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Exhibit 10(c)
FIRST AMENDMENT TO TRANSFER AND ADMINISTRATION AGREEMENT
FIRST AMENDMENT TO TRANSFER AND ADMINISTRATION AGREEMENT (this
"Amendment"), dated as of October 31, 1997, among Kitty Hawk Funding Corporation
(the "Company"), Sensor SPC Inc., as transferor (the "Transferor"), Sensormatic
Electronics Corporation, individually and as collection agent (the "Collection
Agent") and NationsBank, N.A., as agent (the "Agent") and bank investor (the
"Bank Investor").
W I T N E S S E T H:
WHEREAS, the Company, the Transferor, the Collection Agent, the Agent
and the Bank Investor have entered into the Transfer and Administration
Agreement, dated as of June 27, 1997 (as heretofore amended, the "Agreement");
WHEREAS, the Transferor and the Collection Agent have requested that
the Agreement be amended in the manner set forth below; and
WHEREAS, the Company, the Agent and the Bank Investor have agreed,
subject to the terms and conditions of this Amendment, to amend the Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein, the parties hereby agree as follows:
1. Definitions. Terms used but not defined herein shall have the
meaning assigned thereto in the Agreement.
2. Amendments of Agreement. The Agreement shall be and is hereby
amended, as of the Effective Date (as hereinafter defined), as follows:
a. In Section 1.1 of the Agreement, the definition of "Reports" is
amended to read in its entirety as follows:
"Reports" means the Seller's (i) Forms 10-K for the fiscal
years ended, respectively, June 30, 1996 and June 30, 1997, and (ii)
Forms 10-Q for the quarterly periods ended, respectively, September 30,
1996, December 31, 1996 and March 31, 1997.
b. Section 1.1 of the Agreement is further amended by inserting the
following new definition in the proper alphabetical order:
"Class Action Settlement" means the settlement or any proposed
settlement of the shareholders' class actions filed in 1995 and
consolidated before
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the Xxx. Xxxxxxx Xxxxx, United States District Judge for the
United States District Court for the Southern District of
Florida.
c. Section 3.4(e) of the Agreement is hereby amended to read in
its entirety as follows:
(e) No Actions; Suits. Except for (i) the proceedings
described in the Reports (other than those that are subject to the
Class Action Settlement), as to which the ultimate outcome, and whether
or not such matters could reasonably be expected to have a Material
Adverse Effect, are not now known (or, if the outcome is known, such
outcome could not reasonably be expected to have a Material Adverse
Effect), and any other actions, suits or proceedings based primarily on
allegations similar to those contained in such proceedings disclosed in
such Reports, and (ii) the proceedings that are subject to the Class
Action Settlement, the outcome of which the Collection Agent believes
will not have a Material Adverse Effect, there are no actions, suits or
proceedings pending or, to the Collection Agent's knowledge, threatened
against or affecting the Collection Agent or any of its Subsidiaries,
at law or in equity or before or by any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
3. Representations and Warranties. In order to induce the
Company, the Agent and the Bank Investor to enter into this Amendment, the
Transferor and the Collection Agent each makes the following representations and
warranties (which representations and warranties shall survive the execution and
delivery of this Amendment) as of the date hereof, after giving effect to the
amendments set forth herein and in the amendment of even date herewith to the
Receivables Purchase Agreement (the "RPA Amendment"):
(a) The Transferor and the Collection Agent each restates and
repeats (as of the date hereof, other than any such representations or
warranty which is made as of a specific earlier date) each of the
representations and warranties made by it contained in the Agreement,
as amended by this Amendment.
(b) There has occurred and is continuing no Termination Event
or Potential Termination Event.
4. Effective Date. This Amendment shall become effective as of
October 31, 1997 (the "Effective Date") when the Agent shall have received a
counterpart of this Amendment, duly executed and delivered by each of the
parties hereto.
5. Counterparts. This Amendment may be executed by the parties
hereto individually or in any combination, in one or more counterparts, each of
which shall be an original and all of which shall constitute one and the same
amendment.
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6. Agreement and all other Related Agreements in Full Force
and Effect; Confirmation of Collateral. Except as amended by this Amendment, all
of the provisions of the Agreement and all of the provisions of each of each
related agreement shall remain in full force and effect from and after the date
hereof. The Transferor and the Collection Agent each hereby confirms and agrees
that all collateral security and all ownership interests granted by the
Transferor in connection with the Agreement remains in full force and effect
after giving effect to this Amendment.
7. References to Agreement. From and after the Effective Date,
(a) all references in the Agreement to "this Agreement", "hereof", "herein" or
similar terms, (b) all references to the Agreement in each agreement, instrument
and other document executed or delivered in connection with the Agreement, and
(c) all references to the Agreement, shall mean and refer to the Agreement as
amended by this Amendment.
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IN WITNESS WHEREOF, the Company, the Transferor, the
Collection Agent, the Agent and the Bank Investor have caused this Amendment to
be duly executed by their respective officers thereunder duly authorized as of
the day and year first above written.
KITTY HAWK FUNDING
CORPORATION, as Company
By
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Title:
SENSOR SPC INC., as Transferor
By
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Title:
SENSORMATIC ELECTRONICS
CORPORATION, as Collection Agent
By
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Title:
NATIONSBANK, N.A., as Agent and as a
Bank Investor
By
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Title:
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