<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
------------- ---------------
Commission File Number: 000-21407
LASON, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 38-3214743
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification number)
1305 Stephenson Highway
Troy, Michigan 48083
(Address of principal executive offices including zip code)
Telephone: (248) 597-5800
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or 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 [ ]
As of August 12, 1999, 18,774,190 shares of Common Stock, $.01 par value were
outstanding.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION Page No.
<S> <C>
ITEM 1. FINANCIAL STATEMENTS
Condensed Consolidated Balance Sheets (Unaudited) as of
June 30, 1999 and December 31, 1998 2
Condensed Consolidated Statements of Income (Unaudited),
Three Months and Six Months Ended June 30, 1999 and 1998 3
Condensed Consolidated Statements of Cash Flows (Unaudited),
Six Months Ended June 30, 1999 and 1998 4
Notes to Condensed Consolidated Financial Statements (Unaudited) 5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 12
ITEM 3. QUANTITIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK 17
PART II - OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS 18
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS 18
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 19
SIGNATURES 23
</TABLE>
<PAGE> 3
LASON, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1999 1998
--------------- -------------
(IN THOUSANDS, EXCEPT FOR SHARES)
ASSETS
<S> <C> <C>
Cash and cash equivalents $ 8,153 $ 6,910
Accounts receivable (net) 132,296 105,530
Supplies 13,780 12,649
Deferred income taxes 1,822 1,932
Prepaid expenses and other 30,895 24,200
--------- ---------
Total current assets 186,946 151,221
Property and equipment (net) 97,486 84,714
Intangible assets (net) 350,398 266,372
Employee loans receivable 3,177 1,698
Deferred income taxes 33,603 --
Other 4,994 3,141
--------- ---------
Total assets $ 676,604 $ 507,146
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accrued expenses 40,060 20,316
Accounts payable 27,994 26,884
Notes payable 316 18,906
Customer deposits 6,825 6,015
Deferred income taxes 2,364 918
Other 13,676 18,521
--------- ---------
Total current liabilities 91,235 91,560
Revolving credit line borrowings 194,000 59,000
Deferred income taxes 943 3,118
Convertible debentures 3,034 1,169
Other 22,569 22,235
--------- ---------
Total liabilities 311,781 177,082
--------- ---------
STOCKHOLDERS' EQUITY
Common stock, $.01 par value; 100,000,000 and 20,000,000 shares authorized,
18,693,300 and 15,378,375 shares issued and
outstanding, 895,216 and 686,865 shares held in escrow 178 176
Preferred stock, $.01 par value; 5,000,000 shares authorized,
none issued and outstanding -- --
Additional paid-in capital 331,771 291,621
Retained earnings 32,426 35,666
Treasury stock (at cost) (3,579) (3,579)
Accumulated other comprehensive income 4,027 6,180
--------- ---------
Total Stockholders' Equity 364,823 330,064
--------- ---------
Total liabilities and Stockholders' Equity $ 676,604 $ 507,146
========= =========
</TABLE>
The accompanying Notes are an integral part of the condensed consolidated
financial statements.
2
<PAGE> 4
LASON, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
----------------------------- -----------------------------
1999 1998 1999 1998
--------- --------- --------- ---------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Revenues, net of postage $ 142,105 $ 86,510 $ 273,168 $ 151,622
Cost of revenues 87,921 52,197 170,189 92,314
--------- --------- --------- ---------
Gross profit 54,184 34,313 102,979 59,308
Selling, general and administrative expenses 32,699 20,221 62,956 36,596
Compensatory stock option expense 71 414 1,519 819
Amortization of intangibles 3,354 1,480 6,091 2,576
Merger-related charges 30,800 -- 31,088 --
--------- --------- --------- ---------
Income (loss) from operations (12,740) 12,198 1,325 19,317
Net interest expense 2,822 1,517 5,013 2,125
--------- --------- --------- ---------
Income (loss) before income taxes (15,562) 10,681 (3,688) 17,192
Provision (credit) for income taxes (5,127) 4,111 (448) 6,372
--------- --------- --------- ---------
Net income (loss) $ (10,435) $ 6,570 $ (3,240) $ 10,820
========= ========= ========= =========
Basic income (loss) per share $ (0.59) $ 0.45 $ (0.18) $ 0.74
========= ========= ========= =========
Diluted income (loss) per share $ (0.59) $ 0.43 $ (0.18) $ 0.71
========= ========= ========= =========
</TABLE>
The accompanying Notes are an integral part of the condensed consolidated
financial statements.
3
<PAGE> 5
LASON, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
-----------------------------
1999 1998
--------- ---------
(IN THOUSANDS)
<S> <C> <C>
CASH FLOWS PROVIDED BY OPERATING ACTIVITIES $ 7,872 $ 4,040
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Payments for acquisition of businesses, net of cash acquired (102,721) (66,258)
Additions to fixed assets and software development costs (18,276) (13,765)
Proceeds from sales of fixed assets 1,009 814
--------- ---------
Net cash used in investing activities (119,988) (79,209)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings on revolving line of credit 195,700 331,700
Repayments on revolving line of credit (60,700) (248,850)
Repayments of notes payable (18,590) (6,218)
Repayment on capital lease liabilities and other debt (1,921) (1,849)
Proceeds from exercise of employee stock options 996 389
Dividends paid by M-R Group plc (1,201) (2,347)
Payments by M-R Group plc to acquire shares for stock option plans -- (1,190)
Other, net (731) --
--------- ---------
Net cash provided by financing activities 113,553 71,635
--------- ---------
Effect of foreign exchange rate changes on cash and cash equivalents (194) 62
--------- ---------
Net increase (decrease) in cash and cash equivalents 1,243 (3,472)
Cash and cash equivalents at beginning of period 6,910 11,643
--------- ---------
Cash and cash equivalents at end of period $ 8,153 $ 8,171
========= =========
</TABLE>
The accompanying Notes are an integral part of the condensed consolidated
financial statements.
4
<PAGE> 6
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements
of Lason, Inc. (together with its subsidiaries, "Lason" or the "Company") have
been prepared in conformity with generally accepted accounting principles for
interim financial information and with the instructions for Form 10-Q and Rule
10-01 of Regulation S-X. Accordingly, such interim financial statements do not
include all of the information and footnotes required by generally accepted
accounting principles for complete consolidated financial statements.
In the opinion of management, all necessary adjustments (consisting of
normal recurring adjustments) considered necessary for a fair presentation have
been included. The operating results for the six month period ended June 30,
1999 are not necessarily indicative of the results to be expected for the year
ending December 31, 1999.
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 December 31, 1998 filed with the Securities and Exchange Commission
on March 31, 1999.
Certain reclassifications have been made to the consolidated financial
statements for 1998 to conform to the 1999 presentation.
NOTE 2. MERGERS AND ACQUISITIONS
On June 30, 1999 the Company completed its merger with M-R Group plc
("M-R"), a leading document and data management company headquartered in the
United Kingdom. In connection with the merger, the Company issued approximately
3.1 million new shares of its common stock, in exchange for all of the
outstanding common stock of M-R, including 47,222 shares that will be issued in
connection with the settlement of certain M-R stock options (the "Executive
Options"). Pursuant to the merger agreement, M-R shareholders received 5.376 new
shares of Lason common stock for every 100 M-R shares held for a total value of
approximately $154.4 million as of June 30, 1999.
The merger was accounted for as a pooling of interests. Accordingly,
the Company's condensed consolidated financial statements were restated as if
the companies had been combined for all periods presented. Certain
reclassifications and adjustments were made to M-R's financial statements to
conform with Lason's presentation and with accounting principles generally
accepted in the United States. Prior to the merger, there were no material
transactions between Lason and M-R.
The value of the shares of Lason common stock issued was approximately
$90.4 million greater than the estimated fair value of the net assets acquired.
For United States federal income tax purposes, the merger with M-R was a taxable
exchange. Accordingly, for federal income tax purposes the $90.4 million was
allocated to goodwill and will be amortized over the fifteen year life required
in federal tax guidelines. A deferred federal income tax asset was recorded, and
was credited to paid-in-capital, totaling approximately $33.6 million. This
amount represents a temporary difference in deductible expenses that will result
in future federal income tax benefits.
Prior to the merger, M-R's fiscal year end was June 30. Subsequent to
the merger, M-R adopted a calendar year-end. Accordingly, the Company's
condensed consolidated financial statements have been recast to retroactively
combine M-R's financial statements with Lason as if M-R had a calendar year-end
for all periods presented.
The assets and liabilities of M-R, and of other foreign subsidiaries,
are translated into United States dollars using period-end exchange rates,
while the income statements are translated using average exchange rates during
the periods. Differences arising from the translation of assets and liabilities
in comparison with the translation of the previous periods are included as a
separate component of stockholder's equity.
5
<PAGE> 7
Under terms of the merger agreement, certain M-R stock options (the
"Staff Options") were exchanged for options to receive 39,540 shares of Lason
common stock, calculated at the same exchange ratio discussed above. The Staff
Options must be exercised, in accordance with the terms of the option plan, on
or before December 29, 1999 or the options expire.
In connection with the Executive Options, M-R previously established a
trust that purchased shares of M-R common stock in the open market. Such shares
were to be issued to employees upon exercise of their respective individual
stock options. Such shares were converted into approximately 112,000 shares of
Lason common stock at the aforementioned conversion ratio. M-R's cost to acquire
such shares of common stock is recorded as treasury stock in the Company's
condensed consolidated financial statements.
The following information reconciles total revenues and net income
(loss) for the separate companies with amounts presented in the accompanying
condensed consolidated statements of income for the six months ended June 30,
1999 and 1998 (in thousands):
<TABLE>
<CAPTION>
Six Months ended June 30,
-------------------------
1999 1998
-------- --------
Revenues:
<S> <C> <C>
Lason $225,840 $109,202
M-R 47,328 42,420
-------- --------
Total $273,168 $151,622
======== ========
Net income (loss):
Lason $ 3,902 $ 7,307
M-R (7,142) 3,513
-------- --------
Total $ (3,240) $ 10,820
======== ========
</TABLE>
The Executive Options were variable award plans under accounting
principles generally accepted in the United States. Financial reporting
standards in the United Kingdom do not require compensation expense to be
recognized for the Executive Options. As a result, the consolidated financial
information presented above for M-R includes an approximately $1.4 million and
$680,000 pre-tax (approximately $0.9 million and $440,000 after-tax) charge to
income for the six months ended June 30, 1999 and 1998, respectively, to conform
the M-R financial statements to financial statements prepared in accordance with
accounting principles generally accepted in the United States. The effect on
diluted income (loss) per share was approximately $0.05 and $0.03, respectively.
In connection with the M-R merger, the Company recorded $31.1 million
pre-tax ($20.3 million after tax, or $1.08 per diluted share) of merger-related
costs which were charged to operations during the first six months of 1999.
Included in the charges are approximately $7.9 million in transaction costs
primarily consisting of investment banking, legal, regulatory, accounting and
other fees; non-cash charges of approximately $9.8 million for an adjustment to
goodwill related to a previous M-R acquisition, recording the accelerated
vesting of the Executive Options, and other charges as a result of the merger
and to conform M-R's United Kingdom financial accounting standards with those
used in the United States; and approximately $13.4 million related to
discontinued leases, the consolidation of facilities, severance and other
related expenses. The severance and other related expenses provide for a
reduction of approximately 300 - 400 employees, for the consolidation of 24
facilities, including 12 M-R facilities.
During the six months ended June 30, 1999, the Company completed
several additional acquisitions which were accounted for using the purchase
method of accounting, the most significant of which were: Vetri Systems, Inc.
and its affiliate Vetri Software India, Ltd., Bonner & Moore Computing Company,
a division of Bonner & Moore Associates, Inc., the Texas division of Compex
Legal Services, MSI Digital Imaging Solutions, Inc., Cover-All Computer Holdings
Company and its affiliates, MSCI, Inc., Crest Information Technologies, Inc. and
Marketing Associates, Inc.
6
<PAGE> 8
Aggregate consideration for all the purchase acquisitions completed
during the first six months of 1999 (the "1999 Purchase Acquisitions"),
excluding liabilities assumed, was approximately $103.6 million, consisting of
approximately $90.4 million in cash, 236,374 shares of the Company's common
stock valued at approximately $11.3 million and debentures convertible into
32,532 shares of the Company's common stock valued at approximately $1.9 million
at the date of acquisition.
For the 1999 Purchase Acquisitions, 201,736 shares of the Company's
common stock valued at approximately $9.8 million on the respective transaction
dates, and approximately $1.7 million in cash are being held in escrow to
indemnify the Company if contingencies set forth in the respective purchase
agreements occur within specified time frames, ranging from 12 to 24 months from
the date of acquisition. In addition, $4.2 million of the aggregate cash
consideration will be paid only if certain contingencies are met. Finally,
certain of the purchase agreements provide for an increase to the purchase price
if operating income of the acquired business exceeds targeted levels. The
maximum amount of additional purchase price which may be recorded should such
targets be achieved for the 1999 Purchase Acquisitions is approximately $101.5
million. Purchase price contingencies, if any, will be recorded as an adjustment
to the purchase price when the related contingency is resolved.
With the exception of the merger with M-R discussed above, each of the
1999 Purchase Acquisitions was accounted for as a purchase. The results of
operations for the three and six month periods ended June 30, 1999 include the
results of operations for each of the purchase acquisitions since the date of
their respective acquisition.
The purchase price for the 1999 Purchase Acquisitions was allocated to
the assets acquired and liabilities assumed based on the estimated fair values
at the date of acquisition. The excess of the aggregate purchase price over the
fair values of assets acquired and liabilities assumed has been allocated to
goodwill and is being amortized on a straight-line basis over 30 years. The
allocation of the excess purchase price is based on preliminary estimates and
assumptions, and is subject to revision upon final determination of the fair
market value of the net assets acquired. Management does not expect the final
allocations to differ materially from the preliminary estimates.
In conjunction with the 1999 Purchase Acquisitions, liabilities assumed
and other non-cash consideration was as follows (in thousands):
<TABLE>
<S> <C>
Fair value of assets acquired $ 28,375
Goodwill 74,885
Cash and common stock held in escrow 11,536
Net cash paid in consideration for companies acquired (84,500)
Common stock issued in consideration for companies acquired (11,331)
Convertible debentures issued in consideration for companies
acquired (1,865)
---------
Liabilities assumed $ 17,100
=========
</TABLE>
7
<PAGE> 9
The following table summarizes pro forma unaudited results of
operations as if each of the 1999 Purchase Acquisitions had occurred at the
beginning of the periods presented (in thousands, except per share amounts):
<TABLE>
<CAPTION>
Six Months Ended June 30,
-----------------------------
1999 1998
--------- ---------
<S> <C> <C>
Revenues $ 293,883 $ 212,184
Income (loss) before income taxes (2,916) 20,657
Net income (loss) (2,777) 12,899
Basic income (loss) per share $ (0.16) $ 0.88
Diluted income (loss) per share $ (0.16) $ 0.83
</TABLE>
In August 1999, the Company purchased all of the outstanding common
stock of Addressing Services Company, Inc., for aggregate consideration of $19.5
million consisting of approximately $16.6 million in cash and 62,004 shares of
the Company's common stock valued at approximately $2.9 million.
NOTE 3. LONG-TERM DEBT
On June 30, 1999, the Company had a credit agreement with a bank group
which provided for revolving credit loans of up to $200 million. Borrowings are
expected to be used to finance additional acquisitions of businesses, working
capital, capital expenditures and for other corporate purposes. Borrowings under
the credit agreement are collateralized by substantially all of the Company's
assets. The Company is not required to make principal payments prior to 2003.
Interest on amounts outstanding is calculated based on interest rates determined
at the time of borrowing. Borrowings bear interest at rates ranging from LIBOR
plus an applicable margin (6.07% as of June 30, 1999) to a base percentage rate
plus an applicable margin (7.75% as of June 30, 1999), at the Company's election
at the time of borrowing. The credit agreement contains restrictions on the
acquisition of stock or assets, payment of dividends, disposal of assets,
incurrence of other liabilities, and has minimum requirements for cash flow and
certain financial ratios.
During the second quarter of 1999, the Company entered into a
supplemental credit agreement (the "Bridge Loan") providing for revolving credit
loans up to $50 million. The Bridge Loan expires on August 31, 1999 and may be
used to finance acquisitions, working capital, and for other corporate purposes.
No balance was outstanding under the Bridge Loan at June 30, 1999.
Subsequent to June 30, 1999, the Company completed an amendment to the
credit agreement. The amendment, among other things, adds a term loan of $150
million and reduces the revolving portion to $150 million (with the ability, at
the Company's option, to increase the revolving portion to $250 million subject
to certain limitations). The amendment also allows for up to $50 million of the
revolving portion to be borrowed in Euro, British Pounds Sterling, Canadian
dollars and other freely traded currencies to be agreed upon with the lenders.
The amendment also secures all borrowings by guarantees of certain of the
Company's subsidiaries, as well as pledges of the capital stock of certain
subsidiaries. Quarterly principal and interest payments will be required on the
term loan, beginning in 2000 with final maturity of each loan being five years
from the closing date (2004).
8
<PAGE> 10
NOTE 4. COMPREHENSIVE INCOME
The components of other comprehensive income are as follows (in
thousands):
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
--------------------------- ---------------------------
1999 1998 1999 1998
----------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net income (loss) $ (10,435) $ 6,570 $ (3,240) $ 10,820
Net foreign currency translation (836) (249) (2,153) 402
----------- ------------ ------------ ------------
Comprehensive income (loss) $ (11,271) $ 6,321 $ (5,393) $ 11,222
=========== ============ ============ ============
</TABLE>
The components of accumulated other comprehensive income are as follows (in
thousands):
<TABLE>
<CAPTION>
JUNE 30, 1999 DECEMBER 31, 1998
------------------- ---------------------
<S> <C> <C>
Foreign currency translation adjustments $ 4,027 $ 6,180
------------------- ---------------------
Accumulated other comprehensive income $ 4,027 $ 6,180
------------------- ---------------------
</TABLE>
NOTE 5. EARNINGS PER SHARE
The following table presents a reconciliation of the numerator (income
(loss) applicable to common shareholders) and denominator (weighted average
common shares outstanding) for the basic and diluted earnings per share
calculations for the three and six month periods ended June 30, 1999 and 1998
(in thousands, except per share amounts). Weighted average shares outstanding
have been retroactively restated for all periods presented to adjust for the
issuance of new shares of Lason common stock related to the merger with M-R.
(See Note 2):
<TABLE>
<CAPTION>
Three Months Ended Three Months Ended
June 30, 1999 June 30, 1998
----------------------------- --------------------------
Weighted Weighted
Net Average Per Net Average Per
Loss Shares Share Income Shares Share
------ ------ ----- ------ ------ -----
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS $(10,435) 17,754 $ (0.59) $ 6,570 14,653 $ 0.45
EFFECT OF DILUTIVE SECURITIES
Contingently issuable
shares of common stock -- -- -- -- 409 --
Potential shares of common
stock from debentures and
stock options outstanding -- -- -- -- 371 --
-------- ------ -------- ------
DILUTED EPS $(10,435) 17,754 $ (0.59) $ 6,570 15,433 $ 0.43
======== ====== ======== ======
</TABLE>
9
<PAGE> 11
<TABLE>
<CAPTION>
Six Months Ended Six Months Ended
June 30, 1999 June 30, 1998
----------------------------- --------------------------
Weighted Weighted
Net Average Per Net Average Per
Loss Shares Share Income Shares Share
------- ------ ----- ------ ------ -----
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS $(3,240) 17,730 $ (0.18) $10,820 14,629 $ 0.74
EFFECT OF DILUTIVE SECURITIES
Contingently issuable
shares of common stock -- -- -- -- 317 --
Potential shares of common
stock from debentures and
stock options outstanding -- -- -- -- 353 --
-------- ------ ------
DILUTED EPS $(3,240) 17,730 $ (0.18) $10,820 15,299 $ 0.71
======== ====== ======= ======
</TABLE>
The weighted average common shares and common share equivalents
outstanding used to compute the dilutive effect of common stock options
outstanding was computed using the treasury stock method prescribed by Statement
of Financial Accounting Standards ("SFAS") No. 128. During the three and six
month periods ended June 30, 1999 the effects of contingently issuable shares
and common share equivalents are not included in the denominator for diluted
earnings per share, as such effects would be antidilutive.
NOTE 6. SEGMENT AND RELATED INFORMATION
SFAS No. 131, "Disclosures about Segments of an Enterprise and Related
Information" was issued in June 1997 and is effective for financial statements
issued after December 15, 1998. The statement requires the Company to report
certain information about its operating segments.
For years prior to 1998, the Company was managed as one operating
segment. Beginning in 1998, the Company's reportable segments consist of groups
of business units that are organized geographically. Each of the Company's
geographic regions has a separate management team and infrastructure, and offers
different combinations of the Company's services. The Company evaluates the
performance of its operating segments based on income before income taxes and
net corporate interest expense. Inter-segment sales and transfers are not
significant.
10
<PAGE> 12
The following table presents summarized financial information for the
Company's reportable segments for the three and six months ended June 30, 1999
and 1998 (in thousands). The "Other" column includes corporate related items,
results of insignificant operations and, as it relates to segment profit
(loss), income and expenses not allocated to reportable segments. The
international segment was previously included in "other" but is now shown
separately as certain quantitative thresholds under SFAS No. 131 have now been
met. The international segment includes the United Kingdom, Canada and Mexico.
Prior periods have been restated accordingly. Additionally, prior periods have
been restated for the reallocation of certain business units among
regions during the second quarter of 1999.
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ --------------------
1999 1998 1999 1998
------------------ --------------------
<S> <C> <C> <C> <C>
Revenues:
Midwest $ 3,182 $ 774 $ 3,858 $ 1,506
Central 38,528 25,312 70,198 48,694
Northeast 18,889 13,470 38,458 21,847
Southeast 17,316 8,799 33,504 16,896
Southwest 17,040 9,196 33,711 12,357
West 24,982 8,727 45,919 15,569
International 25,535 20,192 51,135 34,685
Other (3,367) 40 (3,615) 68
------------------- -------------------
Total $142,105 $ 86,510 $273,168 $ 151,622
=================== ===================
Segment profit (loss):
Midwest $ 520 $ 181 $ 632 $ 347
Central 3,596 4,422 6,393 7,374
Northeast 2,019 2,358 5,388 4,146
Southeast 2,790 1,634 4,881 1,810
Southwest 2,933 1,988 6,831 3,118
West 4,533 2,086 7,455 3,509
International (6,458) 3,144 (5,661) 4,372
Other (25,495) (5,132) (29,607) (7,484)
------------------- -------------------
Total $(15,562) $ 10,681 $ (3,688) $ 17,192
=================== ===================
Details of "Other" segment profit (loss):
Net corporate interest expense $ (2,536) $ (1,481) $ (4,301) $ (2,103)
Corporate expenses not allocated to
operating segments (22,747) (3,122) (24,759) (4,366)
Amortization of intangibles not allocated to
operating segments (140) (445) (404) (862)
Compensatory stock option expense (71) (85) (143) (154)
Other (1) 1 -- 1
------------------- -------------------
Total $(25,495) $ (5,132) $(29,607) $ (7,484)
=================== ===================
</TABLE>
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
------------------------
<S> <C> <C>
Total assets:
Midwest $ 12,973 $ --
Central 181,004 131,020
Northeast 68,753 63,958
Southeast 68,488 52,453
Southwest 73,685 55,589
West 100,258 90,616
International 71,849 68,999
Other 99,594 44,511
---------------------
Total $676,604 $507,146
=====================
Details of "Other" total assets:
Net goodwill not allocated to operating
segments $ 27,161 $ 29,900
Net other intangible assets not allocated
to operating segments 7,364 7,387
Other corporate assets not allocated to
operating segments 65,069 7,224
---------------------
Total $ 99,594 $ 44,511
=====================
</TABLE>
11
<PAGE> 13
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion contains forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. Those statements include
statements regarding the intent, belief or current expectations of the Company
and its management. Prospective investors are cautioned that any such
forward-looking statements are not guarantees of future performance and involve
a number of risks and uncertainties, and that actual results could differ
materially from those indicated by such forward-looking statements. Among the
important factors that could cause actual results to differ materially from
those indicated by such forward-looking statements are: (i) the assimilation of
acquisitions, (ii) the management of the Company's growth and expansion, (iii)
dependence on major customers, or on key personnel, (iv) development by
competitors of new or superior products or services, or entry into the market of
new competitors, (v) fluctuations in paper prices, (vi) integrity and
reliability of the Company's data, (vii) volatility of the Company's stock
price, (viii) changes in the business services outsourcing industry, (ix)
significance of intangible assets, (x) changes related to compensatory stock
options and (xi) other risks identified from time to time in the Company's
reports and registration statements filed with the Securities and Exchange
Commission.
OVERVIEW
During the six months ended June 30, 1999, the Company completed
several acquisitions which were accounted for as purchases, the most significant
of which were: Vetri Systems, Inc. and its affiliate Vetri Software India, Ltd.,
12
<PAGE> 14
Bonner & Moore Computing Company, a division of Bonner & Moore Associates, Inc.,
the Texas division of Compex Legal Services, MSI Digital Imaging Solutions,
Inc., Cover-All Computer Holdings Company and its affiliates, MSCI, Inc., Crest
Information Technologies, Inc. and Marketing Associates, Inc.
In addition, the Company completed its merger with M-R Group plc
("M-R") on June 30, 1999, in a taxable exchange accounted for as a
pooling-of-interests. Accordingly, the following discussion relates to the
operations of Lason and M-R combined, unless otherwise indicated.
In connection with the M-R merger, the Company recorded $31.1 million
pre-tax ($20.3 million after tax) of merger-related costs which were charged to
operations during the first six months of 1999. Included in the charges are
approximately $7.9 million in transaction costs including investment banking,
legal, regulatory, accounting and other fees; non cash charges of approximately
$9.8 million for an adjustment to goodwill resulting from a previous M-R
acquisition, and recording compensatory option and other charges as a result of
the merger and to conform M-R's United Kingdom financial accounting standards
with those used in the United States; and approximately $13.4 million related to
discontinued leases, the consolidation of facilities, severance and other
related expenses. The severance and other related expenses provide for a
reduction of approximately 300 - 400 employees to consolidate 24 facilities,
including 12 M-R facilities.
Although management anticipates that the Company will continue to
acquire complementary businesses in the future, there can be no assurance that
the Company will be able to identify and acquire attractive acquisition
candidates, profitably manage such acquired companies or successfully integrate
such acquired companies into the Company without substantial costs, delays or
other problems. In addition, there can be no assurance that any companies
acquired in the future will be profitable at the time of acquisition or will
achieve sales and profitability justifying the Company's investment therein or
that the Company will recognize the synergies expected from such acquisitions.
RESULTS OF OPERATIONS - THREE MONTHS ENDED JUNE 30, 1999 COMPARED WITH THREE
MONTHS ENDED JUNE 30, 1998.
Consolidated net revenues increased 64% to $142.1 million for the three
months ended June 30, 1999 from $86.5 million in the second quarter of 1998.
Approximately $44.1 million of the increase is due to acquisitions and
approximately $11.5 million is due to growth in the Company's existing business,
excluding M-R. The majority of the internal growth is attributable to the
increase in image and data capture and data management revenues, largely the
result of successful cross-selling of the Company's core services and the
Company's focus on fast growing markets, such as e-commerce.
Gross profit increased to $54.2 million for the second quarter of 1999
from $34.3 million for the comparable 1998 quarter primarily due to the increase
in net revenues. Gross profit as a percentage of net revenues is 38% for the
three months ended June 30, 1999 versus 40% for the comparable period of 1998.
The decrease is primarily due to the margin effect of lower revenues at M-R's
software division (Memix).
Selling, general and administrative expenses increased $12.5 million to
$32.7 million for the three months ended June 30, 1999 from $20.2 million for
the comparable 1998 quarter. Selling, general and administrative expenses are
approximately 23% of net revenues for both periods. Approximately $9.4 million
of the increase is due to selling, general and administrative expenses of
acquired companies, excluding M-R. The remaining increase is primarily due to
higher compensation and other corporate administration expenses associated with
managing a larger consolidated organization.
Amortization of intangibles increased to $3.4 million for the three
months ended June 30, 1999 from $1.5 million for the second quarter of 1998
primarily due to an increase in goodwill related to the business acquisitions
completed.
13
<PAGE> 15
The Company reported an operating loss of $12.7 million for the three
months ended June 30, 1999, compared to operating income of $12.2 million in the
comparable period of 1998. The decline is due to the merger-related
charges discussed in the overview of this Item 2. Excluding these charges, and
excluding compensatory option expense of M-R, operating income increased 44% to
$18.1 million for the three months ended June 30, 1999.
Net interest expense is $2.8 million for the 1999 second quarter
compared to $1.5 million in 1998. The increase is primarily due to higher
average line of credit balances resulting from borrowings used primarily to fund
business acquisitions.
The income tax credit in 1999 is caused primarily by the deferred
income tax benefit recorded related to the merger-related charges discussed in
the overview of this Item 2. Excluding the tax effect associated with the
merger-related charges, the provision for income taxes as a percentage of
pre-tax income would have been 37% for the 1999 second quarter compared to 38%
for the comparable period in 1998.
RESULTS OF OPERATIONS - SIX MONTHS ENDED JUNE 30, 1999 COMPARED WITH SIX MONTHS
ENDED JUNE 30, 1998.
Consolidated net revenues increased 80% to $273.2 million for the six
months ended June 30, 1999 from $151.6 million for the comparable period of
1998. Approximately $87.1 million of the increase is due to acquisitions and
approximately $34.5 million is due to growth in the Company's existing business,
excluding M-R. The internal growth is primarily the result of increased image
and data capture and data management revenue.
Gross profit increased to $103.0 million for the six months ended June
30, 1999 from $59.3 million for the comparable 1998 period primarily due to an
increase in net revenues. Gross profit as a percentage of net revenues is 38%
for the six months ended June 30, 1999 versus 39% for the comparable period of
1998.
