan and (d) all
notices received by the Parent or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA. The Borrower
will notify the Administrative Agent in writing within five (5)
Business Days of the Borrower or any ERISA Affiliate obtaining
knowledge or reason to know that the Borrower or any ERISA Affiliate
has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section
4041(c) of ERISA.
8.19 CONTINUED OPERATIONS. Continue at all times to conduct its
business and engage principally in the same Line or Lines of Business
substantially as heretofore conducted.
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ARTICLE IX
NEGATIVE COVENANTS
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Parent will not, nor will it permit any
Subsidiary to:
9.1 FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH. Permit Consolidated Net Worth to
be less than (i) $725,000,000 from the Closing Date until (but
excluding) the last day of the fiscal quarter that includes the Closing
Date (the "Closing Date Quarter"), and (ii) as at the last day of each
fiscal quarter of the Borrower ending after the Closing Date and until
(but excluding) the last day of the next following fiscal quarter of
the Borrower, the sum of (A) the amount of Consolidated Net Worth
required to be maintained pursuant to this Section 9.1(a) as at the end
of the immediately preceding fiscal quarter (or, in the case of the
Closing Date Quarter, required to be maintained as of the Closing
Date), plus (B) 50% of Consolidated Net Income (with no reduction for
net losses during any period) for the fiscal quarter of the Borrower
ending on such day (including within "Consolidated Net Income" certain
items otherwise excluded, as provided for in the definition of
"Consolidated Net Income"), plus (C) 100% of the aggregate amount of
all increases after the Closing Date in the stated capital and
additional paid-in capital accounts of the Borrower resulting from the
issuance of equity securities or other capital investments, but
excluding amounts recorded with respect to employee benefit plans and
by reason of stock dividends paid to holders of the Parent's 6 1/2%
Convertible Preferred Stock.
(b) CONSOLIDATED SENIOR LEVERAGE RATIO. Permit at any time the
Consolidated Senior Leverage Ratio to be greater than .50 to 1.00.
(c) CONSOLIDATED LEVERAGE RATIO. Permit at any time the
Consolidated Leverage Ratio to be greater than .55 to 1.00.
(d) CONSOLIDATED INTEREST COVERAGE RATIO. Permit the
Consolidated Interest Coverage Ratio to be less than 2.00 to 1.00.
(e) CAPITAL EXPENDITURES. Make or become committed to make
Capital Expenditures which exceed $75,000,000 in the aggregate in any
Fiscal Year of the Borrower (on a non-cumulative basis, with the effect
that amounts not expended in any Fiscal Year may not be carried forward
to a subsequent period).
9.2 ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the Line or Lines of
Business of the
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Person to be acquired are substantially the same as one or more Line or Lines of
Business conducted by the Parent and its Subsidiaries, (ii) no Default or Event
of Default shall have occurred and be continuing either immediately prior to or
immediately after giving effect to such Acquisition, (iii) the Person acquired
shall be a wholly-owned Subsidiary, or be merged into the Borrower or a
wholly-owned Subsidiary, immediately upon consummation of the Acquisition (or if
assets are being acquired, the acquiror shall be the Parent or a wholly-owned
Subsidiary), and (iv) the Cost of Acquisition does not exceed $50,000,000.
9.3 LIENS. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Parent or any Subsidiary, other than
(a) Liens otherwise existing as of the date hereof and as set
forth in SCHEDULE 8.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP and which Liens
are not yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP and which Liens are not yet enforceable against other creditors;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary;
(f) subject to SECTION 10.1(i), Liens arising in connection
with court proceedings provided the execution of such Liens are being
contested in good faith by appropriate
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proceedings, any foreclosure action either does not exist or is
effectively stayed and the Parent has established adequate reserves
therefor on the books its books in accordance with GAAP;
(g) unexercised rights of setoff, bankers' liens and other
rights arising solely by operation of law and not created to secure
Indebtedness;
(h) to the extent considered a Lien on assets of the Parent or
any Subsidiary, Liens arising in connection with the sale, factoring or
securitization of leases, receivables or other accounts in the ordinary
course of business;
(i) to the extent considered a Lien on assets of the Parent or
any Subsidiary, the interest of the lessee or purchaser in assets of
the Parent or any Subsidiary leased to such lessee under a lease or
sold to such purchaser under the terms of a conditional sale
arrangement;
(j) purchase money Liens to secure Indebtedness permitted
under SECTION 9.10(f) and incurred to purchase fixed assets, provided
such Indebtedness represents not less than 75% of the purchase price of
such assets as of the date of purchase thereof and no property other
than the assets so purchased secures such Indebtedness;
(k) Liens arising in connection with Capital Leases permitted
under SECTION 9.10(f), provided that no such Lien shall extend to any
Collateral or to any other property other than the assets subject to
such Capital Leases;
(l) Liens securing Indebtedness of a Subsidiary to the Parent
or to another wholly-owned Subsidiary; and
(m) to the extent deemed a Lien, Liens arising in transactions
permitted under SECTION 9.8.
9.4 RESTRICTED PAYMENTS. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing, unless,
after giving effect thereto, (i) the aggregate amount of Restricted Payments
made after the Closing Date to and including the date of making the Restricted
Payment in questions would not exceed the sum of: (x) $50,000,000; (y) fifty
percent (50%) of cumulative Consolidated Net Income for each Fiscal Year ending
after the Closing Date (less 100% thereof in case of a deficit); and (z) the net
cash proceeds received by the Parent from the sale of common stock subsequent to
the Closing Date or the net cash proceeds received by the Parent from the sale
of securities convertible into common stock of the Parent upon conversion
thereof subsequent to the Closing Date; (ii) no Default or Event of Default
would exist; and (iii) the Parent could incur at least $1.00 of additional
Indebtedness under SECTION 9.10.
9.5 MERGER OR CONSOLIDATION. Merge or consolidate with, or sell all or
substantially all of its assets to, any Person, except that:
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(a) The Parent may merge or consolidate with any Person,
provided that immediately after giving effect thereto (i) the Parent is
the successor corporation, (ii) there shall exist no Default or Event
of Default, and (iii) the Parent could incur at least $1.00 of
additional Indebtedness under SECTION 9.10; and
(b) so long as no Default or Event of Default has occurred and
is continuing, any Subsidiary may merge with any other Subsidiary or
the Parent.
9.6 SALE OF ASSETS. (a) Other than in the ordinary course of business,
including sales of receivables, leases, rental equipment and the residual
interest therein, and the sale of obsolete equipment or equipment which is worn
out or no longer used or useful, and other than as permitted by SECTION 9.5,
sell, lease, transfer or otherwise (including by way of merger) dispose of
(collectively a "Disposition") any assets, including capital stock of
Subsidiaries, in one or a series of transactions, to any Person, (i) if in any
Fiscal Year, after giving effect to such Disposition, the aggregate net book
value of assets subject to Dispositions during such Fiscal Year would exceed
seven and one-half percent (7 1/2%) of Consolidated Total Assets as of the
immediately preceding Fiscal Year or (ii) if, after giving effect to such
Disposition and all prior Dispositions since the Closing Date, the aggregate net
book value of assets subject to Dispositions would exceed, on a cumulative
basis, fifteen percent (15%) of Consolidated Total Assets as of the end of the
immediately preceding Fiscal Year or (iii) if a Default or Event of Default
exists or (iv) if the Borrower cannot incur at least $1.00 of additional Debt
pursuant to SECTION 9.10.
(b) Notwithstanding the foregoing limitations in clause (a) of this
SECTION 9.6 the Parent and Subsidiaries may make Dispositions among themselves.
9.7 TRANSACTIONS WITH AFFILIATES. Enter into, or be a party to any
transaction with any Affiliate of the Parent or any Subsidiary (which Affiliate
is not the Parent or a Subsidiary or a joint venture or other Person in which
the Parent or any Subsidiary owns less than a majority interest and which, if it
were a Subsidiary, would not be a Material Subsidiary), except as permitted by
law and in the ordinary course of business and pursuant to reasonable terms
which are no less favorable to the Parent or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person which is not an
Affiliate; PROVIDED, that the foregoing shall not affect the ability of the
Parent or any Subsidiary from determining, in its sole discretion, the amount or
form of executive or directors compensation from time to time or from effecting
any reorganization of the corporate or ownership structure of its Subsidiaries.
9.8 SALE AND LEASEBACK. Enter into any arrangement, directly or
indirectly, whereby the Parent or any Subsidiary of the Parent shall sell or
transfer any real property owned by it in order then or thereafter to lease such
real property or lease other real property that the Parent or any Subsidiary of
the Parent intends to use for substantially the same purpose as the real
property being sold or transferred; PROVIDED, HOWEVER, so long as no Default or
Event of Default has occurred and is continuing or would exist as a result of
such a transaction, the Parent and its Subsidiaries shall be permitted to (a)
enter into a sale and leaseback transaction pertaining to the Parent's
"Corporate Office Building" located at 951 Yamato Road, Boca Raton, Florida
33431 and the Parent's "Boca
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Operations Center" located at 6600 Congress Avenue, Boca Raton, Florida 33487 so
long as the purchase price for each such sale and leaseback is no less than the
fair market value of the applicable asset at the time of the sale and (b) other
sale and leaseback transactions so long as in the case of this clause (b) (i)
the aggregate net cash proceeds received for all such sales or dispositions does
not exceed $5,000,000 during the term of this Agreement; and (ii) the purchase
price for each such sale and leaseback is no less than the fair market value of
the applicable asset at the time of the sale.
9.9 SUBORDINATED DEBT AND SENIOR NOTES. Amend, supplement or otherwise
modify the terms of any of the Consolidated Subordinated Indebtedness or Senior
Notes or voluntarily prepay, redeem or repurchase any of the Consolidated
Subordinated Indebtedness or Senior Notes; PROVIDED, HOWEVER, (a) the Parent or
such Subsidiary may amend, supplement or otherwise modify the terms of any of
the Consolidated Subordinated Indebtedness or Senior Notes if after giving
effect to such amendment, supplement or modification, the terms of such
Consolidated Subordinated Indebtedness or Senior Notes are no less favorable to
the Parent, such Subsidiary or the Lenders than the terms of this Agreement,
such amendment, supplement or modification does not affect the subordination
provisions in any manner which is materially adverse to the Administrative Agent
or any of the Lenders, and (b) the Parent or any of its Subsidiaries shall be
permitted to convert such Indebtedness into equity (and make any necessary cash
payments associated with such conversion for fractional shares) or refinance
such Consolidated Subordinated Indebtedness or Senior Notes with other
Indebtedness so long as (i) in the case of a refinancing of Consolidated
Subordinated Indebtedness or Senior Notes, no Default or Event of Default has
occurred and is continuing or would exist as a result thereof and (ii) the terms
and conditions of such Indebtedness (including, without limitation, the
principal amount of such Indebtedness, the interest rate, the maturity,
covenants and defaults) are no less favorable to the Parent or such Subsidiary
as the terms and conditions contained in this Agreement; and PROVIDED, FURTHER,
and subject to compliance by the Parent with SECTION 2.6, the Parent or such
Subsidiary shall be permitted to make prepayments on such Consolidated
Subordinated Indebtedness or Senior Notes to the extent such Person is
contractually obligated to make or offer to make such prepayments as a result of
a change of control or similar event.
9.10 INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness, including available and unused amounts,
existing as of the Closing Date as set forth in SCHEDULE 7.6;
(b) Indebtedness owing to the Administrative Agent or any
Lender in connection with this Agreement, any Note or other Loan
Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) Indebtedness of a Subsidiary owed to the Borrower or
another Subsidiary;
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(e) additional unsecured Indebtedness in an aggregate
outstanding principal amount not to exceed $150,000,000;
(f) purchase money indebtedness and Capital Leases described
in SECTION 9.3(j) and (k) not to exceed an aggregate outstanding
principal amount at any time of $25,000,000;
(g) to the extent deemed Indebtedness sales and leaseback
transactions permitted under SECTION 9.8;
(h) Indebtedness extending the maturity of, or renewing,
refunding or refinancing, in whole or in part, Indebtedness incurred
under clauses (a), (e) and (g) of this SECTION 9.10, provided that the
terms of any such extension, renewal, refunding or refinancing
Indebtedness (and of any agreement or instrument entered into in
connection therewith) are no less favorable to the Administrative Agent
and the Lenders than the terms of the Indebtedness as in effect prior
to such action, and provided further that (1) the aggregate principal
amount of such Indebtedness shall not be increased by such action and
the interest rate or rates and fees payable on such extended, renewed,
refunding or refinanced Indebtedness shall be at a market rate for
similarly rated companies, (2) the group of direct or contingent
obligors on such Indebtedness shall not be expanded as a result of any
such action, and (3) immediately before and immediately after giving
effect to any such extension, renewal, refunding or refinancing, no
Default or Event of Default shall have occurred and be continuing.
9.11 COMPLIANCE WITH ERISA, THE CODE AND FOREIGN BENEFIT LAWS. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit the Parent or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code for which
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a civil penalty pursuant to Section 502(i) of ERISA or a tax pursuant
to Section 4975 of the Code may be imposed in a material amount; or
(f) permit (i) the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or (ii) establish or amend
any Employee Benefit Plan which establishment or amendment could result
in liability to the Parent or any ERISA Affiliate or materially
increase the obligation of the Parent or any ERISA Affiliate to a
Multiemployer Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof.
9.12. FISCAL YEAR. Change its Fiscal Year.
9.13. DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to SECTION 9.5.
9.14. RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except for Rate Hedging Obligations incurred to limit risks
of currency or interest rate fluctuations to which the Parent and its
Subsidiaries are otherwise subject by virtue of the operations of their
businesses and not for speculative purposes.
9.15. NEGATIVE PLEDGE CLAUSES. Enter into or cause, suffer or permit to
exist any agreement with any Person other than the Administrative Agent and the
Lenders pursuant to this Agreement or any other Loan Documents which prohibits
or limits the ability of any of the Parent or any Subsidiary to create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired except for those contained in agreements
described in SECTION 9.14 or in the Note Agreement (1993) or the Note Agreement
(1996); PROVIDED that the Parent and any Subsidiary may enter into or cause,
suffer or permit to exist any such an agreement in connection with, (i)
Indebtedness permitted under SECTIONS 9.10(a), (e), (f) or (h) and (ii)
securitizations or other receivables financings (including any documents related
thereto) or sale and leaseback transactions.
9.16. RESTRICTIONS ON INVESTMENTS. Make additional cash Investments
after the Closing Date in its Subsidiaries which are not Domestic Subsidiaries,
whether in the form of intercompany debt or in the form of contributions to the
stockholder's equity of such Subsidiaries, except to the extent that the
aggregate net increase in such intercompany Indebtedness and stockholder's
equity after the Closing Date as a result of such cash Investments does not
exceed an amount equal to the sum of (i) $62,500,000, PLUS (ii) the aggregate
amount of all cash dividends paid by the Subsidiaries and received by the Parent
after the Closing Date; provided, that without limiting the foregoing a
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Subsidiary which is not a Domestic Subsidiary (a "Foreign Subsidiary") may make
additional cash investments in a Foreign Subsidiary after the Closing Date as
long as such investing Foreign Subsidiary is not itself a Borrower and the funds
utilized to make any such investment were not, directly or indirectly, borrowed
from the Lenders under this Agreement.
