EXHIBIT 10d
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
AMENDMENT NUMBER 1
THIS AMENDMENT is made as of the 27th day of January,
1997, by and among DETECTION SYSTEMS, INC., a corporation
formed under the laws of the State of New York with offices at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Detection"),
RADIONICS, INC., a corporation formed under the laws of the
State of California with offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Radionics"), and FLEET BANK, a bank
and trust company formed under the laws of the State of New
York with offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Bank").
WHEREAS, the parties entered into an Amended and
Restated Credit Facility Agreement dated as of May 25, 1996
(the "Credit Agreement"), and
WHEREAS, the parties desire to amend the Credit
Agreement,
NOW THEREFORE, the parties hereby agree as follows:
1. The following definitions contained in Section
1.1 of the Credit Agreement are hereby amended to read in their
respective entireties as follows:
"Break Costs" shall mean an
amount equal to the amount (if any)
required to compensate the Bank, and any
assignee or participant of the Bank, for
any additional losses (including without
limitation any loss, cost, or expense
incurred by reason of the liquidation or
reemployment of deposits or funds acquired
by the Bank to fund or maintain the
Obligations), costs, and expenses
(including without limitation penalties) it
may reasonably incur as a result of or in
connection with any prepayment or failure
to make a prepayment after notice of the
same is given.
"Business Day" shall mean any day
except for a Saturday, Sunday, banking
holiday in the State of New York, or
banking holiday in London, England.
"Debt" for any person or entity
shall mean (i) indebtedness of such person
or entity for borrowed money, (ii)
obligations of such person or entity for
the deferred purchase price of property or
services (except trade payables incurred in
the ordinary course of business), (iii)
capitalized or capitalizable obligations of
such person or entity with respect to
leases, (iv) the amount available for
drawing under outstanding standby letters
of credit issued for the account of such
person or entity and the amount of other
off-balance sheet obligations or
liabilities, each to the extent not
otherwise treated separately as Debt, (v)
all obligations endorsed (other than for
collection in the ordinary course of
business) or guaranteed by such person or
entity directly or indirectly in any manner
including without limitation contingent
obligations to purchase, pay or supply
funds to any person or entity to assure a
creditor against loss, (vi) obligations of
such person or entity arising under
acceptance facilities, or bills, notes, or
similar instruments, and (vii) obligations
secured by a lien, security interest, or
other arrangement for the purpose of
security on property owned by such person
or entity whether or not the underlying
obligations have been assumed by such
person or entity.
"Eligible Subsidiaries" shall
mean consolidated Subsidiaries wholly owned
by Detection or Radionics that are
Guarantors, that have provided the Bank
with security interests in all of their
assets unless otherwise agreed by the Bank,
and that, except for intercompany
transactions with the Borrower and other
Eligible Subsidiaries, themselves comply in
all respects with the same requirements as
are imposed upon the Borrower in Articles
8, 9, 10, and 11 of this Agreement.
"Increased Cost" means any
additional amounts sufficient to compensate
the Bank and any assignee or participant of
the Bank for any reduction in any amount
receivable by such Bank or participant in
respect of the Obligations or any increased
costs of funding or maintaining the
Obligations as a result of the adoption of,
change of, or change in the interpretation
or administration of any law, regulation,
guideline or policy by any governmental
authority, central bank or comparable
agency charged with the interpretation or
administration thereof, or compliance by
the Bank or the Bank's holding company (or
any assignee or participant of the Bank or
any of their holding companies), with any
request or directive (whether or not having
the force of law) of any such authority,
central bank or comparable agency, which
has or would have the effect of reducing
the rate of return of the Bank, the Bank's
holding company, or any assignee or
participant of the Bank or any of their
holding companies, as a consequence of the
transactions contemplated by this Agreement
and all related documents and agreements,
the existence of the Bank's commitment, or
any note bearing interest at a rate based
on the LIBOR Rate, to a level below that
which the Bank, the Bank's holding company,
or any assignee or participant of the Bank
or their respective holding companies,
could have achieved but for such adoption,
change or compliance (taking into
consideration such Bank's, assignee's, and
participant's policies), including without
limitation including without limitation any
law, regulation, policy or guideline
relating to (i) capital adequacy including
among others any adopted pursuant to or
arising out of the July 1988 report of the
Basle Committee on Banking Regulations and
Supervisory Practices entitled
"International Convergence of Capital
Measurement and Capital Standards", (ii)
reserve requirements, (iii) taxation, (iv)
asset maintenance, (v) asset pledges, or
(vi) otherwise. A certificate of a
claiming bank detailing such Increased Cost
shall be deemed to be conclusive as to the
amount claimed absent manifest error.