Selling, general and administrative expenses increased $26.4 million to
$63.0 million, or 23% of net revenues for the first six months of 1999, from
$36.6 million, or 24% of net revenues in the same period of 1998. Approximately
$15.3 million of the increase is due to selling, general and administrative
expenses of acquired companies, excluding M-R. The remaining increase is
primarily due to increased compensation and other corporate administration
expenses associated with managing a larger consolidated organization.
Amortization of intangibles increased to $6.1 million for the six
months ended June 30, 1999 from $2.6 million for the comparable 1998 period
primarily due to an increase in goodwill related to business acquisitions
completed.
The decline in operating income from $19.3 million in the first six
months of 1998 to $1.3 million in 1999 is the result of the merger-related
charges of $31.1 million discussed in the overview of this Item 2, offset by
increased operating income from acquisitions and internal growth.
Net interest expense was $5.0 million for the first six months of 1999
compared to $2.1 million in the comparable 1998 period. The increase is
primarily due to higher average borrowing balances resulting from borrowings
used mainly to fund business acquisitions.
LIQUIDITY AND CAPITAL RESOURCES
The Company has funded its operations and acquisitions through a
combination of cash flow from operations, bank borrowings and the issuance of
shares of common stock.
14
<PAGE> 16
Cash flows provided by operating activities totaled $7.9 million for
the six months ended June 30, 1999 compared to $4.0 million for the comparable
period of 1998. The increase in operating cash flows in 1999 is primarily due to
an increase in net income before non-cash merger-related charges, without a
corresponding increase in accounts receivable, and an increase in accrued
expenses, partially offset by higher prepaid expenses and other current assets.
Cash flows used in investing activities totaled $120.0 million and
$79.2 million for the six months ended June 30, 1999 and 1998, respectively, and
was primarily used to fund the acquisition of businesses and invest in capital
equipment and software development activities. Cash used for acquisitions was
approximately $102.7 million and $ 66.3 million for the six months ended June
30, 1999 and 1998, respectively. Cash used to invest in capital equipment and
software development activities totaled $18.3 million for the 1999 first half,
compared to $13.8 million for the comparable period of 1998. During the first
six months of 1999 and 1998, the Company invested approximately $5.2 million and
$1.3 million, respectively, for the development and implementation of computer
software primarily to support the Company's domestic and international
information processing needs. These projects and related costs will continue as
the Company pursues its acquisition strategy.
Cash flows provided by financing activities totaled $113.6 million in
1999 compared to $71.6 million for the comparable period of 1998 and largely
consisted of borrowings on the Company's revolving line of credit primarily used
to fund the payments for acquired businesses and for working capital
requirements. Additionally, during the first quarter of 1999 and 1998 the
Company repaid promissory notes in the amounts of $18.6 million and $6.2
million, respectively, relating to business acquisitions in the fourth quarter
of 1998 and 1997, respectively. During the first six months of 1998, a trust
established by M-R purchased shares of M-R in the open market. Such shares
were to be issued to M-R employees upon exercise of their respective stock
options. See Notes to Condensed Consolidated Financial Statements -- Note 2.
Credit Agreement Borrowings
Subsequent to June 30, 1999, the Company amended and restated its
credit agreement with its lenders. The amended credit agreement has a revolving
credit facility of $150 million, which the Company may increase to up to $250
million, subject to certain limitations. A portion of the revolving credit
facility of up to $50 million is available to the Company for borrowings in
Euro, British pound sterling, Canadian dollars and other freely traded
currencies to be agreed upon with the lenders. The amendment to the credit
agreement also added a term loan facility of $150 million. The Company is
required to begin quarterly principal and interest payments on the term loan
commencing May 31, 2000, with final maturity on both loan portions in 2004.
Borrowings under the credit agreement will be used to finance additional
acquisitions of businesses, working capital, capital expenditures and other
corporate purposes, including refinancing existing indebtedness. Borrowings
under the credit agreement are secured by guaranties of certain of the Company's
subsidiaries, as well as pledges of the capital stock of certain subsidiaries.
Interest on amounts outstanding is calculated based on interest rates determined
at the time of borrowing. Borrowings bear interest at rates ranging from a
Eurodollar rate plus a maximum of 2.00% (6.78% at August 16, 1999), or a base
rate plus a maximum of 0.50% (8.0% at August 16, 1999), at the Company's
election at the time of borrowing. The credit agreement contains restrictions on
acquisitions, dispositions of assets and the incurrence of other liabilities and
contains certain financial ratio covenants. As of August 16, 1999, $223.2
million was borrowed under the credit agreement.
Prior to the amendment, the credit agreement provided for revolving
loans of up to $200 million, which the Company supplemented with an additional
agreement providing for revolving credit loans of up to an additional $50
million. Borrowings under the credit agreement were collateralized by
substantially all of the Company's assets before the recent amendment.
15
<PAGE> 17
Future Capital Needs
The Company's liquidity and capital resources have been significantly
affected by acquisitions of businesses and, given the Company's acquisition
strategy, may be significantly affected for the foreseeable future. To date, the
Company has financed its acquisitions with borrowings under its credit
agreement, with shares of its common stock and with cash from operations.
The Company's ability to obtain cash adequate to fund its needs depends
generally on the results of its operations and the availability of financing.
Management believes that cash flow from operations, in conjunction with
borrowings from its existing and any future credit agreements and possible
issuance of shares of its common stock, will be sufficient to meet debt service
requirements, make possible future acquisitions and fund capital expenditures in
the future. However, there can be no assurance in this regard or that the terms
available for any future financing, if required, would be favorable to the
Company.
YEAR 2000
The Company uses a significant number of computer software programs and
operating systems in its internal operations. To the extent that these software
applications contain a source code that is unable to interpret appropriately the
upcoming calendar year 2000, some level of modification or even possible
replacement of such source code or program applications will be necessary. In
addition, the Company may experience significant adverse business interruptions
if significant customers and/or suppliers are not prepared for the year 2000.
The Company has a standing committee consisting of key management
personnel to address the year 2000 issue. The Company has surveyed its customers
and suppliers identifying those that are most critical to the operations of the
Company. Meetings were scheduled between such entities and Company personnel to
gain a clear understanding of their year 2000 readiness and any potential impact
on the Company. Appropriate contingencies were developed based upon these
meetings.
The Company is currently modifying its computer software programs and
operating systems to make each significant system and program "Year 2000
Compliant". Substantially all critical business systems are year 2000 compliant,
and all individual business-unit systems (including those of M-R) are expected
to be compliant by September 30, 1999. As of June 30, 1999, the Company has
incurred approximately $3.3 million in connection with its year 2000 compliance
program and anticipates that it will incur an additional estimated $850,000 to
complete the program.
Although the Company has not totally completed its year 2000
remediation, it does not anticipate a material year 2000 business interruption
due to the nature of its operating systems, and the customers and suppliers with
which it transacts business. However, there can be no assurance that the Company
will not incur unanticipated costs or systems interruptions, which could have a
material adverse effect on the Company's business, financial condition or
results of operations. In addition, there can be no assurance that failure of
the Company's critical customers or suppliers to be year 2000 compliant will not
have a material adverse effect on the Company's business, financial condition or
results of operations. In addition, there can be no assurance that businesses
acquired in the future will not incur unanticipated costs or systems
interruption, which could have an adverse effect on the Company's business,
financial condition or results of operations.
INFLATION
Certain of the Company's expenses, such as wages and benefits,
occupancy costs, and equipment repair and replacement, are subject to normal
inflation. Supplies, such as paper and related products, can be subject to
significant price fluctuations. Although the Company to date has been able to
substantially
16
<PAGE> 18
offset any such cost increases through increased operating efficiencies, there
can be no assurance that the Company will be able to offset any future cost
increases through similar efficiencies or increased charges for its products and
services.
LITIGATION
The Company is, from time to time, a party to legal proceedings arising
in the normal course of its business. Management believes that none of the legal
proceedings currently outstanding will have a material adverse effect on the
Company's business, financial condition or results of operations.
ITEM 3. QUANTITIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Pursuant to the General Instructions to Item 305 of Regulation S-K, the
quantitative and qualitative disclosures called for by Item 3 of Part I of Form
10-Q and Item 305 of Regulation S-K do not require additional disclosure by the
Company at this time.
17
<PAGE> 19
PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
During the second quarter of 1999, the Company issued shares of its
common stock without registration under the Securities Act of 1933 (the "Act").
The issuance of Securities described in the first two paragraphs below were
exempt from registration under the Act by virtue of Section 4(2) thereof as
transactions not involving a public offering. The issuance of the securities
described in the third paragraph were exempt from registration under the Act by
virtue of Section 3(a)(10) thereof.
In the second quarter of 1999, in connection with the acquisition of
the shares or assets of various companies as partial payment of the purchase
price, the Company issued 140,480 shares of its common stock valued at
$5,958,058. The shares were issued at prices ranging form $37.33 to $56.86.
In May 1999, the Company issued 6,616 shares of its common stock at a
price per share of $54.52 to shareholders of a company it had previously
acquired as additional consideration for the achievement of certain target
levels of financial performance after the acquisition.
On June 30, 1999, the Company acquired all of the outstanding shares of
stock of M-R Group plc, a United Kingdom publicly-held company ("M-R"), effected
by means of a scheme of Arrangement ("Scheme of Arrangement") negotiated at
arm's length under Section 425 of the Companies Act of 1985, under the laws of
the United Kingdom. Under the Scheme of Arrangement, M-R shareholders received
3,024,641 shares of Lason common stock. Additional shares shall be issued upon
exercise of outstanding M-R options.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On May 27, 1999, the Company held its Annual Meeting of Shareholders.
There were three matters voted on - the election of directors, amendment of the
Company's 1998 Equity Participation Plan to increase by 500,000 to 1,400,000 the
number of reserved shares of Lason common stock for issuance under the plan, and
an amendment to Lason's Amended and Restated Certificate of Incorporation to
increase the number of authorized shares to 100,000,000 from 20,000,000. All
directors nominees were elected, and the two other matters were approved. The
following table sets forth the results of the voting on the matters voted upon.
<TABLE>
<CAPTION>
ELECTION OF DIRECTORS: VOTES FOR VOTES WITHHELD VOTES AGAINST ABSTAIN
- ---------------------- --------- -------------- ------------- -------
<S> <C> <C> <C> <C>
Nominees:
William Rauwerdink 12,941,589 185,617 -- --
Robert Yanover 12,942,289 184,917 -- --
Approval of amendment to
1998 Equity Participation
Plan 6,722,566 -- 6,384,303 20,337
Approval of amendment to
Amended and restated
Certificate of Incorporation 9,305,431 -- 3,809,865 11,910
</TABLE>
18
<PAGE> 20
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
2.3 Asset Purchase Agreement dated February 1, 1996 between Lason and
Diversified Support Services, Inc. (1)
2.4 Agreement of Purchase and Sale of Stock dated March 25, 1996 between
Lason and Delaware Legal Copy, Inc. (as defined therein). (1)
2.5 Agreement of Purchase and Sale of Stock dated July 17, 1996 between
Lason and Information & Image Technology of America, Inc. (1)
2.6 Agreement of Purchase and Sale of Stock dated July 17, 1996 between
Lason and Great Lakes Micrographics. (1)
2.7 Stock Purchase Agreement dated July 24, 1996 between Lason and
Micro-Pro, Inc. and MP Services, Inc. (1)
2.8 Stock Purchase Agreement dated August 6, 1996 between Lason and
National Reproductions. (1).
2.9 Agreement of Purchase and Sale of Stock dated July 17, 1997 between
Lason and Image Conversion Systems, Inc. (2)
2.10 Asset Purchase Agreement dated November 25, 1997 between Lason and VIP
Imaging, Inc. (3)
2.11 Stock Purchase Agreement dated February 12, 1998 between Lason and
Racom. (4)
2.12 Asset Purchase Agreement dated March 5, 1998 between Lason and API
Systems, Inc. (5)
2.13 Agreement for the Purchase and Sale of Stock dated July 24, 1998
between Lason and Consolidated Reprographics. (6)
2.14 Agreement of Purchase and Sale of Stock dated January 31, 1997 between
Lason and Churchill Communications. (7)
2.15 Transaction Agreement between Lason and M-R Group plc dated March 25,
1999. (10)
2.16 Amendment Agreement between Lason and M-R Group plc dated April 30,
1999. (10)
2.17 Amendment Agreement between Lason and M-R Group plc dated May 13, 1999.
(10)
3.1 Form of Amended and Restated Certificate of Incorporation of the
Company. (1)
3.2 Form of Revised Amended and Restated Bylaws. (8)
4.1 Form of Certificate representing Common Stock of the Company. (1)
4.2 Second Amended and Restated Credit Agreement dated as of June 29, 1998
among the Company, the Lenders named therein (the "Lenders"), First
Union National Bank, as Agent, Comerica Bank and NBD Bank, as
Co-Agents. (6)
19
<PAGE> 21
4.3 Third Amended and Restated Credit Agreement dated as of August 16, 1999
among the Company, the Lenders named therein, Bank One, Michigan as
administrative agent, and Comerica Bank, as syndication agent.+
10.5 Registration Agreement dated January 17, 1995 by and among the Company
and the 1995 Stockholders. (1)
10.9 Offer of employment dated April 30, 1996 from Lason Systems, Inc. to
Mr. Rauwerdink. (1)
10.10 Offer of employment dated June 12, 1996 from Lason Systems, Inc. to Mr.
Jablonski. (1)
10.11 1995 Stock Option Plan of the Company. (1)
10.17 1996 Lason Management Bonus Plan. (1)
10.18 Lason Systems, Inc. 401(k) Profit Sharing Plan & Trust. (1)
10.19 Amendments to Lason Systems, Inc. 401(k) Profit Sharing Plan & Trust.
(1)
10.20 Lease Agreement dated as of September 3, 1985 by and between Lason
Systems, Inc. and Mart Associates, as amended. (1)
10.21 Lease Agreement dated August 3, 1995 by and between Lason Systems, Inc.
and Kensington Center, Inc. (1)
10.22 Lease Agreement by and between Lason Systems, Inc. and The Prudential
Insurance Company of America. (1)
10.23 First Amendment to Lease dated as of July 26, 1996, by and between
Kensington Center, Inc. and Lason Systems, Inc. (1)
10.24 Employment Agreement of Gary L. Monroe dated June 1, 1999.+
10.25 Amended and Restated Secured Promissory Note, dated as of June 5, 1999
-- Gary L. Monroe.+
10.26 Amended and Restated Pledge and Security Agreement dated June 5, 1999
-- Gary L. Monroe.+
10.27 Amended and Restated Secured Promissory Note, dated as of June 5, 1999
-- William J. Rauwerdink.+
10.28 Amended and Restated Pledge and Security Agreement dated June 5, 1999
-- William J. Rauwerdink.+
10.29 Amended and Restated Secured Promissory Note, dated as of June 5, 1999
-- John R. Messinger.+
10.30 Amended and Restated Pledge and Security Agreement dated June 5, 1999
-- John R. Messinger.+
20
<PAGE> 22
10.31 Amended and Restated Secured Promissory Note, dated as of June 5, 1999
-- Cary W. Newman.+
10.32 Amended and Restated Pledge and Security Agreement dated June 5, 1999
-- Cary W. Newman.+
10.42 1998 Equity Participation Plan of Lason, Inc. (9)
10.43 Employment Agreement of John R. Messinger dated April 27, 1999. (10)
27.1 Financial Data Schedule (6 months ended 6-30-99).+
27.2 Financial Data Schedule (6 months ended 6-30-98 - Restated).+
27.3 Financial Data Schedule (12 months ended 12-31-98 - Restated).+
- ----------------------------------------------
+ Filed herewith.
(1) Incorporated herein by reference to registrant's Form S-1 filed on
October 7, 1996, Commission File No. 333-09799.
(2) Incorporated herein by reference to registrant's Form 8-K filed on
August 4, 1997, Commission File No. 0-21407.
(3) Incorporated herein by reference to registrant's Form 8-K filed on
December 10, 1997, Commission File No. 0-21407.
(4) Incorporated herein by reference to registrant's Form 8-K filed on
March 17, 1998, Commission File No. 0-21407.
(5) Incorporated herein by reference to registrant's Form 8-K filed on
March 20, 1998, Commission File No. 0-21407.
(6) Incorporated herein by reference to registrant's Form S-1 filed on July
30, 1998, Commission File No. 333-60143.
(7) Incorporated herein by reference to registrant's Form 8-K filed on
February 18, 1997, Commission File No. 0-21407.
(8) Incorporated herein by reference to registrant's Form 10-Q filed on May
15, 1998, Commission File No. 0-21407.
(9) Incorporated herein by reference to registrant's 1998 proxy statement,
Appendix A, filed on April 28, 1998, Commission File No. 0-21407.
(10) Incorporated herein by reference to Registrant's Form 10-Q filed on May
17, 1999.
21
<PAGE> 23
b. Reports on Form 8-K
The Company filed a report on Form 8-K on April 6, 1999 disclosing in
Item 5 thereof the agreement between the Company and M-R Group plc
regarding the terms of a proposed merger.
The Company filed a report on Form 8-K on May 21, 1999 disclosing in
Item 5 the revised terms of the proposed merger with M-R Group plc.
The Company filed a report on Form 8-K on July 15, 1999 disclosing in
Item 2 completion of its merger with M-R Group plc on June 30, 1999.
22
<PAGE> 24
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 thereunto duly authorized.
LASON, Inc
----------------------------------------------------
(Registrant)
/s/ William J. Rauwerdink
----------------------------------------------------
Executive Vice President and Chief Financial Officer
August 16, 1999
23
<PAGE> 25
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
- ------- --- -----------
2.3 Asset Purchase Agreement dated February 1, 1996 between Lason and
Diversified Support Services, Inc. (1)
2.4 Agreement of Purchase and Sale of Stock dated March 25, 1996 between
Lason and Delaware Legal Copy, Inc. (as defined therein). (1)
2.5 Agreement of Purchase and Sale of Stock dated July 17, 1996 between
Lason and Information & Image Technology of America, Inc. (1)
2.6 Agreement of Purchase and Sale of Stock dated July 17, 1996 between
Lason and Great Lakes Micrographics. (1)
2.7 Stock Purchase Agreement dated July 24, 1996 between Lason and
Micro-Pro, Inc. and MP Services, Inc. (1)
2.8 Stock Purchase Agreement dated August 6, 1996 between Lason and
National Reproductions. (1).
2.9 Agreement of Purchase and Sale of Stock dated July 17, 1997 between
Lason and Image Conversion Systems, Inc. (2)
2.10 Asset Purchase Agreement dated November 25, 1997 between Lason and VIP
Imaging, Inc. (3)
2.11 Stock Purchase Agreement dated February 12, 1998 between Lason and
Racom. (4)
2.12 Asset Purchase Agreement dated March 5, 1998 between Lason and API
Systems, Inc. (5)
2.13 Agreement for the Purchase and Sale of Stock dated July 24, 1998
between Lason and Consolidated Reprographics. (6)
2.14 Agreement of Purchase and Sale of Stock dated January 31, 1997 between
Lason and Churchill Communications. (7)
2.15 Transaction Agreement between Lason and M-R Group plc dated March 25,
1999. (10)
2.16 Amendment Agreement between Lason and M-R Group plc dated April 30,
1999. (10)
2.17 Amendment Agreement between Lason and M-R Group plc dated May 13, 1999.
(10)
3.1 Form of Amended and Restated Certificate of Incorporation of the
Company. (1)
3.2 Form of Revised Amended and Restated Bylaws. (8)
4.1 Form of Certificate representing Common Stock of the Company. (1)
4.2 Second Amended and Restated Credit Agreement dated as of June 29, 1998
among the Company, the Lenders named therein (the "Lenders"), First
Union National Bank, as Agent, Comerica Bank and NBD Bank, as
Co-Agents. (6)
<PAGE> 26
4.3 Third Amended and Restated Credit Agreement dated as of August 16, 1999
among the Company, the Lenders named therein, Bank One, Michigan as
administrative agent, and Comerica Bank, as syndication agent.+
10.5 Registration Agreement dated January 17, 1995 by and among the Company
and the 1995 Stockholders. (1)
10.9 Offer of employment dated April 30, 1996 from Lason Systems, Inc. to
Mr. Rauwerdink. (1)
10.10 Offer of employment dated June 12, 1996 from Lason Systems, Inc. to Mr.
Jablonski. (1)
10.11 1995 Stock Option Plan of the Company. (1)
10.17 1996 Lason Management Bonus Plan. (1)
10.18 Lason Systems, Inc. 401(k) Profit Sharing Plan & Trust. (1)
10.19 Amendments to Lason Systems, Inc. 401(k) Profit Sharing Plan & Trust.
(1)
10.20 Lease Agreement dated as of September 3, 1985 by and between Lason
Systems, Inc. and Mart Associates, as amended. (1)
10.21 Lease Agreement dated August 3, 1995 by and between Lason Systems, Inc.
and Kensington Center, Inc. (1)
10.22 Lease Agreement by and between Lason Systems, Inc. and The Prudential
Insurance Company of America. (1)
10.23 First Amendment to Lease dated as of July 26, 1996, by and between
Kensington Center, Inc. and Lason Systems, Inc. (1)
10.24 Employment Agreement of Gary L. Monroe dated June 1, 1999.+
10.25 Amended and Restated Secured Promissory Note, dated as of June 5, 1999
-- Gary L. Monroe.+
10.26 Amended and Restated Pledge and Security Agreement dated June 5, 1999
-- Gary L. Monroe.+
10.27 Amended and Restated Secured Promissory Note, dated as of June 5, 1999
-- William J. Rauwerdink.+
10.28 Amended and Restated Pledge and Security Agreement dated June 5, 1999
-- William J. Rauwerdink.+
10.29 Amended and Restated Secured Promissory Note, dated as of June 5, 1999
-- John R. Messinger.+
10.30 Amended and Restated Pledge and Security Agreement dated June 5, 1999
-- John R. Messinger.+
<PAGE> 27
10.31 Amended and Restated Secured Promissory Note, dated as of June 5, 1999
-- Cary W. Newman.+
10.32 Amended and Restated Pledge and Security Agreement dated June 5, 1999
-- Cary W. Newman.+
10.42 1998 Equity Participation Plan of Lason, Inc. (9)
10.43 Employment Agreement of John R. Messinger dated April 27, 1999. (10)
27.1 Financial Data Schedule (6 months ended 6-30-99).+
27.2 Financial Data Schedule (6 months ended 6-30-98 - Restated).+
27.3 Financial Data Schedule (12 months ended 12-31-98 - Restated).+
- ----------------------------------------------
+ Filed herewith.
(1) Incorporated herein by reference to registrant's Form S-1 filed on
October 7, 1996, Commission File No. 333-09799.
(2) Incorporated herein by reference to registrant's Form 8-K filed on
August 4, 1997, Commission File No. 0-21407.
(3) Incorporated herein by reference to registrant's Form 8-K filed on
December 10, 1997, Commission File No. 0-21407.
(4) Incorporated herein by reference to registrant's Form 8-K filed on
March 17, 1998, Commission File No. 0-21407.
(5) Incorporated herein by reference to registrant's Form 8-K filed on
March 20, 1998, Commission File No. 0-21407.
(6) Incorporated herein by reference to registrant's Form S-1 filed on July
30, 1998, Commission File No. 333-60143.
(7) Incorporated herein by reference to registrant's Form 8-K filed on
February 18, 1997, Commission File No. 0-21407.
(8) Incorporated herein by reference to registrant's Form 10-Q filed on May
15, 1998, Commission File No. 0-21407.
(9) Incorporated herein by reference to registrant's 1998 proxy statement,
Appendix A, filed on April 28, 1998, Commission File No. 0-21407.
(10) Incorporated herein by reference to Registrant's Form 10-Q filed on May
17, 1999.
<PAGE> 1
EXHIBIT 4.3
================================================================================
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
among
LASON, INC.,
THE LENDERS NAMED HEREIN,
BANK ONE, MICHIGAN,
as Administrative Agent
and
COMERICA BANK,
as Syndication Agent
Arranged by
BANC ONE CAPITAL MARKETS, INC.
Dated as of August 16, 1999
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
RECITALS................................................................................................ 1
ARTICLE I.........................................................................................................1
DEFINITIONS.......................................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Accounting Terms...............................................................................22
1.3 Other Terms; Construction......................................................................22
ARTICLE II.......................................................................................................23
THE CREDITS......................................................................................................23
2.1 Revolving Credit Commitments of the Lenders....................................................23
2.2 Facility Letters of Credit.....................................................................25
2.3 Term Loan......................................................................................29
2.4 Ratable Loans..................................................................................29
2.5 Revolving Credit Commitment Fee; Reductions in Aggregate Revolving Credit Commitment...........30
2.6 Types of Advances; Minimum Amount of Each Advance..............................................30
2.7 Principal Payments.............................................................................30
2.8 Method of Selecting Types and Interest Periods for New Advances................................31
2.9 Conversion and Continuation of Outstanding Advances............................................32
2.10 Changes in Interest Rate, etc..................................................................32
2.11 Rates Applicable After Default.................................................................33
2.12 Method of Payment..............................................................................33
2.13 Noteless Agreement; Recordation; Telephonic Notices............................................33
2.14 Interest Payment Dates; Interest and Fee Basis.................................................34
2.15 Notification of Advances, Interest Rates, Prepayments and Revolving Credit Commitment
Reductions.....................................................................................34
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
2.16 Lending Installations..........................................................................35
2.17 Non-Receipt of Funds by the Agent..............................................................35
2.18 Market Disruption..............................................................................35
2.19 Judgment Currency..............................................................................35
2.20 Optional Prepayments...........................................................................36
2.21 Multicurrency Participation....................................................................36
2.22 Contribution Among Borrowers and Guarantors....................................................37
2.23 Financial Condition of Borrower................................................................37
2.24 Collateral Security; Further Assistance........................................................37
2.25 Application of Payments with Respect to Defaulting Lenders.....................................38
2.26 Optional Increase in Commitments...............................................................38
ARTICLE III......................................................................................................40
CHANGE IN CIRCUMSTANCES..........................................................................................40
3.1 Yield Protection...............................................................................40
3.2 Changes in Capital Adequacy Regulations........................................................41
3.3 Availability of Types of Advances..............................................................41
3.4 Funding Indemnification........................................................................41
3.5 Alternative Lending Installation; Lender Statements; Survival of Indemnity.....................41
3.6 Taxes..........................................................................................42
ARTICLE IV.......................................................................................................44
CONDITIONS OF BORROWING..........................................................................................44
4.1 Conditions of Initial Advance..................................................................44
4.2 Conditions of All Borrowings...................................................................46
ARTICLE V........................................................................................................46
REPRESENTATIONS AND WARRANTIES...................................................................................46
5.1 Corporate Organization and Power...............................................................46
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
5.2 Authorization; Enforceability..................................................................47
5.3 No Violation...................................................................................47
5.4 Governmental and Third-Party Authorization; Permits............................................47
5.5 Litigation.....................................................................................47
5.6 Taxes..........................................................................................47
5.7 Subsidiaries...................................................................................48
5.8 Full Disclosure................................................................................48
5.9 Margin Regulations.............................................................................48
5.10 No Material Adverse Change.....................................................................48
5.11 Financial Matters..............................................................................48
5.12 Ownership of Properties........................................................................49
5.13 ERISA..........................................................................................49
5.14 Environmental Matters..........................................................................50
5.15 Compliance With Laws...........................................................................50
5.16 Regulated Industries...........................................................................50
5.17 Insurance......................................................................................51
5.18 Security Documents.............................................................................51
5.19 Labor Relations................................................................................51
5.20 Year 2000......................................................................................51
ARTICLE VI.......................................................................................................51
AFFIRMATIVE COVENANTS............................................................................................51
6.1 Financial Statements...........................................................................51
6.2 Other Business and Financial Information.......................................................52
6.3 Corporate Existence; Franchises; Maintenance of Properties.....................................54
6.4 Compliance with Laws...........................................................................54
6.5 Payment of Obligations.........................................................................54
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
6.6 Insurance......................................................................................54
6.7 Maintenance of Books and Records; Inspection...................................................54
6.8 Permitted Acquisitions.........................................................................55
6.9 Creation or Acquisition of Subsidiaries........................................................56
6.10 Further Assurances.............................................................................57
6.11 Year 2000 Compatibility........................................................................57
6.12 Interest Rate Protection Agreements............................................................57
ARTICLE VII......................................................................................................57
FINANCIAL COVENANTS..............................................................................................57
7.1 Leverage Ratio.................................................................................57
7.2 Fixed Charge Coverage Ratio....................................................................57
7.3 Minimum Consolidated Net Worth.................................................................57
ARTICLE VIII.....................................................................................................58
NEGATIVE COVENANTS...............................................................................................58
8.1 Merger; Consolidation..........................................................................58
8.2 Indebtedness...................................................................................58
8.3 Liens..........................................................................................60
8.4 Disposition of Assets..........................................................................61
8.5 Investments....................................................................................61
8.6 Restricted Payments............................................................................62
8.7 Transactions with Affiliates...................................................................62
8.8 Lines of Business..............................................................................62
8.9 Certain Amendments.............................................................................62
8.10 Limitation on Certain Restrictions.............................................................62
8.11 No Other Negative Pledges......................................................................63
8.12 Fiscal Year....................................................................................63
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C>
8.13 Accounting Changes.............................................................................63
8.14 Inactive Subsidiaries..........................................................................63
ARTICLE IX.......................................................................................................63
EVENTS OF DEFAULT................................................................................................63
9.1 Events of Default..............................................................................63
9.2 Remedies: Termination of Commitments, Acceleration, etc........................................65
9.3 Remedies: Set-Off..............................................................................66
ARTICLE X........................................................................................................66
THE AGENT........................................................................................................66
10.1 Appointment....................................................................................66
10.2 Nature of Duties...............................................................................67
10.3 Exculpatory Provisions.........................................................................67
10.4 Reliance by Agent..............................................................................67
10.5 Non-Reliance on Agent and Other Lenders........................................................68
10.6 Notice of Default..............................................................................68
10.7 Indemnification................................................................................68
10.8 The Agent in its Individual Capacity...........................................................69
10.9 Successor Agent................................................................................69
10.10 Collateral Matters.............................................................................69
10.11 Issuer and Swingline Lender....................................................................70
10.12 Other Agent....................................................................................70
ARTICLE XI.......................................................................................................70
GUARANTEE........................................................................................................70
11.1 Guarantee......................................................................................70
11.2 No Subrogation.................................................................................70
11.3 Amendments, etc. with respect to the Obligations; Waiver of Rights.............................71
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
11.4 Guarantee Absolute and Unconditional...........................................................71
11.5 Reinstatement..................................................................................72
11.6 Payments.......................................................................................72
ARTICLE XII......................................................................................................72
MISCELLANEOUS....................................................................................................72
12.1 Fees and Expenses..............................................................................72
12.2 Indemnification................................................................................73
12.3 Governing Law; Consent to Jurisdiction.........................................................73
12.4 Notices........................................................................................74
12.5 Amendments, Waivers, etc.......................................................................74
12.6 Assignments, Participations....................................................................75
12.7 No Waiver......................................................................................77
12.8 Successors and Assigns.........................................................................77
12.9 Survival.......................................................................................78
12.10 Severability...................................................................................78
12.11 Construction...................................................................................78
12.12 Confidentiality................................................................................78
12.13 Counterparts; Effectiveness....................................................................78
12.14 Disclosure of Information......................................................................78
12.15 Entire Agreement...............................................................................79
</TABLE>
<PAGE> 8
EXHIBITS
<TABLE>
<S> <C>
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Compliance Certificate
Exhibit C Form of Financial Condition Certificate
Exhibit D Foreign Subsidiary Opinion
Exhibit E Form of Subsidiary Guaranty
Exhibit F Joinder Agreement
Exhibit G Form of Pledge Agreement
Exhibit H-1 Form of Revolving Note
Exhibit H-2 Form of Swingline Note
Exhibit H-3 Form of Term Note
Exhibit I Form of Lender Addition and Acknowledgment Agreement
Exhibit J Form of Opinion of Seyburn, Kahn, Ginn, Bess, Deitch & Serlin
</TABLE>
SCHEDULES
<TABLE>
<S> <C>
Schedule 1.1(a) Commitments
Schedule 1.1(b) Foreign Subsidiary Borrowers
Schedule 5.7 Subsidiaries
Schedule 8.2 Indebtedness
Schedule 8.3 Liens
Schedule 8.5 Investments
Schedule 8.7 Transactions with Affiliates
</TABLE>
<PAGE> 9
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 16th day
of August, 1999 (this "Agreement"), is made among LASON, INC., a Delaware
corporation with its principal offices in Troy, Michigan (the "Company"), the
Foreign Subsidiary Borrowers (as herein defined) from time to time parties
hereto (together with the Company, the "Borrowers"), the banks and financial
institutions listed on the signature pages hereto or that become parties hereto
after the date hereof (collectively, the "Lenders"), and BANK ONE, MICHIGAN
("Bank One"), as administrative agent for the Lenders (in such capacity, the
"Agent").