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ARTICLE X
EVENTS OF DEFAULT AND ACCELERATION
10.1 EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of ARTICLE II or ARTICLE III or ARTICLE IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Administrative Agent within three (3) days of the date
on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in SECTION 8.8, 8.12, 8.13 or ARTICLE IX;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the
Administrative Agent or an Executive Officer of the Parent becomes
aware of such default, or if a default shall be made in the performance
or observance of, or shall occur under, any covenant, agreement or
provision contained in any of the other Loan Documents (beyond any
applicable grace period, if any, contained therein) or in any
instrument or document evidencing or creating any obligation, guaranty,
or Lien in favor of the Administrative Agent or any of the Lenders or
delivered to the Administrative Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than as expressly provided for hereunder or thereunder or
with the express written consent of the Administrative Agent), or if
without the written consent of the Lenders, this Agreement or any other
Loan Document shall be disaffirmed or shall terminate, be terminable or
be terminated or become void or unenforceable for any reason whatsoever
(other than as expressly provided for hereunder or thereunder or with
the express written consent of the Administrative Agent or other than
as not enforceable pursuant to applicable law); or
(e) if there shall occur, other than by reason of a change of
control, (i) a default, which is not cured or waived, in the payment of
any principal, interest, premium or other
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amount with respect to any Indebtedness (other than the Loans and other
Obligations) of the Parent or any Material Subsidiary in an amount not
less than $10,000,000 in the aggregate principal amount outstanding, or
(ii) a default, which is not cured or waived, in the performance,
observance or fulfillment of any term or covenant contained in any
agreement or instrument under or pursuant to which any such
Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Parent or any Material Subsidiary, or (iii) any other
event of default as specified in any agreement or instrument under or
pursuant to which any such Indebtedness may have been issued, created,
assumed, guaranteed or secured by the Borrower or any Material
Subsidiary, and such default or event of default shall continue for
more than the period of grace, if any, therein specified, or such
default or event of default shall permit the holder of any such
Indebtedness (or any agent or trustee acting on behalf of one or more
holders) to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Administrative Agent or any
Lender by or on behalf of the Parent or any Material Subsidiary
pursuant to or in connection with any Loan Document, or otherwise,
shall be false or misleading in any material respect when given; or
(g) if the Parent or any Material Subsidiary shall be unable
to pay its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Parent or any Material Subsidiary or
of the whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Parent or any
Material Subsidiary seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state,
which petition is not dismissed within sixty (60) days; or if, under
the provisions of any other law for the relief or aid of debtors, a
court of competent jurisdiction shall assume custody or control of the
Parent or any Material Subsidiary or of the whole or any substantial
part of its properties, which control is not relinquished within sixty
(60) days; or if there is commenced against the Parent or any Material
Subsidiary any proceeding or petition seeking reorganization,
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state which proceeding or petition remains undismissed for a period of
sixty (60) days; or if the Parent or any Material Subsidiary takes any
action to indicate its consent to or approval of any such proceeding or
petition; or
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(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $1,000,000 is rendered against the Parent or
any Material Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Parent's or Material Subsidiaries'
properties for any amount in excess of $1,000,000 in the aggregate; and
such judgment, attachment, injunction or execution remains unpaid,
unstayed, undischarged, unbonded or undismissed for a period of thirty
(30) days; or
(j) if the Parent or any Material Subsidiary shall, other than
in the ordinary course of business (as determined by past practices),
suspend all or any part of its operations material to the conduct of
the business of the Borrower or such Material Subsidiary for a period
of more than 60 days;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been cured or waived,
(A) either or both of the following actions may be taken: (i)
the Administrative Agent may, and at the direction of the Required
Lenders shall, declare any obligation of the Lenders and the Issuing
Bank to make further Loans or to issue additional Letters of Credit
terminated, whereupon the obligation of each Lender to make further
Loans and of the Issuing Bank to issue additional Letters of Credit,
hereunder shall terminate immediately, and (ii) the Administrative
Agent shall at the direction of the Required Lenders, at their option,
declare by notice to the Parent any or all of the Obligations to be
immediately due and payable, and the same, including all interest
accrued thereon and all other obligations of the Parent to the
Administrative Agent and the Lenders, shall forthwith become
immediately due and payable without presentment, demand, protest,
notice or other formality of any kind, all of which are hereby
expressly waived, anything contained herein or in any instrument
evidencing the Obligations to the contrary notwithstanding; PROVIDED,
however, that notwithstanding the above, if there shall occur an Event
of Default under clause (g) or (h) above, then the obligation of the
Lenders to make Loans and of the Issuing Bank to issue Letters of
Credit hereunder shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the necessity
of any action by the Administrative Agent or the Required Lenders or
notice to the Administrative Agent or the Lenders;
(B) The Parent shall, upon demand of the Administrative Agent
or the Required Lenders, deposit cash with the Administrative Agent in
an amount equal to the undrawn amount of any Letter of Credit, as
collateral security for the repayment of any future drawings or
payments under such Letters of Credit, and such amounts shall be held
by the Administrative Agent pursuant to the terms of the LC Account
Agreement; and
(C) the Administrative Agent and each of the Lenders shall
have all of the rights and remedies available under the Loan Documents
or under any applicable law.
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10.2 ADMINISTRATIVE AGENT TO ACT. In case any one or more Events of
Default shall occur and not have been waived, the Administrative Agent may, and
at the direction of the Required Lenders shall, proceed to protect and enforce
their rights or remedies either by suit in equity or by action at law, or both,
whether for the specific performance of any covenant, agreement or other
provision contained herein or in any other Loan Document, or to enforce the
payment of the Obligations or any other legal or equitable right or remedy.
10.3 CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Administrative Agent is intended to be exclusive of any other
rights or remedies contained herein or in any other Loan Document, and every
such right or remedy shall be cumulative and shall be in addition to every other
such right or remedy contained herein and therein or now or hereafter existing
at law or in equity or by statute, or otherwise.
10.4 NO WAIVER. No course of dealing between the Parent and any Lender
or the Administrative Agent or any failure or delay on the part of any Lender or
the Administrative Agent in exercising any rights or remedies under any Loan
Document or otherwise available to it shall operate as a waiver of any rights or
remedies and no single or partial exercise of any rights or remedies shall
operate as a waiver or preclude the exercise of any other rights or remedies
hereunder or of the same right or remedy on a future occasion.
10.5 ALLOCATION OF PROCEEDS. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
ARTICLE X hereof, all payments received by the Administrative Agent hereunder,
in respect of any principal of or interest on the Obligations or any other
amounts payable by the Parent hereunder, shall be applied by the Administrative
Agent in the following order:
(a) amounts due to the Lenders and each Issuing Bank pursuant
to SECTIONS 4.6(a), 4.6(b), 4.6(c) and 12.5;
(b) amounts due to the Administrative Agent pursuant to
SECTION 4.6(d);
(c) payments of interest on Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders (with
amounts payable in respect of Swing Line Outstandings being included in
such calculation and paid to Bank of America);
(d) payments of principal of Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders (with
amounts payable in respect of Swing Line Outstandings being included in
such calculation and paid to Bank of America);
(e) payments of cash amounts to the Administrative Agent in
respect of outstanding Letters of Credit pursuant to SECTION 10.1(B);
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(f) amounts due to the Issuing Bank, the Administrative Agent
and the Lenders pursuant to SECTIONS 3.2(h), 8.16 and 12.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) amounts due to any of the Lenders or their affiliates in
respect of Obligations consisting of liabilities under any Swap
Agreement with any of the Lenders or their affiliates on a pro rata
basis according to the amounts owed; and
(i) any surplus remaining after application as provided for
herein, to the Parent or otherwise as may be required by applicable
law.
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ARTICLE XI
THE ADMINISTRATIVE AGENT
11.1 APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
under this Agreement and the other Loan Documents with such powers and
discretion as are specifically delegated to the Administrative Agent by the
terms of this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. The Administrative Agent (which
term as used in this sentence and in SECTION 11.5 and the first sentence of
SECTION 11.6 hereof shall include its affiliates and its own and its affiliates'
officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Borrower or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Borrower or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Borrower or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
11.2 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely upon any certification, notice, instrument, writing, or
other communication (including, without limitation, any thereof by telephone or
telefacsimile) believed by it to be genuine and correct and to have been signed,
sent or made by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel for any Borrower),
independent accountants, and
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other experts selected by the Administrative Agent. The Administrative Agent may
deem and treat the payee of any Note as the holder thereof for all purposes
hereof unless and until the Administrative Agent receives and accepts an
Assignment and Acceptance executed in accordance with SECTION 12.1 hereof. As to
any matters not expressly provided for by this Agreement, the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding on all of the Lenders; PROVIDED,
HOWEVER, that the Administrative Agent shall not be required to take any action
that exposes the Administrative Agent to personal liability or that is contrary
to any Loan Document or applicable law or unless it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking any such action.
11.3 DEFAULTS. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
the Administrative Agent has received written notice from a Lender or the
Borrower specifying such Default or Event of Default and stating that such
notice is a "Notice of Default." In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to SECTION 11.2 hereof) take such action
with respect to such Default or Event of Default as shall reasonably be directed
by the Required Lenders, PROVIDED THAT, unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interest of the Lenders.
11.4 RIGHTS AS LENDER. With respect to its Revolving Credit Commitment
and the Loans made by it and Letters of Credit issued by it, Bank of America
(and any successor acting as Administrative Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. Bank of
America (and any successor acting as Administrative Agent) and its affiliates
may (without having to account therefor to any Lender) accept deposits from,
lend money to, make investments in, provide services to, and generally engage in
any kind of lending, trust, or other business with the Parent or any of its
Subsidiaries or affiliates as if it were not acting as Administrative Agent, and
Bank of America (and any successor acting as Administrative Agent) and its
affiliates may accept fees and other consideration from the Parent or any of its
Subsidiaries or affiliates for services in connection with this Agreement or
otherwise without having to account for the same to the Lenders.
11.5 INDEMNIFICATION. The Lenders agree to indemnify the Administrative
Agent (to the extent not reimbursed under SECTION 12.9 hereof, but without
limiting the obligations of the Borrowers under such Section) ratably in
accordance with their respective Revolving Credit Commitments, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including attorneys' fees), or disbursements of any kind and
nature
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whatsoever that may be imposed on, incurred by or asserted against the
Administrative Agent (including by any Lender) in any way relating to or arising
out of any Loan Document or the transactions contemplated thereby or any action
taken or omitted by the Administrative Agent under any Loan Document; PROVIDED
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Person to be indemnified.
Without limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any costs or
expenses payable by the Borrowers under SECTION 12.5, to the extent that the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Borrowers. The agreements contained in this SECTION 11.5 shall survive
payment in full of the Loans and all other amounts payable under this Agreement.
11.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Parent and its Subsidiaries and decision to enter into this Agreement and that
it will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under the Loan Documents. Except for notices,
reports, and other documents and information expressly required to be furnished
to the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the affairs, financial condition, or business of
the Parent or any of its Subsidiaries or affiliates that may come into the
possession of the Administrative Agent or any of its affiliates.
11.7 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving notice thereof to the Lenders and the Borrowers.
Upon any such resignation, the Required Lenders shall have the right, with the
consent of the Parent, so long as there is no Default or Event of Default, and
so long as such consent is not unreasonably withheld, to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of America having
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this ARTICLE XI shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
11.8 OTHER AGENTS. Neither the Syndication Agent nor the Documentation
Agent shall have any duties hereunder other than as a Lender.
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ARTICLE XII
MISCELLANEOUS
12.1 ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Loans, its
Note, its Revolving Credit Commitment); PROVIDED, HOWEVER, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, any such partial assignment
shall be in an amount at least equal to $5,000,000 or an
integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Agreement and the Notes (excluding
outstanding Competitive Bid Loans and except that any
assignment by Bank of America shall not include its rights,
benefits or duties as the Issuing Bank or as the provider of
Swing Line Loans); and
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance an
Assignment and Acceptance in the form of EXHIBIT B hereto,
together with any Note subject to such assignment and a
processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Agreement. Upon the consummation of any
assignment pursuant to this Section, the assignor, the Administrative
Agent and the Borrowers shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrowers and the
Administrative Agent certification as to exemption from deduction or
withholding of Taxes in accordance with SECTION 5.6.
(b) The Administrative Agent shall maintain at its address
referred to in SECTION 12.2 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Revolving Credit
Commitments of, and principal amount of the Loans owing to, each Lender
from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all
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purposes, absent manifest error, and the Borrowers, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable
prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT B hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment or its Loans); PROVIDED, HOWEVER, that (i)
such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participant
shall be entitled to the benefit of the yield protection provisions
contained in ARTICLE V but only to the extent that such Lender selling
the participation is entitled thereto, and (iv) the Borrowers shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of
the Borrowers relating to its Loans and its Note and to approve any
amendment, modification, or waiver of any provision of this Agreement
(other than amendments, modifications, or waivers decreasing the amount
of principal of or the rate at which interest is payable on such Loans
or Note, extending any scheduled principal payment date or date fixed
for the payment of interest on such Loans or Note, or extending its
Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the
Parent or any of its Subsidiaries in the possession of such Lender from
time to time to assignees and participants (including prospective
assignees and participants) subject to such assignee or participant
agreeing to the provisions of SECTION 12.14.
(g) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrowers which are contained in the
Loan Documents shall inure to the benefit of the successors and
permitted
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assigns of the Administrative Agent, the Lenders, or any of them. The
Borrowers may not assign or otherwise transfer to any other Person any
right, power, benefit, or privilege (or any interest therein) conferred
hereunder or under any of the other Loan Documents, or delegate (by
assumption or otherwise) to any other Person any duty, obligation, or
liability arising hereunder or under any of the other Loan Documents,
and any such purported assignment, delegation or other transfer shall
be void.
12.2 NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrowers:
Sensormatic Electronics Corporation
951 Yamato Road
Boca Raton, Florida 33431-0700
Attn: Treasurer
Telephone: (561) 989-7912
Telefacsimile: (561) 989-7215
(b) if to the Administrative Agent:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 388-3919
Telefacsimile: (704) 386-9923
with a copy to:
Bank of America, N.A.
100 S.E. Second Street, 14th Floor
Miami, Florida 33131
Attention: Richard Starke, Credit Products
Telephone: (305) 533-2435
Telefacsimile: (305) 533-2437
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(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
12.3 RIGHT OF SET-OFF; ADJUSTMENTS.
(a) Regardless of the adequacy of any collateral, during the
continuance of any Event or Default, the Borrowers acknowledge that by
operation of applicable law any deposits or other sums credited by or
due from any of the Lenders to a Borrower and any securities or other
property of a Borrower in the possession of such Lender or any
affiliate may be applied to or set off by such Lender against the
payment of Obligations and any and all other liabilities, direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of a Borrower to such Lender.