"LIBOR Rate" shall mean, with
respect to any interest rate period, the
rate per anum equal to the quotient
obtained by dividing (and rounding to the
nearest 1/100 of 1%) (i) LIBOR by (ii) a
percentage equal to 100% minus the then
stated maximum rate of all reserve
requirements pursuant to Regulation D of
the Federal Reserve Board, including
without limitation any marginal, emergency,
supplemental, special, or other reserves
required by applicable law. The LIBOR Rate
shall be further adjusted to reflect any
Increased Cost.
"Subsidiary" shall mean for any
person or entity any corporation or other
business organization of which at least a
majority of the securities, equity, or
other ownership interests having absolute
or contingent voting power are directly or
indirectly owned by such person or entity.
2. A new paragraph is hereby added to the end of
the definition of "LIBOR" contained in Section 1.1 of the
Credit Agreement, to read as follows:
If at any time the Bank (acting
for itself or at the request of any of its
participants) notifies the Borrower that
LIBOR plus the applicable margin will not
adequately reflect the cost to any of them
of making, funding, or maintaining
Obligations for which the interest rate is
based upon LIBOR for any particular
interest rate period, the obligation of the
Bank to make advances available at a rate
based upon LIBOR shall be suspended until
the Bank (acting for itself and its
participants) notifies the Borrower that
the circumstances causing such suspension
no longer exist.
3. A new sentence is hereby added to the end of
Section 2.1 of the Credit Agreement to read in its entirety as
follows:
Each borrowing request must be of at
least $250,000.
4. The second paragraph of Section 2.3 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
The Borrower, however, at least
three Business Days prior to each Rate
Change Date may notify the Bank of its
election to have a portion of the
outstanding principal amount under the
Revolving Line (which must be at least
$1,000,000 and must be an increment of
$100,000) bear interest for a one-month,
three-month, or six month period commencing
on such Rate Change Date at the LIBOR Rate
plus the Applicable LIBOR Margin.
5. The second paragraph of Section 3.3 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
Detection, however, at least
three Business Days prior to each Rate
Change Date may notify the Bank of its
election to have a portion of the
outstanding principal amount under the
Mortgage Loan (which must be at least
$1,000,000 and must be an increment of
$100,000) bear interest for a one-month,
three-month, or six month period commencing
on such Rate Change Date at the LIBOR Rate
plus the Applicable LIBOR Margin.
6. The second paragraph of Section 3A.3 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
Detection, however, at least
three Business Days prior to each Rate
Change Date may notify the Bank of its
election to have a portion of the
outstanding principal amount under the Term
Loan (which must be at least $1,000,000 and
must be an increment of $100,000) bear
interest for a one-month, three-month, or
six month period commencing on such Rate
Change Date at the LIBOR Rate plus the
Applicable LIBOR Margin.
7. A new final paragraph is hereby to added to
Section 6.1 of the Credit Agreement to read in its entirety as
follows:
Each Eligible Subsidiary is duly
organized, validly existing and in good
standing under the laws of the state or
country of its organization, and is duly
qualified to transact business and in good
standing in all states and countries in
which it is required to qualify or in which
failure to qualify could have a material
adverse impact on its business. Each
Eligible Subsidiary has full power and
authority to own its properties, to carry
on its business as now being conducted, to
execute, deliver and perform its
obligations under this Agreement and all
documents and instruments related to this
Agreement, and to consummate the
transactions contemplated hereby.
8. A new final paragraph is hereby added to Section
6.2 of the Credit Agreement to read in its entirety as follows:
All necessary action on the part
of each Eligible Subsidiary, including
shareholder approval to the extent
required, relating to authorization of the
execution and delivery of this Agreement
and all related documents and instruments,
and the performance of the Obligations of
Each Eligible Subsidiary hereunder and
thereunder has been taken. All documents
and instruments related to this Agreement
executed by each Eligible Subsidiary
respectively constitute legal, valid and
binding obligations of such Eligible
Subsidiary, enforceable in accordance with
their respective terms, except as
enforceability may be limited by applicable
bankruptcy, insolvency or similar law
affecting the rights of creditors
generally, and equitable principles. No
Eligible Subsidiary has defenses, offsets,
claims, or counterclaims with respect to
its obligations arising under all documents
and instruments related to this Agreement.