RECITALS
A. This Agreement amends and restates a Credit Agreement among First
Union National Bank, as agent, the lenders party thereto and Lason Services,
Inc., a wholly owned Subsidiary of the Company ("Services") dated as of January
17, 1995 (the "Initial Agreement"), as amended and restated by that Amended and
Restated Loan Agreement dated as of February 21, 1997 (the "First Restatement")
and by that Second Amended and Restated Loan Agreement dated as of June 29, 1998
(the "Second Restatement") . Under the Initial Agreement, as amended and
restated by the First Restatement and the Second Restatement, the Lenders have
made available to the Company revolving loans.
B. The Company has requested that the Lenders amend and restate the
Initial Agreement to make available to the Borrowers a revolving credit facility
in the aggregate initial principal amount of $150,000,000, which amount may be
increased to a maximum aggregate principal amount of $250,000,000 pursuant to
the terms and conditions hereof, to make available to the Company a term loan in
the aggregate initial principal amount of $150,000,000 pursuant to the terms and
conditions hereof, to substitute Bank One, Michigan for First Union National
Bank as agent under the Credit Agreement and to release certain of the
collateral. The Borrowers will use the proceeds of this facility to refinance
existing indebtedness, to finance permitted acquisitions, to pay or reimburse
certain fees and expenses in connection herewith, and for working capital and
general corporate purposes, all as more fully described herein.
C. The Lenders are willing to make available to the Borrowers the
credit facilities described herein subject to and on the terms and conditions
set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions, covenants and
agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Defined Terms. For purposes of this Agreement, in addition to the
terms defined elsewhere herein, the following terms shall have the meanings set
forth below (such meanings to be equally applicable to the singular and plural
forms thereof):
<PAGE> 10
"Acquisition" shall mean any acquisition, whether in a single transaction
or series of related transactions, by the Company or any one or more
Subsidiaries, or any combination thereof, of (a) all or a substantial part of
the assets, or a going business or division, of any Person, whether through
purchase of assets, merger or otherwise, or (b) control of at least a majority
in voting power of the Stock of any Person.
"Acquisition Amount" shall mean, with respect to any Acquisition, the sum
(without duplication) of (i) the amount of cash paid by the Company and its
Subsidiaries in connection with such Acquisition, (ii) the Fair Market Value of
all Capital Stock of the Company or any Subsidiary issued or given in connection
with such Acquisition, (iii) the amount (determined by using the face amount or
the amount payable at maturity, whichever is greater) of all Indebtedness
incurred, assumed or acquired by the Company and its Subsidiaries, as
applicable, in connection with such Acquisition, (iv) all additional purchase
price amounts in connection with such Acquisition in the form of earnouts and
other contingent obligations that should be recorded as a liability on the
balance sheet of the Company and its Subsidiaries, or expensed, in either event
in accordance with GAAP, Regulation S-X under the Securities Act of 1933, as
amended, or any other rule or regulation of the Securities and Exchange
Commission, (v) all amounts paid in respect of covenants not to compete,
consulting agreements and other affiliated contracts in connection with such
Acquisition, (vi) the amount of all transaction fees and expenses (including,
without limitation, legal, accounting and finders' fees and expenses) incurred
by the Company and its Subsidiaries in connection with such Acquisition and
(vii) the aggregate fair market value of all other consideration given by the
Company and its Subsidiaries in connection with such Acquisition.
"Advance" means an advance hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Revolving Credit
Loans, Term Loans, Swing Loans or Facility Letters of Credit made on the same
Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type and, in the case of Eurodollar Advances and
Eurocurrency Advances, for the same Interest Period.
"Affiliate" shall mean, as to any Person, each other Person that directly,
or indirectly through one or more intermediaries, owns or controls, is
controlled by or under common control with, such Person or is a director or
officer of such Person. For purposes of this definition, with respect to any
Person "control" shall mean (i) the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise, or
(ii) the beneficial ownership of securities or other ownership interests of such
Person having 10% or more of the combined voting power of the then outstanding
securities or other ownership interests of such Person ordinarily (and apart
from rights accruing under special circumstances) having the right to vote in
the election of directors or other governing body of such Person.
"Agent" shall mean Bank One, in its capacity as Agent appointed under
Article X, and its successors and permitted assigns in such capacity.
"Aggregate Available Multicurrency Revolving Credit Commitments" means at
any date of determination with respect to all Multicurrency Revolving Credit
Lenders, an amount equal to the Available Multicurrency Revolving Credit
Commitments of all Multicurrency Revolving Credit Lenders on such date.
"Aggregate Available Revolving Credit Commitments" means as at any date of
determination with respect to all Lenders, an amount equal to the Available
Revolving Credit Commitments of all Lenders on such date.
2
<PAGE> 11
"Aggregate Multicurrency Revolving Credit Commitment" means the aggregate
amount, stated in Dollars, of the Multicurrency Revolving Credit Commitments of
all the Multicurrency Revolving Credit Lenders, not to exceed the Dollar
Equivalent of $50,000,000, or such greater or lesser amount as determined by the
Agent from time to time, as reduced from time to time pursuant to the terms
hereof.
"Aggregate Multicurrency Revolving Credit Outstandings" means on any date
of determination with respect to any Multicurrency Revolving Credit Lender, the
aggregate unpaid principal amount of such Lender's Multicurrency Revolving
Credit Loans on such date.
"Aggregate Revolving Credit Commitment" means the aggregate of the
Revolving Credit Commitments of all the Revolving Credit Lenders, not to exceed
the Dollar Equivalent of $150,000,000, as increased or decreased from time to
time pursuant to the terms hereof.
"Aggregate Revolving Credit Outstandings" means as at any date of
determination with respect to any Revolving Credit Lender, the Dollar Equivalent
of the sum of the aggregate unpaid principal amount of such Lender's Revolving
Credit Loans on such date and the amount of such Lender's Pro Rata Share of the
Facility Letter of Credit Obligations and Swing Loans to the Borrowers on such
date and without duplication the amount of such Lender's participation in other
Revolving Credit Loans pursuant to Section 2.21 on such date.
"Aggregate Term Loan Commitment" means the aggregate amount of the Term
Loan Commitment of all Term Loan Lenders, not to exceed $150,000,000, as reduced
from time to time pursuant to the terms hereof.
"Aggregate Term Loan Outstandings" means at any date of determination with
respect to any Lender, the sum of the aggregate unpaid principal amount of such
Lender's Term Loan on such date.
"Aggregate Total Outstandings" means as at any date of determination with
respect to any Lender, the Dollar Equivalent of an amount equal to the sum of
(a) the Aggregate Revolving Credit Outstandings of such Lender on such date and
(b) the Aggregate Term Loan Outstandings of such Lender on such date.
"Agreed Currencies" means Dollars and Eurocurrencies.
"Agreement" shall mean this Third Amended and Restated Credit Agreement, as
amended, modified or supplemented from time to time.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" shall mean, at any time from and after the Effective
Date, the applicable percentage (a) to be added to the Alternate Base Rate for
purposes of determining the Floating Rate, (b) to be added to the Eurodollar
Base Rate for purposes of determining the Eurodollar Rate, (c) to be added to
the Eurocurrency Reference Rate for purposes of determining the Eurocurrency
Rate, and (d) to be used in calculating the commitment fee pursuant to Section
2.5 and the issuance fee for Facility Letters of Credit pursuant to Section
2.2.6, in each case as determined under the following matrix with reference to
the Leverage Ratio:
3
<PAGE> 12
<TABLE>
<CAPTION>
Applicable Margin
Percentage for
Applicable Margin Eurodollar Loans
Percentage for and Eurocurrency Applicable Margin
Floating Rate Loans and Facility Percentage for
Leverage Ratio Loans Letters of Credit Commitment Fee
-------------- ----- ----------------- --------------
<S> <C> <C> <C>
I. Greater than or equal to 3.0 to 1.0 .50% 2.00% .50%
II. Greater than or equal to 2.5 to 1.0
but less than 3.0 to 1.0 .25% 1.75% .40%
III.Greater than or equal to 2.0 to 1.0
but less than 2.5 to 1.0 0.00% 1.50% .35%
IV. Greater than or equal to 1.5 to 1.0
but less than 2.0 to 1.0 0.00% 1.375% .30%
V. Less than 1.50 to 1.0 0.00% 1.125% .25%
</TABLE>
On each Adjustment Date (as hereinafter defined), the Applicable Margin for all
Loans and the commitment fee shall be adjusted effective as of such date (based
upon the calculation of the Leverage Ratio as of the last day of the fiscal
period to which such Adjustment Date relates) in accordance with the above
matrix; provided, however, that, notwithstanding the foregoing or anything else
herein to the contrary, if at any time the Company shall have failed to deliver
the financial statements and a Compliance Certificate as required by Section
6.1(a) or Section 6.1(b), as the case may be, and Section 6.2(a), or if at any
time a Default or Event of Default shall have occurred and be continuing, then
at the election of the Required Lenders, at all times from and including the
date on which such statements and Compliance Certificate are required to have
been delivered (or the date of occurrence of such Default or Event of Default,
as the case may be) to the date on which the same shall have been delivered (or
such Default or Event of Default cured or waived, as the case may be), each
Applicable Margin shall be determined in accordance with the above matrix as if
the Leverage Ratio were greater than 3.0 : 1.0 (notwithstanding the actual
Leverage Ratio). For purposes of this definition, "Adjustment Date" shall mean,
(i) with respect to any fiscal period of the Company beginning with the fiscal
quarter ending December 31, 1999, the fifth (5th) day (or, if such day is not a
Business Day, on the next succeeding Business Day) after delivery by the Company
in accordance with Section 6.1(a) or Section 6.1(b), as the case may be, of
financial statements and a Compliance Certificate as of the end of and for such
fiscal period and (ii) on the effective date of any Permitted Acquisition. Until
January 5, 2000, the Applicable Margin shall be determined in accordance with
the above matrix based upon a Leverage Ratio as set forth Level III above.
"Assignee" shall have the meaning given to such term in Section 12.6(a).
"Assignment and Acceptance" shall mean an Assignment and Acceptance entered
into between a Lender and an Assignee and accepted by the Agent and the Company,
in substantially the form of Exhibit A.
"Authorized Officer" shall mean, with respect to any action specified
herein, any officer of a Borrower duly authorized by resolution of the board of
directors of such Borrower to take such action on
4
<PAGE> 13
its behalf, and whose signature and incumbency shall have been certified to the
Agent by the secretary or an assistant secretary of such Borrower.
"Available Multicurrency Revolving Credit Commitment" means at any date of
determination with respect to any Multicurrency Revolving Credit Lender (after
giving effect to the making and payment of any Revolving Credit Loans required
on such date pursuant to Section 2.4(b)), the lesser of (a) the excess, if any,
of (i) the Dollar Equivalent of such Multicurrency Revolving Credit Lender's
Multicurrency Revolving Credit Commitment in effect on such date over (ii) the
Aggregate Multicurrency Revolving Credit Outstandings of such Multicurrency
Credit Lender on such date and (b) the Available Revolving Credit Commitment of
such Lender on such date.
"Available Revolving Credit Commitment" means at any date of determination
with respect to any Revolving Credit Lender (after giving effect to the making
and payment of any Revolving Credit Loans required on such date pursuant to
Section 2.4(b)), an amount in Dollars equal to the excess, of (a) the amount of
such Lender's Revolving Credit Commitment in effect on such date over (b) the
Aggregate Revolving Credit Outstandings of such Lender on such date.
"Bankruptcy Code" shall mean 11 U.S.C.ss.ss. 101 et seq., as amended from
time to time, and any successor statute.
"Borrowing Date" shall mean, with respect to any Advance, the date upon
which such Advance is made.
"Borrowing Notice" is defined in Section 2.8.
"British Pound Sterling" or "(Pound Sterling)" means the lawful currency of
the United Kingdom.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Detroit, Chicago and New York for the conduct
of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
(ii) with respect to any borrowing, payment or rate selection of Eurocurrency
Advances, a day (other than a Saturday or Sunday) on which banks generally are
open in Detroit, Chicago and New York for the conduct of substantially all of
their commercial lending activities and on which dealings in Dollars and
Eurocurrencies are carried on in the London interbank market (and, if the
Eurocurrency Advances which are the subject of such borrowing, payment or rate
selection are denominated in Euros, a day upon which such clearing or settlement
of the Euro is open for business), and (iii) for all other purposes, a day
(other than a Saturday or Sunday) on which banks generally are open in Detroit,
Chicago and New York for the conduct of substantially all of their commercial
lending activities.
"Canadian Dollars" or "CDN" means the lawful currency of Canada.
"Capital Expenditures" shall mean, for any period, the aggregate amount
(whether paid in cash or accrued as a liability) that would, in accordance with
GAAP, be included on the consolidated statement of cash flows of the Company and
its Subsidiaries for such period as additions to equipment, fixed assets, real
property or improvements or other capital assets (including, without limitation,
capital lease obligations); provided, however, that Capital Expenditures shall
not include any such expenditures (i) for replacements and substitutions for
capital assets, to the extent made with the proceeds of insurance, or (ii) made
in connection with Permitted Acquisitions.
5
<PAGE> 14
"Capital Stock" shall mean (i) with respect to any Person that is a
corporation, any and all shares, interests or equivalents in capital stock
(whether voting or nonvoting, and whether common or preferred) of such
corporation, and (ii) with respect to any Person that is not a corporation, any
and all partnership, membership, limited liability company or other equity
interests of such Person; and in each case, any and all warrants, rights or
options to purchase any of the foregoing.
"Cash Equivalents" shall mean (i) securities issued or unconditionally
guaranteed by the United States of America or any agency or instrumentality
thereof, backed by the full faith and credit of the United States of America and
maturing within 90 days from the date of acquisition, (ii) commercial paper
issued by any Person organized under the laws of the United States of America,
maturing within 90 days from the date of acquisition and, at the time of
acquisition, having a rating of at least A-1 or the equivalent thereof by
Standard & Poor's Ratings Services or at least P-1 or the equivalent thereof by
Moody's Investors Service, Inc., (iii) time deposits and certificates of deposit
maturing within 90 days from the date of issuance and issued by a bank or trust
company organized under the laws of the United States of America or any state
thereof that has combined capital and surplus of at least $500,000,000 and that
has (or is a subsidiary of a bank holding company that has) a long-term
unsecured debt rating of at least A or the equivalent thereof by Standard &
Poor's Ratings Services or at least A2 or the equivalent thereof by Moody's
Investors Service, Inc., (iv) repurchase obligations with a term not exceeding
seven (7) days with respect to underlying securities of the types described in
clause (i) above entered into with any bank or trust company meeting the
qualifications specified in clause (iii) above, and (v) money market funds at
least 95% of the assets of which are continuously invested in securities of the
type described in clause (i) above.
"Casualty Event" shall mean, with respect to any property (including any
interest in property) of the Company or any of its Subsidiaries, any loss of,
damage to, or condemnation or other taking of, such property for which the
Company or such Subsidiary receives insurance proceeds, proceeds of a
condemnation award or other compensation.
"Collateral" shall mean all property described in Section 2.24(a).
"Compliance Certificate" shall mean a fully completed and duly executed
certificate in the form of Exhibit B, together with a Covenant Compliance
Worksheet.
"Consolidated EBITDA" shall mean, for any period, the aggregate of (i)
Consolidated Net Income for such period, plus (ii) the sum of Consolidated
Interest Expense, federal, state, local and other income taxes, depreciation,
amortization of intangible assets, and extraordinary or nonrecurring losses and
other noncash expenses or charges reducing income for such period in a manner
satisfactory to the Agent, all to the extent taken into account in the
calculation of Consolidated Net Income for such period, minus (iii) the sum of
extraordinary or nonrecurring gains (including in connection with the sale or
write-up of assets) and other noncash credits increasing income for such period,
all to the extent taken into account in the calculation of Consolidated Net
Income for such period.
"Consolidated Fixed Charges" shall mean, for any period, the aggregate
(without duplication) of the following, all determined on a consolidated basis
for the Company and its Subsidiaries in accordance with GAAP for such period:
(a) Consolidated Interest Expense for such period, (b) the aggregate (without
duplication) of all scheduled payments of principal on Total Debt required to
have been made by the Company and its Subsidiaries during such period (whether
or not such payments are actually made), (c) federal, state, local and other
income taxes for such period, (d) Rent Expense and Operating Lease Expense for
such period and (e) all dividends paid or payable by the Company during such
period.
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"Consolidated Interest Expense" shall mean, for any period, the sum
(without duplication) of (i) total interest expense of the Company and its
Subsidiaries for such period in respect of Indebtedness of the Company and its
Subsidiaries (including, without limitation, all such interest expense accrued
or capitalized during such period, whether or not actually paid during such
period), determined on a consolidated basis in accordance with GAAP, (ii) all
net amounts payable under or in respect of Hedge Agreements, to the extent paid
or accrued by the Company and its Subsidiaries during such period, and (iii) all
commitment fees, issuance fees for Facility Letters of Credit and other ongoing
fees in respect of Indebtedness (including the commitment fee provided for under
Section 2.5 and the fees provided for under the Fee Letter) paid, accrued or
capitalized by the Company and its Subsidiaries during such period.
"Consolidated Net Income" shall mean, for any period, net income (or loss)
for the Company and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of any date of determination, the
net worth of the Company and its Subsidiaries as of such date, determined on a
consolidated basis in accordance with GAAP but (i) excluding any Disqualified
Capital Stock and (ii) without regard to the requirements of Statement of
Financial Accounting Standards No. 115 issued by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants.
"Contingent Obligation" shall mean, with respect to any Person, any direct
or indirect liability of such Person with respect to any Indebtedness, liability
or other obligation (the "primary obligation") of another Person (the "primary
obligor"), whether or not contingent, (a) to purchase, repurchase or otherwise
acquire such primary obligation or any property constituting direct or indirect
security therefor, (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 or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of
the primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor in respect 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; provided, however, that, with respect to the Company and its
Subsidiaries, the term Contingent Obligation shall not include endorsements for
collection or deposit in the ordinary course of business.
"Consolidated Total Debt" shall mean, as of any date of determination, the
aggregate (without duplication) of all Total Debt of the Company and its
Subsidiaries as of such date, determined on a consolidated basis in accordance
with GAAP. For purposes of determining Consolidated Total Debt as of any date,
each Contingent Obligation of the Company and its Subsidiaries required to be
included in such determination shall be valued at the maximum aggregate
principal amount (whether or not drawn or outstanding) of the Indebtedness that
is the corresponding "primary obligation" (as such term is defined in the
definition of Contingent Obligation) as of such date.
"Cost Rate" means
1. The cost of compliance with existing requirements of the Bank of England
Act 1998 (the "Act") and/or Bank of England and/or the Financial Services
Authority (or any authority which replaces all or any of their functions)
of a requirement to place non-interest-bearing or Special Deposits (whether
interest bearing or not) with the Bank of England and/or pay fees to the
Financial Services Authority in respect of liabilities used to fund
Advances denominated in British Pounds Sterling will be calculated by the
Agent in relation to each Advance on the basis of rates supplied by the
Agent by reference to the circumstances existing on the first day of each
Interest Period in
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<PAGE> 16
respect of such Advance and, if any such Interest Period exceeds three
months, at three calendar monthly intervals from the first day of such
Interest Period during its duration calculated in accordance with the
following formula:
AB +C(B-D) + E x 0.01 per cent per annum
- ---------------------
100 - (A+C)
Where:
A. is the percentage of eligible liabilities (assuming these to be in excess
of any stated minimum) which the Agent is from time to time required
pursuant to the Act to maintain as an interest free cash ratio deposit with
the Bank of England to comply with cash ratio requirements.
B. is the percentage (expressed as a decimal) rate per annum at which sterling
deposits are offered by the Agent in accordance with its normal practice,
for a period equal to (a) the relevant Interest Period (or, as the case may
be, remainder of such Interest Period) in respect of the relevant Advance
or (b) three months, whichever is the shorter, to a leading bank in the
London interbank market at or about 11:00 a.m. in a sum approximately equal
to the amount of such Advance.
C. is the percentage of eligible liabilities which the Agent is required from
time to time to maintain as interest bearing special deposits with the Bank
of England.
D. is the percentage (expressed as a decimal) rate per annum payable by the
Bank of England to the Agent on interest bearing special deposits.
E. is the rate payable by the Agent 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 calculated in pounds per (Pound Sterling)1,000,000 of the Fee
Base of the Agent.
2. For the purposes of this definition:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" shall bear the
meanings ascribed to them from time to time under or pursuant to the Bank of
England Act 1998 or (as appropriate) by the Bank of England;
(b) "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
(c) "FEE BASE" shall bear the meaning ascribed to it, and shall be
calculated in accordance with, the Fees Regulations.
3. The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
4. In application of the above formula, A, B, C and D will be included in the
formula as figures and not as percentages e.g. if A is 0.5 per cent and B
is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5 per cent x
12 per cent.
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<PAGE> 17
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting D from B shall be taken as zero.
7. The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty second of one percent
per annum.
8. Additional amounts calculated in accordance with this definition are
payable on the last day of the Interest Period to which they relate.
9. The determination of the relevant Cost Rate by the Agent in relation to any
period shall, in the absence of manifest error, be conclusive and binding
on all of the parties hereto.
10. The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all parties any amendments or
variations which are required to be made to the formula set out above in
order to comply with any requirements from time to time imposed by the Bank
of England or the Financial Services Authority (or any other authority
which replaces all or any of their functions) in relation to Advances
denominated in British Pounds Sterling (including any requirements relating
to sterling primary liquidity) and, any such determination shall, in the
absence of manifest error, be conclusive and binding on all the parties
hereto.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Covenant Compliance Worksheet" shall mean a fully completed worksheet in
the form of Attachment A to Exhibit B.
"Credit Documents" shall mean this Agreement, the Notes, the Facility
Letters of Credit, the Fee Letter, the Pledge Agreement, the Guaranties, any
other Security Documents, any Hedge Agreement to which any Borrower and any
Lender are parties and that is permitted or required to be entered into by such
Borrower hereunder, and all other agreements, instruments, documents and
certificates now or hereafter executed and delivered to the Agent or any Lender
by or on behalf of any Borrower or any of its Subsidiaries with respect to this
Agreement and the transactions contemplated hereby, in each case as amended,
modified, supplemented or restated from time to time.
"Disqualified Capital Stock" means, with respect to any Person, any Capital
Stock of such Person that, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or upon the happening
of any event or otherwise, (i) matures or is mandatorily redeemable or subject
to any mandatory repurchase requirement, pursuant to a sinking fund obligation
or otherwise, (ii) is redeemable or subject to any mandatory repurchase
requirement at the sole option of the holder thereof, or (iii) is convertible
into or exchangeable for (whether at the option of the issuer or the holder
thereof) (a) debt securities or (b) any Capital Stock referred to in (i) or (ii)
above, in each case under (i), (ii) or (iii) above at any time on or prior to
the Maturity Date; provided, however, that only the portion of Capital Stock
that so matures or is mandatorily redeemable, is so redeemable at the option of
the holder thereof, or is so convertible or exchangeable on or prior to such
date shall be deemed to be Disqualified Capital Stock.
"Dollar Equivalent" means, with respect to any currency, at any date, the
equivalent thereof in Dollars, calculated on the basis of the arithmetical mean
of the buy and sell spot rates of exchange of the Agent for such other currency
at 11:00 a.m., London time, on the date on or as of which such amount is to be
determined.
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<PAGE> 18
"Dollar Revolving Credit Lender" means any Lender which has a Dollar
Revolving Credit Commitment.
"Dollar Revolving Credit Loans" means Revolving Credit Loans denominated in
Dollars made to the Borrowers pursuant to Section 2.1(a).
"Dollar Revolving Credit Commitment" means, with respect to each Lender,
the commitment of each such Lender to make Revolving Credit Loans in Dollars
under Section 2.1(a), and to participate in Facility Letters of Credit and Swing
Loans denominated in Dollars, in amounts not exceeding in the aggregate
principal or face amount outstanding at any time the Dollar Revolving Credit
Commitment amount for such Lender set forth opposite such Lender's name in
Schedule 1.1(a) under the heading "Dollar Revolving Credit Commitment" or as
otherwise established, reduced, or modified pursuant to the provisions hereof.
"Dollars" or "$" shall mean dollars of the United States of America.
"Domestic Subsidiary" means any Subsidiary of the Company which is
organized under the laws of any State of the United States of America or the
District of Columbia.
"Effective Date" means August 16, 1999.
"Eligible Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which a Dollar Equivalent may be readily calculated.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"ERISA Affiliate" shall mean any Person (including any trade or business,
whether or not incorporated) that would be deemed to be under "common control"
with, or a member of the same "controlled group" as, the Company or any of its
Subsidiaries, within the meaning of Sections 414(b), (c), (m) or (o) of the
Internal Revenue Code or Section 4001 of ERISA.
"ERISA Event" shall mean any of the following with respect to a Plan or
Multiemployer Plan, as applicable: (i) a Reportable Event with respect to a Plan
or a Multiemployer Plan, (ii) a complete or partial withdrawal by the Company or
any ERISA Affiliate from a Multiemployer Plan that results in liability under
Section 4201 or 4204 of ERISA, or the receipt by the Company or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA, (iii) the distribution
by the Company or any ERISA Affiliate under Section 4041 or 4041A of ERISA of a
notice of intent to terminate any Plan or the taking of any action to terminate
any Plan, (iv) the commencement of proceedings by the PBGC under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan, or the receipt by the Company or any ERISA Affiliate of a notice from any
Multiemployer Plan that such action has been taken by the PBGC with respect to
such Multiemployer Plan, (v) the institution of a proceeding by any fiduciary of
any Multiemployer Plan against the Company or any ERISA Affiliate to enforce
Section 515 of ERISA, which is not dismissed within thirty (30) days, (vi) the
imposition upon the Company or any ERISA Affiliate of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, or the imposition or
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<PAGE> 19
threatened imposition of any Lien upon any assets of the Company or any ERISA
Affiliate as a result of any alleged failure to comply with the Internal Revenue
Code or ERISA in respect of any Plan, (vii) the engaging in or otherwise
becoming liable for a nonexempt Prohibited Transaction by the Company or any
ERISA Affiliate, (viii) a violation of the applicable requirements of Section
404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the
Internal Revenue Code by any fiduciary of any Plan for which the Company or any
of its ERISA Affiliates may be directly or indirectly liable or (ix) the
adoption of an amendment to any Plan that, pursuant to Section 401(a)(29) of the
Internal Revenue Code or Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is a part if the Company or an
ERISA Affiliate fails to timely provide security to such Plan in accordance with
the provisions of such sections.
"Eligible Assignee" shall mean (i) a commercial bank organized under the
laws of the United States or any state thereof and having total assets in excess
of $1,000,000,000, (ii) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development or any successor thereto (the "OECD") or a political subdivision of
any such country and having total assets in excess of $1,000,000,000, provided
that such bank or other financial institution is acting through a branch or
agency located in the United States, in the country under the laws of which it
is organized or in another country that is also a member of the OECD, (iii) the
central bank of any country that is a member of the OECD, (iv) a finance
company, insurance company or other financial institution or fund that is
engaged in making, purchasing or otherwise investing in loans in the ordinary
course of its business and having total assets in excess of $500,000,000, (v)
any Affiliate of an existing Lender or (vi) any other Person approved by the
Required Lenders, which approval shall not be unreasonably withheld.