(b) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans owing to it, or
interest thereon, such benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such
other Lender's Loans owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of
the Lenders; PROVIDED, HOWEVER, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted
Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest. Each Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this SECTION 12.3 may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of such Borrower in
the amount of such participation.
12.4 SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
Revolving Credit Commitment hereunder or the Borrower has continuing obligations
hereunder unless otherwise provided herein.
12.5 EXPENSES. The Parent agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the syndication,
preparation, execution, delivery, administration, modification, and amendment of
this Agreement, the other Loan Documents, and the other documents to be
delivered hereunder, including, without limitation, the reasonable fees and
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expenses of counsel for the Administrative Agent (including the cost of internal
counsel) with respect thereto and with respect to advising the Administrative
Agent as to its rights and responsibilities under the Loan Documents. The Parent
further agrees to pay on demand all costs and expenses of the Administrative
Agent and the Lenders, if any (including, without limitation, reasonable
attorneys' fees and expenses and the cost of internal counsel), in connection
with the enforcement (whether through negotiations, legal proceedings, or
otherwise) of the Loan Documents.
12.6 AMENDMENTS AND WAIVERS. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrowers or other applicable Person
party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than the Credit Agreement) the Administrative Agent on behalf of
the Required Lenders (and, if ARTICLE XI or the rights or duties of the
Administrative Agent are affected thereby, by the Administrative Agent);
PROVIDED that no such amendment or waiver shall, unless signed by all the
Lenders, (i) increase the Revolving Credit Commitments of the Lenders or the
Total Revolving Credit Commitment (ii) reduce the principal of or rate of
interest on any Loan, Reimbursement Obligation or any fees or other amounts
payable hereunder, (iii) postpone any date fixed for the payment of any
scheduled installment of principal of or interest on any Loan or any fees or
other amounts payable hereunder or for termination of any Revolving Credit
Commitment, or (iv) change the percentage of the Revolving Credit Commitment or
of the unpaid principal amount of the Notes or Reimbursement Obligation, or the
number of Lenders, which shall be required for the Lenders or any of them to
take any action under this SECTION 12.6 or any other provision of this Agreement
or (v) release any guarantor except as expressly contemplated in the Loan
Documents; and PROVIDED, FURTHER, that no such amendment or waiver that affects
the rights, privileges or obligations of Bank of America as provider of Swing
Line Loans, shall be effective unless signed in writing by Bank of America or
that affects the rights, privileges or obligations of the Issuing Bank as issuer
of Letters of Credit, shall be effective unless signed in writing by the Issuing
Bank.
No notice to or demand on the Borrowers in any case shall entitle the
Borrowers to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Administrative Agent's part in exercising any
right, remedy or option shall operate as a waiver of such or any other right,
remedy or option or of any Default or Event of Default.
12.7 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such fully-executed
counterpart. Signatures on communications and other documents may be transmitted
by facsimile only with the consent of the Administrative Agent in its sole and
absolute discretion in each instance. The effectiveness of any such signatures
accepted by the Administrative Agent shall, subject to applicable law, have the
same force and effect as manual signatures and shall be binding on all parties.
The Administrative Agent may also require that any such signature be confirmed
by a manually-signed hardcopy thereof. Each party hereto hereby adopts as an
original
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executed signature page each signature page hereafter furnished by such party to
the Administrative Agent (or an agent of the Administrative Agent) bearing (with
the consent of the Administrative Agent) a facsimile signature by or on behalf
of such party. Nothing contained in this Section shall limit the provisions of
SECTION 11.2.
12.8 TERMINATION. The termination of this Agreement shall not affect
any rights of the Borrowers, the Lenders or the Administrative Agent or any
obligation of the Borrower, the Lenders or the Administrative Agent, arising
prior to the effective date of such termination, and the provisions hereof shall
continue to be fully operative until all transactions entered into or rights
created or obligations incurred prior to such termination have been fully
disposed of, concluded or liquidated and the Obligations arising prior to or
after such termination have been irrevocably paid in full. The rights granted to
the Administrative Agent for the benefit of the Lenders under the Loan Documents
shall continue in full force and effect, notwithstanding the termination of this
Agreement, until all of the Obligations have been paid in full after the
termination hereof (other than Obligations in the nature of continuing
indemnities or expense reimbursement obligations not yet due and payable, which
shall continue) or the Borrowers have furnished the Lenders and the
Administrative Agent with an indemnification satisfactory to the Administrative
Agent and each Lender with respect thereto. Notwithstanding the foregoing, if
after receipt of any payment of all or any part of the Obligations, any Lender
is for any reason compelled to surrender such payment to any Person because such
payment is determined to be void or voidable as a preference, impermissible
setoff, a diversion of trust funds or for any other reason, this Agreement shall
continue in full force and the Parent shall be liable to, and shall indemnify
and hold the Administrative Agent or such Lender harmless for, the amount of
such payment surrendered until the Administrative Agent or such Lender shall
have been finally and irrevocably paid in full. The provisions of the foregoing
sentence shall be and remain effective notwithstanding any contrary action which
may have been taken by the Administrative Agent or the Lenders in reliance upon
such payment, and any such contrary action so taken shall be without prejudice
to the Administrative Agent or the Lenders' rights under this Agreement and
shall be deemed to have been conditioned upon such payment having become final
and irrevocable.
12.9 INDEMNIFICATION; LIMITATION OF LIABILITY.
(a) The Parent agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their affiliates and
their respective officers, directors, employees, agents, and advisors
(each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or
proceeding or preparation of defense in connection therewith) the Loan
Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans, except to the extent such
claim, damage, loss, liability, cost, or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation,
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litigation or other proceeding to which the indemnity in this SECTION
12.9 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Borrower, its
directors, shareholders or creditors or an Indemnified Party or any
other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated.
The Parent agrees that no Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to it,
any of its Subsidiaries or any security holders or creditors thereof
arising out of, related to or in connection with the transactions
contemplated herein, except to the extent that such liability is found
in a final non-appealable judgment by a court of competent jurisdiction
to have directly resulted from such Indemnified Party's gross
negligence or willful misconduct. Each of the Borrower, the
Administrative Agent and the Lenders agree not to assert any claim
against one another or any of their affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and
advisers, on any theory of liability, for special, indirect,
consequential, or punitive damages arising out of or otherwise relating
to the Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans.
(b) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 12.9 shall survive the payment in
full of the Loans and all other amounts payable under this Agreement.
12.10 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
12.11 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letter dated as
of October 29, 1999, executed by Bank of America and BAS and accepted by the
Parent, survive the closing of the Revolving Credit Facility and Letter of
Credit Facility, shall survive and continue in effect).
12.12 AGREEMENT CONTROLS. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with or differs from any express
term of this Agreement, the terms and provisions of this Agreement shall control
to the extent of such conflict or difference.
12.13 USURY SAVINGS CLAUSE. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as
101
<PAGE> 108
such term is defined below). If the rate of interest (determined without regard
to the preceding sentence) under this Agreement at any time exceeds the Highest
Lawful Rate (as defined below), the outstanding amount of the Loans made
hereunder shall bear interest at the Highest Lawful Rate until the total amount
of interest due hereunder equals the amount of interest which would have been
due hereunder if the stated rates of interest set forth in this Agreement had at
all times been in effect. In addition, if when the Loans made hereunder are
repaid in full the total interest due hereunder (taking into account the
increase provided for above) is less than the total amount of interest which
would have been due hereunder if the stated rates of interest set forth in this
Agreement had at all times been in effect, then to the extent permitted by law,
the Borrowers shall pay to the Administrative Agent an amount equal to the
difference between the amount of interest paid and the amount of interest which
would have been paid if the Highest Lawful Rate had at all times been in effect.
Notwithstanding the foregoing, it is the intention of the Lenders and the
Borrowers to conform strictly to any applicable usury laws. Accordingly, if any
Lender contracts for, charges, or receives any consideration which constitutes
interest in excess of the Highest Lawful Rate, then any such excess shall be
cancelled automatically and, if previously paid, shall at such Lender's option
be applied to the outstanding amount of the Loans made hereunder or be refunded
to the Borrowers. As used in this paragraph, the term "Highest Lawful Rate"
means the maximum lawful interest rate, if any, that at any time or from time to
time may be contracted for, charged, or received under the laws applicable to
such Lender which are presently in effect or, to the extent allowed by law,
under such applicable laws which may hereafter be in effect and which allow a
higher maximum nonusurious interest rate than applicable laws now allow.
12.14 CONFIDENTIALITY. The Administrative Agent and each Lender (each,
a "LENDING PARTY") agrees to keep confidential any information furnished or made
available to it by the Parent or any Borrowing Subsidiary pursuant to this
Agreement and shall not disclose information to any Person in the same or
similar Line of Business as the Parent or its Subsidiaries; PROVIDED that
nothing herein shall prevent any Lending Party from disclosing such information
(a) to any other Lending Party or any affiliate of any Lending Party, or any
officer, director, employee, agent, or advisor of any Lending Party or affiliate
of any Lending Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) as required by any
law, rule, or regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Lending Party other than as a result of a disclosure by any Lending Party
prohibited by this Agreement or through disclosure by any other Person whom the
Administrative Agent or such Lender has reason to believe disclosed such
information in violation of or contrary to the confidentiality requirements or
policies of the Parent or a Subsidiary, (g) in connection with any litigation to
which such Lending Party or any of its affiliates may be a party arising by
reason of or related to this Agreement, (h) to the extent necessary in
connection with the exercise of any remedy under this Agreement or any other
Loan Document, and (i) subject to provisions substantially similar to those
contained in this Section, to any actual or proposed participant or assignee.
The Lenders shall give the Parent notice of any required disclosure of such
information pursuant to clauses (c), (d), (e) or (g) hereof.
102
<PAGE> 109
12.15 GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
(b) EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN, STATE OF NEW YORK, UNITED STATES OF AMERICA OR THE COUNTY OF
PALM BEACH, STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWERS
PROVIDED IN SECTION 12.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN
THE COURTS OF ANY JURISDICTION WHERE THE BORROWERS OR ANY OF THE
BORROWERS' PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND
103
<PAGE> 110
HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION,
SUIT OR PROCEEDING.
(f) EACH BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signatures on following pages]
104
<PAGE> 111
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
SENSORMATIC ELECTRONICS CORPORATION
WITNESS:
/s/ R. Malloy McKeithen By: /s/ Thomas F. Donahue
- ------------------------------- -------------------------------------
Name: Thomas F. Donahue
/s/ Terry L. Witcher Title: Vice President and Treasurer
- -------------------------------
Signature Page 1 of 6
<PAGE> 112
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
By: /s/ Richard M. Starke
----------------------------------------
Name: Richard M. Starke
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ Richard M. Starke
----------------------------------------
Name: Richard M. Starke
Title: Managing Director
Lending Office for Base Rate Loans:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone:(704) 388-3919
Telefacsimile:(704) 386-9923
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 053000196
Account No.:_____________________________
Reference: Sensormatic Electronics Corporation
Attention: Agency Services
Lending Office for Eurodollar Rate Loans:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone:(704) 388-3919
Telefacsimile:(704) 386-9923
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 053000196
Account No.:______________________________
Reference: Sensormatic Electronics Corporation
Attention: Agency Services
Signature Page 2 of 6
<PAGE> 113
SUNTRUST BANK, SOUTH FLORIDA, N.A.
By: /s/ W. David Wisdom
---------------------------------
Name: W. David Wisdom
Title: Vice President
Lending Office:
501 E. Las Olas Boulevard
Fort Lauderdale, Florida 33301
Wire Transfer Instructions:
SunTrust Bank, South Florida, N.A.
Fort Lauderdale, Florida
ABA #067-006-076
Account #9607004110
Corporate Banking
Attention: Jennifer Campbell
Reference: Sensormatic Electronics Corporation
Signature Page 3 of 6
<PAGE> 114
BANK ONE, NA
(CHICAGO MAIN OFFICE)
By: /s/ Jennifer Schmoll
-------------------------------------
Name: Jennifer Schmoll
Title: Customer Service Officer
Lending Office:
1 Bank One Plaza
Suite 0324
Chicago, Illinois 60670
Wire Transfer Instructions:
Bank One, NA
Chicago, Illinois
ABA #071000013
Account #4811-5286 00000
Loan Processing Dept.
Attention: Mattie Reed
Reference: Sensormatic Electronics Corporation
Signature Page 4 of 6
<PAGE> 115
BANKBOSTON, N.A.
By: /s/ Lynn R. Schade
-----------------------------------
Name: Lynn R. Schade
Title: Vice President
Lending Office:
100 Federal Street
Boston, Massachusetts 02110
Wire Transfer Instructions:
BankBoston
Boston, Massachusetts
ABA #011000390
Account #540-99647
Account Name: High Technology and
Environmental Services
Adm 50, 60
Attention: Anthony Dunn
Reference: Sensormatic Electronics Corporation
Signature Page 5 of 6
<PAGE> 116
DRESDNER BANK LATEINAMERIKA AG,
MIAMI AGENCY
By: /s/ Alan Hills s/s Frank Huthnane
--------------------------------------------
Name: Alan Hills Frank Huthnane
Title: Vice President Vice President
Lending Office:
801 Brickell Avenue
Suite 1100
Miami, Florida 33131
Wire Transfer Instructions:
Dresdner Bank Lateinamerika AG
Miami, Florida
ABA #0660-1085-6
Attention: Credit Services Department
Reference: Sensormatic Electronics Corporation
Signature Page 6 of 6
<PAGE> 117
EXHIBIT A
Applicable Commitment Percentages
<TABLE>
<CAPTION>
Revolving Applicable
Credit Commitment
Lender Commitment Percentage
- ------ ---------- ----------
<S> <C> <C>
Bank of America, N.A $ 30,000,000.00 26.086956521739100%
SunTrust Bank, South Florida, N.A. 25,000,000.00 21.739130434782600%
Bank One, NA
(Chicago Main Office) 25,000,000.00 21.739130434782600%
BankBoston, N.A. 20,000,000.00 17.391304347826100%
Dresdner Bank Lateinamerika AG,
Miami Agency 15,000,000.00 13.043478260869600%
--------------- -------------------
$115,000,000.00 100%
</TABLE>
A-1
<PAGE> 118
EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the Credit Agreement dated as of December 9, 1999
(the "Credit Agreement") among Sensormatic Electronics Corporation, a Delaware
corporation, and the Borrowing Subsidiaries parties thereto (collectively, the
"Borrowers"), the Lenders (as defined in the Credit Agreement) and Bank of
America, N.A., as agent for the Lenders (the "Administrative Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on SCHEDULE 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on SCHEDULE 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents.* After
giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and the amount of the Loans owing to the Assignee will be as set
forth on SCHEDULE 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or the
performance or observance by any Borrower of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Notes held by the Assignor and requests that the
Administrative Agent exchange such Notes for new Notes payable to the order of
the Assignee in an amount equal to the Revolving Credit Commitment assumed by
the Assignee pursuant hereto and to the Assignor in an amount equal to the
Revolving Credit Commitment retained by the Assignor, if any, as specified on
SCHEDULE 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
SECTION 8.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit
- -----------------
* In the case of Bank of America as Assignor, excluding any rights,
benefits or duties as provider of Swing Line Loans or as Issuing Bank.