The execution and delivery by Each Eligible
Subsidiary or all documents and agreements
related to this Agreement, and the
performance by each Eligible Subsidiary of
its obligations under this Agreement and
all related documents and agreements will
not violate any provision of law or any
Eligible Subsidiary's Certificate of
Incorporation or By-laws or organizational
or other documents or agreements. The
execution, delivery and performance of all
documents and agreements related to this
Agreement, and the consummation of the
transactions contemplated hereby will not
violate, be in conflict with, result in a
breach of, or constitute a default under
any agreement to which any Eligible
Subsidiary is a party or by which any of
its properties is bound, or any order,
writ, injunction, or decree of any court or
governmental instrumentality, and will not
result in the creation or imposition of any
lien, charge or encumbrance upon any of its
properties except in favor of the Bank.
9. A new final paragraph is hereby added to Section
6.3 of the Credit Agreement to read in its entirety as follows:
All of the outstanding shares and
other equity interests of each Eligible
Subsidiary are duly authorized, validly
issued, and fully paid. There is no
existing contract, debenture, security,
right, option, warrant, call or similar
commitment of any character calling for or
relating to the issuance, retirement,
redemption, purchase, or repurchase of
shares or other equity interests of any
Eligible Subsidiary except with respect to
Emergency Communications, Inc. pursuant to
the Shareholders Agreement dated January
26, 1993, a complete copy of which has been
provided to the Bank prior to the date
hereof.
10. A new final paragraph is hereby added to Section
6.4 of the Credit Agreement to read in its entirety as follows:
There is no action, suit or
proceeding at law or in equity or by or
before any governmental instrumentality or
other agency pending or, to the knowledge
of the Borrower, threatened against or
affecting any Eligible Subsidiary (i) that
brings into question the legality, validity
or enforceability of this Agreement or the
transactions contemplated hereby or (ii)
that, if adversely determined, would have a
material adverse effect on the financial
condition or the business of the Eligible
Subsidiary.
11. Section 6.5 of the Credit Agreement is hereby
amended to read in its entirety as follows:
All financial statements
furnished by the Borrower to the Bank are
complete and correct, have been prepared in
accordance with generally accepted
accounting principles consistently applied
throughout the periods indicated, and
fairly present the financial condition of
the Borrower and its Eligible Subsidiaries,
as of the respective dates thereof and the
results of their respective operations for
the respective periods covered thereby.
12. Section 6.6 of the Credit Agreement is hereby
amended to read in its entirety as follows:
Since the most recent financial
statements described in Section 6.5 hereof
there has been no material adverse change
in the condition, financial or otherwise,
of the Borrower or its Eligible
Subsidiaries, taken as a whole.
13. A new final sentence is hereby added to Section
6.7 of the Credit Agreement to read in its entirety as follows:
Each Eligible Subsidiary has filed or
caused to be filed when due all federal tax
returns and all state and local tax returns
that are required to be filed, and has paid
or caused to be paid all taxes as shown on
said returns or any assessment received.
14. Section 6.8 of the Credit Agreement is hereby
amended to read in its entirety as follows:
The Borrower and each of its
Eligible Subsidiaries have good and
marketable title to all of their properties
and assets, including without limitation,
the properties and assets reflected in the
most recent financial statements referred
to in Section 6.5 hereof. The Borrower and
each of its Eligible Subsidiaries have
undisturbed peaceable possession under all
leases under which they are operating, none
of which contain unusual or burdensome
provisions that may materially affect the
operations of the Borrower and its Eligible
Subsidiaries, and all such leases are in
full force and effect.
15. Section 6.9 of the Credit Agreement is hereby
amended to read in its entirety as follows:
Except as disclosed in the most
recent financial statements referred to in
Section 6.5 hereof, the Borrower and its
Eligible Subsidiaries have no outstanding
Debt.
16. Section 6.10 of the Credit Agreement is hereby
amended to read in its entirety as follows:
No action, event, or transaction has
occurred that could give rise to a lien or
encumbrance on the assets of the Borrower
or its Eligible Subsidiaries as a result of
the application of relevant provisions of
ERISA, and the Borrower and its Eligible
Subsidiaries are in material compliance
with all requirements of ERISA.