"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of its business
and not in response to any third party action or request of any kind) or
proceedings relating in any way to any actual or alleged violation of or
liability under any Environmental Law or relating to any permit issued, or any
approval given, under any such Environmental Law (collectively, "Claims"),
including, without limitation, (i) any and all Claims by Governmental
Authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law and (ii) any and
all Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Substances or arising from alleged injury or threat of injury to human health or
the environment.
"Environmental Laws" shall mean any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals, rules of
common law and orders of courts or Governmental Authorities, relating to the
protection of human health or occupational safety or the environment, now or
hereafter in effect and in each case as amended from time to time, including,
without limitation, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Substances.
"Equity Issuance" shall mean the issuance, sale or other disposition by the
Company or any of its Subsidiaries of its Capital Stock (including, without
limitation, pursuant to a registered public offering of Capital Stock of the
Company), any rights, warrants or options to purchase or acquire any shares of
its Capital Stock or any other security or instrument representing, convertible
into or exchangeable for an equity interest in the Company or any of its
Subsidiaries; provided, however, that the term Equity Issuance shall not include
the issuance or sale of Capital Stock by any of the Subsidiaries of the Company
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<PAGE> 20
to the Company or any other Subsidiary, provided that such Capital Stock is
pledged to the Agent pursuant to a Pledge Agreement.
"Euro" and/or "EUR" means the euro referred to in Council Regulation (EC)
No. 1103/97 dated June 17, 1997 passed by the Council of the European Union, or,
if different, the then lawful currency of the member states of the European
Union that participate in the third stage of Economic and Monetary Union.
"Eurocurrency" means (i) so long as such currencies remain Eligible
Currencies, British Pounds Sterling, Canadian Dollars and the Euro, and (ii) any
other Eligible Currency which the Company requests the Agent to include as a
Eurocurrency hereunder and which is acceptable to all of the Multicurrency
Revolving Credit Lenders and the Agent. If, after the designation by the
Multicurrency Revolving Credit Lenders of any currency as a Eurocurrency, (x)
currency control or other exchange regulations are imposed in the country in
which such currency is issued with the result that different types of such
currency are introduced, (y) such currency is, in the determination of the
Agent, no longer readily available or freely traded or (z) in the determination
of the Agent, a Dollar Equivalent of such currency is not readily calculable,
the Agent shall promptly notify the Lenders and the Company, and such currency
shall no longer be a Eurocurrency until such time as all of the Lenders agree to
reinstate such currency as an Eurocurrency and promptly, but in any event within
five Business Days of receipt of such notice from the Agent, the Borrowers shall
repay all Loans in such affected currency or convert such Loans into Loans in
Dollars or another Eurocurrency, subject to the other terms set forth in Article
II.
"Eurocurrency Advance" means a Multicurrency Advance which bears interest
at the Eurocurrency Rate.
"Eurocurrency Reference Rate" means, with respect to each Interest Period
for a Multicurrency Revolving Credit Loan:
(a) with respect to any Multicurrency Revolving Credit Loan
denominated in Canadian Dollars, the rate quoted to the Borrower requesting
such loan by the Agent at approximately 11:00 a.m. (Detroit time) two
Business Days prior to the first day of such Interest Period as the current
estimated cost to the Agent, expressed as an annual rate of interest, of
funding short term loans for the period in an aggregate amount comparable
to the amount of such loan to be made by the Agent in its capacity as a
Multicurrency Lender, as conclusively determined by the Agent,
(b) with respect to any other Multicurrency Revolving Credit Loan,
the rate at which deposits in the Eurocurrency of that amount are offered
by the Agent or one of its affiliates for that period to prime banks in the
London interbank market at or about 11:00 a.m. (London time) on the
Quotation Date for such period,
plus, in each case in which the Eurocurrency Advance is to be made in British
Pounds Sterling, the Cost Rate.
"Eurocurrency Loan" means a Multicurrency Revolving Credit Loan which bears
interest at the Eurocurrency Rate.
"Event of Default" shall have the meaning given to such term in Section
9.1.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute, and all rules and regulations from
time to time promulgated thereunder.
"Eurocurrency Rate" means, with respect to a Eurocurrency Loan for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurocurrency
Reference Rate applicable to such Interest Period, divided by (ii) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus (b) the Applicable Margin.
"Eurodollar Advance" means an Advance which bears interest at a Eurodollar
Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the rate determined by the Agent to be the rate at
which deposits in Dollars are offered to First Chicago by prime banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, in the approximate amount
of First Chicago's relevant Eurodollar Loan and having a maturity approximately
equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Facility Letter of Credit" means a Letter of Credit issued by the Issuer
pursuant to Section 2.2.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrowers with respect to the Facility Letters of Credit, including the sum of
(a) Reimbursement Obligations and (b) the aggregate undrawn face amount of the
outstanding Facility Letters of Credit.
"Fair Market Value" shall mean, with respect to any Capital Stock of the
Company or any Subsidiary given in connection with an Acquisition, the value
given to such Capital Stock for purposes of such Acquisition by the parties
thereto, as determined in good faith pursuant to the relevant acquisition
agreement or otherwise in connection with such Acquisition.
"Federal Reserve Board" shall mean the Board of Governors of the Federal
Reserve System or any successor thereto.
"Fee Letter" shall mean the letter from Bank One to the Company, dated July
15, 1999, relating to certain fees payable by the Company in respect of the
transactions contemplated by this Agreement, as amended, modified or
supplemented from time to time.
"Financial Condition Certificate" shall mean a fully completed and duly
executed certificate, substantially in the form of Exhibit C, together with the
attachments thereto.
"Financial Officer" shall mean, with respect to the Company the chief
financial officer, vice president - finance, principal accounting officer or
treasurer of the Company.
"First Chicago" shall mean The First National Bank of Chicago, a national
banking association.
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<PAGE> 22
"Fixed Charge Coverage Ratio" shall mean, as of the last day of any fiscal
quarter, the ratio of (i) Consolidated EBITDA, plus Rent Expense and Operating
Lease Expense, minus Capital Expenditures for the period of four consecutive
fiscal quarters then ending to (ii) Consolidated Fixed Charges for such period.
"Fixed Rate Loan" shall mean any Eurodollar Loan or any Eurocurrency Loan.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Foreign Subsidiary" means each Subsidiary of the Company other than a
Domestic Subsidiary.
"Foreign Subsidiary Borrower" means each Foreign Subsidiary listed as a
Foreign Subsidiary Borrower in Schedule 1.1(b) as amended from time to time in
accordance with Section 12.5(b).
"Foreign Subsidiary Opinion" means with respect to any Foreign Subsidiary,
a legal opinion of counsel to such Foreign Subsidiary addressed to the Agent and
the Lenders with respect to the matters listed on Exhibit D, with such
assumptions, qualifications and deviations therefrom as the Agent shall approve.
"GAAP" shall mean generally accepted accounting principles, as set forth in
the statements, opinions and pronouncements of the Accounting Principles Board,
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained, as in effect
from time to time (subject to the provisions of Section 1.2).
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any central bank thereof, any municipal,
local, city or county government, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantor" means (a) with respect to the Obligations of the Foreign
Subsidiary Borrowers, the Company and each present and future Domestic
Subsidiary and each parent corporation and Subsidiary of such Foreign Subsidiary
Borrower and (b) with respect to the Obligations of the Company, each present
and future Domestic Subsidiary of the Company and any other Person executing a
Guaranty at any time, other than, in each case, any Inactive Subsidiary.
"Guaranty" means, with respect to the Company, the guarantee contained in
Article XI and, with respect to any other Guarantor, each guaranty agreement in
substantially the form of Exhibit E duly executed by each such Guarantor to the
Agent, including any amendment, modification, renewal or replacement of such
guaranty agreement.
"Hazardous Substances" shall mean any substances or materials (i) that are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (ii) that are
defined by any Environmental Law as toxic, explosive, corrosive, ignitable,
infectious, radioactive, mutagenic or otherwise hazardous, (iii) the presence of
which require investigation or response under any Environmental Law, (iv) that
constitute a nuisance, trespass or health
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<PAGE> 23
or safety hazard to Persons or neighboring properties, (v) that consist of
underground or aboveground storage tanks, whether empty, filled or partially
filled with any substance, or (vi) that contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or wastes, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedge Agreement" shall mean any interest or foreign currency rate swap,
cap, collar, option, hedge, forward rate or other similar agreement or
arrangement designed to protect against fluctuations in interest rates or
currency exchange rates.
"Inactive Subsidiaries" shall mean those Subsidiaries of the Company which
had gross revenues of less than $1,000,000 in the prior fiscal year, as set
forth in Schedule 5.7, and such other Subsidiaries identified on Schedule 5.7 as
"Inactive Subsidiaries".
"Indebtedness" shall mean, with respect to any Person (without
duplication), (i) all indebtedness and obligations of such Person for borrowed
money or in respect of loans or advances of any kind, (ii) all obligations of
such Person evidenced by notes, bonds, debentures or similar instruments, (iii)
all reimbursement obligations of such Person with respect to surety bonds,
letters of credit and bankers' acceptances (in each case, whether or not drawn
or matured and in the stated amount thereof), (iv) all obligations of such
Person to pay the deferred purchase price of property or services, (v) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person, (vi) all
obligations of such Person as lessee under leases that are or are required to
be, in accordance with GAAP, recorded as capital leases, to the extent such
obligations are required to be so recorded, (vii) all Disqualified Capital Stock
issued by such Person, with the amount of Indebtedness represented by such
Disqualified Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any (for purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock that does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
this Agreement, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the board of directors or other
governing body of the issuer of such Disqualified Capital Stock), (viii) the net
termination obligations of such Person under any Hedge Agreements, calculated as
of any date as if such agreement or arrangement were terminated as of such date,
(ix) all Contingent Obligations of such Person and (x) all indebtedness referred
to in clauses (i) through (ix) above secured by any Lien on any property or
asset owned or held by such Person regardless of whether the indebtedness
secured thereby shall have been assumed by such Person or is nonrecourse to the
credit of such Person.
"Interest Period" means, with respect to a Eurodollar Advance or a
Eurocurrency Advance, a period of one, two, three or six months commencing on a
Business Day selected by a Borrower pursuant to this Agreement. Such Interest
Period shall end on the day which corresponds numerically to such date one, two,
three, or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third, or sixth succeeding month. If a Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
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"Issuer" shall mean First Chicago in its capacity as issuer of the Facility
Letters of Credit, and its successors in such capacity.
"Joinder Agreement" means the Joinder Agreement to be entered into by each
Foreign Subsidiary Borrower subsequent to the date hereof pursuant to Section
12.5(b), substantially in the form of Exhibit F hereto.
"Lender" shall mean each financial institution signatory hereto and each
other financial institution that becomes a "Lender" hereunder pursuant to
Section 12.6, and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, any
office, branch, subsidiary or Affiliate of such Lender or the Agent with respect
to each Eurocurrency listed on the administrative information sheets provided to
the Agent in connection herewith or otherwise selected by such Lender or the
Agent pursuant to Section 2.16.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2.2.7.
"Leverage Ratio" shall mean, as of the last day of any fiscal quarter, the
ratio of (i) Consolidated Total Debt as of such date to (ii) Pro Forma Adjusted
Consolidated EBITDA for the period of four (4) consecutive fiscal quarters then
ending.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, security
interest, lien (statutory or otherwise), preference, priority, charge or other
encumbrance of any nature, whether voluntary or involuntary, including, without
limitation, the interest of any vendor or lessor under any conditional sale
agreement, title retention agreement, capital lease or any other lease or
arrangement having substantially the same effect as any of the foregoing.
"Loan" means, with respect to a Lender, such Lender's loan made pursuant to
Article II (or any conversion or continuation thereof), and, with respect to the
Agent, the Swing Loans.
"Margin Stock" shall have the meaning given to such term in Regulation U.
"Material Adverse Change" shall mean a material adverse change in the
condition (financial or otherwise), operations, prospects, business, properties
or assets of the Company and its Subsidiaries, taken as a whole.
"Material Adverse Effect" shall mean a material adverse effect upon (i) the
condition (financial or otherwise), operations, prospects, business, properties
or assets of the Company and its Subsidiaries, taken as a whole, (ii) the
ability of the Company or any Subsidiary to perform its obligations under this
Agreement or any of the other Credit Documents to which it is a party or (iii)
the legality, validity or enforceability of this Agreement or any of the other
Credit Documents or the rights and remedies of the Agent and the Lenders
hereunder and thereunder.
"Maturity Date" shall mean August 16, 2004.
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"Multicurrency Advance" means a borrowing hereunder (or continuation or a
conversion thereof) consisting of the several Multicurrency Revolving Credit
Loans made on the same Borrowing Date (or date of conversion or continuation) by
the Lenders to a Borrower of the same Type, in the same Eurocurrency and for the
same Interest Period.
"Multicurrency Revolving Credit Commitment" means, as to any Multicurrency
Revolving Credit Lender at any time, its obligation to make Revolving Credit
Loans to the Borrowers in Eurocurrencies under Section 2.1(b) in an aggregate
amount not to exceed at any time outstanding the Dollar Equivalent of the amount
set forth opposite such Lender's name in Schedule 1.1(a) under the heading
"Multicurrency Revolving Credit Commitment" or as otherwise established, reduced
or modified pursuant to the provisions hereof.
"Multicurrency Revolving Credit Lender" means a Revolving Credit Lender
which has a Multicurrency Revolving Credit Commitment or holds a Multicurrency
Revolving Credit Loan.
"Multicurrency Revolving Credit Loans" means Revolving Credit Loans
denominated in Eurocurrencies made to the Borrowers pursuant to Section 2.1(b).
"Multiemployer Plan" shall mean any "multiemployer plan" within the meaning
of Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate
makes, is making or is obligated to make contributions or has made or been
obligated to make contributions.
"Net Cash Proceeds" shall mean, (i) in the case of any Equity Issuance or
Debt Issuance, the aggregate cash payments received by the Company and its
Subsidiaries less reasonable and customary fees and expenses (including
underwriting discounts and commissions) incurred by the Company and its
Subsidiaries in connection therewith, and (ii) in the case of any Casualty
Event, the aggregate cash proceeds of insurance, condemnation awards and other
compensation received by the Company and its Subsidiaries in respect of such
Casualty Event less (y) reasonable fees and expenses incurred by the Company and
its Subsidiaries in connection therewith and (z) contractually required
repayments of Indebtedness to the extent secured by Liens on the property
subject to such Casualty Event and any income or transfer taxes paid or
reasonably estimated by the Company to be payable by the Company and its
Subsidiaries as a result of such Casualty Event.
"Notes" shall mean any or all the Revolving Notes, the Swingline Note, and
the Term Notes.
"Obligations" shall mean all principal of and interest (including, to the
greatest extent permitted by law, post-petition interest) on the Loans, all
Facility Letter of Credit Obligations and all fees, expenses, indemnities and
other obligations owing, due or payable at any time by the Borrowers to the
Agent, any Lender, the Issuer or any other Person entitled thereto, under this
Agreement or any of the other Credit Documents.
"Operating Lease Expense" means, for any period, all amounts paid by the
Company and its Subsidiaries during such period in respect of any obligations
under any operating lease.
"Overdue Rate" means (a) in respect of principal of Floating Rate Loans, a
rate per annum that is equal to the sum of two percent (2%) per annum plus the
Floating Rate, (b) in respect of principal of Eurodollar Loans or Eurocurrency
Loans, a rate per annum that is equal to the sum of two percent (2%) per annum
plus the per annum rate in effect thereon until the end of the then current
Interest Period for such Loan and, thereafter, a rate per annum that is equal to
the sum of two percent (2%) per annum plus the Floating Rate, and (c) in respect
of other amounts payable by the Borrowers hereunder (other than interest), a per
annum rate that is equal to the sum of two percent (2%) per annum plus the
Floating Rate.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
successor thereto.
"Participant" shall have the meaning given to such term in Section 12.6(d).
"Payment Date" means the last Business Day of each March, June, September
and December.
"Permitted Acquisition" shall mean (a) any Acquisition with respect to
which all of the following conditions are satisfied: (i) each business acquired
shall be within the permitted lines of business described in Section 8.8, (ii)
in the case of an Acquisition involving the acquisition of control of Capital
Stock of any Person, immediately after giving effect to such Acquisition such
Person (or the surviving Person, if the Acquisition is effected through a merger
or consolidation) shall be the Company or a Wholly Owned Subsidiary, and (iii)
all of the conditions and requirements of Sections 6.9 and 6.10 applicable to
such Acquisition are satisfied; or (b) any other Acquisition to which the
Required Lenders (or the Agent on their behalf) shall have given their prior
written consent (which consent may be in their sole discretion and may be given
subject to such additional terms and conditions as the Required Lenders shall
establish) and with respect to which all of the conditions and requirements set
forth in this definition and in Section 6.9, and in or pursuant to any such
consent, have been satisfied or waived in writing by the Required Lenders (or
the Agent on their behalf).
"Permitted Liens" shall have the meaning given to such term in Section 8.3.
"Person" shall mean any corporation, association, joint venture,
partnership, limited liability company, organization, business, individual,
trust, government or agency or political subdivision thereof or any other legal
entity.
"Plan" shall mean any "employee pension benefit plan" within the meaning of
Section 3(2) of ERISA that is subject to the provisions of Title IV of ERISA
(other than a Multiemployer Plan) and to which the Borrower or any ERISA
Affiliate may have any liability.
"Pledge Agreement" shall mean a pledge agreement made by any Borrower or
any Subsidiary in favor of the Agent, in substantially the form of Exhibit G, as
amended, modified or supplemented from time to time.
"Prime Rate" means the per annum rate announced by the Agent from time to
time as its "prime rate" (it being acknowledged that such announced rate may not
necessarily be the lowest rate charged by the Agent to any of its customers),
which Prime Rate shall change simultaneously with any change in such announced
rate.
"Pro Forma Adjusted EBITDA" means, with respect to any Person, on any date
of determination, Consolidated EBITDA for such Person for the period of twelve
(12) consecutive calendar months ending on, or immediately prior to, such date
of determination, calculated on a pro forma basis to include as of the first day
of such period any Acquisition. For the purposes hereof, Pro Forma EBITDA shall
be adjusted for the non-recurring costs and expenses of any Acquisition in a
manner satisfactory to the Agent (with respect to any Acquisition that does not
require the consent of the Required Lenders pursuant to Section 6.8 of this
Agreement) and in a manner satisfactory to the Agent and the Required Lenders
(with respect to any Acquisition that requires the consent of the Agent and the
Required Lenders pursuant to Section 6.8 of this Agreement). These adjustments
may include, but not be limited to, management compensation in excess of
historical compensation levels respecting the acquired Person (including,
without limitation, perquisites in excess of historical levels) to be paid by
the Company or any of its Subsidiaries following any Acquisition, fees for
professional services in excess of historical levels after
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any such Acquisition, expenses incurred in connection with any such Acquisition
and such other similar additional expenses incurred after any such Acquisition.
"Prohibited Transaction" shall mean any transaction described in (i)
Section 406 of ERISA that is not exempt by reason of Section 408 of ERISA or by
reason of a Department of Labor prohibited transaction individual or class
exemption or (ii) Section 4975(c) of the Internal Revenue Code that is not
exempt by reason of Section 4975(c)(2) or 4975(d) of the Internal Revenue Code.
"Projections" shall have the meaning given to such term in Section 5.11(b).
"Pro Rata Share" means, for each Lender, the ratio such Lender's Revolving
Credit Commitment bears to the Aggregate Revolving Credit Commitment, or, if the
Revolving Credit Commitments have been terminated, the ratio such Lender's
Revolving Credit Commitment bore to the Aggregate Revolving Credit Commitment
immediately prior to such termination, subject to Section 2.5(b).
"Quotation Date" in relation to any period for which a Eurocurrency
Reference Rate is to be determined hereunder, means the date on which quotations
would ordinarily be given by prime lenders in the London inter-bank market for
deposits in the Eurocurrency in relation to which such rate is to be determined
for delivery on the first day of that period, provided that, if, for such
period, quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates.
"Register" shall have the meaning given to such term in Section 12.6(b).
"Regulations D, G, T, U and X" shall mean Regulations D, G, T, U and X,
respectively, of the Federal Reserve Board, and any successor regulations.
"Reimbursement Obligation" means, at any time, without duplication, the
aggregate of the obligations of the Borrowers to the Lenders and the Issuer in
respect of all unreimbursed payments or disbursements made by the Issuer and the
Lenders under or in respect of the Facility Letters of Credit.
"Rent Expense" means, for any period, all amounts paid by the Company and
its Subsidiaries during such period in respect of any obligations under any
lease or rental agreement for real property.
"Reportable Event" shall mean (i) any "reportable event" within the meaning
of Section 4043(c) of ERISA for which the 30-day notice under Section 4043(a) of
ERISA has not been waived by the PBGC (including any failure to meet the minimum
funding standard of, or timely make any required installment under, Section 412
of the Internal Revenue Code or Section 302 of ERISA, regardless of the issuance
of any waivers in accordance with Section 412(d) of the Internal Revenue Code),
(ii) any such "reportable event" subject to advance notice to the PBGC under
Section 4043(b)(3) of ERISA, (iii) any application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Internal
Revenue Code, and (iv) a cessation of operations described in Section 4062(e) of
ERISA.
"Required Lenders" at any time means Lenders holding at least 51% of the
Revolving Credit Commitments and the Aggregate Term Loan Outstandings of all
Lenders (or 51% of the Aggregate Total Outstandings at such time if the
Revolving Credit Commitments have been terminated).
"Required Multicurrency Revolving Credit Lenders" at any time means
Multicurrency Revolving Credit Lenders holding at least 51% of the Multicurrency
Revolving Credit Commitments (or 51% of the Aggregate Multicurrency Revolving
Credit Outstandings at such time if the Revolving Credit Commitments have been
terminated).
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"Required Revolving Credit Lenders" means Revolving Credit Lenders holding
not less than 51% of the Revolving Credit Commitments (or 51% of the Revolving
Credit Loans and Reimbursement Obligations if the Revolving Credit Commitments
have been terminated).
"Required Term Loan Lenders" means Term Loan Lenders holding not less than
51% of the Term Loan Commitments (or 51% of the Aggregate Term Loan Outstandings
if the Term Loan Commitments have been terminated).
"Requirement of Law" shall mean, with respect to any Person, the charter,
articles or certificate of organization or incorporation and bylaws or other
organizational or governing documents of such Person, and any statute, law,
treaty, rule, regulation, order, decree, writ, injunction or determination of
any arbitrator or court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject or otherwise pertaining to any or all of the
transactions contemplated by this Agreement and the other Credit Documents.
"Reserve Requirement" shall mean, with respect to any Interest Period, the
reserve percentage (expressed as a decimal) in effect from time to time during
such Interest Period, as provided by the Federal Reserve Board, applied for
determining the maximum reserve requirements (including, without limitation,
basic, supplemental, marginal and emergency reserves) applicable to First
Chicago under Regulation D with respect to "Eurocurrency liabilities" within the
meaning of Regulation D, or under any similar or successor regulation with
respect to Eurocurrency liabilities or Eurocurrency funding.
"Responsible Officer" shall mean, with respect to each Borrower, the
president, the chief executive officer, the chief financial officer, any
executive officer, or any other Financial Officer of such Borrower, and any
other officer or similar official thereof responsible for the administration of
the obligations of such Borrower in respect of this Agreement.
"Revolving Credit Commitments" means, with respect to each Lender, the
Dollar Revolving Credit Commitment and the Multicurrency Revolving Credit
Commitment of such Lender.
"Revolving Credit Lenders" means those Lenders which have Revolving Credit
Commitments or, if such Revolving Credit Commitments shall have been terminated,
have outstanding Revolving Credit Loans or Facility Letters of Credit
Obligations.
"Revolving Credit Loan" means any borrowing under Section 2.1(a) or (b).
"Revolving Notes" shall mean the promissory notes of the Borrowers in
substantially the form of Exhibit H-1, together with any amendments,
modifications and supplements thereto, substitutions therefor and restatements
thereof.
"Security Documents" shall mean the Pledge Agreement and all other similar
agreements or instruments executed and delivered by any Borrower or any of their
Subsidiaries pursuant to Section 6.10 or Section 6.11 or otherwise in connection
with the transactions contemplated hereby, in each case as amended, modified or
supplemented from time to time.
"Seller Notes" shall mean any evidence of Indebtedness issued as partial
consideration for a Permitted Acquisition that matures less than one year from
the date of creation thereof.
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"Stated Amount" shall mean, with respect to any Facility Letter of Credit
at any time, the aggregate amount available to be drawn thereunder at such time
(regardless of whether any conditions for drawing could then be met).
"Subsidiary" shall mean, with respect to any Person, any corporation or
other Person of which more than fifty percent (50%) of the outstanding Capital
Stock having ordinary voting power to elect a majority of the board of
directors, board of managers or other governing body of such Person, is at the
time, directly or indirectly, owned or controlled by such Person and one or more
of its other Subsidiaries or a combination thereof (irrespective of whether, at
the time, securities of any other class or classes of any such corporation or
other Person shall or might have voting power by reason of the happening of any
contingency). When used without reference to a parent entity, the term
"Subsidiary" shall be deemed to refer to a Subsidiary of the Company, but shall
not include any of the Inactive Subsidiaries.
"Swingline Lender" shall mean First Chicago in its capacity as maker of
Swing Loans, and its successors in such capacity.
"Swing Loans" shall have the meaning given to such term in Section 2.1(d).
"Swingline Note" shall mean the promissory note of the Borrowers in
substantially the form of Exhibit H-2, together with any amendments,
modifications and supplements thereto, substitutions therefor and restatements
thereof.
"Term Loan" means the term loans made on the Effective Date to the Company
by the Term Loan Lenders pursuant to Section 2.3.
"Term Loan Lenders" means the Lenders from time to time parties hereto as
lenders of the Term Loan.
"Term Loan Commitment" means with respect to each Term Loan Lender, the
commitment of such Lender to make an advance of the Term Loan in an amount not
exceeding the Term Loan Commitment amount for such Lender set forth on Schedule
1.1(a), or as otherwise established, reduced or modified pursuant to the
provisions hereof.
"Termination Date" shall mean the earlier to occur of (a) August 16, 2004,
and (b) the date on which the Revolving Credit Commitment shall be terminated
pursuant hereto.
"Term Loan Percentage" means with respect to each Term Loan Lender, its
percentage share of Term Loan.
"Term Notes" means the term notes, if any, made by the Company to each of
the applicable Lenders in the form attached as Exhibit H-3 to this Agreement to
evidence the Term Loan, as such notes may be amended or supplemented from time
to time, and any notes issued in substitution, renewal or replacement thereof
from time to time.
"Total Debt" as of any date, means all of the following for the Company and
its Subsidiaries on a consolidated basis and without duplication: (i) all debt
for borrowed money and similar monetary obligations evidenced by bonds, notes,
debentures, Capitalized Lease Obligations or otherwise, including without
limitation obligations in respect of the deferred purchase price of properties
or assets, including all Seller Notes, and all monetary obligations and other
amounts financed pursuant to any receivables factoring, receivable sales or
similar transactions, any synthetic lease, tax ownership/operating lease,
off-balance sheet financing or similar financing, in each case whether direct or
indirect; (ii) all liabilities of
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others secured by any Lien existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall have been assumed;
(iii) all reimbursement obligations under outstanding letters of credit, bankers
acceptances or similar instruments in respect of drafts which (A) may be
presented or (B) have been presented and have not yet been paid and are not
included in clause (i) above; (iv) all liabilities related to earn-out
obligations when booked in accordance with GAAP; and (v) all guarantees and
other Contingent Obligations relating to indebtedness or liabilities of the type
described in the foregoing clauses (i), (ii), (iii) or (iv).
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance, Eurodollar Advance or Eurocurrency Advance.
"Unfunded Pension Liability" shall mean, with respect to any Plan or
Multiemployer Plan, the excess of its benefit liabilities under Section
4001(a)(16) of ERISA over the current value of its assets, determined in
accordance with the applicable assumptions used for funding under Section 412 of
the Code for the applicable plan year.
"Wholly Owned" shall mean, with respect to any Subsidiary of any Person,
that 100% of the outstanding Capital Stock of such Subsidiary is owned, directly
or indirectly, by such Person.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
materially affects the business, operations and financial condition of the
Company and its Subsidiaries.
"Year 2000 Program" is defined in Section 5.20.
1.2 Accounting Terms. Except as specifically provided otherwise in this
Agreement, all accounting terms used herein that are not specifically defined
shall have the meanings customarily given them in accordance with GAAP.
Notwithstanding anything to the contrary in this Agreement, for purposes of
calculation of the financial covenants set forth in Article VII, all accounting
determinations and computations hereunder shall be made in accordance with GAAP
as in effect as of the date of this Agreement applied on a basis consistent with
the application used in preparing the most recent financial statements of the
Company referred to in Section 5.11(a). In the event that any changes in GAAP
after such date are required to be applied to the Company and would affect the
computation of the financial covenants contained in Article VII, such changes
shall be followed only from and after the date this Agreement shall have been
amended to take into account any such changes.
1.3 Other Terms; Construction. Unless otherwise specified or unless the
context otherwise requires, all references herein to sections, annexes,
schedules and exhibits are references to sections, annexes, schedules and
exhibits in and to this Agreement, and all terms defined in this Agreement shall
have the defined meanings when used in any other Credit Document or any
certificate or other document made or delivered pursuant hereto. All references
herein to the Lenders or any of them shall be deemed to include the Issuer
unless specifically provided otherwise or unless the context otherwise requires.
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ARTICLE II.
THE CREDITS
1.1 Revolving Credit Commitments of the Lenders
(a) Dollar Revolving Credit Loans. Each Revolving Credit Lender
agrees, for itself only, subject to the terms and conditions of this Agreement,
to make Dollar Revolving Credit Loans to the Borrowers from time to time from
and including the Effective Date to but excluding the Termination Date, not to
exceed in aggregate principal amount at any time outstanding the amount
determined pursuant to Section 2.1(c). Dollar Revolving Credit Loans or any
portion thereof at a Borrower's option, may be Floating Rate Loans or Eurodollar
Loans or any combination thereof subject to the terms thereof, with the initial
selection by the Borrower requesting such Loan in accordance with procedures
acceptable to the Agent and the subsequent selections in accordance with
Sections 2.8 or 2.9.