B-1
<PAGE> 119
decisions in taking or not taking action under the Credit Agreement; (iii)
confirms that it is an Eligible Assignee; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service or other forms required under SECTION
6.6.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Administrative
Agent, unless otherwise specified on SCHEDULE 1.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all payments
under the Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of SCHEDULE 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused SCHEDULE
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
B-2
<PAGE> 120
Schedule 1
Revolving Credit
Facility
----------------
Percentage interest assigned: _____%
Assignee's Commitment: $
---------------
Aggregate outstanding principal amount of Loans $
assigned: ---------------
Principal amount of Note payable to Assignee: $
---------------
Principal amount of Note payable to Assignor: $
---------------
Effective Date (if other than date of acceptance by *
Administrative Agent): ---------,-----
[NAME OF ASSIGNOR], as Assignor
By:
-----------------------------------
Title:
Dated: __________, ____
[NAME OF ASSIGNEE], as Assignee
By:
-----------------------------------
Title:
Domestic Lending Office:
Eurodollar Lending Office:
- -----------------------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Administrative Agent.
B-3
<PAGE> 121
Accepted [and Approved] **
this ___ day of ___________, ____
BANK OF AMERICA, N.A., as Administrative Agent
By:
----------------------------------
Title:
[Approved this ____ day
of ____________, ____
SENSORMATIC ELECTRONICS CORPORATION
By: ]**
-----------------------------------
Title:
- -----------------------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee."
B-4
<PAGE> 122
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Credit Agreement dated as of December
9, 1999 (the "Agreement") among Sensormatic Electronics Corporation, a Delaware
corporation (the "Parent"), and the Borrowing Subsidiaries, if any,
(collectively, with the Parent, the "Borrowers"), the Lenders (as defined in the
Agreement), and Bank of America, N.A., as Administrative Agent for the Lenders
("Administrative Agent"). Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Parent hereby nominate, constitute and appoint each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrowers to act as Authorized
Representative under the Loan Documents:
<TABLE>
<CAPTION>
Name and Address Office Specimen Signature
- ------------------------------------ ----------------------------------- ----------------------------------
<S> <C> <C>
-------------------------------- ---------------------------- ---------------------------
--------------------------------
--------------------------------
-------------------------------- ---------------------------- ---------------------------
-------------------------------- ---------------------------- ---------------------------
--------------------------------
</TABLE>
Parent hereby revokes (effective upon receipt hereof by the
Administrative Agent) the prior appointment of ________________ as an Authorized
Representative.
This the ___ day of __________________, ____.
SENSORMATIC ELECTRONICS CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
--------------------------------------
C-1
<PAGE> 123
EXHIBIT D-1
Form of Borrowing Notice
To: Bank of America, N.A.,
as Administrative Agent
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9923
Reference is hereby made to the Credit Agreement dated as of December
9, 1999 (the "Agreement") among Sensormatic Electronics Corporation (the
"Parent"), the Borrowing Subsidiaries (together with the Parent the "Borrowers"
and individually a "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Administrative Agent for the Lenders ("Administrative
Agent"). Capitalized terms used but not defined herein shall have the respective
meanings therefor set forth in the Agreement.
The undersigned Borrower through its Authorized Representative hereby
gives notice to the Administrative Agent that Loans of the type and amount set
forth below be made on the date indicated:
<TABLE>
<CAPTION>
Type of Loan
(check one) Interest Period(1) Aggregate Amount(2) Date of Loan(3)
- ------------------------------ ------------------------ ----------------------------- --------------------
<S> <C> <C> <C>
Revolving Loan
- ------------------------------
Base Rate Loan
------------------ ----------------------- -----------------
Eurodollar Rate Loan
------------------ ----------------------- -----------------
Alternative
------------------ ----------------------- -----------------
Currency _______(4)
</TABLE>
- -----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $_________ or if greater an integral multiple of $_______, unless a
Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan and four
(4) Business Days later if an Alternative Currency Loan.
(4) Insert either British Pounds or euro unless Lenders have agreed otherwise.
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [INSERT
TRANSMITTAL INSTRUCTIONS].
The undersigned hereby certifies that:
D-1-1
<PAGE> 124
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in ARTICLE VII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct in all material respects as of
the date hereof except that the reference to the financial statements in SECTION
7.6(a) of the Agreement shall be deemed (solely for the purpose of the
representation and warranty contained in such SECTION 7.6(a) but not for the
purpose of any cross reference to such SECTION 7.6(a) or to the financial
statements described therein contained in any other provision of SECTION 7.6 or
elsewhere in ARTICLE VII) to refer to those financial statements most recently
delivered to you pursuant to SECTION 8.1 of the Agreement (it being understood
that any financial statements delivered pursuant to SECTION 8.1(b) have not been
certified by independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
-------------------------------------------
[Insert Name of Borrower]
BY:
----------------------------------------
Authorized Representative
DATE:
--------------------------------------
D-1-2
<PAGE> 125
EXHIBIT D-2
Form of Borrowing Notice--Swing Line Loans
To: Bank of America, N.A.,
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9923
Reference is hereby made to the Credit Agreement dated as of December
9, 1999 (the "Agreement") among Sensormatic Electronics Corporation (the
"Parent"), the Borrowing Subsidiaries (together with the Parent the "Borrowers"
and individually, a "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Administrative Agent for the Lenders ("Administrative
Agent"). Capitalized terms used but not defined herein shall have the respective
meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to Bank of America that a Swing Line Loan of the amount set forth below be made
on the date indicated:
Amount(1) Date of Loan
- --------------------------------- ---------------------------------
$---------- ----------, ----
- -----------------------
(1) Must be $250,000 or if greater an integral multiple of
$50,000, unless a Base Rate Refunding Loan.
The Borrower hereby requests that the proceeds of Swing Line Loans
described in this Borrowing Notice be made available to the Borrower as follows:
[INSERT TRANSMITTAL INSTRUCTIONS]
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in ARTICLE VII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct in all material respects as of
the date hereof except that the reference to the financial statements in SECTION
7.6(a) of the Agreement shall be deemed (solely for the purpose of the
representation and warranty contained in such SECTION 7.6(a) but not for the
purpose of any cross reference to such SECTION 7.6(a) or to the financial
statements described therein contained in any other provision of SECTION 7.6 or
elsewhere in ARTICLE VII) to refer to those financial statements most
D-2-1
<PAGE> 126
recently delivered to you pursuant to SECTION 8.1 of the Agreement (it being
understood that any financial statements delivered pursuant to SECTION 8.1(b)
have not been certified by independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
--------------------------------------------
[Insert Name of Borrower]
BY:
------------------------------------------
Authorized Representative
DATE:
---------------------------------------
D-2-2
<PAGE> 127
EXHIBIT E
Form of Interest Rate Selection Notice
To: Bank of America, N.A., as Administrative Agent
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 386-9923
Reference is hereby made to the Credit Agreement dated as of December
9, 1999 (the "Agreement") among Sensormatic Electronics Corporation (the
"Parent), the Borrowing Subsidiaries (together with the Parent the "Borrowers"
and individually, a "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Administrative Agent for the Lenders ("Administrative
Agent"). Capitalized terms used but not defined herein shall have the respective
meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Administrative Agent of the following selection of a type of Loan and
Interest Period:
<TABLE>
<CAPTION>
Type of Loan
(check one) Interest Period(1) Aggregate Amount(2) Date of Loan(3)
- --------------------------------- ----------------------- --------------------------- --------------------
<S> <C> <C> <C>
Revolving Loan
- ------------------------------
Base Rate Loan
------------------ ----------------------- -----------------
Eurodollar Rate Loan
------------------ ----------------------- -----------------
Alternative
------------------ ----------------------- -----------------
Currency _______(4)
</TABLE>
- ----------------------
(1) For any Eurodollar Rate Loan [or Segment], one, two, three or six months.
(2) Must be $_________ or if greater an integral multiple of $_______, unless a
Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan and four
(4) Business Days later if an Alternative Currency Loan.
(4) Insert either British Pounds or euro unless Lenders have agreed otherwise.
-------------------------------------------
[Insert Name of Borrower]
BY:
----------------------------------------
Authorized Representative
DATE:
--------------------------------------
E-1
<PAGE> 128
EXHIBIT F-1
FORM OF COMPETITIVE BID NOTE
Promissory Note
$------------ ----------, ----------
__________, 1999
FOR VALUE RECEIVED, SENSORMATIC ELECTRONICS CORPORATION, a
Delaware corporation having its principal place of business located in Boca
Raton, Florida (the "Borrower") hereby promises to pay as provided in the Credit
Agreement (as defined below), to the order of
___________________________________ ** (the "Lender"), in its
individual capacity, at the office of Bank of America, N.A., as administrative
agent for the Lender (the "Administrative Agent"), located at 101 North Tryon
Street, 15th Floor, NC1-001-15-04, Charlotte, North Carolina 28255 (or at such
other place or places as the Administrative Agent may designate) at the times
set forth in the Credit Agreement dated as of December 9, 1999 among the
Borrower, the financial institutions party thereto (collectively, the "Lenders")
and the Administrative Agent (as amended, supplemented or otherwise modified and
in effect from time to time, the "Credit Agreement"; all capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Credit Agreement), in lawful money of the United States of America and in
immediately available funds, the aggregate unpaid principal amount of all
Competitive Bid Loans made by the Lender to the Borrower, on the dates and in
the principal amounts set forth in the Lender's Competitive Bid Quote and
accepted by the Borrower, and to pay interest on the unpaid principal amount of
each such Competitive Bid Loan, at such office, in like money and funds, for the
period commencing on the date of such Competitive Bid Loan until such
Competitive Bid Loan shall be paid in full, at the rates per annum and on the
dates set forth in the Lender's Competitive Bid Quote and accepted by either
Borrower.
The date, amount, type of loan, interest rate and maturity date of each
Competitive Bid Loan made by the Lender to the Borrower, and each payment made
on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, endorsed by the Lender on the
schedule attached hereto or any continuation thereof, PROVIDED that the failure
of the Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower to make a payment when due of any amount owing under
the Credit Agreement or hereunder in respect of the Competitive Bid Loans made
by the Lender.
- -----------------
** Insert name of Lender
F-1-1
<PAGE> 129
This Note is one of the Competitive Bid Notes referred to in the Credit
Agreement and is issued pursuant to and entitled to the benefits and security of
the Credit Agreement to which reference is hereby made for a more complete
statement of the terms and conditions upon which the Competitive Bid Loans
evidenced hereby were made or are made and are to be repaid. This Note is
subject to certain restrictions on transfer or assignment as provided in the
Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Credit Agreement or under the terms of the other Loan Documents executed in
connection with the Credit Agreement, the then remaining principal amount and
accrued but unpaid interest shall bear interest which shall be payable on demand
at the rates per annum set forth in ARTICLE II of the Credit Agreement, or the
maximum rate permitted under applicable law, if lower, until such principal and
interest have been paid in full. Further, in the event of such acceleration,
this Note, and all other indebtedness of the Borrower to the Lender under the
Loan Documents shall become immediately due and payable, without presentation,
demand, protest or notice of any kind, all of which are hereby waived by the
Borrowers. Upon acceleration interest shall be payable at the Absolute Rate or
the Eurodollar Competitive Rate, as the case may be, plus two percent (2%) per
annum.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrowers agree to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Credit
Agreement.
This Note shall be governed by, and construed in accordance with, the
laws of the State of Florida.
[Remainder of page intentionally left blank.]
F-1-2
<PAGE> 130
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
SENSORMATIC ELECTRONICS CORPORATION
WITNESS:
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
- ------------------------
- ------------------------
F-1-3
<PAGE> 131
SCHEDULE OF COMPETITIVE BID LOANS
This Note evidences Competitive Bid Loans made under the
within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, of the types, bearing interest at the rates and maturing on
the dates set forth below, subject to the payments and prepayments of principal
set forth below:
<TABLE>
<CAPTION>
Type of
Loan
(Absolute
Principal Rate or
Date Amount Eurodollar Maturity Amount Unpaid
of of Competitive Interest Date of Paid or Principal Notation
Loan Loan Rate) Rate Loan Prepaid Amount Made by
---- ---- ----- ---- ---- ------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
F-1-4
<PAGE> 132
EXHIBIT F-2
Form of Revolving Note
Promissory Note
(Revolving Loan)
----------, ----------
----------, ----
FOR VALUE RECEIVED, SENSORMATIC ELECTRONICS CORPORATION, a
Delaware corporation having its principal place of business located in Boca
Raton, Florida (the "Borrower"), hereby promises to pay to the order of
_______________________________________________ (the "Lender"), in its
individual capacity, at the office of BANK OF AMERICA, N.A., as agent for the
Lenders (the "Administrative Agent"), located at 101 North Tryon Street,
NC1-001-15-04, Charlotte, North Carolina 28255 (or at such other place or places
as the Administrative Agent may designate in writing) at the times set forth in
the Credit Agreement dated as of December 9, 1999 among the Borrower, the
financial institutions party thereto (collectively, the "Lenders") and the
Administrative Agent (the "Agreement" -- all capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Agreement) in
immediately available funds, the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to the Agreement on
the Revolving Credit Termination Date or such earlier date as may be required
pursuant to the terms of the Agreement, and to pay interest from the date hereof
on the unpaid principal amount hereof, in like money, at said office, on the
dates and at the rates provided in ARTICLES II AND IV of the Agreement. All or
any portion of the principal amount of Loans may be prepaid or required to be
prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest thereon evidenced by this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
F-2-1
<PAGE> 133
This Revolving Note is one of the Revolving Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security of
the Agreement to which reference is hereby made for a more complete statement of
the terms and conditions upon which the Revolving Loans evidenced hereby were or
are made and are to be repaid. This Revolving Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement.
Protest, notice of protest, notice of dishonor, diligence or any other
formality are hereby waived by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
F-2-2
<PAGE> 134
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
SENSORMATIC ELECTRONICS CORPORATION
WITNESS:
By:
- --------------------------- ----------------------------------
Name:
- --------------------------- --------------------------------
Title:
-------------------------------
F-2-3
<PAGE> 135
EXHIBIT F-3
Form of Swing Line Note
Promissory Note
(Swing Line Loan)
$
- ---------------- ----------, ----------
----------, ----
FOR VALUE RECEIVED, SENSORMATIC ELECTRONICS CORPORATION, a Delaware
corporation having its principal place of business located in Boca Raton,
Florida (the "Borrower"), hereby promises to pay to the order of
BANK OF AMERICA, N.A. ("Bank of America"), in its individual capacity,
at Bank of America's offices located at 101 North Tryon Street, NC1-001-15-04,
Charlotte, North Carolina 28255 (or at such other place or places as Bank of
America may designate) at the times set forth in the Credit Agreement dated as
of December 9, 1999 among the Borrower, the financial institutions party thereto
(collectively, the "Lenders") and Bank of America, N.A., as agent for the
Lenders (the "Administrative Agent") (as amended, supplemented or otherwise
modified from time to time, the "Agreement" -- all capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Agreement), in lawful money of the United States of America, in immediately
available funds, the principal amount of
______________________________________ DOLLARS ($____________) or if
less than such principal amount, the aggregate unpaid principal amount of all
Swing Line Loans made by Bank of America to the Borrower pursuant to the
Agreement on the Revolving Credit Termination Date or such earlier date as may
be required pursuant to the terms of the Agreement, and to pay interest from the
date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates provided in ARTICLES II AND IV of the
Agreement. All or any portion of the principal amount of Swing Line Loans may be
prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
Default Rate until such principal and interest have been paid in full. Further,
in the event of such acceleration, this Note, and all other indebtedness of the
Borrower to the Lender shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by the Borrower.