17. Section 6.12 of the Credit Agreement is hereby
amended to read in its entirety as follows:
The Borrower and its Eligible
Subsidiaries are not in violation of any
laws, ordinances, governmental rules,
requirements, or regulations to which they
are subject which violation might
materially adversely affect the condition
(financial or otherwise) of the Borrower
and its Eligible Subsidiaries. The
Borrower and its Eligible Subsidiaries have
obtained and are in compliance with all
licenses, permits, franchises, and
governmental authorizations necessary for
the ownership of their properties and the
conduct of their business, for which
failure to comply could materially
adversely affect the condition (financial
or otherwise) of Borrower and its Eligible
Subsidiaries.
18. Section 6.13 of the Credit Agreement is hereby
amended to read in its entirety as follows:
The Borrower and its Eligible
Subsidiaries own or possess all patents,
trademarks, service marks, trade names,
copyrights, licenses, authorizations, other
intellectual property rights, and all
rights with respect to the foregoing,
necessary to the conduct of their business
as now conducted without any material
conflict with the rights of others.
19. Section 6.14 of the Credit Agreement is hereby
amended to read in its entirety as follows:
The Borrower and its Eligible
Subsidiaries are not parties to any
contract or agreement that materially
adversely affects their business, property,
assets, or condition, financial or
otherwise, and the Borrower and its
Eligible Subsidiaries are in compliance in
all material respects with all contracts
and agreements to which they are a party.
20. A new clause is hereby added to the end of
Section 8.3 of the Credit Agreement to read as follows:
and so long as Borrower maintains all
reserves required by GAAP
21. A new Section 8.13 is hereby added to the Credit
Agreement to read as follows:
8.13 Eligible Subsidiaries.
Cause each Eligible Subsidiary to comply in
all respects with the same requirements as
are imposed upon the Borrower in Sections
8.3, 8.4, 8.5, 8.6, 8.7, 8.8, and 8.9 of
this Agreement.
22. A new Section 9.9 is hereby added to the Credit
Agreement to read as follows:
9.9 Eligible Subsidiaries.
Cause each Eligible Subsidiary to comply in
all respects with the same requirements as
are imposed upon the Borrower in Sections
9.1, 9.2, 9.3, 9.5, 9.6, and 9.8 of this
Agreement.
23. Section 12.1(f) of the Credit Agreement is
hereby amended to read in its entirety as follows:
f. Material Change. After ten
(10) days notice to the Borrower, any
condition by reason of which the Bank
reasonably believes the Borrower's ability
to timely repay any Obligations to the Bank
is impaired, including without limitation
by reason of material or reasonably
projected material change in Borrower's
business or operations, or in any factor
affecting Borrower's business or
operations, or regarding any other
obligation or agreement of Borrower, or in
the financial condition of Borrower or its
Eligible Subsidiaries taken as a whole, or
in the collateral for the Borrower's
Obligations.
24. A new final paragraph is hereby added to Section
12.2 to read in its entirety as follows:
After any Event of Default, the
Bank may require the Borrower to deliver
cash collateral to the Bank, together with
agreements related thereto satisfactory to
the Bank in its sole discretion, in an
amount equal to the aggregate undrawn
outstanding amount of all letters of credit
issued pursuant to Section 2.8 of this
Agreement.
25. The reference to "business days" in Section 13.4
of the Credit Agreement is hereby amended to read "Business
Days".
26. A new Section 13.14 is hereby added to the
Credit Agreement to read as follows:
13.14 Time of Payments. In
the event that any payment is due from the
Borrower under this Agreement or any note,
instrument, agreement, or document related
hereto, such payment shall be made in
immediately available funds to the Bank at
or before 2:00 p.m. on the Business Day on
which such payment is due. Payments made
after such time shall continue to bear
interest until the next succeeding Business
Day at the rates otherwise provided in this
Agreement.
27. All other terms of the Credit Agreement shall
remain unchanged and in full force and effect.
28. Borrower represents and warrants that (a) each
of the representations and warranties set forth in the Credit
Agreement is true and correct as of the date hereof (and with
respect to the representations and warranties set forth in
Section 6.5 of the Credit Agreement, the financial statements
referred to therein shall mean the financial statements of the
Borrowers for the most recent quarterly period ended); and (b)
no Event of Default or event that, with the giving of notice or
the passage of time or both would constitute an Event of
Default, has occurred and is continuing.
IN WITNESS WHEREOF, the parties have executed this
Amendment on the date first above written.
FLEET BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
DETECTION SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
RADIONICS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Title: CFO, Secretary,
Treasurer