(b) Multicurrency Revolving Credit Loans. Each Multicurrency
Revolving Credit Lender agrees, for itself only, subject to the terms and
conditions of this Agreement, to make Multicurrency Revolving Credit Loans to
the Borrowers from time to time from and including the Effective Date to but
excluding the Termination Date, not to exceed in aggregate principal amount at
any time outstanding the amount determined pursuant to Section 2.1(c).
Multicurrency Revolving Credit Loans shall be Eurocurrency Loans, with the
initial selection by the Borrower requesting such Loan in accordance with
procedures acceptable to the Agent and any subsequent selections in accordance
with Sections 2.8 and 2.9.
(c) Limitation on Amount of Advances. Notwithstanding anything in
this Agreement to the contrary, (i) the Dollar Equivalent of the aggregate
principal amount of the Revolving Credit Loans, the Swing Loans and the Facility
Letter of Credit Obligations at any time outstanding to the Borrowers shall not
exceed the Aggregate Revolving Credit Commitment as of the date any such Advance
is made, provided, however, that (i) the Dollar Equivalent of the aggregate
Facility Letter of Credit Obligations at any time shall not exceed $10,000,000,
(ii) the aggregate amount of Swing Loans denominated in Dollars at any time
outstanding shall not exceed $10,000,000 and the Dollar Equivalent of the
aggregate amount of Swing Loans denominated in Eligible Currencies at any time
outstanding shall not exceed $5,000,000, (iii) the Dollar Equivalent of the
Aggregate Revolving Credit Outstandings of any Revolving Credit Lender shall not
exceed the Revolving Credit Commitment of such Lender, (iv) the Dollar
Equivalent of the Aggregate Multicurrency Revolving Credit Outstandings of any
Multicurrency Revolving Credit Lender shall not exceed the Multicurrency
Revolving Credit Commitment of such Lender and (v) the Dollar Equivalent of the
Aggregate Multicurrency Revolving Credit Outstandings of all Multicurrency
Revolving Credit Lenders will not exceed the amount of the Multicurrency
Revolving Credit Commitments that the Company has designated to the Agent as
activated (the "Activated Aggregate Multicurrency Revolving Commitments"), which
activation or deactivation shall be in increments of $10,000,000, shall be
effective five Business Days after notification by the Company to the Agent and
shall not be reduced below the Dollar Equivalent of the Aggregate Multicurrency
Revolving Credit Outstandings of all Multicurrency Revolving Credit Lenders, and
(vi) the Dollar Revolving Credit Loans will not exceed the difference of the
Aggregate Revolving Credit Commitments minus the amount of the Activated
Aggregate Multicurrency Revolving Credit Commitment.
(d) Swing Loans.
(i) Making of Swing Loans. The Agent may elect in its sole
discretion to make revolving loans (the "Swing Loans") to the Borrowers from
time to time prior to the Termination
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Date in Dollars or any Eurocurrency up to an aggregate Dollar Equivalent at any
one time outstanding not to exceed the lesser of (i) with respect to Swing Loans
denominated in Dollars, $10,000,000, and, with respect to Swing Loans
denominated in Eurocurrencies, the Dollar Equivalent of $5,000,000, or (ii) the
amount allowable under Section 2.1(c). The Agent may make Swing Loans (provided
that the Agent has received a request in writing or via telephone from an
Authorized Officer for funding of a Swing Loan) no later than noon, Detroit
time, on the Business Day on which such Swing Loan is requested to be made, or
11:00 a.m., London time, on such Business Day, in the case of any Swing Loan in
a Eurocurrency (other than Canadian Dollars ), or 11:00 a.m. Toronto time, on
such Business Day, in the case of any Swing Loan denominated in Canadian
Dollars. Each outstanding Swing Loan shall be payable on the Business Day
following demand therefor, with interest at such rate as the Borrower requesting
such Loan and the Agent shall agree, shall be secured and shall otherwise be
subject to all the terms and conditions applicable to Loans, except that all
interest thereon shall be payable to the Agent solely for its own account.
(ii) Swing Loan Borrowing Requests. The Borrower requesting a
Swing Loan agrees to deliver promptly to the Agent a written confirmation of
each telephonic notice for Swing Loans signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent, the records of the Agent shall govern, absent manifest error.
(iii) Repayment of Swing Loans. At any time after making a Swing
Loan, the Agent may request a Borrower to, and upon request by the Agent such
Borrower shall, promptly request a Revolving Credit Loan from all the Revolving
Credit Lenders and apply the proceeds of such Revolving Credit Loan to the
repayment of any Swing Loan owing by such Borrower not later than three Business
Days following the Agent's request. Notwithstanding the foregoing, upon the
earliest to occur of (a) one Business Day after demand is made by the Agent, (b)
the date a Swing Loan is to be refunded with a Revolving Credit Loan, and (c)
the Termination Date, the Borrower agrees that each Swing Loan outstanding in a
Eurocurrency shall be immediately and automatically converted to and
redenominated in Dollars equal to the Dollar Equivalent of each such Swing Loan
determined as of the date of such conversion, and each Revolving Credit Lender
(other than the Agent) shall irrevocably and unconditionally purchase from the
Agent, without recourse or warranty, an undivided interest and participation in
such Swing Loan in an amount equal to such Lender's Pro Rata Share of such Swing
Loan and promptly pay such amount to the Agent in immediately available funds.
Such payment shall be made by the other Lenders whether or not a Default or
Event of Default is then continuing or any other condition precedent set forth
in Section 4.2 is then met and whether or not the Borrower has then requested an
Advance in such amount; and such Swing Loan shall thereupon be deemed to be a
Floating Rate Advance hereunder made on the date of such purchase (except, as
aforesaid, with respect to the existence of any Default or Event of Default or
the meeting of any condition precedent specified in Section 4.2 on such date).
If any Lender fails to make available to the Agent any amounts due to the Agent
pursuant to this Section, the Agent shall be entitled to recover such amount,
together with interest thereon at the Federal Funds Effective Rate for the first
three Business Days after such Lender receives notice of such required purchase
and thereafter, at the Floating Rate, payable (i) on demand, (ii) by setoff
against any payments made to the Agent for the account of such Lender or (iii)
by payment to the Agent by the Agent of amounts otherwise payable to such Lender
under this Agreement. The failure of any Revolving Credit Lender to make
available to the Agent its Pro Rata Share of any unpaid Swing Loan shall not
relieve any other Revolving Credit Lender of its obligation hereunder to make
available to the Agent its Pro Rata Share of any unpaid Swing Loan on the date
such payment is to be made, but no Lender shall be responsible for the failure
of any other Lender to make available to the Agent its Pro Rata Share of any
unpaid Swing Loan.
2.2 Facility Letters of Credit.
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2.2.1. Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrowers and the Guarantors in the Credit Documents, the Issuer hereby agrees
to issue for the account of each Borrower through such of the Issuer's Lending
Installations as the Issuer and the Company may jointly agree, one or more
Facility Letters of Credit in accordance with this Section 2.2 denominated in
Dollars, from time to time during the period, commencing on the Effective Date
and ending on the Business Day prior to the Termination Date.
2.2.2. Conditions for Issuance. In addition to being subject to the
satisfaction of the conditions contained in Section 4.2, the obligation of the
Issuer to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the aggregate maximum amount then available for
drawing under Letters of Credit issued by the Issuer, after giving effect to the
Facility Letter of Credit requested hereunder, shall not exceed any limit
imposed by law or regulation upon the Issuer;
(ii) after giving effect to the requested issuance of any
Facility Letter of Credit, the sum of (a) the Facility Letter of Credit
Obligations and (b) the total aggregate unpaid principal balance of the
Revolving Credit Loans and Swing Loans does not exceed the amount permitted
under 2.1(c).
(iii) the requested Facility Letter of Credit has an
expiration date prior to the Termination Date;
(iv) the Borrower requesting such Facility Letter of Credit
shall have delivered to the Issuer at such times and in such manner as the
Issuer may reasonably prescribe such documents and materials as may be required
pursuant to the terms of the proposed Facility Letter of Credit and the proposed
Facility Letter of Credit shall be reasonably satisfactory to the Issuer as to
form and content; and
(v) as of the date of issuance, no order, judgment or
decree of any court, arbitrator or governmental authority shall purport by its
terms to enjoin or restrain the Issuer from issuing the Facility Letter of
Credit and no law, rule or regulation applicable to the Issuer and no request or
directive (whether or not having the force of law) from any governmental
authority with jurisdiction over the Issuer shall prohibit or request that the
Issuer refrain from the issuance of Letters of Credit generally or the issuance
of that Facility Letter of Credit.
2.2.3. Procedure for Issuance of Facility Letters of Credit.
(a) A Borrower shall give the Issuer two Business Day's prior
written notice of any requested issuance of a Facility Letter of Credit under
this Agreement (except that, in lieu of such written notice, a Borrower may give
the Issuer (x) notice of such request by tested telex or other tested
arrangement satisfactory to the Issuer or (y) telephonic notice of such request
if confirmed in writing by delivery to the Issuer (i) immediately (A) of a
telecopy of the written notice required hereunder which has been signed by an
Authorized Officer of the Borrower or (B) of a telex containing all information
required to be contained in such written notice and (ii) promptly (but in no
event later than the requested time of issuance) of a copy of the written notice
required hereunder containing the original signature of an Authorized Officer of
the Borrower); such notice shall be irrevocable and shall specify the stated
amount of the Facility Letter of Credit requested, the effective date (which day
shall be a Business Day) of issuance of such requested Facility Letter of
Credit, the date on which such requested Facility Letter of Credit is to expire
(which date shall be a Business Day and shall in no event be later than the
earlier of Termination Date or the date one year after the issuance of such
Letter of Credit), the purpose for which
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<PAGE> 34
such Facility Letter of Credit is to be issued, and the Person for whose benefit
the requested Facility Letter of Credit is to be issued. At the time such
request is made, the Borrower shall also provide the Issuer with a copy of the
form of the Facility Letter of Credit it is requesting be issued. Such notice,
to be effective, must be received by the Issuer not later than 2:00 p.m.
(Detroit time) or the time agreed upon by the Issuer and the Borrower on the
last Business Day on which notice can be given under this Section 2.2.3(a). The
Issuer shall promptly forward to the Lenders a copy of the Borrower's request
for the issuance of a Letter of Credit hereunder.
(b) Subject to the terms and conditions of this Section 2.2.3
and provided that the applicable conditions set forth in Sections 4.2 and 2.2.2
hereof have been satisfied, the Issuer shall, on the requested date, issue a
Facility Letter of Credit on behalf of the Borrower requesting such Facility
Letter of Credit in accordance with the Issuer's usual and customary business
practices.
(c) The Issuer shall not extend or amend any Facility Letter of
Credit unless the requirements of this Section 2.2.3 are met as though a new
Facility Letter of Credit was being requested and issued.
2.2.4. Reimbursement Obligations.
(a) Each Borrower agrees to pay to the Agent, without
duplication, the amount of all Reimbursement Obligations, interest and other
amounts payable to the Agent under or in connection with any Facility Letter of
Credit immediately when due, irrespective of any claim, set-off, defense or
other right which any Borrower or any Subsidiary may have at any time against
the Issuer or any other Person, under all circumstances, including without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which any Borrower or any Subsidiary may have at any time against a
beneficiary named in a Facility Letter of Credit or any transferee of any
Facility Letter of Credit (or any Person for whom any such transferee may be
acting), the Issuer, any Lender, or any other Person, whether in connection with
this Agreement, any Facility Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying transactions
between any Borrower or any Subsidiary and the beneficiary named in any Facility
Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Facility 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 (provided that, if all Reimbursement Obligations have been paid
in full and there is no Default or Event of Default, the Issuer shall assign,
without recourse, representation or warranty, to the Borrower any claim, if any,
it may have against any person that has drawn on a Facility Letter of Credit
pursuant to a draft, certificate or other document which was forged, fraudulent,
invalid or insufficient in any respect or any statement therein being true or
inaccurate in any respect pursuant to such Facility Letter of Credit);
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents;
(v) the occurrence of any Default or Event of Default.
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<PAGE> 35
(b) The Issuer shall promptly notify the relevant Borrower of
any draw under a Facility Letter of Credit. The Borrower shall reimburse the
Issuer for drawings under a Facility Letter of Credit issued by it no later than
the Business Day after the payment by the Issuer. Any Reimbursement Obligation
with respect to any Facility Letter of Credit shall bear interest from the date
of the relevant drawings under the pertinent Facility Letter of Credit until
paid at the Overdue Rate.
2.2.5. Participation.
(a) Immediately upon issuance by the Issuer of any Facility
Letter of Credit in accordance with the procedures set forth in Section 2.2.3,
each Revolving Credit Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuer, without recourse or
warranty, an undivided interest and participation equal to its Pro Rata Share in
such Facility Letter of Credit (including, without limitation, all obligations
of the Borrower with respect thereto) and any security therefor or guaranty
pertaining thereto; provided, that a Letter of Credit issued by the Issuer shall
not be deemed to be a Facility Letter of Credit for purposes of this Section
2.2.5 if the Issuer shall have received written notice from any Revolving Credit
Lender on or before one Business Day prior to the date of its issuance of such
Letter of Credit that one or more of the conditions contained in Section 4.2 is
not then satisfied, and, in the event the Issuer receives such a notice, it
shall have no further obligation to issue any Letter of Credit until such notice
is withdrawn by that Revolving Credit Lender or such condition has been
effectively waived in accordance with the provisions of this Agreement.
(b) In the event that the Issuer makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such amount to
the Issuer pursuant to Section 2.2.4, the Issuer shall promptly notify each
Revolving Credit Lender of such failure, and each Revolving Credit Lender shall
promptly and unconditionally pay to the Agent for the account of the Issuer the
amount of such Revolving Credit Lender's Pro Rata Share of the unreimbursed
amount of any such payment. If any Revolving Credit Lender fails to make
available to the Issuer, any amounts due to the Issuer pursuant to this Section
2.2.5(b), the Issuer shall be entitled to recover such amount, together with
interest thereon at the Federal Funds Effective Rate, for the first three
Business Days after such Revolving Credit Lender receives such notice and
thereafter, at the Floating Rate, payable (i) on demand, (ii) by setoff against
any payments made to the Issuer for the account of such Revolving Credit Lender
or (iii) by payment to the Issuer by the Agent of amounts otherwise payable to
such Revolving Credit Lender under this Agreement. The failure of any Revolving
Credit Lender to make available to the Agent its Pro Rata Share of the
unreimbursed amount of any such payment shall not relieve any other Revolving
Credit Lender of its obligation hereunder to make available to the Agent its Pro
Rata Share of the unreimbursed amount of any payment on the date such payment is
to be made, but no Revolving Credit Lender shall be responsible for the failure
of any other Revolving Credit Lender to make available to the Agent its Pro Rata
Share of the unreimbursed amount of any payment on the date such payment is to
be made.
(c) Whenever the Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it shall promptly pay
to each Revolving Credit Lender which has funded its participating interest
therein, in immediately available funds, an amount equal to such Revolving
Credit Lender's Pro Rata Share thereof.
(d) The obligations of a Revolving Credit Lender to make
payments to the Agent with respect to a Facility Letter of Credit shall be
absolute, unconditional and irrevocable, not subject to any counterclaim,
set-off, qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances.
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(e) In the event any payment by any Borrower or any Subsidiary
received by the Agent with respect to a Facility Letter of Credit and
distributed by the Agent to the Revolving Credit Lenders on account of their
participations is thereafter set aside, avoided or recovered from the Agent in
connection with any receivership, liquidation, reorganization or bankruptcy
proceeding, each Revolving Credit Lender which received such distribution shall,
upon demand by the Agent, contribute such Revolving Credit Lender's Pro Rata
Share of the amount set aside, avoided or recovered together with interest at
the rate required to be paid by the Agent upon the amount required to be repaid
by it.
2.2.6. Compensation for Facility Letters of Credit.
(a) The Issuer shall have the right to receive from the Borrower
requesting a Facility Letter of Credit, solely for the Issuer's own account, an
issuance fee of 0.125% per annum on the average daily undrawn amount under each
Facility Letter of Credit issued by it as well as the Issuer's reasonable and
customary costs of issuing and servicing the Facility Letters of Credit.
(b) The Borrower requesting a Facility Letter of Credit shall
pay to the Agent, for the benefit of the Revolving Credit Lenders, a fee
computed at the Applicable Margin calculated on the maximum amount available to
be drawn from time to time under each Facility Letter of Credit, which fee shall
be paid annually in advance at the time each Facility Letter of Credit is issued
for the period from and including the date of issuance thereof to and including
the stated expiry date thereof.
2.2.7. Letter of Credit Collateral Account. Each Borrower hereby agrees
that it will, until the final expiration date of any Facility Letter of Credit
and thereafter as long as any amount is payable to the Lenders in respect of any
Facility Letter of Credit, maintain a special collateral account (the "Letter of
Credit Collateral Account") at the Agent's office at the address specified
pursuant to Section 12.4, in the name of the Borrower but under the sole
dominion and control of the Agent, for the benefit of the Lenders and in which
the Borrower shall have no interest other than as set forth in Section 9.2(c).
No Borrower is required by this Section 2.2.7 to deposit any funds in the Letter
of Credit Collateral Account, and the obligation to make deposits into the
Letter of Credit Collateral Account are described in Section 9.2(c). The Agent
will invest any funds on deposit from time to time in the Letter of Credit
Collateral Account in certificates of deposit of the Agent having a maturity not
exceeding 30 days. Nothing in this Section 2.2.7 shall either obligate the Agent
to require any Borrower to deposit any funds in the Letter of Credit Collateral
Account or limit the right of the Agent to release any funds held in the Letter
of Credit Collateral Account other than as required by Section 9.2(c).
2.2.8. Nature of Obligations. As among the Borrowers, the Issuer and the
Lenders, each Borrower assumes all risks of the acts and omissions of, or misuse
of the Facility Letters of Credit by, the respective beneficiaries of the
Facility Letters of Credit. In furtherance and not in limitation of the
foregoing, the Issuer and the Lenders shall not be responsible for (i) the
forms, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Facility Letter of Credit, even if it should in fact prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Facility Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of a
Facility Letter of Credit to comply fully with conditions required in order to
draw upon such Facility Letter of Credit; (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise; (v) errors in interpretation of technical terms;
(vi) misapplication by the beneficiary of a Facility Letter of Credit of the
proceeds of any drawing under such Facility Letter of Credit; (vii) any
consequences arising from causes beyond the control of the Issuer or the
Lenders. In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or
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omitted by the Issuer or any Lender under or in connection with the Facility
Letters of Credit or any related certificates, if taken or omitted in good
faith, shall not put the Issuer or such Lender under any resulting liability to
the Borrower or relieve the Borrower of any of its obligations hereunder to the
Issuer, the Agent or any Lender. Notwithstanding anything to the contrary
contained in this Section 2.2, no Borrower shall have any obligation to
indemnify an Issuer under this Section 2.2 in respect of any liability incurred
by such Issuer arising primarily out of the gross negligence or willful
misconduct of such Issuer, as determined by a court of competent jurisdiction.
2.3 Term Loan. Subject to the terms and conditions hereof, each Term Loan
Lender, severally and for itself alone, agrees to make an Advance of the Term
Loan to the Company in Dollars, in a single disbursement on the Effective Date,
in an aggregate amount not to exceed such Lender's Term Loan Commitment. The
Term Loan, or any portion thereof at the Company's option, may be Floating Rate
Loans or Eurodollar Loans, or a combination thereof subject to the terms hereof,
with the initial selection by the Company in accordance with procedures
acceptable to the Agent and any subsequent selections in accordance with
Sections 2.8 or 2.9.
2.4 Ratable Loans.
(a) Subject to Section 2.4(b), each Dollar Revolving Credit Advance
hereunder shall consist of Dollar Revolving Credit Loans made from the several
Revolving Credit Lenders ratably in proportion to the ratio that their
respective Dollar Revolving Credit Commitments bear to the Aggregate Dollar
Revolving Credit Commitment. Each Multicurrency Revolving Credit Advance
hereunder shall consist of Multicurrency Revolving Credit Loans made from the
several Multicurrency Revolving Credit Lenders ratably in proportion to the
ratio that their respective Multicurrency Revolving Credit Commitments bear to
the Aggregate Multicurrency Revolving Credit Commitment. Each Term Loan Advance
hereunder shall consist of Term Loan made from the several Term Loan Lenders
ratably in proportion to the ratio that their respective Term Loan Commitments
bear to the Aggregate Term Loan Commitments.
(b) If on any Borrowing Date on which any Borrower has requested
Multicurrency Revolving Credit Loans (the "Requested Multicurrency Revolving
Credit Loans"), (i) the Dollar Equivalent of the aggregate principal amount of
the Requested Multicurrency Revolving Credit Loans exceeds the Aggregate
Available Multicurrency Revolving Credit Commitments on such Borrowing Date
(before giving effect to the making and payment of any Loans required to be made
pursuant to this clause (b) on such Borrowing Date) and (ii) the Dollar
Equivalent of the amount of such excess is less than or equal to the Aggregate
Available Revolving Credit Commitments of all Multicurrency Revolving Credit
Lenders (before giving effect to the making and payment of any Loans pursuant to
this clause (b) on such Borrowing Date), each Dollar Revolving Credit Lender
shall make a Dollar Revolving Credit Loan to the Company on such Borrowing Date,
and the proceeds of such Loans shall be simultaneously applied to repay
outstanding Dollar Revolving Credit Loans of the Multicurrency Revolving Credit
Lenders, in amounts such that, after giving effect to (1) such borrowings and
repayments and (2) the borrowing from the Multicurrency Revolving Credit Lenders
of the Requested Multicurrency Revolving Credit Loans, the Aggregate Revolving
Credit Outstandings of each Lender will equal (as nearly as possible) its Pro
Rata Share. To effect such borrowings and repayments, (x) not later than 11:00
A.M., Detroit time, on such Borrowing Date, the proceeds of such Dollar
Revolving Credit Loans shall be made available by each Dollar Revolving Credit
Lender to the Agent at its applicable Lending Installation in immediately
available funds and the Agent shall apply the proceeds of such Dollar Revolving
Credit Loans toward repayment of outstanding Dollar Revolving Credit Loans of
the Multicurrency Revolving Credit Lenders and (y) concurrently with the
repayment of such outstanding Dollar Revolving Credit Loans of such
Multicurrency Revolving Credit Lender on such Borrowing Date, (1) such
Multicurrency Revolving Credit Lenders shall, in accordance with the applicable
provisions hereof, make the Requested
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Multicurrency Revolving Credit Loans in an aggregate amount equal to the amount
so requested (but not in any event greater than the amount allowed under Section
2.1(c)) after giving effect to the making of such repayment of any Loans on such
Borrowing Date and (2) the Borrower shall pay to the Agent for the account of
the Lenders whose Loans to such Borrower are paid on such Borrowing Date
pursuant to this clause (b) all interest accrued on the amounts repaid to the
date of such repayment, together with any amounts payable pursuant to Section
3.4 in connection with such repayment. If any borrowing of Dollar Revolving
Credit Loans is required pursuant to this clause (b), the Borrower shall notify
the Agent in the manner provided for Dollar Revolving Credit Loans in Section
2.8.
2.5 Revolving Credit Commitment Fee; Reductions in Aggregate Revolving
Credit Commitment. The Borrowers agree to pay to the Agent for the account of
each Revolving Credit Lender a commitment fee at the Applicable Margin on the
daily unborrowed portion of such Lender's Revolving Credit Commitment from the
date hereof to and including the Termination Date, payable on each Payment Date
hereafter and on the Termination Date. For purposes of computing the commitment
fee payable hereunder, Swing Loans shall not be considered usage of a Lender's
Revolving Credit Commitment until such time as such Lender shall be required to
fund its Pro Rata Share of such Swing Loans pursuant to Section 2.1(d)(iii). The
Company may permanently reduce the Aggregate Revolving Credit Commitment in
whole, or in part ratably among the Revolving Credit Lenders in amounts of not
less than $5,000,000 and integral multiples of $1,000,000 thereafter, upon at
least five Business Days' written notice to the Agent, which notice shall
specify the amount of any such reduction, provided, however, that the amount of
the Aggregate Revolving Credit Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Credit Loans, Swing Loans and
Facility Letters of Credit.
2.6 Types of Advances; Minimum Amount of Each Advance. Advances
denominated in Dollars may be Floating Rate Advances or Eurodollar Advances and
Advances denominated in Eurocurrencies may be Eurocurrency Advances, or a
combination thereof, selected by the Borrower in accordance with Sections 2.8
and 2.9 Each Eurodollar Advance shall be in the minimum amount of $1,000,000
(and in multiples of $500,000 if in excess thereof), and each Floating Rate
Advance shall be in the minimum amount of $500,000 (and in multiples of $100,000
if in excess thereof), provided, however, that any Floating Rate Advance may be
in the amount of the unused Aggregate Revolving Credit Commitment. Each
Eurocurrency Advance shall be in the minimum Dollar Equivalent of $1,000,000
(and in multiples of $500,000 if in excess thereof or such other lesser multiple
as the Agent deems appropriate)
2.7 Principal Payments.
2.7.1. Revolving Credit Advances. Unless earlier payment is required under
this Agreement, the Borrowers shall pay to the Revolving Credit Lenders on the
Termination Date the entire outstanding principal amount of the Revolving Credit
Loans and Facility Letters of Credit outstanding to it. If the Revolving Credit
Loans and Facility Letters of Credit at any time exceed the amount allowed
pursuant to Section 2.1(c), the Borrowers shall immediately prepay the Revolving
Credit Loans and Facility Letters of Credit by an amount equal to or greater
than such excess.
2.7.2. Term Loan. The Company hereby unconditionally promises to pay to the
Agent for the pro rata account of each Term Loan Lender in Dollars the unpaid
principal amount of each Term Loan of such Lender in twenty quarterly principal
payments as follows:
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<TABLE>
<CAPTION>
Payment Date Principal Installment
<S> <C>
May 31, 2000 $3,750,000
August 31, 2000 $3,750,000
November 30, 2000 $3,750,000
February 28, 2001 $3,750,000
May 31, 2001 $3,750,000
August 31, 2001 $6,562,500
November 30, 2001 $6,562,500
February 28, 2002 $6,562,500
May 31, 2002 $6,562,500
August 31, 2002 $11,250,000
November 30, 2002 $11,250,000
February 28, 2003 $11,250,000
May 31, 2003 $11,250,000
August 31, 2003 $15,000,000
November 30, 2003 $15,000,000
February 28, 2004 $15,000,000
May 31, 2004 $15,000,000
</TABLE>
On the Maturity Date, the Term Loan shall be paid in full.
2.8 Method of Selecting Types and Interest Periods for New Advances. A
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Advance and Eurocurrency Advance, the Interest Period applicable to each Advance
from time to time, provided, however, that unless the Agent in its sole
discretion shall have consented, a Borrower may not select an Interest Period of
longer than 7 days until the date the Agent shall have determined that the
syndication of the Commitments under this Agreement is complete. A Borrower
shall give the Agent irrevocable notice (a "Borrowing Notice") not later than
11:00 a.m. (Detroit time) on the Borrowing Date of each Floating Rate Advance,
three Business Days before the Borrowing Date for each Eurodollar Advance, and
four Business Days before the Borrowing Date for each Eurocurrency Advance
(which in each case the Agent will promptly forward to the appropriate Lenders),
specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected,
(iv) in the case of each Eurodollar Advance or Eurocurrency
Advance, the Interest Period applicable thereto,
(v) in the case of each Eurocurrency Advance, the Eurocurrency
of such Advance; and
(vi) payment and wiring instructions.
Not later than 2:00 p.m. (Detroit time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Detroit to the Agent at its address specified pursuant to Section 12.4,
provided, however, that in the case of Eurocurrency Loans, each Lender shall
make
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available its Loan not later than noon, local time, at the Agent's Lending
Installation for such currency, in such funds as may then be customary for the
settlement of international transactions in such currency in the city of and at
the address of the Agent's Lending Installation for such currency. Unless the
Agent determines that any applicable condition specified in Article IV has not
been satisfied, the Agent will make the funds so received from the Lenders
available to the requesting Borrower at the Agent's aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances. Each Eurodollar and
Eurocurrency Advance shall continue as a Eurodollar or Eurocurrency Advance
until the end of the then applicable Interest Period therefor, at which time
such Advance shall be automatically converted into a Floating Rate Advance in
the case of Eurodollar Advances and converted to a Eurocurrency Advance in the
same currency and with an Interest Period of one month in the case of
Eurocurrency Advances, unless the Borrower shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest
Period, such Eurodollar or Eurocurrency Advance either continue as a Eurodollar
Advance for the same or another Interest Period or be converted into an Advance
of another Type. Subject to the terms of Sections 2.6 and 2.8, a Borrower may
elect from time to time to convert all or any part of an Advance of any Type
into any other Type or Types of Advances; provided that any conversion of any
Eurodollar and Eurocurrency Advance shall be made on, and only on, the last day
of the Interest Period applicable thereto. A Borrower shall give the Agent
irrevocable notice (a "Conversion/Continuation Notice") of each conversion of an
Advance or continuation of a Eurodollar and Eurocurrency Advance not later than
11:00 a.m. (Detroit time) on the Business Day of the requested conversion, in
the case of a conversion into a Floating Rate Advance, three Business Days prior
to the date of the requested conversion or continuation, in the case of a
conversion into or continuation of a Eurodollar Advance, or four Business Days
prior to the date of the requested conversion or continuation, in the case of a
conversion into or continuation of a Eurocurrency Advance, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a conversion into or
continuation of a Eurodollar Advance, the duration of the Interest Period
applicable thereto.
2.10 Changes in Interest Rate, etc. Each Floating Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Eurodollar
Advance into a Floating Rate Advance pursuant to Section 2.9 to but excluding
the date it becomes due or is converted into a Eurodollar Advance pursuant to
Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such day.
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate. Each Eurodollar and Eurocurrency Advance shall bear
interest on the outstanding principal amount thereof from and including the
first day of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the interest rate determined as applicable
to such Eurodollar or Eurocurrency Advance. No Interest Period (a) with respect
to any Revolving Credit Loan may end after the Termination Date and (b) with
respect to any Term Loan may end after the Maturity Date. Additionally, the
Company shall select Interest Periods with respect to the
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Term Loans to avoid breaking any Interest Period with respect to any principal
installment due on the Term Loans.