F-3-1
<PAGE> 136
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest thereon at the rates set forth above.
Interest hereunder shall be computed on the basis of a 360 day year for
the actual number of days in the interest period.
This Note is the Swing Line Note referred to in the Agreement and is
issued pursuant to and entitled to the benefits and security of the Agreement to
which reference is hereby made for a more complete statement of the terms and
conditions upon which the Swing Line Loans evidenced hereby were or are made and
are to be repaid. This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of Florida.
Protest, notice of protest, notice of dishonor, diligence or any other
formality are hereby waived by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
F-3-2
<PAGE> 137
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
SENSORMATIC ELECTRONICS CORPORATION
WITNESS:
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
F-3-3
<PAGE> 138
EXHIBIT G
FORM OF COMPETITIVE BID QUOTE REQUEST
[Date]
To: Bank of America, N.A.
as Administrative Agent
Attention:
Re: Competitive Bid Quote Request
Pursuant to SECTION 2.2 of the Credit Agreement dated as of December 9,
1999 (as amended, supplemented or otherwise modified and in effect from time to
time, the "Credit Agreement") among Sensormatic Electronics Corporation, the
lenders named therein and Bank of America, N.A., as Administrative Agent, we
hereby give notice that we request Competitive Bid Quotes, [with][without] the
right of prepayment, for the following proposed Competitive Bid Borrowing(s):
<TABLE>
<CAPTION>
Borrowing Type of Quotation Interest
Date(1) Loan(2) Date Amount(3) Period(4)
- --------- ------- --------- --------- --------
<S> <C> <C> <C> <C>
</TABLE>
Terms used herein have the meanings assigned to them in the Credit
Agreement.
SENSORMATIC ELECTRONICS CORPORATION
By:
---------------------------------
Authorized Representative
- -----------------------------------------
(1) At least four (4) Business Days later if at the Eurodollar
Competitive Rate.
(2) Competitive Bid Loan at
(a) Absolute Rate; or
(b) Eurodollar Competitive Rate
(3) Each amount must be $2,500,000 or a multiple of $500,000 in excess
thereof.
(4) A period of up to 180 days after the making of such Competitive Bid
Loan and ending on a Business Day for Competitive Bid Loans at the
Absolute Rate. For any Competitive Bid Loan at the Eurodollar
Competitive Rate, one week or one, two, three or six months, with
the possibility of not more than one (1) one week Interest Period.
G-1
<PAGE> 139
EXHIBIT H
FORM OF COMPETITIVE BID QUOTE
To: [Sensormatic Electronics Corporation] ("Borrower") [or Bank
of America, N.A., as Administrative Agent]
Attention:
Re: Competitive Bid Quote
The Competitive Bid Quote is given in accordance with SECTION 2.2 of
the Credit Agreement dated as of December 9, 1999 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Credit Agreement")
among Sensormatic Electronics Corporation, the lenders named therein and Bank of
America, N.A., as Administrative Agent. Terms defined in the Credit Agreement
are used herein as defined therein.
In response to the Borrower's invitation dated ______________, ____, we
hereby make the following Competitive Bid Quote(s) on the following terms:
1. Quoting Lender:
2. Person to contact at Quoting Lender:
3. We hereby offer to make Competitive Bid Loan(s) in the
following principal amount(s), for the following interest Period(s) and
at the following rate(s):
<TABLE>
<CAPTION>
Borrowing Type of Quotation Interest
Date Loan(1) Date(2) Amount(3) Period(4) Rate(5)
- --------- ------- ------- --------- --------- -------
<S> <C> <C> <C> <C> <C>
</TABLE>
- ------------------------------
(1) At Absolute Rate or Eurodollar Competitive Rate
(2) As specified in the related Competitive Bid Quote Request
(3) The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $2,500,000 or a
multiple of $500,000 in excess thereof.
(4) A period of up to 100 days after the making of such Competitive Bid
Loan and ending on a Business Day for Competitive Bid Loans at the Absolute
Rate. For Competitive Bid Loans at the Eurodollar Competitive Rate, one week or
one, two, three, or six months, with the possibility of not more than one (1)
one week Interest Period, as specified in the related Competitive Bid Quote
Request.
(5) Specify positive margin or negative margin to be added to or
deducted from the Interbank Offered Rate.
H-1
<PAGE> 140
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) (is/are) accepted, in whole or in part.
Dated: ______________, ____
Very truly yours,
[NAME OF LENDER]
By:
----------------------------------
Authorized Officer
H-2
<PAGE> 141
EXHIBIT I
Subordination Provisions
SECTION ____. AGREEMENT THAT DEBENTURES TO BE SUBORDINATE. The Trustee
acknowledges, the Company covenants and agrees, and each holder of Debentures
issued hereunder by his acceptance thereof likewise covenants and agrees, that
all payments of principal of, premium, if any, and interest on the Debentures
and all other monetary claims, including such monetary claims as may result from
rights of repurchase or rescission, under or in respect of the Debentures shall
be subordinated in accordance with the provisions of this Article Four to the
prior payment in full in cash of all amounts payable under all Senior
Indebtedness of the Company.
SECTION ____. LIMITATION DURING CERTAIN DEFAULTS ON SENIOR
INDEBTEDNESS. No direct or indirect payment by or on behalf of the Company on
account of principal, premium, if any, or interest on the Debentures or any
other monetary claims, including such monetary claims as may result from rights
of repurchase or rescission, under or in respect of the Debentures whether
pursuant to the terms of the Debentures or upon acceleration or otherwise shall
be made, and no Debentures shall be redeemed or purchased, either directly or
indirectly, by the Company or any Subsidiary, if, at the time of such payment or
purchase or immediately after giving effect thereto, there shall exist a default
in the payment of all or any portion of the obligations under any Senior
Indebtedness.
SECTION ____. PRIORITY OF SENIOR INDEBTEDNESS. Upon (i) any
acceleration of the principal amount due on the Debentures or (ii) any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding-up or
total or partial liquidation or reorganization of the Company, 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
assets or liabilities of the Company, all amounts payable under Senior
Indebtedness shall first be paid in full in cash, before any payment is made on
account of the principal of, premium, if any, or interest on the indebtedness
evidenced by the Debentures, or on account of any other monetary claims,
including such monetary claims as may result from rights of repurchase or
rescission, under or in respect of the Debentures, or any payment is made to
acquire any of the Debentures for cash, property or securities or any
distribution is made with respect to the Debentures of any cash, property or
securities, and upon any such dissolution or winding-up or liquidation or
reorganization any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the holders of
the Debentures or the Trustee under this Indenture would be entitled, except for
the provisions hereof, shall be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, or by the holders of Debentures or by the Trustee under this
Indenture if received by them or it, directly to he holders of Senior
Indebtedness (pro rata to each such holder on the basis of the respective
amounts of Senior Indebtedness held by such holder) or their representatives to
the extent necessary to pay all such Senior Indebtedness in full, in cash, after
giving effect to any concurrent payment or distribution to
I-1
<PAGE> 142
or for the holders of Senior Indebtedness, before any payment or distribution is
made to the holders of the indebtedness evidenced by the Debentures or to the
Trustee under this Indenture.
SECTION ____. PAYMENT OVER OF PROCEEDS IN CERTAIN EVENTS. In the event
that any payment or distribution of assets of the Company of any kind or
character not permitted by Sections ___ or ___, whether in cash, property or
securities, shall be received by the Trustee or paying agent if any, or the
holders of the Debentures before all Senior Indebtedness is paid in full cash,
such payment or distribution shall be received and held in trust for the benefit
of the holders of Senior Indebtedness and shall be paid over or delivered to, in
the case of clause (ii) of Section __, the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other person making payment
or distribution of assets of the Company and, in the case of Section ___ and
clause (i) of Section __, to the Company, in each case in trust for the holders
of, and for application to the payment of, all Senior Indebtedness remaining
unpaid to the extent necessary to pay all obligations in respect of such Senior
Indebtedness in full cash in accordance with its terms, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.
SECTION ____. NO WAIVER OF SUBORDINATION PROVISIONS. Without notice to
or the consent of the debenture holders or the Trustee, the holders of Senior
Indebtedness may at any time and from time to time, without impairing or
releasing the subordination herein made, change the manner, place or terms of
payments, or change or extend the time of payment of or renew or alter the
Senior Indebtedness, or amend or supplement in any manner any instrument
evidencing the Senior Indebtedness, any agreement pursuant to which the Senior
Indebtedness was issued or incurred or any instrument securing or relating to
the Senior Indebtedness; release any person liable in any manner for the payment
or collection of the Senior Indebtedness, exercise or refrain from exercising
any rights in respect of the Senior Indebtedness against the Company or any
other person; apply any moneys or other property paid by any person or released
in any manner to the Senior Indebtedness; or accept or release any security for
the Senior Indebtedness.
SECTION ____. NOTICE TO TRUSTEE OF SPECIFIED EVENTS; RELIANCE
ON CERTIFICATE OF LIQUIDATING AGENT. The Company shall give prompt written
notice to the Trustee and any paying agent of any fact known to the Company that
would prohibit the making of any payment to or by the Trustee or any paying
agent in respect of the Debentures pursuant to the provisions of this Article.
Upon any distribution of assets of the Company or payment by or on
behalf of the Company referred to in this Article Four, the Trustee and the
holders of the Debentures shall be entitled to rely upon any order or decree of
a court of competent jurisdiction in which any proceedings of the nature
referred to in Section 4.03 are pending, and the Trustee and the holders of the
Debentures shall be entitled to rely upon a certificate of the liquidating
trustee or agent or other person making any such distribution to the Trustee or
to the holders of the Debentures for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Four.
I-2
<PAGE> 143
SECTION ____. SUBROGATION. Subject to the payment in full of all
amounts payable under or in respect of all Senior Indebtedness, in cash, the
holders of the Debentures (together with holders of any other indebtedness; of
the Company which is subordinate in right of payment to the payment of other
indebtedness of the Company, but is not subordinate in right of payment to the
Debentures and by its terms grants such right of subrogation to the holders
thereof) shall be subrogated to the rights of the holders of Senior Indebtedness
to receive distributions of assets of the Company or payments by or on behalf of
the Company, made on the Senior Indebtedness, until the principal of (and
premium, if any) and interest on the Debentures shall be paid in full; and, for
the purposes of such subrogation, no distributions or payments to the holders of
Senior Indebtedness of any cash, property or securities to which the holders of
the Debentures or the Trustee would be entitled except for the provisions of
this Article Four, and no payment over pursuant to the provisions of this
Article Four to the holders of Senior Indebtedness by the holders of the
Debentures or the Trustee, shall, as between the Company, its creditors other
than the holders of Senior Indebtedness and the holders of Debentures, be deemed
to be a payment by the Company to or on account of Senior Indebtedness, it being
understood that the provisions of this Article Four are, and are intended,
solely for the purpose of defining the relative rights of the holders of the
Debentures, on the one hand, and the holders of Senior Indebtedness on the other
hand.
SECTION ____. OBLIGATION TO PAY NOT IMPAIRED. Nothing contained in this
Article Four or elsewhere in this Indenture, or in the Debentures, is intended
to or shall alter or impair, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the holders of the Debentures, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Debentures the principal of (and premium, if any) and interest on
the Debentures at the time and place and at the rate and in the currency therein
prescribed, or to affect the relative rights of the holders of the Debentures
and creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the holder of any
Debenture from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the right, if any, under this
Article Four of the holders of the Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
SECTION ____. RELIANCE BY SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS. Each holder of a Debenture by his acceptance thereof acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Debentures, to acquire and continue to hold, or to continue to
hold, such Senior Indebtedness, and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or in continuing to hold, such Senior Indebtedness. The
subordination provisions in this Article Four may be enforced directly by the
holders of Senior Indebtedness.
SECTION ____. SUBORDINATION NOT TO BE PREJUDICED BY CERTAIN ACTS. No
present or future holder of Senior Indebtedness shall be prejudiced in his right
to enforce subordination of the indebtedness evidenced by the Debentures by any
act or failure to act in good faith by any such
I-3
<PAGE> 144
holder or by noncompliance by the Company with the terms and provisions and
covenants herein regardless of any acknowledgment thereof any such holder may
have or otherwise be charged with.
SECTION ____. TRUSTEE AUTHORIZED TO EFFECTUATE SUBORDINATION. Each
holder of Debentures by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination as provided in this Article Four and
appoints the Trustee his attorney-in-fact for any and all such purposes
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, or
receivership or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, to file a claim for the unpaid balance of its Debentures in the
form required in said proceedings and to cause said claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the form required in
such proceeding prior to 30 days before the expiration of the time to file such
claim or proof, then the holders of the Senior Indebtedness shall have the right
to file and are hereby authorized to file an appropriate claim or proof for and
on behalf of the holders of said Debentures.
I-4
<PAGE> 145
EXHIBIT J
Form of Opinion of Borrower's Counsel
December 9, 1999
Bank of America, N.A.,
as Administrative Agent and
Each of the Lenders Party to the
Credit Agreement Referenced Below
Bank of America Corporate Center
Charlotte, North Carolina 28255-0065
RE: $125,000,000 REVOLVING CREDIT AND LETTER OF CREDIT
FACILITIES AMONG BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT, THE LENDERS PARTY THERETO
AND SENSORMATIC ELECTRONICS CORPORATION AND CERTAIN
OTHER BORROWER SUBSIDIARIES, AS BORROWERS
---------------------------------------------------
Ladies and Gentlemen:
We have acted as special New York counsel to Sensormatic
Electronics Corporation, a Delaware corporation (the "Parent"), in connection
with the Revolving Credit Facility in the amount of $125,000,000 (the "Revolving
Credit Facility"), including the $50,000,000 Letter of Credit Facility
constituting part of the Revolving Credit Facility (the "LC Facility"), each
being made available to the Parent by you on this date pursuant to the Credit
Agreement of even date herewith among you, the Lenders and the Parent (the
"Credit Agreement"), and the other transactions contemplated under the Credit
Agreement.
This opinion is being delivered in accordance with the
conditions set forth in SECTION 6.1 of the Credit Agreement. All capitalized
terms not otherwise defined herein shall have the meanings provided therefor in
the Credit Agreement.
As such counsel, we have reviewed forms of the following
documents:
1. the Credit Agreement;
2. the Revolving Notes;
J-1
<PAGE> 146
3. the Competitive Bid Notes;
4. the Swing Line Note; and
5. the LC Account Agreement.
The documents described in items 1 through 5 immediately above
are referred to herein as the "Loan Documents."
For purposes of the opinions expressed below, we have assumed
that all natural persons executing the Loan Documents have legal capacity to do
so; that all signatures (other than those of representatives of the Parent on
the Loan Documents) on all documents submitted to us are genuine; that all
documents submitted to us as originals are authentic; and that all documents
submitted to us as certified copies or photocopies conform to the originals of
such documents, which themselves are authentic.
In addition, for purposes of giving this opinion, we have
examined such corporate records of the Parent, certificates of public officials,
certificates of appropriate officials of the Parent, and such other documents,
and have made such inquiries as we have deemed appropriate. As to matters of
fact only, we have relied on the representations and warranties of the Parent
set forth in the Loan Documents.
Based upon and subject to the foregoing, and subject to the
further assumptions and qualifications set forth below, it is our opinion that:
1. The Parent is a corporation duly incorporated, validly existing and, based
solely on a certificate of the Secretary of State of the State of Delaware dated
December 1, 1999, in good standing under the laws of the State of Delaware. The
Parent has full corporate power and authority to own its assets and conduct the
businesses in which it is now engaged and as are expressly contemplated by the
Loan Documents, and has full corporate power and authority to enter into each of
the Loan Documents to which it is a party and to perform its obligations
thereunder.
2. Each of the Loan Documents to which the Parent is a party has been duly
authorized by the Board of Directors of the Parent (and by any required
shareholder action), has been duly executed and delivered by the Parent.
3. The Credit Agreement constitutes the legal, valid and binding obligation of
the Parent, enforceable against the Parent in accordance with its terms, except
as the enforceability thereof may be limited by (i) applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, voidable preference,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity (including, without limitation,
as to the availability or non-availability of specific performance and other
equitable remedies), whether considered in a proceeding at law or in equity.
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4. Neither the execution or delivery of, nor performance by the Parent of its
obligations under, the Loan Documents (a) does or will conflict with, violate or
constitute a breach of (i) the charter or bylaws of the Parent, (ii) any laws,
rules or regulations of the State of New York or federal laws, rules or
regulations of the United States of America applicable to the Parent,
or (iii) to our knowledge, any of the agreements of the Parent listed in Exhibit
A hereto, being the agreements and instruments which the Parent has identified
to us as being the material agreements relating to Indebtedness or the financing
of receivables binding upon the Parent or any of its properties, (b) requires
the prior consent of, notice to, license from or filing with any Governmental
Authority which has not been duly obtained or made on or prior to the date
hereof, or (c) does or will result in the creation or imposition of any lien,
pledge, charge or encumbrance of any nature upon or with respect to any of the
properties of the Parent.
5. To our knowledge, there is no pending or threatened, action, suit,
investigation or proceeding (including, without limitation, any action, suit,
investigation, or proceeding under any environmental or labor law), before or by
any court, or governmental department, commission, board, bureau,
instrumentality, agency or arbitral authority, (1) which calls into question the
validity or enforceability of any of the Loan Documents, or the titles to their
respective offices or authority of any officers of the Parent, or (2) in which
there is a reasonable likelihood of an adverse decision which could reasonably
be expected to have a Material Adverse Effect, except that we express no views
as to the ultimate outcome of any of the proceedings described in Parent's
reports on (i) Form 10-K for the fiscal year ended June 30, 1999 or (ii) Form
10-Q for the quarterly period ended September 30, 1999 (and any other actions,
suits or proceedings based primarily on allegations similar to those contained
in such proceedings) or as to whether or not such matters could reasonably be
expected to have a Material Adverse Effect.
6. Assuming that the proceeds of the Loans and Letters of Credit are used
solely as contemplated in Section 2.3 and 7.11 of the Credit Agreement, none of
the transactions contemplated by the Credit Agreement, including, without
limitation, the use of the proceeds of the Loans provided for in the Loan
Documents, will violate or result in a violation of Section 7 of the Securities
Exchange Act of 1934, as amended, any regulations issued pursuant thereto, or
regulations T, U or X of the Board of Governors of the Federal Reserve System.
7. We are qualified to practice in the State of New York and do not purport
to be experts on any laws other than the federal laws of the United States, the
State of New York and the General Corporation Law of the State of Delaware and
this opinion is rendered only with respect to such laws. We have made no
independent investigation of the laws of any other jurisdiction.
8. In rendering the opinions in paragraph 6 above, we have assumed that none of
the proceeds of any Loans or Letters of Credit will be used by the Parent or any
of its Subsidiaries, directly or indirectly, for the purposes of purchasing or
carrying any "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, and that
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none of the Parent or any of its Subsidiaries will be engaged primarily or as
one of its important activities in the business of purchasing or carrying any
such margin stock.
9. In rendering the opinions in paragraph 3 above, we have assumed, with your
permission, that:
(a) The Credit Agreement has been duly authorized, executed and
delivered by the Administrative Agent and each of the Lenders and, to the
extent provided therein, constitutes the legal, valid and binding
obligation of the Administrative Agent and the Lenders, enforceable
against each of them in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, voidable preference, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity (including, without
limitation, as to the availability or non-availability of specific
performance and other equitable remedies), whether considered in a
proceeding at law or in equity.
(b) Neither the authorization, execution and delivery of the Credit
Agreement or the Notes nor the consummation of the transactions
contemplated therein, nor the fulfillment or compliance with the terms
thereof, violates or will result in the violation of the provisions of any
law, rule or regulation of the State of Florida (the jurisdiction in which
the Parent is located), the State of North Carolina (the jurisdiction in
which the Loans and Reimbursement Obligations in Dollars are to be paid),
or of any other jurisdiction in which the Loans or Reimbursement
Obligations are to be paid, or any other jurisdiction in which any
Borrower may be located. Illegality in any of those jurisdictions could,
in certain circumstances, affect the enforceability of the obligations of
the Parent as Borrower or as guarantor under the guaranty set forth in
Section 2.1(g) of the Credit Agreement. Nevertheless, we note that in a
1990 decision of the United States District Court for the Southern
District of New York, a guarantor was unsuccessful in asserting illegality
under the laws of the principal debtor's jurisdiction as a defense against
payment under a guarantee that was stated to be governed by New York law,
the court holding that extraterritorial effect would be given to the
foreign law only by application of principles of comity. BANK LEUMI TRUST
COMPANY OF NEW YORK V. DAVID WULKAN, 735 F. Supp. 72 (S.D.N.Y. April 2,
1990). Without having made any specific inquiry into this matter, we are
not aware of factors present in the Credit Agreement which, under
circumstances existing today, would cause a court in the State of New York
to apply principles of comity, but no confident conclusion can be
expressed without a detailed examination of matters both intrinsic and
extrinsic to the transaction, such as the laws, rules and regulations of
each relevant jurisdiction, and the policies of relevant agencies of the
government of the United States toward those jurisdictions and toward the
particular matters that are the subject of the relevant foreign laws,
rules and regulations to which extraterritorial effect would be given.
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The foregoing opinions are subject to the qualifications that:
(I) We express no opinion as to (a) any Borrower's title to or
rights in any of its assets or other properties; (b) the enforceability of
the following Sections of the Credit Agreement: Section 1.2(j), Section
12.6 (insofar as it purports to preclude the validity or effectiveness of
non-written amendments, waivers or other modifications) or Section 12.10;
(c) the jurisdiction of any court other than the courts of the State of
New York over the subject matter of any dispute arising out of the Loan
Documents or over the Parent or any other Borrower; (d) any waiver of
rights to trial by jury or defenses based on an inconvenient forum; and
(e) any provision of the Credit Agreement or the other Loan Documents
purporting to provide for interest after judgment, to establish
evidentiary standards, or to grant or waive rights of set-off or
counterclaim.
(II) Without limiting the generality of the statements in paragraph
I above, we express no opinion as to the applicability of the laws of the
State of Florida, the State of North Carolina or any other jurisdiction
that may limit the enforceability of provisions for interest on defaulted
obligations, or the maximum rate or amount of interest that may be
charged, taken, collected or received with respect to the obligations
under the Credit Agreement, the Notes or any of the other Loan Documents,
or as to the effect of such laws (other than the State of New York), if
applicable.
(III) We point out that the enforceability of indemnities set forth
in the Credit Agreement or the Notes may be limited by applicable
securities laws, by public policy or by the discretion of the court, and
in particular, we express no opinion as to the enforceability of any
provision of the Loan Documents that purports to exculpate or indemnify
any party for its own gross negligence or willful misconduct.
(IV) Without limiting the exceptions to the opinion expressed in
paragraph 3, we point out that, in applying general principles of equity,
a court may decline to enforce the right of the Administrative Agent or
the Lenders to accelerate the maturity of the Loans or to exercise other
remedies in connection with a default if such rights were to be invoked in
the context of a default that is immaterial, or in the context of fraud or
exploitative overreaching by the Administrative Agent or any Lender, or
unconscionable conduct by the Administrative Agent or any Lender to
exploit a technical breach. Moreover, provisions of the Credit Agreement
or the Notes that permit the Administrative Agent or any Lender to take
actions or make determinations may be subject to requirements that such
actions be taken and such determinations be made on a reasonable basis and
in good faith.
(V) We caution you that not all of the waivers and consents set
forth in Section 2.1(g) of the Credit Agreement (the Parent guaranty)
necessarily would be given effect in
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the State of New York. For example, the Lenders' purported right, set
forth in Section 2.1(g)(ii)(B)(iii) of the Credit Agreement, to change the
time, manner or place of payment of, or any other term of, the
Obligations, without affecting their rights under said Section 2.1(g)
might, notwithstanding those provisions, affect the rights of the
Administrative Agent or Lenders against the Parent, especially if the
relevant change, amendment, waiver or consent were to be of an essential
term of the Credit Agreement or the Notes, or were to be so extensive as
to create a new contract. Nevertheless, we do not believe that the
inclusion of such provisions would render Section 2.1(g) invalid or
otherwise unenforceable. We also note that a decision of the United States
District Court for the Southern District of New York held that a "sweeping
waiver" of the type set forth in portions of said Section
2.1(g)(ii)(B)(iii) was enforceable, notwithstanding allegations of
tortious interference with contractual relations, interference with
prospective economic advantage, negligence and violations of certain laws.
AMERICAN EXPRESS BANK, LTD. V. PETER L. COKER, ET AL., 1990 WL 100888
(S.D.N.Y. July 13, 1990).
(VI) We wish to point out further that, if enforcement of the
obligations of the Parent or any other Borrower were to be sought in the
State of New York with respect to obligations denominated in a currency
other than U.S. Dollars, (a) a New York statute provides that a judgment
rendered by a court of the State of New York in respect of an obligation
denominated in a currency other than U.S. Dollars (a "Foreign Currency")
may be rendered in such Foreign Currency, and if so would be converted
into U.S. Dollars at the rate of exchange prevailing on the date of entry
of the judgment; and (b) a judgment rendered by a Federal court in New
York in respect of an obligation denominated in a Foreign Currency may be
expressed in U.S. Dollars, but we express no opinion as to the rate of
exchange such court would apply.
(VII) We note further that the willingness of any United States
federal court to accept jurisdiction over any dispute arising out of the
Credit Agreement or any of the other Loan Documents may, notwithstanding
the submission by the Borrowers to the personal jurisdiction of certain
federal courts pursuant to Section 12.15 of the Credit Agreement, be
subject to applicable law and to such court's discretion.
As to any matters regarding the laws of the State of Florida,
we have relied, with your permission, solely on the opinion of Walter Engdahl,
dated December 9, 1999, addressed to you, a copy of which is annexed to this
letter as Appendix A. We have no knowledge of, and have made no independent
investigation of, any matters of Florida law.
In this opinion letter, the phrase "to our knowledge" means to
the actual knowledge of those attorneys in our firm who are actively involved in
work on behalf of the Parent, without independent investigation outside the
firm. The phrase "legal, valid and binding obligation of the Parent enforceable
against the Parent in accordance with its terms" means that the obligation in
question is of the type that is capable of enforcement under the law of the
State
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of New York, but does not mean that such obligation necessarily would be
enforced by a court in all circumstances. In addition, if any obligation is
enforced, we express no opinion as to what remedy, whether or not specified in
the Credit Agreement or the other Loan Documents, would be awarded.
This opinion speaks only as of the date hereof, and we do not
undertake any duty to advise you of any change herein. Without limiting the
generality of the foregoing, we note that certain agreements to which the
Borrowers now are or hereafter may become parties may contain limitations on the
incurrence from time to time of Indebtedness and other obligations by the Parent
and its Subsidiaries, which limitations could be violated by a borrowing of
Loans or the issuance of Letters of Credit under the Credit Agreement by the
Parent or the other Borrowers. We do not undertake to advise you of those
circumstances.
Our opinions contained herein are rendered at the request of
the Parent solely in connection with the transactions contemplated under the
Loan Documents and may not be relied upon in any manner by any Person other than
the addressees hereof, any successor or assignee of any addressee (including
successive assignees) and any Person who shall acquire a participation interest
in the interest of any Lender (collectively, the "Reliance Parties"), or by any
Reliance Party for any other purpose. Our opinions herein shall not be quoted or
otherwise included, summarized or referred to in any publication or document, in
whole or in part, for any purpose whatsoever, or furnished to any Person other
than a Reliance Party (or a Person considering whether to become a Reliance
Party), except as may be required of any Reliance Party by applicable law or
regulation or in accordance with any auditing or oversight function or request
of regulatory agencies to which a Reliance Party is subject.
Very truly yours,
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EXHIBIT A
MATERIAL AGREEMENTS
Note Agreement, dated as of January 15, 1993, of Sensormatic Electronics
Corporation ("Sensormatic") to each of the Purchasers named therein, and related
documents, for the issuance and sale by Sensormatic of $135,000,000 aggregate
principal amount of its Senior Notes.
Note Agreement, dated as of March 29, 1996, of Sensormatic to each of the
Purchasers named therein, and related documents, for the issuance and sale by
Sensormatic of $350,000,000 aggregate principal amount of its Senior Notes.
Receivables Purchase Agreement, dated as of July 31, 1996, among Sensormatic,
NationsBank National Association (South) ("NationsBank"), together with such
other financial institutions that may become parties thereto, as Purchaser, and
NationsBank, as Agent.
Amended and Restated Multicurrency Revolving Credit Agreement, dated as of March
18, 1997, as amended, by and among Sensormatic, the other Borrowing Subsidiaries
which may form time to time become parties thereto, the Banks, BankBoston, N.A.,
as Agent for the Banks, and NationsBank, N.A., as Syndication Agent.
Receivables Purchase Agreement, dated as of June 27, 1997, as heretofore
amended, between Sensormatic and Sensor SPC Inc.