2.11 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Event of Default the Required Lenders may, at their option, by notice to the
Company (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 12.5 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar or Eurocurrency Advance. During the
continuance of an Event of Default, the Required Lenders may, at their option,
by notice to the Company (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 12.5 requiring
unanimous consent of the Lenders to changes in interest rates), declare that
each Advance (including each Multicurrency Advance) shall bear interest at the
Overdue Rate, provided that each Advance (including each Multicurrency Advance)
shall automatically bear interest at the Overdue Rate in connection with any
Default pursuant to Section 9.1(g) or 9.1(h).
2.12 Method of Payment. (i) All payments of the Obligations hereunder shall
be made, without setoff, deduction, or counterclaim, in Same Day Funds to the
Agent at the Agent's address specified pursuant to Section 12.4, or at any other
Lending Installation of the Agent specified in writing by the Agent to the
Company, by 11:00 a.m. (local time) on the date when due and shall be applied
ratably by the Agent among the Lenders. All payments to be made by any Borrower
hereunder in any currency other than Dollars shall be made in such currency on
the date due in same day funds for the account of the Agent, at its Lending
Installation for such currency and shall be applied ratably by the Agent among
the Lenders. Each payment delivered to the Agent for the account of any Lender
shall be delivered promptly by the Agent to such Lender in the same type of
funds that the Agent received at its address specified pursuant to Section 12.4
or at any Lending Installation specified in a notice received by the Agent from
such Lender. The Agent is hereby authorized to charge the account of each
Borrower maintained with the Agent or any of its Affiliates for each payment of
principal, interest and fees as it becomes due hereunder from such Borrower.
(ii) Notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance in any currency other than Dollars, currency control
or exchange regulations are imposed in the country which issues such currency
with the result that the type of currency in which the Advance was made (the
"Original Currency") no longer exists or a Borrower is not able to make payment
to the Agent for the account of the Lenders in such currency, then all payments
to be made by such Borrower hereunder in such currency shall instead be made
when due in Dollars in an amount equal to the Dollar Equivalent (as of the date
of repayment) of such payment due, it being the intention of the parties hereto
that the Borrowers take all risks of the imposition of any such currency control
or exchange regulations.
2.13 Noteless Agreement; Recordation; Telephonic Notices. (i) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrowers to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will record (a) the
amount of each Loan made hereunder, the Type thereof and the Interest Period and
currency with respect thereto, (b) the amount of any principal or interest due
and payable or to become due and payable from each Borrower to each Lender
hereunder and (c) the amount of any sum received by the Agent hereunder from
each Borrower and each Lender's share thereof.
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(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Agent or any Lender to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrowers to repay the
Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by the appropriate
Note(s). In such event, the Borrowers shall prepare, execute and deliver to such
Lender Note(s) payable to the order of such Lender in a form supplied by the
Agent. Thereafter, the Loans evidenced by such Note(s) and interest thereon
shall at all times (including after any assignment pursuant to Section 12.6) be
represented by one or more Notes payable to the order of the payee named therein
or any assignee pursuant to Section 12.6, except to the extent that any such
Lender or assignee subsequently returns any such Note(s) for cancellation and
requests that such Loans once again be evidenced as described in paragraphs (i)
and (ii) above. Each Lender is hereby authorized to record the principal amount
of each of its Loans and each repayment on the schedule attached to its Note(s),
provided, however, that neither the failure to so record nor any error in such
recordation shall affect the Borrower's obligations under such Note(s).
(v) Each Borrower hereby authorizes the Lenders and the Agent to extend,
convert or continue Advances, effect selections of Types of Advances and to
transfer funds based on telephonic or facsimile notices made by any person or
persons the Agent or any Lender in good faith believes to be an Authorized
Officer or authorized to act on behalf of an Authorized Officer. Each Borrower
agrees to deliver promptly to the Agent a written confirmation, if such
confirmation is requested by the Agent or any Lender, of each telephonic notice
signed by an Authorized Officer. If the written confirmation differs in any
material respect from the action taken by the Agent and the Lenders, the records
of the Agent and the Lenders shall govern absent manifest error.
2.14 Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion. Interest
accrued on each Eurodollar Advance and Eurocurrency Advance shall be payable on
the last day of its applicable Interest Period, on any date on which the
Eurodollar Advance or Eurocurrency Advance is prepaid, whether by acceleration
or otherwise, and at maturity. Interest accrued on each Eurodollar Advance and
Eurocurrency Advance having an Interest Period longer than three months shall
also be payable on the last day of each three-month interval during such
Interest Period. Interest and commitment fees shall be calculated for actual
days elapsed on the basis of a 360-day year, except that interest on any Loan
denominated in British Pounds Sterling shall be calculated for actual days
elapsed on the basis of a 365 day-year. Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if payment
is received prior to noon (local time) at the place of payment. If any payment
of principal of or interest on an Advance shall become due on a day which is not
a Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.15 Notification of Advances, Interest Rates, Prepayments and Revolving
Credit Commitment Reductions. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Aggregate Revolving Credit Commitment
reduction notice, Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. The Agent will notify each Lender of
the interest rate applicable to each Eurodollar and Eurocurrency Advance
promptly upon
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determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.16 Lending Installations. Subject to the terms of this Agreement, each
Lender may book its Loans at any Lending Installation selected by such Lender
and may change its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the Notes and Loans
shall be deemed held by each Lender for the benefit of such Lending
Installation. Each Lender may, by written or telex notice to the Agent and the
Company, designate a Lending Installation through which Loans will be made by it
and for whose account Loan payments are to be made.
2.17 Non-Receipt of Funds by the Agent. Unless a Borrower or a Lender, as
the case may be, notifies the Agent prior to the date on which it is scheduled
to make payment to the Agent of (i) in the case of a Lender, the proceeds of a
Loan or (ii) in the case of a Borrower, a payment of principal, interest or fees
to the Agent for the account of the Lenders, that it does not intend to make
such payment, the Agent may assume that such payment has been made. The Agent
may, but shall not be obligated to, make the amount of such payment available to
the intended recipient in reliance upon such assumption. If such Lender or such
Borrower, as the case may be, has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay to the Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to (i) in the case of payment by a Lender, the Federal Funds Effective
Rate for the first five such days and at the interest rate applicable to the
relevant Loan for each such day thereafter, or (ii) in the case of payment by a
Borrower, the interest rate applicable to the relevant Loan for each such day.
2.18 Market Disruption. Notwithstanding the satisfaction of all conditions
referred to in Article II and Article IV with respect to any Advance in any
Eurocurrency, if there shall occur on or prior to the date of such Advance any
change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls which would in the reasonable
opinion of the Agent or the Required Multicurrency Revolving Credit Lenders make
it impracticable for the Eurocurrency Loans comprising such Advance to be
denominated in the Eurocurrency specified by a Borrower, then the Agent shall
forthwith give notice thereof to such Borrower and the Lenders, and such Loans
shall not be denominated in such Eurocurrency but shall be made on such
Borrowing Date in Dollars, in an aggregate principal amount equal to the Dollar
Equivalent of the aggregate principal amount specified in the related Borrowing
Notice as Floating Rate Loans, unless the relevant Borrower notifies the Agent
at least two Business Days before such date that (i) it elects not to borrow on
such date or (ii) it elects to borrow on such date in a different Eurocurrency,
as the case may be, in which the denomination of such Loans would in the opinion
of the Agent and the Required Multicurrency Revolving Credit Lenders be
practicable and in an aggregate principal amount equal to the Dollar Equivalent
of the aggregate principal amount specified in the related Borrowing Notice.
2.19 Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due from any Borrower hereunder in the
currency expressed to be payable herein (the "specified currency") into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the specified
currency with such other currency at the Agent's main office on the Business Day
preceding that on which final, non-appealable judgment is given. The obligations
of any Borrower in respect of any sum due to any Lender or the Agent hereunder
shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Agent (as the case may be) of any sum adjudged to
be so due in such other currency such Lender or the Agent (as the case may be)
may in accordance with normal, reasonable banking procedures purchase the
specified currency with such other
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currency. If the amount of the specified currency so purchased is less than the
sum originally due on the judgment to such Lender or the Agent, as the case may
be, in the specified currency, each Borrower agrees, to the fullest extent that
they may effectively do so, as a separate obligation and notwithstanding any
such judgment, to indemnify such Lender or the Agent, as the case may be,
against such loss, and if the amount of the specified currency so purchased
exceeds (a) the sum originally due on the judgment to any Lender or the Agent,
as the case may be, in the specified currency and (b) any amounts shared with
other Lenders as a result of allocations of such excess as a disproportionate
payment to such Lender under Section 9.3, such Lender or the Agent, as the case
may be, agrees to remit such excess to the relevant Borrower.
2.20 Optional Prepayments. A Borrower may at any time and from time to
time prepay Floating Rate Loans, in whole or in part, without penalty or
premium, upon at least one Business Day's irrevocable notice to the Agent,
specifying the date and amount of prepayment. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein. Partial prepayment of Floating Rate Loans shall be in a minimum
aggregate amount of $500,000 or any integral multiple of $100,000 in excess
thereof.
2.20.1. A Borrower may at any time and from time to time prepay, without
premium or penalty (but together with payment of any amount payable pursuant to
Section 3.4), its Eurodollar Loans and its Multicurrency Revolving Credit Loans
in whole or in part, upon at least three Business Days' irrevocable notice to
the Agent specifying the date and amount of prepayment. Partial payments of
Eurodollar Loans shall be in a minimum aggregate amount of $1,000,000 or any
integral multiple of $500,000 in excess thereof. Partial prepayments of
Multicurrency Revolving Credit Loans shall be in an aggregate principal amount
in the relevant Eurocurrency of 1,000,000 units or any integral multiple of
500,000 units in excess thereof, or such lesser principal amount as may equal
the outstanding Multicurrency Revolving Credit Loans or such lesser amount as
may be agreed to by the Agent.
2.20.2. Each prepayment pursuant to this Section 2.20 and each conversion
pursuant to Section 2.9 shall be accompanied by accrued and unpaid interest on
the amount prepaid to the date of prepayment and any amounts payable under
Section 3.4 in connection with such payment.
2.20.3. Prepayments pursuant to this Section 2.20 shall be applied as a
Borrower may direct, provided that all prepayments of the Term Loans, will be
applied to the maturities thereof in inverse order.
2.21 Multicurrency Participation. Immediately and automatically upon
the occurrence of a Default under Sections 9.1(a), (b), (g), or (h) (A) each
Dollar Revolving Credit Lender shall be deemed to have unconditionally and
irrevocably purchased from each Multicurrency Revolving Credit Lender, without
recourse or warranty, an undivided interest in and participation in each
Multicurrency Revolving Credit Loan ratably in accordance with such Lender's Pro
Rata Share, (B) immediately and automatically all Multicurrency Revolving Credit
Loans shall be converted to and redenominated in Dollars equal to the Dollar
Equivalent of each such Multicurrency Revolving Credit Loan determined as of the
date of such conversion, (C) each Multicurrency Revolving Credit Lender shall be
deemed to have unconditionally and irrevocably purchased from each Dollar
Revolving Credit Lender, without recourse or warranty, an undivided interest in
and participation in each Dollar Revolving Credit Loan ratably in accordance
with such Multicurrency Revolving Credit Lender's Revolving Credit Commitment
Percentage. Each of the Dollar Revolving Credit Lenders shall pay to the
applicable Multicurrency Revolving Credit Lender not later than two (2) Business
Days following a request for payment from such Lender, in Dollars, an amount
equal to the undivided interest in and participation in the Multicurrency
Revolving Credit Loan purchased by such Dollar Revolving Credit Lender pursuant
to this Section 2.21, and each of the Multicurrency Revolving Credit Lenders
shall pay to the applicable Dollar Revolving Credit Lender not
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later than two (2) Business Days following a request for payment from such
Revolving Credit Lender, in Dollars, an amount equal to the undivided interest
in and participation in the Dollar Revolving Credit Loan purchased by such
Multicurrency Revolving Credit Lender pursuant to this Section 2.21, it being
the intent of the Revolving Credit Lenders that following such equalization
payments, each Revolving Credit Lender shall hold its Pro Rata Share of the
Aggregate Revolving Credit Outstandings.
2.22 Contribution Among Borrowers and Guarantors. In order to provide
for just and equitable contribution among the Borrowers and the Guarantors, the
Borrowers and the Guarantors shall execute a subrogation and contribution
agreement (which shall be deemed a Credit Document) in form and substance
satisfactory to the Required Lenders.
2.23 Financial Condition of Borrower. Neither the Agent nor any Lender
shall have any obligation to any Borrower or any Guarantor to disclose or
discuss with such Borrower or any Guarantor the Agent's or any Lender's
assessment of the financial condition of any Borrower or any Guarantor, and the
Borrower and each Guarantor hereby waives any obligation of any Lender to
disclose any matter, fact or thing relating to the business, operations or
conditions of any Borrower or any Guarantor now or hereafter known by the Agent
or any Lender. Each Borrower and each Guarantor assumes the responsibility for
being and keeping informed of the financial condition of each other Borrower and
each Guarantor and of all circumstances bearing upon the risk of nonpayment of
the Obligations by any other Borrower. No Lender shall have any obligation to
any Borrower or any Guarantor arising from any Lender's assessment of, or
failure to assess, any Borrower's or any Guarantor's financial condition in
connection with the granting of any Loans or other extensions of credit
hereunder.
2.24 Collateral Security; Further Assistance.
(a) As security for the payment of the Obligations, the Company
shall grant or cause to be granted to the Agent, for the ratable benefit of the
Lenders, a Lien on and security interest in all of the following, whether now or
hereafter existing or acquired, 100% of the shares of Capital Stock of each
Domestic Subsidiary and 65% of the shares of Capital Stock of each Foreign
Subsidiary now or hereafter directly owned by any Borrower or any Guarantor and
all proceeds thereof, all as more specifically described in the Pledge
Agreements; provided, that, the Company shall not be required to grant or cause
to be granted the pledge of any Capital Stock of any Inactive Subsidiaries, the
pledge of any Capital Stock of any Foreign Subsidiary which is prohibited by the
laws of the jurisdiction of such Foreign Subsidiary or the pledge of any Capital
Stock of any Subsidiary identified in Schedule 5.7 that the Company intends to
consolidate with, merge into or otherwise combine with a Borrower or Guarantor
within the next 60 days. If any Subsidiary the Company intends to consolidate,
merge or otherwise combine with a Borrower or Guarantor are not so combined, the
Company shall cause the Capital Stock of such Subsidiary to be pledged to the
Lenders.
(b) Concurrently with the consummation of any Acquisition or the
formation of any new Subsidiary of the Company which is permitted hereunder, the
Company shall:
(i) in the case of an Acquisition of Capital Stock by any
Borrower or a Subsidiary or the formation of a new Subsidiary: (A) deliver or
cause to be delivered to the Agent, for the ratable benefit of the Lenders, (I)
in the case of the Acquisition of the stock of a Domestic Subsidiary or the
formation of a Domestic Subsidiary, all of the certificates representing 100% of
the capital stock (or other instruments or securities evidencing ownership) of
such new Domestic Subsidiary which is being acquired or formed, and (II) in the
case of the Acquisition of the stock of a Foreign Subsidiary or the formation of
a Foreign Subsidiary, now or hereafter directly owned by any Borrower or any
Guarantor, 65% of the shares of Capital Stock of such new Foreign Subsidiary
which is being acquired or formed, as additional collateral for the Secured
Obligations, to be held by the Agent pursuant to a Pledge Agreement,
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unless, in each case, the newly formed or acquired Subsidiary is intended to be
merged into the Company or any Subsidiary whose Capital Stock is pledged
pursuant to a Pledge Agreement and such merger occurs within thirty days after
such Acquisition or formation of such Subsidiary or any pledge of any Capital
Stock of any Foreign Subsidiary which is prohibited by the laws of the
jurisdiction of such Foreign Subsidiary; (B) cause each new Subsidiary which
qualifies as a Guarantor hereunder and which is being acquired or formed to
deliver to the Agent a Guaranty, and (C) deliver to the Agent such other
documents as the Agent, individually or on behalf of the Lenders, may have
reasonably requested;
(ii) in any case, provide such other documentation to the
Agent, including, without limitation, articles of incorporation, by-laws and
resolutions, which in the reasonable opinion of the Agent is necessary or
advisable in connection with such Acquisition or formation of such new
Subsidiary.
2.25 Application of Payments with Respect to Defaulting Lenders. No
payments of principal, interest or fees delivered to the Agent for the account
of any Defaulting Lender shall be delivered by the Agent to such Defaulting
Lender. Instead, such payments shall, for so long as such Defaulting Lender
shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby
authorized and directed by all parties hereto to hold such funds in escrow and
apply such funds as follows:
(i) First, if applicable to any payments due to the Agent
pursuant to Section 2.1(d) and to the Issuer under Section 2.2.5; and
(ii) Second, to Loans required to be made by such Defaulting
Lender on any Borrowing Date to the extent such Defaulting Lender fails to make
such Loans.
Notwithstanding the foregoing, upon the termination of the Aggregate Revolving
Credit Commitment and the payment and performance of all of the Obligations
(other than those owing to a Defaulting Lender), any funds then held in escrow
by the Agent pursuant to the preceding sentence shall be distributed to each
Defaulting Lender, pro rata in proportion to amounts that would be due to each
Defaulting Lender but for the fact that it is a Defaulting Lender.
2.26 Optional Increase in Commitments.
(a) Subject to the conditions set forth below, the Company may, upon
at least thirty (30) days prior written notice to the Agent and the Lenders,
increase the Total Revolving Credit Commitments, either by designating a lender
not theretofore a Lender to become a Lender (such designation to be effective
only with the prior written consent of the Agent, which consent shall not be
unreasonably withheld) or by agreeing with an existing Lender that such Lender's
Revolving Credit Commitment shall be increased (thus increasing the Total
Revolving Credit Commitments); provided that:
(i) no Default or Event of Default shall have occurred and be
continuing hereunder as of the effective date of such increase;
(ii) any lender not theretofore a Lender shall meet the criteria set
forth in the definition of Eligible Assignee;
(iii) the representations and warranties made by the Borrowers and
contained in Article V shall be true and correct on and as of the effective
date with the same effect as if made on and as of such date (other than
those representations and warranties that by their terms speak as of a
particular date, which representations and warranties shall be true and
correct as of such particular date);
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(iv) the amount of such increase in the Total Revolving Credit
Commitments shall not be less than $25,000,000, and shall not cause the
Total Revolving Credit Commitments to exceed $250,000,000;
(v) The Borrowers and the Lender or lender not theretofore a Lender,
shall execute and deliver to the Agent, for its acceptance and recording in
the register pursuant to Section 12.6(b), a Lender Addition and
Acknowledgement Agreement, in form and substance satisfactory to the Agent
and acknowledged by the Agent and each Guarantor and substantially in the
form of Exhibit I attached hereto;
(vi) no existing Lender shall be obligated in any way to increase its
Revolving Credit Commitment;
(vii) the Borrowers shall pay any amount required to be paid pursuant
to Section 3.4 hereof resulting from the reallocation of Revolving Credit
Loans pursuant to the increase in the Total Revolving Credit Commitments;
(viii) the Borrowers shall have paid commitment fees to additional
Lenders sufficient to induce such Lenders to provide the requested
Commitments; and
(ix) the Agent may request any other documents or information in its
reasonable discretion.
(b) Upon the execution, delivery, acceptance and recording of the Lender
Addition and Acknowledgement Agreement, from and after the effective date
specified in a Lender Addition and Acknowledgement Agreement, which effective
date shall be five (5) Business Days after the delivery thereof to the Agent,
such existing Lender shall have a Revolving Credit Commitment as therein set
forth or such other Lender shall become a Lender with a Revolving Credit
Commitment as therein set forth and all the rights and obligations of a Lender
with such a Revolving Credit Commitment hereunder.
(c) Upon its receipt of a Lender Addition and Acknowledgement Agreement
together with any Note or Notes, if requested, subject to such addition and
assumption and the written consent to such addition and assumption, the Agent
shall, if such Lender Addition and Acknowledgement Agreement has been completed
and is substantially in the form of Exhibit E:
(i) accept such Lender Addition and Acknowledgement Agreement;
(ii) record the information contained therein in the Register; and
(iii) give prompt notice thereof to the Lenders and the Company and
deliver to the Lenders a revised Schedule 1.1(b) reflecting the new Revolving
Credit Commitments.
Within five (5) Business Days after receipt of notice, the Borrowers shall
execute and deliver to the Agent, in exchange for the surrendered Note or Notes
of any existing Lender or with respect to any Lender not theretofore a Lender, a
new Note or Notes to the order of the applicable Lenders in amounts equal to the
Revolving Credit Commitments of such Lenders pursuant to the Lender Addition and
Acknowledgement Agreement in the event such Lender requests Notes pursuant to
Section 2.13. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such Revolving Credit Commitments,
shall be dated the effective date of such Lender Addition and
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Acknowledgement Agreement and shall otherwise be in substantially the form of
the existing Notes. Each surrendered Note and/or Notes shall be canceled and
returned to Company.
ARTICLE III.
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. (a) If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation with any new or changed request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency,
(i) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from any
Borrower (excluding federal, state and local taxation of the overall net income
of any Lender or applicable Lending Installation), or changes the basis of
taxation of payments to any Lender in respect of its Loans or other amounts due
it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest rate applicable to
Eurodollar Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining loans or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with loans, or
requires any Lender or any applicable Lending Installation to make any payment
calculated by reference to the amount of loans held or interest received by it,
by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the Borrowers shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received, without duplication of any other amount claimed pursuant to this
Section 3.1 or any other provision herein, which such Lender determines is
attributable to making, funding and maintaining its Loans and its Commitments.
(b) If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive of any jurisdiction outside of the
United States of America or any subdivision thereof (whether or not having the
force of law) imposes or deems applicable any reserve requirement against or fee
with respect to assets of, deposits with or for the account of, or credit
extended by, any lender or any applicable Lending Installation, and the result
of the foregoing is to increase the cost to such lender or applicable Lending
Installation of making or maintaining its Multicurrency Revolving Credit Loans
to the Borrowers or its Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such Multicurrency
Revolving Credit Loans or Commitment, then within 15 days of demand by such
Lender, the Borrowers shall pay such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction in amount
received, provided that the Borrowers shall not be required to compensate any
lender for such reserve costs or fees to the extent that an amount equal to such
reserve costs or fees is received by such lender as a result of the calculation
of the interest rate applicable to Multicurrency Advances.
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3.2 Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrowers shall pay such Lender the amount necessary, without
duplication of any other amount claimed pursuant to this Section 3.2 or any
other provision of this Agreement, to compensate for any shortfall in the rate
of return on the portion of such increased capital which such Lender determines
is attributable to this Agreement, its Loans or its obligation to make Loans
hereunder (after taking into account such Lender's policies as to capital
adequacy). "Change" means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans or Eurocurrency Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Lenders or, with
respect to Eurocurrency Loans, the Required Multicurrency Revolving Credit
Lenders, determine that (i) deposits of a type and maturity appropriate to match
fund Eurodollar Advances or Eurocurrency Advances are not available or (ii) the
interest rate applicable to a Type of Advance or a Eurocurrency Advance does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of the affected Type of Advance or
Eurocurrency Advance and require any Eurodollar Advances of the affected Type or
affected Eurocurrency Advances to be repaid.
3.4 Funding Indemnification. If any payment of a Eurodollar Advance or
Eurocurrency Advance occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a Eurodollar Advance or Eurocurrency Advance is not made on the
date specified by a Borrower for any reason other than default by the Lenders,
each Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurodollar
Advance or Eurocurrency Advance.
3.5 Alternative Lending Installation; Lender Statements; Survival of
Indemnity. To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Eurodollar Loans or
Eurocurrency Loans to reduce any liability of any Borrower to such Lender under
Sections 3.1 and 3.2 or to avoid the unavailability of a Type of Advance or a
Eurocurrency Advance under Section 3.3 or 2.8, so long as such designation is
not disadvantageous to such Lender. Each Lender shall deliver a written
statement of such Lender to the Company (with a copy to the Agent) as to the
amount due, if any, under Section 3.1, 3.2 or 3.4. Such written statement shall
set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding on the
Borrowers in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar or Eurocurrency Loan shall
be calculated as though each Lender funded its Eurodollar or Eurocurrency Loan
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Eurodollar or Eurocurrency Rate
applicable to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the
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amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Company of such written statement. The obligations
of the Borrowers under Sections 3.1, 3.2 and 3.4 shall survive for a period of
one year after payment of the Obligations and termination of this Agreement.
3.6 Taxes.
3.6.1. (a) All payments of principal and interest made by any Borrower
under this Agreement and any Note, if any, and all Reimbursement Obligations
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
income taxes and franchise taxes and State of Michigan single business tax
imposed on the Agent or any Lender as a result of a present or former connection
between the Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the Agent
or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to the Agent, any Issuer or any Lender
hereunder or under any Note or Facility Letter of Credit, the amounts so payable
to the Agent, such Issuer or such Lender shall be increased to the extent
necessary to yield to the Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates and in the amounts specified in this Agreement provided, however, that (i)
with respect to any Loan or Facility Letter of Credit in Dollars to or for the
account of any Borrower, no Borrower shall be required to increase any such
amounts payable to any Lender that is not organized under the laws of the United
States of America or a state thereof if such Lender fails to comply with the
requirements of Section 3.6.2, and (ii) with respect to any Loan in any
Eurocurrency, no Borrower shall be required to increase any such amounts payable
to any Lender if such Lender fails to comply with the requirements of Section
3.6.3. Whenever any Non-Excluded Taxes are payable by any Borrower, as promptly
as possible thereafter the Borrower shall send to the Agent for its own account
or for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment thereof. If
any Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent, the
Issuer and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Agent, the Issuer or any Lender as a result of any such
failure. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender or the Agent shall become aware that it is
entitled to receive a refund or credit (such credit to include any increase in
any foreign tax credit as a result of Non-Excluded Taxes) as to which it has
been indemnified by a Borrower pursuant to this Section 3.6.1, it shall promptly
notify the Borrower of the availability of such refund or credit and shall,
within 45 days after receipt of a request by the Borrower, apply for such refund
or credit at the Borrower's expense, and in the case of any application for such
refund or credit by the Borrower, shall, if legally able to do so, deliver to
the Borrower such certificates, forms or other documentation as may be
reasonably necessary, and reasonably acceptable to the Lender or the Agent, to
assist the Borrower in such application. If any Lender or the Agent receives a
refund or credit (such credit to include any increase in any foreign tax credit)
in respect to any Non-Excluded Taxes as to which it has been indemnified by a
Borrower pursuant to this Section 3.6.1, it shall promptly notify the Borrower
of such refund or credit and shall, within 45 days after receipt of such refund
or the benefit of such credit, repay the amount of such refund or benefit of
such credit (with respect to the credit, as determined by the Lender or the
Agent in its sole judgment) to the Borrower (to the extent of amounts that have
been paid by the Borrower under this Section 3.6.1 with respect to
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Non-Excluded Taxes giving rise to such refund or credit), net of all reasonable
out-of-pocket expenses of such Lender or the Agent and without interest (other
than interest actually received from the relevant taxing authority or other
Governmental Authority with respect to such refund or credit); provided however,
that the Borrower, upon the request of such Lender or the Agent, agrees to
return the amount of such refund or benefit of such credit to such Lender or the
Agent in the event such Lender or the Agent is required to repay the amount of
such refund or benefit of such credit to the relevant taxing authority or other
Governmental Authority.
3.6.2. Each Lender that is not organized under the laws of the United
States of America or a state thereof shall, at least five Business Days before
the date of the initial payment to be made by any Borrower under this Agreement
to such Lender, deliver to the Company and the Agent (A) if such Lender is a
"bank" within the meaning of Section 881 (c) (3) (A) of the Code, deliver to the
Borrower and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 (or other appropriate form), certifying in
either case that such Lender is entitled to receive payments under the Loan
Documents without deduction or withholding of any United States federal income
taxes or (B) if such Lender is not a "bank within the meaning of Section 881 (c)
(3) (A) of the Code and intends to claim exemption from U.S. Federal withholding
tax under Section 871 (h) or 881 (c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions thereof or
successors thereto (and, if such non-U.S. Lender delivers a Form W-8, a
certificate representing that such non-U.S. Lender is not a bank for purposes of
Section 881 (c) of the Code, is not a 10-percent shareholder (within the meaning
of Section 871 (h) (3) (B) of the Code of the Borrower and is not a controlled
foreign corporation related to the Borrower (within the meaning of Section 864
(d) (4) of the Code)), properly completed and duly executed by such non-U.S.
Lender claiming complete exemption from U.S. Federal withholding tax on payments
of interest by the Borrower under the Loan Documents. Each Lender which so
delivers a Form 1001 or 4224 further undertakes to deliver to the Borrower and
the Agent two additional copies of such form (or a successor form) on or before
the date that such form (or a replacement of an expired form) expires
(currently, three successive calendar years for Form 1001 and one calendar year
for Form 4224) or becomes obsolete or after the occurrence of any event
requiring a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Agent, in each case certifying that such Lender
is entitled to receive payments under the Loan Documents without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender promptly advises the Company and the Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax.
3.6.3. If any payments by the Agent or any Borrower to any Multicurrency
Revolving Credit Lender are subject to any withholding tax, such Multicurrency
Revolving Credit Lender shall file such forms and take such other actions to
avoid the payment of the withholding tax by the Agent or any Borrower to the
extent the Multicurrency Revolving Credit Lender is able to do so.
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ARTICLE IV.