Purchase and Sale Agreement, dated as of April 16, 1999, as heretofore amended,
among First Sierra Financial, Inc., Sensormatic Electronics Corporation and
Sensor SPC Inc.
Master Program Agreement, dated as of April 16, 1999 by and between First Sierra
Financial, Inc. and Sensormatic Electronics Corporation.
Servicing Agreement, dated as of April 16, 1999 by and between First Sierra
Financial, Inc. and Sensormatic Electronics Corporation.
Guarantee of the Sensormatic Electronics Corporation, dated 24 March 1997 in
favor of Mont Blanc Receivables Financing Limited, Bankers Trustee Company
Limited and MBRF Trustee Limited, with respect to the obligations of Sensormatic
Holdings Limited, Sensormatic Limited, Sensormatic CamEra Limited and
Sensormatic Finance Limited arising under the Sensormatic Standard Terms and
Conditions in relation to the Sensormatic Offer to Sell, the Sensormatic
Framework Agreement, the Sensormatic Subordinated Loan Facility Agreement, the
Sensormatic Bank Account Agreement, the Deed of Joinder, and the Sensormatic
Administration Agreement referred to in such Guarantee.
Factoring Agreement, dated as of November 1, 1995, between Sensormatic
Electronics Corporation and the CIT Group/Commercial Services, Inc., as amended.
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Receivables Purchase Facility Agreement, dated as of December 21, 1995, among
Certain Designated Subsidiaries of Sensormatic Electronic Corporation,
Sensormatic Electronic Corporation, ABN Amro Bank (Belgie) N.V. as Agent and the
Banks party thereto. Guarantee by Sensormatic Electronics Corporation, dated 23
June 1999, in favor of Franfinance S.A. relating to the Protocol Agreement dated
June 1999 between Sensormatic E.C. S.r.l and Franfinance S.A.
1997 Guarantee by Sensormatic Electronics Corporation in favor of Franfinance
S.A. relating to the Financial Leasing Contract dated September 21, 1995 between
Franfinance Location S.A. and Sensormatic France S.A.
Guarantee of Sensormatic Electronics Corporation in favor of Newcourt AG & Co.,
relating to the Lease Financing Program Agreement, dated 2 August 1995, and the
Portfolio Acquisition Agreement, dated 30 September 1999, between Sensormatic
GmbH and Newcourt AG & Co.
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APPENDIX A
December 9, 1999
Bank of America, N.A.,
as Administrative Agent and
Each of the Lenders Party to the
Credit Agreement Referenced Below
Bank of America Corporate Center
Charlotte, North Carolina 28255-0065
RE: $125,000,000 REVOLVING CREDIT AND LETTER OF
CREDIT FACILITIES AMONG BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT, THE LENDERS PARTY THERETO
AND SENSORMATIC ELECTRONICS CORPORATION AND CERTAIN
OTHER BORROWER SUBSIDIARIES, AS BORROWERS
---------------------------------------------------
Ladies and Gentlemen:
I am the Vice President-General Counsel of Sensormatic
Electronics Corporation (the "Parent") and as such I am generally familiar with
the terms of the Credit Agreement of even date herewith among you, the Lenders
and the Parent (the "Credit Agreement"), and the other transactions contemplated
under the Credit Agreement.
This opinion is being delivered in accordance with the
conditions set forth in SECTION 6.1 of the Credit Agreement. All capitalized
terms not otherwise defined herein shall have the meanings provided therefor in
the Credit Agreement.
As such counsel, I have reviewed forms of the following
documents:
1. the Credit Agreement;
2. the Revolving Notes;
3. the Competitive Bid Notes;
4. the Swing Line Note; and
5. the LC Account Agreement.
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The documents described in items 1 through 5 immediately
above are referred to herein as the "Loan Documents."
For purposes of the opinions expressed below, I have assumed
that all natural persons executing the Loan Documents have legal capacity to do
so; that all signatures (other than those of representatives of the Parent on
the Loan Documents) on all documents submitted to me are genuine; that all
documents submitted to me as originals are authentic; and that all documents
submitted to me as certified copies or photocopies conform to the originals of
such documents, which themselves are authentic.
In addition, for purposes of giving this opinion, I have
examined such corporate records of the Parent, certificates of public officials,
certificates of appropriate officials of the Parent, and such other documents,
and have made such inquiries as I have deemed appropriate. As to matters of fact
only, I have relied on the representations and warranties of the Parent set
forth in the Loan Documents.
Based upon and subject to the foregoing, and subject to the
further assumptions and qualifications set forth below, it is my opinion that:
1. Based solely on a certificate of the Secretary of State of
the State of Florida dated December 1, 1999, the Parent is in good standing as a
foreign corporation in the State of Florida.
2. The execution, delivery and performance by the Parent of
the Credit Agreement and the other Loan Documents (a) do not contravene, or
constitute a default under, any provision of applicable law, rule or regulation
of the State of Florida, and (b) do not require any registration or consent by
or filing with any governmental authority of the State of Florida.
3. Assuming that no Note has been executed or delivered in the
State of Florida, and that no Bank brings its Note into or holds its Note in the
State of Florida for any purpose whatsoever, there is no Florida documentary
stamp tax payable in the State of Florida in connection with the execution,
delivery or performance by the Borrowers of the Credit Agreement or the other
Loan Documents.
I am qualified to practice law in the State of Florida and do
not purport to be expert on any laws other than the laws of the State of
Florida, and this opinion is rendered only with respect to such laws. I have
made no investigation of the laws of any other jurisdiction.
My opinions contained herein are rendered at the request of
the Parent solely in connection with the transactions contemplated under the
Loan Documents and may not be relied upon in any manner by any Person other than
the addressees hereof, any successor or assignee of any addressee (including
successive assignees) and any Person who shall acquire a participation interest
in the interest of any Lender (collectively, the "Reliance Parties"), or by any
Reliance
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Party for any other purpose. My opinions herein shall not be quoted or
otherwise included, summarized or referred to in any publication or document, in
whole or in part, for any purpose whatsoever, or furnished to any Person other
than a Reliance Party (or a Person considering whether to become a Reliance
Party), except as may be required of any Reliance Party by applicable law or
regulation or in accordance with any auditing or oversight function or request
of regulatory agencies to which a Reliance Party is subject.
This opinion speaks only as of the date hereof, and I do not
undertake any duty to advise you of any changes herein.
Very truly yours,
Walter A. Engdahl
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EXHIBIT K
Compliance Certificate
Bank of America, N.A.,
as Administrative Agent
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 386-9923
Bank of America, N.A.,
as Administrative Agent
- ---------------------------------------
- ---------------------------------------
Attention:
-----------------------------
Telefacsimile: (___) ___-____
Reference is hereby made to the Credit Agreement dated as of December
9, 1999 (the "Agreement") among Sensormatic Electronics Corporation, a Delaware
corporation (the "Borrower"), the Lenders (as defined in the Agreement) and Bank
of America, N.A., as Administrative Agent for the Lenders ("Administrative
Agent"). Capitalized terms used but not otherwise defined herein shall have the
respective meanings therefor set forth in the Agreement. The undersigned, a duly
authorized and acting Authorized Representative, hereby certifies to you as of
__________ (the "Determination Date") as follows:
1. Calculations:
COMPLIANCE CERTIFICATE WORKSHEET
<TABLE>
<CAPTION>
<S> <C> <C>
A. Net Worth
Consolidated Net Worth at such time of determination $__________
(Not to be less than the amount set forth in SECTION 11.1
of the Credit Agreement
B. Consolidated Senior Leverage Ratio
(1) Consolidated Senior Indebtedness outstanding at $__________
such time of determination
</TABLE>
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<PAGE> 158
<TABLE>
<CAPTION>
<S> <C> <C>
(2) Subordinated Indebtedness at such time of $__________
determination
(3) 1 minus 2 $__________
(4) Consolidated Total Capitalization at such time $__________
of determination
(5) Amount of item (3) not to exceed 50% of amount
of item (4)
C. Consolidated Leverage Ratio
(1) Consolidated Indebtedness outstanding at such $__________
time of determination
(2) Consolidated Total Capitalization at such time $__________
of determination
(3) Amount of item (1) not to exceed 55% of amount
of item (2)
D. Consolidated Interest Coverage Ratio
(1) Consolidated EBIT $__________
(2) Consolidated Interest Expense $__________
(3) Ratio of (1) to (2) ____ to 1.00
(4) Item (3) must not be less than .55 to 1.00
E. Capital Expenditures
(1) Capital Expenditures for Fiscal Year ending ________ $__________
(2) Amount of Item (1) must not exceed $75,000,000
</TABLE>
2. No Default
A. Since __________ (the date of the last similar
certification), no Default or Event of Default specified in ARTICLE X
of the Agreement has occurred and is continuing.
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B. If a Default or Event of Default has occurred since
__________ (the date of the last similar certification), the Borrower
proposes to take the following action with respect to such Default or
Event of Default: _____________________________________________________
_____________________________________________________________________.
(NOTE, if no Default or Event of Default has occurred, insert
"Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with SECTION 8.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day
of __________, _______.
By:
----------------------------------------
Authorized Representative
Name:
--------------------------------------
Title:
-------------------------------------
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<PAGE> 160
EXHIBIT L
Form of Assumption Letter
[Date]
To Bank of America, N.A., as
Administrative Agent and
the Lenders party to the Credit
Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of December 9, 1999
among Sensormatic Electronics Corporation (the "Parent"), the Borrowing
Subsidiaries from time to time party thereto, the financial institutions from
time to time party thereto as Lenders and Bank of America, N.A., as
Administrative Agent (as amended, restated or otherwise modified from time to
time, the "Credit Agreement"). Terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
1. BORROWING SUBSIDIARY.
(i) The undersigned, _________________ (the "Subsidiary") a
______________ corporation and a Subsidiary of the Parent, proposes to
become a "Borrowing Subsidiary" under the Credit Agreement, and
accordingly hereby agrees that from the date hereof until the payment
in full of the principal of and interest on all Loans made to it or on
its behalf and termination of all Letters of Credit issued for its
benefit under the Credit Agreement and performance of all of its other
obligations thereunder, and termination of its status as a "Borrowing
Subsidiary" as provided below, it shall perform, comply with and be
bound by each of the provisions of the Credit Agreement which are
stated to apply to a "Borrowing Subsidiary" or a "Borrower". In
addition, the Subsidiary hereby represents and warrants that: (i) each
of the representations and warranties set forth in ARTICLE VII of the
Credit Agreement is true and correct with respect to the Subsidiary as
of the date hereof and (ii) it has heretofore received a true and
correct copy of the Credit Agreement (including any amendments thereto,
modifications thereof or waivers thereunder) as in effect on the date
hereof.
(ii) So long as the principal of and interest on all Loans made to the
Subsidiary or on its behalf under the Credit Agreement shall have been
paid in full and all Letters of Credit issued for its benefit
terminated and all other obligations of the Subsidiary under the Credit
Agreement shall have been fully performed, the Subsidiary may, by not
less than five Business Days' prior notice to the Administrative Agent,
terminate its status as a "Borrowing Subsidiary."
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<PAGE> 161
2. CONDITIONS PRECEDENT. No Lender shall make any Loan to or on behalf
of the Subsidiary unless the Subsidiary has furnished to the Administrative
Agent, with sufficient copies for the Lenders, the following items:
(i) Copies of the articles of incorporation or similar
organizational documents of the Subsidiary, together with all
amendments, and a certificate of good standing (if available),
both certified by the appropriate governmental officer in its
jurisdiction of incorporation.
(ii) Copies, certified by an appropriate officer or director of the
Subsidiary, of its bylaws or similar organizational documents
and of its Board of Directors resolutions (and resolutions of
other bodies, if any are deemed necessary by counsel for any
Lender) authorizing the execution of this Assumption Letter
and all other Loan Documents to which the Subsidiary is a
party.
(iii) An incumbency certificate, executed by an appropriate officer
or director of the Subsidiary, which shall identify by name
and title and bear the signature of the officers or directors
of the Subsidiary authorized to sign this Assumption Letter
and the other Loan Documents to which it is a party and to
request Loans thereunder, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Subsidiary.
(iv) A written opinion of counsel to the Subsidiary, addressed to
the Lenders, in form and substance satisfactory to the
Administrative Agent.
(v) Notes issued by the Subsidiary to the order of each of the
Lenders.
(vi) Written money transfer instructions, in substantially the form
of EXHIBIT "A" attached hereto addressed to the Administrative
Agent on behalf of the Subsidiary and signed by duly
authorized officer, together with such other related money
transfer authorizations as the Administrative Agent may have
reasonably requested.
(vii) Such other documents as any Lender or its counsel may have
reasonably requested.
3. REPRESENTATIONS. The Subsidiary further represents and warrants to
the Lenders as follows:
(i) EXISTENCE AND POWER. The Subsidiary and each of its
Subsidiaries:
(a) is a corporation, partnership or limited liability
company duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation;
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<PAGE> 162
(b) has the power and authority and governmental
licenses, authorizations, consents and approvals to
own its assets, carry on its business and to execute,
deliver, and perform its obligations under this
Assumption Letter and the Loan Documents;
(c) is duly qualified and is licensed and in good
standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the
conduct of its business requires such qualification
or license, except to the extent failure to so
qualify would not have a Material Adverse Effect; and
(d) is in compliance with all laws, rules and
regulations, except to the extent the failure to so
comply would not have a Material Adverse Effect.
(ii) AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by the Subsidiary and its Subsidiaries of this
Assumption Letter and each other Loan Document to which such
Person is party have been duly authorized by all necessary
action and do not and will not:
(a) contravene the terms of any of that Person's
Organization Documents;
(b) conflict with or result in a material breach or
contravention of, or the creation of any Lien under,
any document evidencing any material contractual
obligation to which such Person is a party or any
order, injunction, writ or decree of any Governmental
Authority to which such Person or its property is
subject; or
(c) violate any laws, rules or regulations applicable to
it.
(iii) GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing
with, any Governmental Authority is necessary or required in
connection with the execution, delivery or performance by, or
enforcement against, the Subsidiary or any of its Subsidiaries
of this Assumption Letter or any other Loan Document.
(iv) BINDING EFFECT. This Assumption Letter and each other Loan
Document to which the Subsidiary or any of its Subsidiaries is
a party constitute the legal, valid and binding obligations of
the Subsidiary and any of its Subsidiaries to the extent it is
a party thereto, enforceable against such Person in accordance
with their respective terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability).
(v) FILING. To ensure the enforceability or admissibility in
evidence of this Assumption Letter, the Notes issued by the
Subsidiary or any of the other Loan Documents in the
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<PAGE> 163
Subsidiary's country of organization or incorporation and
country which is its principal place of business (each, a
"Subject Country"), it is not necessary that this Assumption
Letter or such Notes or any other documents be filed or
recorded with any court or other authority in any Subject
Country or that any stamp or similar tax be paid in respect of
this Assumption Letter or such Notes or any other documents.