CONDITIONS OF BORROWING
4.1 Conditions of Initial Advance. The obligation of each Lender to make
Loans in connection with the initial Advance hereunder, and the obligation of
the Issuer to issue Facility Letters of Credit hereunder on the Effective Date,
is subject to the satisfaction of the following conditions precedent:
(a) The Agent shall have received the following, each dated as of the
Effective Date (unless otherwise specified) and, except for the Notes and any
certificates or instruments required to be delivered under the Pledge
Agreements, in sufficient copies for each Lender:
(i) If requested by any Lender, the Notes in favor of such Lender;
(ii) the Pledge Agreements, duly completed and executed by the
parties hereto, together with any certificates evidencing the Capital Stock
being pledged thereunder as of the Effective Date and undated assignments
separate from certificate for any such certificate, duly executed in blank;
(iii) the Guaranties, duly completed and executed by each Guarantor;
(iv) the favorable opinion of Seyburn, Kahn, Ginn, Bess, Deitch &
Serlin, special counsel to the Borrowers, as to the matters set forth on
Exhibit J addressed to the Agent and the Lenders and addressing such other
matters as the Agent or any Lender may reasonably request.
(b) The Agent shall have received a certificate, signed by the president,
the chief executive officer or the chief financial officer of each Borrower, in
form and substance satisfactory to the Agent, certifying that (i) all
representations and warranties of the Borrower contained in this Agreement and
the other Credit Documents are true and correct as of the Effective Date, both
immediately before and after giving effect to the consummation of the
transactions contemplated hereby, the making of the initial Loans hereunder and
the application of the proceeds thereof, (ii) no Default or Event of Default has
occurred and is continuing, both immediately before and after giving effect to
the consummation of the transactions contemplated hereby, the making of the
initial Loans hereunder and the application of the proceeds thereof, (iii) both
immediately before and after giving effect to the consummation of the
transactions contemplated hereby, the making of the initial Loans hereunder and
the application of the proceeds thereof, no Material Adverse Change has occurred
since December 31, 1998, and there exists no event, condition or state of facts
that could reasonably be expected to result in a Material Adverse Change, and
(iv) all conditions to the initial extensions of credit hereunder set forth in
this Section and in Section 4.2 have been satisfied or waived as required
hereunder.
(c) The Agent shall have received a certificate of the secretary or an
assistant secretary of each of the Company and its Subsidiaries, in form and
substance satisfactory to the Agent, certifying (i) that attached thereto is a
true and complete copy of the articles or certificate of incorporation and all
amendments thereto of the Company or such Subsidiary, as the case may be,
certified as of a recent date by the Secretary of State (or comparable
Governmental Authority) of its jurisdiction of organization, and that the same
has not been amended since the date of such certification, (ii) that attached
thereto is a true and complete copy of the bylaws of the Company or such
Subsidiary, as the case may be, as then in effect and as in effect at all times
from the date on which the resolutions referred to in clause (iii) below were
adopted to and including the date of such certificate, and (iii) that attached
thereto is a true and complete
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copy of resolutions adopted by the board of directors of the Company or such
Subsidiary, as the case may be, authorizing the execution, delivery and
performance of this Agreement and the other Credit Documents to which it is a
party, and as to the incumbency and genuineness of the signature of each officer
of the Company or such Subsidiary, as the case may be, executing this Agreement
or any of such other Credit Documents, and attaching all such copies of the
documents described above.
(d) The Agent shall have received (i) a certificate as of a recent date of
the good standing of each of the Company and its Subsidiaries under the laws of
its jurisdiction of organization, from the Secretary of State (or comparable
Governmental Authority) of such jurisdiction, and (ii) a certificate as of a
recent date of the qualification of each of the Company and its Subsidiaries to
conduct business as a foreign corporation in each jurisdiction where it is so
qualified as of the Effective Date, from the Secretary of State (or comparable
Governmental Authority) of such jurisdiction.
(e) All legal matters, documentation, and corporate or other proceedings
incident to the transactions contemplated hereby shall be satisfactory in form
and substance to the Agent; all approvals, permits and consents of any
Governmental Authorities or other Persons required in connection with the
execution and delivery of this Agreement and the other Credit Documents and the
consummation of the transactions contemplated hereby and thereby shall have been
obtained, without the imposition of conditions that are not acceptable to the
Agent, and all related filings, if any, shall have been made, and all such
approvals, permits, consents and filings shall be in full force and effect and
the Agent shall have received such copies thereof as it shall have requested;
all applicable waiting periods shall have expired without any adverse action
being taken by any Governmental Authority having jurisdiction; and no action,
proceeding, investigation, regulation or legislation shall have been instituted,
threatened or proposed before, and no order, injunction or decree shall have
been entered by, any court or other Governmental Authority, in each case to
enjoin, restrain or prohibit, to obtain substantial damages in respect of, or
that is otherwise related to or arises out of, this Agreement, any of the other
Credit Documents or the consummation of the transactions contemplated hereby or
thereby, or that, in the opinion of the Agent, could reasonably be expected to
have a Material Adverse Effect.
(f) Since December 31, 1998, both immediately before and after giving
effect to the consummation of the transactions contemplated by this Agreement,
there shall not have occurred any Material Adverse Change or any event,
condition or state of facts that could reasonably be expected to result in a
Material Adverse Change.
(g) The Company shall have paid (i) to Bank One, the unpaid balance of the
fees described in the Fee Letter, (ii) to the Agent, the initial payment of the
annual agency fee described in the Fee Letter, and (iii) all other fees and
expenses of the Agent and the Lenders required hereunder or under any other
Credit Document to be paid on or prior to the Effective Date (including fees and
expenses of counsel) in connection with this Agreement and the transactions
contemplated hereby.
(h) The Agent shall have received a Financial Condition Certificate,
together with the Pro Forma Balance Sheet and the Projections as described in
Sections 5.11(b) and 5.11(c), all of which shall be in form and substance
satisfactory to the Agent.
(i) Within two Business Days after the Effective Date, the Agent shall
have received a Covenant Compliance Worksheet, duly completed and certified by
the chief financial officer of the Company and in form and substance
satisfactory to the Agent, demonstrating the Company's compliance with the
financial covenants set forth in Sections 7.1 through 7.3, determined on a pro
forma basis as of June 30, 1999 after giving effect to the making of the initial
Loans hereunder and the consummation of the transactions contemplated hereby.
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(j) The Agent shall have received from the Company its consolidated
operating budget for the period from January 1, 1999 through December 31, 1999,
and the same shall be in form and substance satisfactory to the Agent.
(k) The Agent and each Lender shall have received such other documents,
certificates, opinions and instruments in connection with the transactions
contemplated hereby as it shall have reasonably requested.
4.2 Conditions of All Borrowings. The obligation of each Lender to make
any Loans hereunder, including the initial Loans (but excluding Loans made for
the purpose of repaying Refunded Swingline Loans pursuant to Section 2.1(d)),
and the obligation of the Issuer to issue any Facility Letters of Credit
hereunder, is subject to the satisfaction of the following conditions precedent
on the relevant Borrowing Date or date of issuance:
(a) Each of the representations and warranties contained in Article V and
in the other Credit Documents shall be true and correct on and as of such
Borrowing Date (including the Effective Date, in the case of the initial Loans
made hereunder) or date of issuance with the same effect as if made on and as of
such date, both immediately before and after giving effect to the Loans to be
made or Facility Letter of Credit to be issued on such date (except to the
extent any such representation or warranty is expressly stated to have been made
as of a specific date, in which case such representation or warranty shall be
true and correct in all material respects as of such date); and
(b) No Default or Event of Default shall have occurred and be continuing
on such date, both immediately before and after giving effect to the Loans to be
made or Facility Letter of Credit to be issued on such date.
Each giving of a Borrowing Notice and the consummation of each Advance or
issuance of a Facility Letter of Credit, shall be deemed to constitute a
representation by the Borrowers that the statements contained in subsections (a)
and (b) above are true, both as of the date of such notice or request and as of
the relevant Borrowing Date or date of issuance.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
induce the Lenders to extend the credit contemplated hereby, each Borrower
represents and warrants to the Agent and the Lenders as follows:
5.1 Corporate Organization and Power. Each of the Borrower and its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the
full corporate power and authority to execute, deliver and perform the Credit
Documents to which it is or will be a party, to own and hold its property and to
engage in its business as presently conducted, and (iii) is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the nature of its business or the ownership of its properties requires it
to be so qualified, except where the failure to be so qualified would not,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect.
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5.2 Authorization; Enforceability. Each of the Borrower and its
Subsidiaries has taken, or on the Effective Date will have taken, all necessary
corporate action to execute, deliver and perform each of the Credit Documents to
which it is or will be a party, and has, or on the Effective Date (or any later
date of execution and delivery) will have, validly executed and delivered each
of the Credit Documents to which it is or will be a party. This Agreement
constitutes, and each of the other Credit Documents upon execution and delivery
will constitute, the legal, valid and binding obligation of each of the Borrower
and its Subsidiaries that is a party hereto or thereto, enforceable against it
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally, by general equitable principles or by
principles of good faith and fair dealing.
5.3 No Violation. The execution, delivery and performance by each of the
Borrower and its Subsidiaries of this Agreement and each of the other Credit
Documents to which it is or will be a party, and compliance by it with the terms
hereof and thereof, do not and will not (i) violate any provision of its
articles or certificate of incorporation or bylaws or contravene any other
Requirement of Law applicable to it, (ii) conflict with, result in a breach of
or constitute (with notice, lapse of time or both) a default under any
indenture, agreement or other instrument to which it is a party, by which it or
any of its properties is bound or to which it is subject, or (iii) except for
the Liens granted in favor of the Agent pursuant to the Security Documents,
result in or require the creation or imposition of any Lien upon any of its
properties or assets. No Subsidiary is a party to any agreement or instrument or
otherwise subject to any restriction or encumbrance that restricts or limits its
ability to make dividend payments or other distributions in respect of its
Capital Stock, to repay Indebtedness owed to any Borrower or any other
Subsidiary, to make loans or advances to any Borrower or any other Subsidiary,
or to transfer any of its assets or properties to any Borrower or any other
Subsidiary, in each case other than such restrictions or encumbrances existing
under or by reason of the Credit Documents or applicable Requirements of Law.
5.4 Governmental and Third-Party Authorization; Permits. (a) No consent,
approval, authorization or other action by, notice to, or registration or filing
with, any Governmental Authority or other Person is or will be required as a
condition to or otherwise in connection with the due execution, delivery and
performance by each of the Borrower and its Subsidiaries of this Agreement or
any of the other Credit Documents to which it is or will be a party or the
legality, validity or enforceability hereof or thereof, other than consents and
filings the failure to obtain or make which would not, individually or in the
aggregate, have a Material Adverse Effect.
(b) Each of the Borrower and its Subsidiaries has, and is in good standing
with respect to, all governmental approvals, licenses, permits and
authorizations necessary to conduct its business as presently conducted and to
own or lease and operate its properties, except for those the failure to obtain
which would not be reasonably likely, individually or in the aggregate, to have
a Material Adverse Effect.
5.5 Litigation. There are no actions, investigations, suits or proceedings
pending or, to the knowledge of the Borrower, threatened, at law, in equity or
in arbitration, before any court, other Governmental Authority or other Person,
(i) against or affecting the Borrower, any of its Subsidiaries or any of their
respective properties that would, if adversely determined, be reasonably likely
to have a Material Adverse Effect, or (ii) with respect to this Agreement or any
of the other Credit Documents.
5.6 Taxes. Each of the Borrower and its Subsidiaries has timely filed all
federal, state and local tax returns and reports required to be filed by it and
has paid all taxes, assessments, fees and other charges levied upon it or upon
its properties that are shown thereon as due and payable, other than those that
are being contested in good faith and by proper proceedings and for which
adequate reserves have been established in accordance with GAAP. Such returns
accurately reflect in all material respects all liability for taxes of the
Borrower and its Subsidiaries for the periods covered thereby. There is no
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ongoing audit or examination or, to the knowledge of the Borrower, other
investigation by any Governmental Authority of the tax liability of the Borrower
or any of its Subsidiaries, and there is no unresolved claim by any Governmental
Authority concerning the tax liability of the Borrower or any of its
Subsidiaries for any period for which tax returns have been or were required to
have been filed, other than claims for which adequate reserves have been
established in accordance with GAAP. Neither the Borrower nor any of its
Subsidiaries has waived or extended or has been requested to waive or extend the
statute of limitations relating to the payment of any taxes.
5.7 Subsidiaries. Schedule 5.7 sets forth a list, as of the Effective
Date, of all of the Subsidiaries and Inactive Subsidiaries of the Company and,
as to each such Subsidiary, the percentage ownership (direct and indirect) of
the Company or any other Subsidiary in each class of its capital stock and each
direct owner thereof. Except for the shares of capital stock expressly indicated
on Schedule 5.7, there are no shares of capital stock, warrants, rights, options
or other equity securities, or other Capital Stock of any Subsidiary of the
Company outstanding or reserved for any purpose. All outstanding shares of
capital stock of each Subsidiary of the Company are duly and validly issued,
fully paid and nonassessable. The Company or a Subsidiary of the Company is the
sole legal, record and beneficial owner of, and has good and valid title to, all
such capital stock, free and clear of all Liens other than the Liens created
pursuant to the Pledge Agreement.
5.8 Full Disclosure. All factual information heretofore or
contemporaneously furnished to the Agent or any Lender in writing by or on
behalf of the Borrower or any of its Subsidiaries for purposes of or in
connection with this Agreement and the transactions contemplated hereby is, and
all other such factual information hereafter furnished to the Agent or any
Lender in writing by or on behalf of the Borrower or any of its Subsidiaries
will be, true and accurate in all material respects on the date as of which such
information is dated or certified (or, if such information has been amended or
supplemented, on the date as of which any such amendment or supplement is dated
or certified) and not made incomplete by omitting to state a material fact
necessary to make the statements contained therein, in light of the
circumstances under which such information was provided, not misleading.
5.9 Margin Regulations. Neither the Borrower nor any of its Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying Margin Stock. No
proceeds of the Loans will be used, directly or indirectly, to purchase or carry
any Margin Stock, to extend credit for such purpose or for any other purpose
that would violate or be inconsistent with Regulations G, T, U or X or any
provision of the Exchange Act.
5.10 No Material Adverse Change. There has been no Material Adverse Change
since December 31, 1998, and there exists no event, condition or state of facts
that could reasonably be expected to result in a Material Adverse Change.
5.11 Financial Matters. (a) The Company has heretofore furnished to the
Agent copies of (i) the audited consolidated balance sheet of the Company and
its Subsidiaries as of December 31, 1998, and the related statements of income
and cash flows for the fiscal year ended December 31, 1998, together with the
opinion of PricewaterhouseCoopers thereon, and (ii) the unaudited consolidated
balance sheet of the Company and its Subsidiaries as of March 31, 1999, and the
related statements of income and cash flows for the three-month period then
ended. Such financial statements have been prepared in accordance with GAAP
(subject, with respect to the unaudited financial statements, to the absence of
notes required by GAAP and to normal year-end adjustments) and present fairly
the financial condition of the Company and its Subsidiaries on a consolidated
basis as of the respective dates thereof and the consolidated results of
operations of the Company and its Subsidiaries for the respective periods then
ended. Except as fully reflected in the most recent financial statements
referred to above and the notes thereto, there are no material liabilities or
obligations with respect to the Company or any of its
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Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise
and whether or not due).
(b) The Company has prepared, and has heretofore furnished to the Agent a
copy of, annual projected balance sheets and statements of income and cash flows
of the Company for the five-year period beginning with the year ended December
31, 1999, giving effect to the initial extensions of credit made under this
Agreement, and the payment of transaction fees and expenses related to the
foregoing (the "Projections"). In the opinion of management of the Company, the
assumptions used in the preparation of the Projections were fair, complete and
reasonable when made and continue to be fair, complete and reasonable as of the
date hereof. The Projections have been prepared in good faith by the executive
and financial personnel of the Company, are complete and represent a reasonable
estimate of the future performance and financial condition of the Company,
subject to the uncertainties and approximations inherent in any projections.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the
consummation of the transactions contemplated hereby, (i) has capital sufficient
to carry on its businesses as conducted and as proposed to be conducted, (ii)
has assets with a fair saleable value, determined on a going concern basis, (y)
not less than the amount required to pay the probable liability on its existing
debts as they become absolute and matured and (z) greater than the total amount
of its liabilities (including identified contingent liabilities, valued at the
amount that can reasonably be expected to become absolute and matured), and
(iii) does not intend to, and does not believe that it will, incur debts or
liabilities beyond its ability to pay such debts and liabilities as they mature.
5.12 Ownership of Properties. Each of the Borrower and its Subsidiaries (i)
has good and marketable title to all real property owned by it, (ii) holds
interests as lessee under valid leases in full force and effect with respect to
all material leased real and personal property used in connection with its
business, (iii) possesses or has rights to use licenses, patents, copyrights,
trademarks, service marks, trade names and other assets sufficient to enable it
to continue to conduct its business substantially as heretofore conducted and
without any material conflict with the rights of others, and (iv) has good title
to all of its other properties and assets reflected in the most recent financial
statements referred to in Section 5.11(a) (except as sold or otherwise disposed
of since the date thereof in the ordinary course of business), in each case
under (i), (ii), (iii) and (iv) above free and clear of all Liens other than
Permitted Liens.
5.13 ERISA. (a) Each of the Company and its ERISA Affiliates is in
compliance in all material respects with the applicable provisions of ERISA, and
each Plan is and has been administered in compliance in all material respects
with all applicable Requirements of Law, including, without limitation, the
applicable provisions of ERISA and the Internal Revenue Code. No ERISA Event (i)
has occurred within the five-year period prior to the Effective Date, (ii) has
occurred and is continuing, or (iii) to the knowledge of the Company, is
reasonably expected to occur with respect to any Plan. No Plan has any Unfunded
Pension Liability as of the most recent annual valuation date applicable
thereto, and neither the Company nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(b) Neither the Company nor any ERISA Affiliate has had a complete or
partial withdrawal from any Multiemployer Plan, and neither the Company nor any
ERISA Affiliate would become subject to any liability under ERISA if the Company
or any ERISA Affiliate were to withdraw completely from all Multiemployer Plans
as of the most recent valuation date. No Multiemployer Plan is in
"reorganization" or is "insolvent" within the meaning of such terms under ERISA.
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5.14 Environmental Matters. (a) No Hazardous Substances are or have been
generated, used, located, released, treated, disposed of or stored by the
Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, by any
other Person (including any predecessor in interest) or otherwise, in, on or
under any portion of any real property, leased or owned, of the Borrower or any
of its Subsidiaries, except in material compliance with all applicable
Environmental Laws, and no portion of any such real property or, to the
knowledge of the Borrower, any other real property at any time leased, owned or
operated by the Borrower or any of its Subsidiaries, has been contaminated by
any Hazardous Substance; and no portion of any real property, leased or owned,
of the Borrower or any of its Subsidiaries has been or is presently the subject
of an environmental audit, assessment or remedial action.
(b) No portion of any real property, leased or owned, of the Borrower or
any of its Subsidiaries has been used by the Borrower or any of its Subsidiaries
or, to the knowledge of the Borrower, by any other Person, as or for a mine, a
landfill, a dump or other disposal facility, a gasoline service station, or
(other than for petroleum substances stored in the ordinary course of business)
a petroleum products storage facility; no portion of such real property or any
other real property at any time leased, owned or operated by the Borrower or any
of its Subsidiaries has, pursuant to any Environmental Law, been placed on the
"National Priorities List" or "CERCLIS List" (or any similar federal, state or
local list) of sites subject to possible environmental problems; and there are
not and have never been any underground storage tanks situated on any real
property, leased or owned, of the Borrower or any of its Subsidiaries.
(c) All activities and operations of the Borrower and its Subsidiaries are
in compliance with the requirements of all applicable Environmental Laws, except
to the extent the failure so to comply, individually or in the aggregate, would
not be reasonably likely to have a Material Adverse Effect. Each of the Borrower
and its Subsidiaries has obtained all licenses and permits under Environmental
Laws necessary to its respective operations; all such licenses and permits are
being maintained in good standing; and each of the Borrower and its Subsidiaries
is in compliance with all terms and conditions of such licenses and permits,
except for such licenses and permits the failure to obtain, maintain or comply
with which would not be reasonably likely, individually or in the aggregate, to
have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
is involved in any suit, action or proceeding, or has received any notice,
complaint or other request for information from any Governmental Authority or
other Person, with respect to any actual or alleged Environmental Claims that,
if adversely determined, would be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect; and, to the knowledge of the
Borrower, there are no threatened actions, suits, proceedings or investigations
with respect to any such Environmental Claims, nor any basis therefor.
5.15 Compliance With Laws. Each of the Borrower and its Subsidiaries has
timely filed all material reports, documents and other materials required to be
filed by it under all applicable Requirements of Law with any Governmental
Authority, has retained all material records and documents required to be
retained by it under all applicable Requirements of Law, and is otherwise in
compliance with all applicable Requirements of Law in respect of the conduct of
its business and the ownership and operation of its properties, except for such
Requirements of Law the failure to comply with which, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect.
5.16 Regulated Industries. Neither the Borrower nor any of its Subsidiaries
is (i) an "investment company," a company "controlled" by an "investment
company," or an "investment advisor," within the meaning of the Investment
Company Act of 1940, as amended, or (ii) a "holding company," a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
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5.17 Insurance. The assets, properties and business of the Borrower and its
Subsidiaries are insured against such hazards and liabilities, under such
coverages and in such amounts, as are customarily maintained by prudent
companies similarly situated and under policies issued by insurers of recognized
responsibility.
5.18 Security Documents. The provisions of each of the Security Documents
(whether executed and delivered prior to or on the Effective Date or thereafter)
are and will be effective to create in favor of the Agent, for its benefit and
the benefit of the Lenders, a valid and enforceable security interest in and
Lien upon all right, title and interest of each of the Borrower and its
Subsidiaries that is a party thereto in and to the Collateral purported to be
pledged by it thereunder and described therein, and upon (i) the initial
extension of credit hereunder, and (ii) the possession by the Agent of any
certificates evidencing the securities pledged thereby, such security interest
and Lien shall constitute a fully perfected and first priority security interest
in and Lien upon such right, title and interest of the Borrower or such
Subsidiary, as applicable, in and to such Collateral, to the extent that such
security interest and Lien can be perfected by such filings, actions and
possession, subject only to Permitted Liens.
5.19 Labor Relations. Neither the Borrower nor any of its Subsidiaries is
engaged in any unfair labor practice within the meaning of the National Labor
Relations Act of 1947, as amended. There is (i) no unfair labor practice
complaint before the National Labor Relations Board, or grievance or arbitration
proceeding arising out of or under any collective bargaining agreement, pending
or, to the knowledge of the Borrower, threatened, against the Borrower or any of
its Subsidiaries, (ii) no strike, lock-out, slowdown, stoppage, walkout or other
labor dispute pending or, to the knowledge of the Borrower, threatened, against
the Borrower or any of its Subsidiaries, and (iii) to the knowledge of the
Borrower, no petition for certification or union election or union organizing
activities taking place with respect to the Borrower or any of its Subsidiaries.
5.20 Year 2000. The Company has made or will make a full and complete
assessment of the Year 2000 Issues and has a realistic and achievable program
for remediating the Year 2000 Issues on a timely basis (the "Year 2000
Program"). Based on such assessment and on the Year 2000 Program, the Company
does not reasonably anticipate the Year 2000 Issues will have a Material Adverse
Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that, until the termination of the
Commitments, the termination or expiration of all Facility Letters of Credit and
the payment in full of all principal and interest with respect to the Loans and
all Reimbursement Obligations together with all other amounts then due and owing
hereunder:
6.1 Financial Statements. The Company will deliver to the Agent at the
address provided in Section 12.4 for notices to the Agent, and to each Lender at
the address for such Lender, for notices appearing on the signature pages
hereto:
(a) As soon as available and in any event within fifty (50) days after the
end of each of the first three fiscal quarters of each fiscal year, beginning
with the fiscal quarter ending June 30, 1999, unaudited consolidated balance
sheets of the Company and its Subsidiaries as of the end of such fiscal quarter
and unaudited consolidated statements of income and cash flows for the Company
and its Subsidiaries for the fiscal quarter then ended and for that portion of
the fiscal year then ended, in each
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case setting forth comparative consolidated figures as of the end of and for the
corresponding period and year-to-date in the preceding fiscal year, all in
reasonable detail and prepared in accordance with GAAP (subject to the absence
of notes required by GAAP and subject to normal year-end adjustments) applied on
a basis consistent with that of the preceding quarter or containing disclosure
of the effect on the financial condition or results of operations of any change
in the application of accounting principles and practices during such quarter;
and
(b) As soon as available and in any event within one hundred (100) days
after the end of each fiscal year, beginning with the fiscal year ending
December 31, 1999, an audited consolidated balance sheet of the Company and its
Subsidiaries as of the end of such fiscal year and audited consolidated
statements of income, retained earnings and cash flows for the Company and its
Subsidiaries for the fiscal year then ended, including the notes thereto, in
each case setting forth comparative figures as of the end of and for the
preceding fiscal year, all in reasonable detail and certified by the independent
certified public accounting firm regularly retained by the Company or another
independent certified public accounting firm of recognized national standing
reasonably acceptable to the Required Lenders, together with (y) a report
thereon by such accountants that is not qualified as to going concern or scope
of audit and to the effect that such financial statements present fairly the
consolidated financial condition and results of operations of the Borrower and
its Subsidiaries as of the dates and for the periods indicated in accordance
with GAAP applied on a basis consistent with that of the preceding year or
containing disclosure of the effect on the financial condition or results of
operations of any change in the application of accounting principles and
practices during such year, and (z) a report by such accountants to the effect
that, based on and in connection with their examination of the financial
statements of the Company and its Subsidiaries, they obtained no knowledge of
the occurrence or existence of any Default or Event of Default relating to
accounting or financial reporting matters, or a statement specifying the nature
and period of existence of any such Default or Event of Default disclosed by
their audit; provided, however, that such accountants shall not be liable by
reason of the failure to obtain knowledge of any Default or Event of Default
that would not be disclosed or revealed in the course of their audit
examination.
6.2 Other Business and Financial Information. The Company will deliver to
each Lender:
(a) Concurrently with each delivery of the financial statements described
in Section 6.1, (i) a Compliance Certificate with respect to the period covered
by the financial statements then being delivered, executed by a Financial
Officer of the Company, together with a Covenant Compliance Worksheet reflecting
the computation of the financial covenants set forth in Sections 7.1 through 7.3
as of the last day of the period covered by such financial statements, and (ii)
management's discussion and analysis of such financial statements;
(b) As soon as available and in any event within one hundred (100) days
after the end of each fiscal year, beginning with the fiscal year ending
December 31, 1999, a consolidated operating budget for the Company and its
Subsidiaries for the succeeding fiscal year, consisting of a consolidated
balance sheet and consolidated statements of income and cash flows, together
with management's discussion and analysis of such budget and a certificate of a
Financial Officer of the Company to the effect that such budgets have been
prepared in good faith and are reasonable estimates of the financial position
and results of operations of the Company and its Subsidiaries for the period
covered thereby; and as soon as available from time to time thereafter, any
modifications or revisions to or restatements of such budget;
(c) Promptly upon receipt thereof, copies of any "management letter"
submitted to the Company or any of its Subsidiaries by its certified public
accountants in connection with each annual, interim or special audit, and
promptly upon completion thereof, any response reports from the Company or any
such Subsidiary in respect thereof;
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(d) Promptly upon the sending, filing or receipt thereof, copies of (i)
all financial statements, reports, notices and proxy statements that the Company
or any of its Subsidiaries shall send or make available generally to its
shareholders, (ii) all regular, periodic and special reports, registration
statements and prospectuses (other than on Form S-8) that the Company or any of
its Subsidiaries shall render to or file with the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc. or any national
securities exchange, and (iii) all press releases and other statements made
available generally by the Company or any of its Subsidiaries to the public
concerning material developments in the business of the Company or any of its
Subsidiaries;
(e) Promptly upon (and in any event within five (5) Business Days after)
any Responsible Officer of any Borrower obtaining knowledge thereof, written
notice of any of the following:
(i) the occurrence of any Default or Event of Default, together with
a written statement of a Responsible Officer of the Borrower specifying the
nature of such Default or Event of Default, the period of existence thereof
and the action that the Borrower has taken and proposes to take with
respect thereto;
(ii) the institution or threatened institution of any action, suit,
investigation or proceeding against or affecting the Borrower or any of its
Subsidiaries, including any such investigation or proceeding by any
Governmental Authority (other than routine periodic inquiries,
investigations or reviews), that would, if adversely determined, be
reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect, and any material development in any litigation or other
proceeding previously reported pursuant to Section 5.5 or this subsection;
(iii) the receipt by the Borrower or any of its Subsidiaries from any
Governmental Authority of (y) any notice asserting any failure by the
Borrower or any of its Subsidiaries to be in compliance with applicable
Requirements of Law or that threatens the taking of any action against the
Borrower or such Subsidiary or sets forth circumstances that, if taken or
adversely determined, would be reasonably likely to have a Material Adverse
Effect, or (z) any notice of any actual or threatened suspension,
limitation or revocation of, failure to renew, or imposition of any
restraining order, escrow or impoundment of funds in connection with, any
license, permit, accreditation or authorization of the Borrower or any of
its Subsidiaries, where such action would be reasonably likely to have a
Material Adverse Effect;
(iv) the occurrence of any ERISA Event, together with (x) a written
statement of a Responsible Officer of the Borrower specifying the details
of such ERISA Event and the action that the Borrower has taken and proposes
to take with respect thereto, (y) a copy of any notice with respect to such
ERISA Event that may be required to be filed with the PBGC and (z) a copy
of any notice delivered by the PBGC to the Borrower or such ERISA Affiliate
with respect to such ERISA Event;
(v) the occurrence of any material default under, or any proposed or
threatened termination or cancellation of, any Material Contract or other
material contract or agreement to which the Borrower or any of its
Subsidiaries is a party, the termination or cancellation of which would be
reasonably likely to have a Material Adverse Effect;
(vi) the occurrence of any of the following: (x) the assertion of
any Environmental Claim against or affecting the Borrower, any of its
Subsidiaries or any of their respective real property, leased or owned; (y)
the receipt by the Borrower or any of its Subsidiaries of notice of any
alleged violation of or noncompliance with any Environmental Laws; or (z)
the taking of any remedial action by the Borrower, any of its Subsidiaries
or any other Person in response to the
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actual or alleged generation, storage, release, disposal or discharge of
any Hazardous Substances on, to, upon or from any real property leased or
owned by the Borrower or any of its Subsidiaries; but in each case under
clauses (x), (y) and (z) above, only to the extent the same would be
reasonably likely to have a Material Adverse Effect; and
(vii) any other matter or event that has, or would be reasonably
likely to have, a Material Adverse Effect, together with a written
statement of a Responsible Officer of the Borrower setting forth the nature
and period of existence thereof and the action that the Borrower has taken
and proposes to take with respect thereto; and
(f) As promptly as reasonably possible, such other information about the
business, condition (financial or otherwise), operations or properties of the
Borrower or any of its Subsidiaries (including any Plan and any information
required to be filed under ERISA) as the Agent or any Lender may from time to
time reasonably request.