The qualification by any Lender or the Administrative Agent
for admission to do business under the laws of any Subject
Country does not constitute a condition to, and the failure to
so qualify does not affect, the exercise by any Lender or the
Administrative Agent of any right, privilege, or remedy
afforded to any Lender or the Administrative Agent in
connection with the Loan Documents or the enforcement of any
such right, privilege, or remedy. The performance by any
Lender or the Administrative Agent of any action required or
permitted under the Loan Documents will not violate any law or
regulation of any Subject Country or any political subdivision
thereof or result in any tax liability or other unfavorable
consequence to such party pursuant to the laws of any such
Subject Country or political subdivision or taxing authority
thereof or any rule or regulation of any federation or
organization or similar entity of which such Subject Country
is a member.
(vi) NO IMMUNITY. Neither the Subsidiary nor any of its assets is
entitled to immunity from suit, execution, attachment or other
legal process. The Subsidiary's execution and delivery of this
Assumption Letter and the other Loan Documents to which it is
a party constitute, and the exercise of its rights and
performance of and compliance with its obligations under such
Loan Documents will constitute, private and commercial acts
done and performed for private and commercial purposes.
(vii) CREDIT AGREEMENT. Affirms each of the representations and
warranties contained in ARTICLE VII of the Credit Agreement.
4. THE PARENT GUARANTY OF SUBSIDIARY OBLIGATIONS. The Parent expressly
agrees as follows:
(i) DIRECT OBLIGATIONS. The Parent hereby unconditionally and
irrevocably affirms to the Lenders its direct liability for,
and guarantees to the Lenders, the due and punctual payment of
all obligations and liabilities of the Subsidiary to the
Lenders, whether arising under this Assumption Letter, the
Credit Agreement, the other Loan Documents or any other
documents related thereto (collectively, the "Borrowing
Subsidiary Obligations") including, but not limited to, the
due and punctual payment of principal of and interest on the
Notes issued by the Subsidiary, and punctual payment of all
other sums now or hereafter owed by the Subsidiary under this
Assumption Letter, the Credit Agreement, the Loan Documents,
any Note issued by the Subsidiary and any other document
related thereto as and when the same shall become due (whether
by acceleration or otherwise) and according to the terms
hereof and thereof. In case of failure by the Subsidiary
punctually to pay any Borrowing Subsidiary Obligation, the
Parent hereby unconditionally agrees to cause such
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<PAGE> 164
payment to be made punctually as and when the same shall
become due and payable, whether at maturity or by declaration
or otherwise, and as if such payment were made by the
Subsidiary.
(ii) OBLIGATIONS UNCONDITIONAL. The obligations of the Parent under
this Assumption Letter shall be irrevocable, unconditional and
absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the
Subsidiary (or any other Borrowing Subsidiary) or under any
Note or other agreement issued or entered into by any
Subsidiary (or any other Borrowing Subsidiary), by operation
of law or otherwise;
(b) any modification or amendment of or supplement to
this Assumption Letter or any Loan Document;
(c) any compromise, settlement, modification,
amendment, waiver, release, non-perfection or invalidity of or
to any direct or indirect security, guarantee or other
liability of any third party with respect to any Borrowing
Subsidiary Obligation;
(d) any change in the corporate existence, structure,
or ownership of, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting, the Subsidiary (or any
other Borrowing Subsidiary) or their assets or any resulting
release or discharge of any Borrowing Subsidiary Obligation;
(e) the existence of any claim, set-off or other
right which the Parent may have at any time against the
Subsidiary (or any other Borrowing Subsidiary), the
Administrative Agent, any Lender or any other Person, whether
or not arising in connection with this Assumption Letter or
any other Loan Document; provided, however, that nothing
herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or
against the Subsidiary (or any other Borrowing Subsidiary) for
any reason of this Assumption Letter or any Loan Document, or
any provision of applicable law or regulation purporting to
prohibit the payment by the Subsidiary (or any other Borrowing
Subsidiary) of the principal of or interest on any Note issued
by the Subsidiary (or any other Borrowing Subsidiary) or any
other amount payable by the Subsidiary (or any other Borrowing
Subsidiary) under this Assumption Letter, the Credit Agreement
or any Loan Document; or
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<PAGE> 165
(g) any other act or omission to act or delay of any
kind by the Subsidiary (or any other Borrowing Subsidiary),
the Administrative Agent, any Lender or any other Person or
any other circumstance whatsoever that might, but for the
provisions of this paragraph, constitute a legal or equitable
discharge of the obligations of the Parent under this
Assumption Letter, the Credit Agreement or any Loan Document.
(iii) DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The Parent's obligations hereunder shall remain
in full force and effect until each Commitment has expired or
is terminated and the principal of and interest on the Notes
and all other Obligations payable under this Assumption Letter
and the Loan Documents shall have been paid in full. If at any
time any payment of the principal of or interest on any Note
issued by the Subsidiary or any other amount payable by the
Subsidiary under this Assumption Letter or any Loan Document
is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Subsidiary
or otherwise, the Parent's obligations under this Assumption
Letter with respect to such payment shall be reinstated at
such time as though such payment had become due but had not
been made at such time. This provision shall survive the
termination of this Assumption Letter and the payment in full
of the Obligations.
(iv) WAIVER. The Parent irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action
be taken by any Person against the Subsidiary or any other
Person. The Parent waives any benefit of the collateral, if
any, which may from time to time secure the Obligations or any
part thereof and authorizes the Administrative Agent or the
Lenders to take any action, or exercise any remedy with
respect thereto, which the Administrative Agent or the Lenders
in its or their sole discretion shall determine, without
notice to the Parent.
(v) STAY OF ACCELERATION. If acceleration of the time for payment
of any amount payable by the Subsidiary under this Assumption
Letter or any of the Loan Documents is stayed upon the
insolvency, bankruptcy or reorganization of the Subsidiary or
any other Person, all such amounts otherwise subject to
acceleration under the terms of this Assumption Letter or any
Loan Document shall nonetheless be payable by the Parent
hereunder forthwith on demand by the Administrative Agent.
(vi) PAYMENTS. All payments to be made by the Parent pursuant to
this Assumption Letter shall be made at the times and in the
manner and in the currency prescribed for payments in the
Credit Agreement.
(vii) DELAY OF SUBROGATION. Until the Parent's obligations under
this Assumption Letter have been paid in full and terminated,
the Parent shall not exercise any right of subrogation with
respect to payments made by the Parent pursuant to this
Assumption Letter.
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<PAGE> 166
5. NOTICE. Any notice to be given to the Subsidiary may be given to the
Parent (and shall conclusively be deemed to have been received by the Subsidiary
when received, or deemed received, by the Parent) in the manner set forth in the
Credit Agreement. The Subsidiary agrees that the Parent may give notices under
this Assumption Letter and the Loan Documents on behalf of the Subsidiary, and
that any such notice given by the Parent on behalf of the Subsidiary shall be
binding upon the Subsidiary.
6. JURISDICTION AND GOVERNING LAW.
(i) Without limiting the provisions of SECTION 12.15 of the Credit
Agreement, the Subsidiary and the Parent each irrevocably and
unconditionally submits, for itself and its property, to the
jurisdiction of the United States federal court for the Middle
District of Florida or any Florida state court, and any
appellate court from any thereof, in any action or proceeding
arising out of or relating to this Assumption Letter, the
Credit Agreement or any other Loan Document or for recognition
or enforcement of any judgment relating thereto, and the
Subsidiary and the Parent each irrevocably and unconditionally
agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such court.
(ii) This Assumption Letter shall be governed by, and construed in
accordance with, the internal laws (and not the law of
conflicts) of the State of New York; provided that the
Administrative Agent and the Lenders shall retain all rights
arising under federal law.
[signatures follow]
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<PAGE> 167
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[NAME OF BORROWING SUBSIDIARY]
By
-------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Agreed and Consented to:
SENSORMATIC ELECTRONICS CORPORATION
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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<PAGE> 168
EXHIBIT "A"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: Bank of America, N.A., as Administrative Agent
(the "Administrative Agent") under the
Credit Agreement Described Below.
RE: Credit Agreement dated as of December 9, 1999 (as the same may be
amended, modified or supplemented, the "Credit Agreement"), among
Sensormatic Electronics Corporation, (the "Parent"), various Borrowing
Subsidiaries thereof, Bank of America, N.A., as Administrative Agent,
and the Lenders named therein. Terms used herein and not otherwise
defined shall have the meanings assigned thereto in the Credit
Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Loans or other extensions of credit from time to time until receipt
by the Administrative Agent of a specific written revocation of such
instructions by [NAME OF BORROWING SUBSIDIARY] (the "Borrowing Entity"),
provided, however, that the Administrative Agent may otherwise transfer funds as
hereafter directed in writing by the Borrowing Entity in accordance with SECTION
12.2 of the Credit Agreement or based on any telephonic notice made in
accordance with any other applicable provision of the Credit Agreement.
Facility Identification Number(s)
-----------------------------------------------
Customer/Account Name
-----------------------------------------------------------
Transfer Funds to
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
For Account No.
-----------------------------------------------------------------
Reference/Attention To
----------------------------------------------------------
Authorized Officer (Customer Representative) Date
---------------------------
- ------------------------------------------- --------------------------
(Please Print) (Signature)
Bank Officer Name Date
---------------------------
- ------------------------------------------- ---------------------------
(Please Print) (Signature)
(DELIVER COMPLETED FORM TO CREDIT SUPPORT STAFF FOR IMMEDIATE PROCESSING)
L-9
<PAGE> 169
EXHIBIT M
Form of Amendment Agreement
Amendment No. ___ to
Credit Agreement
THIS AMENDMENT AGREEMENT is made and entered into this _____ day of
________, ____, by and among SENSORMATIC ELECTRONICS CORPORATION, a Florida
corporation (herein called the "Parent"), the BORROWING SUBSIDIARIES parties
hereto, if any (the Parent and each Borrowing Subsidiary is individually
referred to as a "Borrower" and collectively as the "Borrowers"), BANK OF
AMERICA, N.A. (the "Administrative Agent"), as Administrative Agent for the
lenders (the "Lenders") party to a Credit Agreement dated December 9, 1999 among
such Lenders, the Parent and the Administrative Agent, as amended (the
"Agreement") and a new Lender party to this Amendment Agreement (the "New
Lender").
W I T N E S S E T H:
WHEREAS, the Parent, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make revolving loans to
the Borrowers in the principal amount of $115,000,000 as evidenced by the Notes
(as defined in the Agreement); and
WHEREAS, the New Lender has agreed to provide to the Borrowers Loans
and participations in Letters of Credit of up to $__________ thereby increasing
the Total Revolving Credit Commitment to $___________ and the parties hereto
desire to amend the Agreement in the manner herein set forth effective as of the
date hereof;
NOW, THEREFORE, the Borrower, the Administrative Agent and the New
Lender do hereby agree as follows:
1. DEFINITIONS. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereby
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. AMENDMENTS. Subject to the conditions hereof, the Agreement is
hereby amended, effective as of the date hereof, by deleting EXHIBIT A and
inserting in lieu thereof EXHIBIT A attached hereto, and the New Lender agrees
by the execution of this Amendment Agreement that it shall be a party to the
Agreement as a "Lender" and shall provide to the Borrower its Revolving Credit
Commitment in the amount set forth in EXHIBIT A attached hereto.
3. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby certifies that:
(a) The representations and warranties made by Borrower in
ARTICLE VII thereof are true in all material respects on and as of the
date hereof except that the financial
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<PAGE> 170
statements referred to in SECTION 7.6(a) shall be those most recently
furnished to each Lender pursuant to SECTION 8.1(a) and (b);
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Parent and its Subsidiaries
since the date of the most recent financial reports of the Parent
received by each Lender under SECTION 7.6(a), or if more recent, those
received under SECTION 8.1 thereof, other than changes in the ordinary
course of business, none of which has been a material adverse change;
and
(c) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constituted a
Default or an Event of Default on the part of the Borrower under the
Agreement or the Notes either immediately or with the lapse of time or
the giving of notice, or both.
4. CONDITIONS. As a condition to the effectiveness of this Amendment
Agreement, the Borrowers shall deliver, or cause to be delivered to the
Administrative Agent, the following:
(a) Four (4) executed counterparts of this Amendment
Agreement; and
(b) A fully-executed Revolving Note and Competitive Bid Note
payable to the Lender in the amount of Lender's Revolving Credit
Commitment.
5. OTHER DOCUMENTS. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be satisfactory in
form and substance to the Administrative Agent and its counsel; the
Administrative Agent shall have received copies of all additional agreements,
instruments and documents which it may reasonably request in connection
therewith, including evidence of the authority of Borrowers to enter into the
transactions contemplated by this Amendment Agreement, in each case such
documents, when appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrowers relating to the
matters provided for herein shall be satisfactory to the Administrative Agent
and its counsel.
6. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement or otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any other party to the other. None of the terms of conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, signed by all the parties hereto, specifying such
change, modification, waiver or cancellation of such terms or conditions, or of
any proceeding or succeeding breach thereof.
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<PAGE> 171
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
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<PAGE> 172
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
SENSORMATIC ELECTRONICS CORPORATION
WITNESS:
By:
- ---------------------------- ----------------------------------
Name:
--------------------------------
Title:
- ---------------------------- -------------------------------
BORROWING SUBSIDIARY:
--------------------------------------
[Insert Name]
By:
----------------------------------
Name:
--------------------------------
Title:
--------------------------------
M-4
<PAGE> 173
BANK OF AMERICA, N.A., as Administrative
Agent
By:
----------------------------------
Name:
--------------------------------
Title:
--------------------------------
M-5
<PAGE> 174
--------------------------------------
[Insert Name of Lender]
By:
----------------------------------
Name:
--------------------------------
Title:
--------------------------------
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<PAGE> 175
EXHIBIT A
Applicable Commitment Percentages
<TABLE>
<CAPTION>
Applicable
Revolving Credit Commitment
Lender Commitment Percentage
- ------ ---------- ----------
<S> <C> <C>
Bank of America, N.A. $ %
SunTrust Bank, South Florida, N.A. $
Bank One, N.A. (Chicago Main Office) $
BankBoston, N.A. $
Dresdner Bank Lateinamerika AG,
Miami Agency $
$
- -------------------------- --------- --------
Total $ 100%
---------
</TABLE>
M-7
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-2000
<PERIOD-START> JUL-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 203
<SECURITIES> 0
<RECEIVABLES> 461
<ALLOWANCES> 53
<INVENTORY> 159
<CURRENT-ASSETS> 779
<PP&E> 275
<DEPRECIATION> 125
<TOTAL-ASSETS> 1,768
<CURRENT-LIABILITIES> 377
<BONDS> 501
0
167
<COMMON> 751
<OTHER-SE> (5)
<TOTAL-LIABILITY-AND-EQUITY> 1,768
<SALES> 427
<TOTAL-REVENUES> 525
<CGS> 292
<TOTAL-COSTS> 473
<OTHER-EXPENSES> 15
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 21
<INCOME-PRETAX> 36
<INCOME-TAX> 13
<INCOME-CONTINUING> 23
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 23
<EPS-BASIC> .22
<EPS-DILUTED> .22
</TABLE>