6.3 Corporate Existence; Franchises; Maintenance of Properties. The
Borrower will, and will cause each of its Subsidiaries to, (i) maintain and
preserve in full force and effect its corporate existence, except as expressly
permitted otherwise by Section 8.1, (ii) obtain, maintain and preserve in full
force and effect all other rights, franchises, licenses, permits,
certifications, approvals and authorizations required by Governmental
Authorities and necessary to the ownership, occupation or use of its properties
or the conduct of its business, except to the extent the failure to do so would
not be reasonably likely to have a Material Adverse Effect, and (iii) keep all
material properties in good working order and condition (normal wear and tear
excepted) and from time to time make all necessary repairs to and renewals and
replacements of such properties, except to the extent that any of such
properties are obsolete or are being replaced.
6.4 Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply in all respects with all Requirements of Law applicable
in respect of the conduct of its business and the ownership and operation of its
properties, except to the extent the failure so to comply would not be
reasonably likely to have a Material Adverse Effect.
6.5 Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, (i) pay all liabilities and obligations as and when due
(subject to any applicable subordination provisions), except to the extent
failure to do so would not be reasonably likely to have a Material Adverse
Effect, and (ii) pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it, upon its income or profits or upon any of its
properties, prior to the date on which penalties would attach thereto, and all
lawful claims that, if unpaid, might become a Lien upon any of the properties of
the Borrower or any of its Subsidiaries; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim that is being contested in good faith and by
proper proceedings and as to which the Borrower or such Subsidiary is
maintaining adequate reserves with respect thereto in accordance with GAAP.
6.6 Insurance. The Borrower will, and will cause each of its Subsidiaries
to, maintain with financially sound and reputable insurance companies insurance
with respect to its assets, properties and business, against such hazards and
liabilities, of such types and in such amounts, as is customarily maintained by
companies in the same or similar businesses similarly situated.
6.7 Maintenance of Books and Records; Inspection. The Borrower will, and
will cause each of its Subsidiaries to, (i) maintain adequate books, accounts
and records, in which full, true and correct entries shall be made of all
financial transactions in relation to its business and properties, and prepare
all financial statements required under this Agreement, in each case in
accordance with GAAP and in
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compliance with the requirements of any Governmental Authority having
jurisdiction over it, and (ii) permit employees or agents of the Agent or any
Lender to inspect its properties and examine or audit its books, records,
working papers and accounts and make copies and memoranda of them, and to
discuss its affairs, finances and accounts with its officers and employees and,
upon notice to the Borrower, the independent public accountants of the Borrower
and its Subsidiaries (and by this provision the Borrower authorizes such
accountants to discuss the finances and affairs of the Borrower and its
Subsidiaries), all at such times and from time to time, upon reasonable notice
and during business hours, as may be reasonably requested.
6.8 Permitted Acquisitions. (a) Subject to the provisions of subsection
(b), (c) and (d) below and the requirements contained in the definition of
Permitted Acquisition, and subject to the other terms and conditions of this
Agreement, the Company or any Subsidiary may from time to time on or after the
Effective Date effect Permitted Acquisitions, provided that, with respect to
each Permitted Acquisition:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of the consummation of such Permitted Acquisition or
would exist immediately after giving effect thereto; and
(ii) the Company shall deliver to the Agent, at or before the closing
of such Acquisition, certified copies of resolutions of the board of
directors or comparable governing body of each Person that is the subject
of such Permitted Acquisition (each, a "Target") authorizing the
Acquisition and a copy of the legal opinion delivered by legal counsel to
the Target opining as to the due authorization of the Acquisition, together
with a letter from such counsel authorizing the Agent to rely on such
opinion.
(b) Not less than two (2) Business Days prior to the consummation of any
Permitted Acquisition with respect to which the Acquisition Amount exceeds
$15,000,000, and not less than seven (7) Business Days prior to the consummation
of any Permitted Acquisition with respect to which the consent of the Required
Lenders is required pursuant to subsections (c) or (d) below, the Company shall
have delivered to the Agent and each Lender the following:
(i) a reasonably detailed description of the material terms of such
Permitted Acquisition (including, without limitation, the purchase price
and method and structure of payment) and of each Target;
(ii) historical financial statements of the Target (or, if there are
two or more Targets that are the subject of such Permitted Acquisition and
that are part of the same consolidated group, consolidated historical
financial statements for all such Targets) for the two (2) most recent
fiscal years available and, if available, for any interim periods since the
most recent fiscal year-end; and
(iii) a certificate, in form and substance reasonably satisfactory to
the Agent, executed by a Financial Officer of the Company setting forth the
Acquisition Amount and further to the effect that, to the best of such
individual's knowledge, (x) the consummation of such Permitted Acquisition
will not result in a violation of any provision of this Section, and after
giving effect to such Permitted Acquisition and any Borrowings made in
connection therewith, the Company will be in compliance with the financial
covenants contained in Sections 7.1 through 7.3, such compliance determined
with regard to calculations made on a pro forma basis in accordance with
GAAP as if each Target had been consolidated with the Company for those
periods applicable to such covenants (such calculations to be attached to
the certificate), (y) the Company believes in good faith that it will
continue to comply with such financial covenants for a period of one year
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following the date of the consummation of such Permitted Acquisition, and
(z) after giving effect to such Permitted Acquisition and any Borrowings in
connection therewith, the Company believes in good faith that it will have
sufficient availability under the Commitments to meet its ongoing working
capital requirements.
(c) If the Leverage Ratio at the time of any Acquisition is greater than
2.5 to 1.0, the Company shall have obtained the written consent of the Required
Lenders for any Acquisition for an Acquisition Amount greater than $15,000,000.
(d) If the Leverage Ratio at the time of any Acquisition is less than or
equal to 2.5 to 1.0, the Company shall have obtained the written consent of the
Required Lenders for any Acquisition for an Acquisition Amount greater than
$30,000,000.
(e) As soon as reasonably practicable after the consummation of any
Permitted Acquisition, the Company will deliver to the Agent and each Lender a
copy of the fully executed acquisition agreement (including schedules and
exhibits thereto at the request of the Agent) and other material documents and
closing papers delivered in connection therewith.
(f) The consummation of each Permitted Acquisition shall be deemed to be a
representation and warranty by the Borrowers that (except as shall have been
approved in writing by the Required Lenders) all conditions thereto set forth in
this Section and in the description furnished under clause (i) of subsection (b)
above have been satisfied, that the same is permitted in accordance with the
terms of this Agreement, and that the matters certified to by the Financial
Officer of the Company in the certificate referred to in clause (iv) of
subsection (b) above are, to the best of such individual's knowledge, true and
correct in all material respects as of the date such certificate is given, which
representation and warranty shall be deemed to be a representation and warranty
as of the date thereof for all purposes hereunder, including, without
limitation, for purposes of Sections 4.2 and 9.1.
6.9 Creation or Acquisition of Subsidiaries. Subject to the provisions of
Section 8.5, the Company may from time to time create or acquire new Wholly
Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and
the Wholly Owned Subsidiaries of the Company may create or acquire new Wholly
Owned Subsidiaries, provided that:
(a) Concurrently with the creation or direct or indirect acquisition by
the Company or any Subsidiary thereof, each such new Domestic Subsidiary which
qualifies as a Guarantor hereunder will execute and deliver to the Agent a
joinder to the Guaranty, pursuant to which such new Subsidiary shall become a
party thereto and shall guarantee the payment in full of the Obligations of the
Borrowers under this Agreement and the other Credit Documents, and provided
further that if any acquired entity is merged into any Borrower or any
Subsidiary Guarantor in connection with such Acquisition, the acquired and
merged entity shall not be required to become a Guarantor.
(b) Concurrently with the creation or acquisition of any new Subsidiary
all or a portion of the Capital Stock of which is directly owned by any Borrower
or any Guarantor, such Borrower or such Guarantor will execute and deliver to
the Agent an amendment or supplement to the Pledge Agreement pursuant to which
the Capital Stock of such new Subsidiary owned by the Borrower shall be pledged
to the Agent in accordance with and as described in Section 2.24(b), together
with the certificates evidencing such Capital Stock and undated stock powers
duly executed in blank; and concurrently with (and in any event within ten (10)
Business Days thereafter) the creation or acquisition of any new Subsidiary all
or a portion of the Capital Stock of which is directly owned by another
Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and
deliver to the Agent an appropriate joinder, amendment or supplement to the
Pledge Agreement, pursuant to which the Capital Stock of such new
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Subsidiary owned by such Parent Subsidiary shall be pledged to the Agent in
accordance with and as described in Section 2.24(b), together with the
certificates evidencing such Capital Stock and undated stock powers duly
executed in blank; and
(c) As promptly as reasonably possible, the Company and its Subsidiaries
will deliver any such other documents, certificates and opinions (including
opinions of local counsel in the jurisdiction of organization of each such new
Subsidiary), in form and substance reasonably satisfactory to the Agent, as the
Agent may reasonably request in connection therewith and will take such other
action as the Agent may reasonably request to create in favor of the Agent a
perfected security interest in the Collateral being pledged pursuant to the
documents described above.
6.10 Further Assurances. The Borrower will, and will cause each of its
Subsidiaries to, make, execute, endorse, acknowledge and deliver any amendments,
modifications or supplements hereto and restatements hereof and any other
agreements, instruments or documents, and take any and all such other actions,
as may from time to time be reasonably requested by the Agent or the Required
Lenders to perfect and maintain the validity and priority of the Liens granted
pursuant to the Security Documents and to effect, confirm or further assure or
protect and preserve the interests, rights and remedies of the Agent and the
Lenders under this Agreement and the other Credit Documents.
6.11 Year 2000 Compatibility. The Company will take all action necessary to
assure that the Company's and each Subsidiary's computer based systems are able
to operate and effectively process data including dates on and after January 1,
2000. At the request of the Agent, the Company will provide the Agent with
assurance acceptable to the Agent of the Company's Year 2000 compatibility.
6.12 Interest Rate Protection Agreements. On or before March 31, 2000,
enter into and maintain interest rate swaps, rate caps or other similar
transactions with any Lender for the purpose of fixing the interest rate payable
on the Term Loan in an amount not less than 50% of the outstanding principal
balance of the Term Loan for a term of not less than three years, all on terms
acceptable to the Agent.
ARTICLE VII.
FINANCIAL COVENANTS
The Company covenants and agrees that, until the termination of the
Commitments, the termination or expiration of all Facility Letters of Credit and
the payment in full of all principal and interest with respect to the Loans and
all Reimbursement Obligations together with all other amounts then due and owing
hereunder:
7.1 Leverage Ratio. The Company will not permit the Leverage Ratio as of
the last day of any fiscal quarter to be greater than (i) during the period from
the Effective Date to and including March 30, 2002, 3.25 to 1.0, and (ii) at any
time thereafter, 3.0 to 1.0.
7.2 Fixed Charge Coverage Ratio. The Company will not permit the Fixed
Charge Coverage Ratio as of the last day of any fiscal quarter to be less than
1.2 to 1.0.
7.3 Minimum Consolidated Net Worth. The Company will not permit
Consolidated Net Worth to be less than the sum of (i) $310,000,000, plus (ii)
50% of the aggregate of Consolidated Net Income for each fiscal quarter,
commencing with the fiscal quarter ending September 30, 1999 (provided
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that Consolidated Net Income for any such fiscal quarter shall be taken into
account for purposes of this calculation only if positive), plus (iii) 100% of
the aggregate amount of all increases in the stated capital and additional
paid-in capital accounts of the Company and its Subsidiaries, as determined on a
consolidated basis in accordance with GAAP, resulting from the issuance of
equity securities (including pursuant to the exercise of options, rights or
warrants or pursuant to the conversion of convertible securities) or other
Capital Stock after the Effective Date, plus (iv) 100% of the Net Cash Proceeds
from any Equity Issuance after the Effective Date.
ARTICLE VIII.
NEGATIVE COVENANTS
Each Borrower covenants and agrees that, until the termination of the
Commitments, the termination or expiration of all Facility Letters of Credit and
the payment in full of all principal and interest with respect to the Loans and
all Reimbursement Obligations together with all other amounts then due and owing
hereunder:
8.1 Merger; Consolidation. The Borrower will not, and will not permit or
cause any of its Subsidiaries to, liquidate, wind up or dissolve, or enter into
any consolidation, merger or other combination, or agree to do any of the
foregoing; provided, however, that:
(i) the Borrower may merge or consolidate with another Person so long
as (x) the Borrower is the surviving entity, (y) unless such other Person
is a Wholly Owned Subsidiary immediately prior to giving effect thereto,
such merger or consolidation shall constitute a Permitted Acquisition and
the applicable conditions and requirements of Sections 6.9 and 6.10 shall
be satisfied, and (z) immediately after giving effect thereto, no Default
or Event of Default would exist; and
(ii) any Subsidiary may merge or consolidate with another Person so
long as (x) the surviving entity is the Borrower or a Guarantor, (y) unless
such other Person is a Wholly Owned Subsidiary immediately prior to giving
effect thereto, such merger or consolidation shall constitute a Permitted
Acquisition and the applicable conditions and requirements of Sections 6.9
and 6.10 shall be satisfied, and (z) immediately after giving effect
thereto, no Default or Event of Default would exist; and
(iii) any Inactive Subsidiary may be liquidated, wound up or
dissolved.
8.2 Indebtedness. The Company will not, and will not permit or cause any of
its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness
other than:
(i) Indebtedness incurred under this Agreement, the Notes and the
Guaranties;
(ii) Indebtedness existing on the Effective Date and described in
Schedule 8.2;
(iii) Indebtedness in an amount not exceeding $25,000,000, which
Indebtedness may be secured on a pari passu basis with the Indebtedness
described in clause (i) above by the Capital Stock of the Company and its
Subsidiaries, pursuant to the terms of an intercreditor agreement to be
negotiated in good faith by the Agent and the Lenders with the holders of
such Indebtedness and under which the Agent shall act as Collateral Agent
with respect to such Capital Stock;
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(iv) unsecured Indebtedness of the Company in an amount not exceeding
10% of Consolidated Net Worth at the time such Indebtedness is incurred
that is expressly subordinated and made junior in right and time of payment
to the Obligations and that is evidenced by one or more written agreements
or instruments having terms, conditions and provisions (including, without
limitation, provisions relating to principal amount, maturity, covenants,
defaults, interest, and subordination) satisfactory in form and substance
to the Required Lenders in their sole discretion and which shall provide,
at a minimum and without limitation, that such Indebtedness (a) shall
mature by its terms no earlier than the second anniversary of the
Termination Date, (b) shall not require any scheduled payment of principal
prior to the first anniversary of the Termination Date, and (c) shall have
covenants and undertakings that, taken as a whole, are materially less
restrictive than those contained herein (the Indebtedness described
hereinabove, "Subordinated Indebtedness"); provided that, as further
conditions to the issuance of any Subordinated Indebtedness, (1)
immediately after giving effect to the issuance of such Subordinated
Indebtedness, no Default or Event of Default shall exist, (2) all
agreements and instruments evidencing or governing such Subordinated
Indebtedness shall have been approved in writing by the Required Lenders
(or the Agent on their behalf), and (3) prior to or concurrently with the
issuance of such Subordinated Indebtedness, the Company shall have
delivered to each Lender a certificate, signed by a Financial Officer of
the Company, satisfactory in form and substance to the Required Lenders and
to the effect that, after giving effect to the incurrence of such
Subordinated Indebtedness, the Company is in compliance with the financial
covenants set forth in Sections 7.1 through 7.3, such compliance being
determined with regard to calculations made on a pro forma basis in
accordance with GAAP as of the last day of the fiscal quarter then most
recently ended and as if such Subordinated Indebtedness had been incurred
on the first day of the period applicable to such covenants (such
calculations to be attached to such certificate);
(v) accrued expenses (including salaries, accrued vacation and other
compensation), current trade or other accounts payable and other current
liabilities arising in the ordinary course of business and not incurred
through the borrowing of money, provided that the same shall be paid when
due except to the extent being contested in good faith and by appropriate
proceedings;
(vi) loans and advances by any Borrower or any Guarantor to any other
Guarantor or by any Guarantor to any Borrower and loans and advances by any
Borrower or any Guarantor to any Subsidiary which is not a Borrower nor a
Guarantor in an aggregate amount not exceeding $10,000,000;
(vii) Indebtedness of any Borrower under Hedge Agreements required
pursuant to, and entered into in accordance with, Section 6.8;
(viii) purchase money Indebtedness of the Company and its Subsidiaries
incurred solely to finance the payment of all or part of the purchase price
of any equipment, real property or other fixed assets acquired in the
ordinary course of business, including Indebtedness in respect of capital
lease obligations, and any renewals, refinancings or replacements thereof
(subject to the limitations on the principal amount thereof set forth in
this clause (viii)), which Indebtedness shall not exceed $7,500,000 in
aggregate principal amount for each fiscal year of the Company;
(ix) Unsecured Indebtedness of the Company or any Subsidiary evidenced
by Seller Notes in an aggregate amount at any time of up to $30,000,000;
and
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(x) other secured Indebtedness consented to by the Required Lenders,
not to be unreasonably withheld, and approved in writing by the Agent.
8.3 Liens. The Borrower will not, and will not permit or cause any of its
Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer
to exist, any Lien upon or with respect to any part of its property or assets,
whether now owned or hereafter acquired, or file or permit the filing of, or
permit to remain in effect, any financing statement or other similar notice of
any Lien with respect to any such property, asset, income or profits under the
Uniform Commercial Code of any state or under any similar recording or notice
statute, or agree to do any of the foregoing, other than the following
(collectively, "Permitted Liens"):
(i) Liens created under the Security Documents;
(ii) Liens in existence on the Effective Date and set forth on
Schedule 8.3;
(iii) Liens imposed by law, such as Liens of carriers, warehousemen,
mechanics, materialmen and landlords, and other similar Liens incurred in
the ordinary course of business for sums not constituting borrowed money
that are not overdue for a period of more than thirty (30) days or that are
being contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP (if so
required);
(iv) Liens (other than any Lien imposed by ERISA, the creation or
incurrence of which would result in an Event of Default under Section
9.1(k)) incurred in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure the performance of letters
of credit, bids, tenders, statutory obligations, surety and appeal bonds,
leases, government contracts and other similar obligations (other than
obligations for borrowed money) entered into in the ordinary course of
business;
(v) Liens for taxes, assessments or other governmental charges or
statutory obligations that are not delinquent or remain payable without any
penalty or that are being contested in good faith by appropriate
proceedings and for which adequate reserves have been established in
accordance with GAAP (if so required);
(vi) Liens securing the purchase money Indebtedness permitted under
clause (viii) of Section 8.2, provided that any such Lien (a) shall attach
to such property concurrently with or within ten (10) days after the
acquisition thereof by the Company or such Subsidiary, (b) shall not exceed
the lesser of (y) the fair market value of such property or (z) the cost
thereof to the Company or such Subsidiary and (c) shall not encumber any
other property of the Company or any of its Subsidiaries;
(vii) any attachment or judgment Lien not constituting an Event of
Default under Section 9.1(i) that is being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP (if so required);
(viii) Liens arising from the filing, for notice purposes only, of
financing statements in respect of true leases;
(ix) Liens securing Indebtedness permitted under Section 8.2(iii)
hereof; and
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(x) with respect to any real property occupied by the Company or any
of its Subsidiaries, all easements, rights of way, licenses and similar
encumbrances on title that do not materially impair the use of such
property for its intended purposes.
8.4 Disposition of Assets. The Borrower will not, and will not permit or
cause any of its Subsidiaries to, sell, assign, lease, convey, transfer or
otherwise dispose of (whether in one or a series of transactions) all or any
portion of its assets, business or properties (including, without limitation,
any Capital Stock of any Subsidiary), or enter into any arrangement with any
Person providing for the lease by the Borrower or any Subsidiary as lessee of
any asset that has been sold or transferred by the Borrower or such Subsidiary
to such Person, or agree to do any of the foregoing, except for:
(i) sales of inventory in the ordinary course of business;
(ii) the sale or exchange of used or obsolete equipment to the extent
(y) the proceeds of such sale are applied towards, or such equipment is
exchanged for, replacement equipment or (z) such equipment is no longer
necessary for the operations of the Borrower or its applicable Subsidiary
in the ordinary course of business;
(iii) the transfer to Services or to Lason Systems, Inc. of Capital
Stock or assets acquired in an Acquisition subject to the terms and
conditions of this Agreement; and
(iv) the sale, lease or other disposition of assets by a Subsidiary of
any Borrower to any other Borrower or to a Guarantor if, immediately after
giving effect thereto, no Default or Event of Default would exist.
8.5 Investments. The Borrower will not, and will not permit or cause any
of its Subsidiaries to, directly or indirectly, purchase, own, invest in or
otherwise acquire any Capital Stock, evidence of indebtedness or other
obligation or security or any interest whatsoever in any other Person, or make
or permit to exist any loans, advances or extensions of credit to, or any
investment in cash or by delivery of property in, any other Person, or purchase
or otherwise acquire (whether in one or a series of related transactions) any
portion of the assets, business or properties of another Person (including
pursuant to an Acquisition), or create or acquire any Subsidiary, or become a
partner or joint venturer in any partnership or joint venture (collectively,
"Investments"), or make a commitment or otherwise agree to do any of the
foregoing, other than:
(i) Cash Equivalents;
(ii) Investments consisting of purchases and acquisitions of
inventory, supplies, materials and equipment in the ordinary course of
business,
(iii) Investments consisting of loans and advances to employees for
reasonable travel, relocation and business expenses in the ordinary course
of business, extensions of trade credit in the ordinary course of business,
and prepaid expenses incurred in the ordinary course of business;
(iv) without duplication, Investments consisting of intercompany
Indebtedness permitted under clause (iv) of Section 8.2;
(v) Investments existing on the Effective Date and described in
Schedule 8.5;
(vi) Investments consisting of the making of capital contributions or
the purchase of Capital Stock (a) by any Borrower or any Subsidiary in any
other Wholly Owned Subsidiary that
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is (or immediately after giving effect to such Investment will be) a
Guarantor, provided that the Company complies with the provisions of
Section 6.10, and (b) by any Subsidiary in the Borrower; and
(vii) Permitted Acquisitions.
8.6 Restricted Payments. (a) The Borrower will not, and will not permit or
cause any of its Subsidiaries to, directly or indirectly, declare or make any
dividend payment, or make any other distribution of cash, property or assets, in
respect of any of its Capital Stock or any warrants, rights or options to
acquire its Capital Stock, or purchase, redeem, retire or otherwise acquire for
value any shares of its Capital Stock or any warrants, rights or options to
acquire its Capital Stock, or set aside funds for any of the foregoing in any
fiscal year, except that:
(i) the Borrower may declare and make dividend payments or other
distributions payable solely in its common stock; and
(ii) each Wholly Owned Subsidiary of the Borrower may declare and make
dividend payments or other distributions to the Borrower or another Wholly
Owned Subsidiary, to the extent not prohibited under applicable
Requirements of Law.
(b) The Borrower will not, and will not permit or cause any of its
Subsidiaries to, make (or give any notice in respect of) any voluntary or
optional payment or prepayment of principal on any Subordinated Indebtedness, or
directly or indirectly make any redemption (including pursuant to any change of
control provision), retirement, defeasance or other acquisition for value of any
Subordinated Indebtedness, or make any deposit or otherwise set aside funds for
any of the foregoing purposes.
8.7 Transactions with Affiliates. The Borrower will not, and will not
permit or cause any of its Subsidiaries to, enter into any transaction
(including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service) with any officer, director,
stockholder or other Affiliate of the Borrower or any Subsidiary, except in the
ordinary course of its business and upon fair and reasonable terms that are no
less favorable to it than would obtain in a comparable arm's length transaction
with a Person other than an Affiliate of the Borrower or such Subsidiary;
provided, however, that nothing contained in this Section shall prohibit:
(i) transactions described on Schedule 8.7 or otherwise expressly
permitted under this Agreement; and
(ii) the payment by the Borrower of reasonable and customary fees to
members of its board of directors.
8.8 Lines of Business. The Borrower will not, and will not permit or cause
any of its Subsidiaries to, engage in any business other than the businesses
engaged in by it on the date hereof and businesses and activities reasonably
related thereto.
8.9 Certain Amendments. The Borrower will not, and will not permit or
cause any of its Subsidiaries to, amend, modify or change any provision of its
articles or certificate of incorporation or bylaws, or the terms of any class or
series of its Capital Stock, other than in a manner that could not reasonably be
expected to adversely affect the Lenders.
8.10 Limitation on Certain Restrictions. The Borrower will not, and will
not permit or cause any of its Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become
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effective any restriction or encumbrance on (i) the ability of the Borrower and
its Subsidiaries to perform and comply with their respective obligations under
the Credit Documents or (ii) the ability of any Subsidiary of the Borrower to
make any dividend payments or other distributions in respect of its Capital
Stock, to repay Indebtedness owed to the Borrower or any other Subsidiary, to
make loans or advances to the Borrower or any other Subsidiary, or to transfer
any of its assets or properties to the Borrower or any other Subsidiary, in each
case other than such restrictions or encumbrances existing under or by reason of
the Credit Documents or applicable Requirements of Law.
8.11 No Other Negative Pledges. The Borrower will not, and will not permit
or cause any of its Subsidiaries to, directly or indirectly, enter into or
suffer to exist any agreement or restriction that prohibits or conditions the
creation, incurrence or assumption of any Lien upon or with respect to any part
of its property or assets, whether now owned or hereafter acquired, or agree to
do any of the foregoing, other than as set forth in (i) this Agreement and the
Security Documents, (ii) any agreement or instrument creating a Permitted Lien
(but only to the extent such agreement or restriction applies to the assets
subject to such Permitted Lien), and (iii) operating leases of real or personal
property entered into by the Borrower or any of its Subsidiaries as lessee in
the ordinary course of business.
8.12 Fiscal Year. The Borrower will not, and will not permit or cause any
of its Subsidiaries to, change the ending date of its fiscal year to a date
other than December 31.
8.13 Accounting Changes. The Borrower will not, and will not permit or
cause any of its Subsidiaries to, make or permit any material change in its
accounting policies or reporting practices, except as may be required by GAAP.
8.14 Inactive Subsidiaries. The Borrower will not permit the Inactive
Subsidiaries to engage in any kind of business or operations or incur any
Indebtedness without the prior written consent of the Required Lenders.
ARTICLE IX.
EVENTS OF DEFAULT
9.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default":
(a) Any Borrower shall fail to pay any principal of any Loan, any
Reimbursement Obligation or any other Obligation when due;
(b) Any Borrower shall fail to pay any interest on any Loan, any
Reimbursement Obligation or any other Obligation when due, and such failure
continues for five (5) or more Business Days;
(c) Any Borrower shall fail to observe, perform or comply with any
condition, covenant or agreement contained in any of Sections 6.1, 6.2, 6.3(i),
6.8, 6.9, 6.10 or in Article VII or Article VIII;
(d) Any Borrower or any of its Subsidiaries shall fail to observe, perform
or comply with any condition, covenant or agreement contained in this Agreement
or any of the other Credit Documents other than those enumerated in subsections
(a) and (b) above, and such failure (i) is deemed by the terms of the relevant
Credit Document to constitute an Event of Default or (ii) shall continue
unremedied for any grace period specifically applicable thereto or, if no such
grace period is applicable, for a period of thirty (30)
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days after the earlier of (y) the date on which a Responsible Officer of any
Borrower acquires knowledge thereof and (z) the date on which written notice
thereof is delivered by the Agent or any Lender to the Company;
(e) Any representation or warranty made or deemed made by or on behalf of
any Borrower or any of its Subsidiaries in this Agreement, any of the other
Credit Documents or in any certificate, instrument, report or other document
furnished in connection herewith or therewith or in connection with the
transactions contemplated hereby or thereby shall prove to have been false or
misleading in any material respect as of the time made, deemed made or
furnished;
(f) Any Borrower or any of its Subsidiaries shall (i) fail to pay when due
(whether by scheduled maturity, acceleration or otherwise and after giving
effect to any applicable grace period) any principal of or interest on any
Indebtedness (other than the Indebtedness incurred pursuant to this Agreement)
having an aggregate principal amount of at least $500,000 or (ii) fail to
observe, perform or comply with any condition, covenant or agreement contained
in any agreement or instrument evidencing or relating to any such Indebtedness,
or any other event shall occur or condition exist in respect thereof, and the
effect of such failure, event or condition is to cause, or permit the holder or
holders of such Indebtedness (or a trustee or agent on its or their behalf) to
cause (with the giving of notice, lapse of time, or both), such Indebtedness to
become due, or to be prepaid, redeemed, purchased or defeased, prior to its
stated maturity;
(g) Any Borrower or any of its Subsidiaries shall (i) file a voluntary
petition or commence a voluntary case seeking liquidation, winding-up,
reorganization, dissolution, arrangement, readjustment of debts or any other
relief under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to controvert in a timely and appropriate manner, any
petition or case of the type described in subsection (g) below, (iii) apply for
or consent to the appointment of or taking possession by a custodian, trustee,
receiver or similar official for or of itself or all or a substantial part of
its properties or assets, (iv) fail generally, or admit in writing its
inability, to pay its debts generally as they become due, (v) make a general
assignment for the benefit of creditors or (vi) take any corporate action to
authorize or approve any of the foregoing;
(h) Any involuntary petition or case shall be filed or commenced against
any Borrower or any of its Subsidiaries seeking liquidation, winding-up,
reorganization, dissolution, arrangement, readjustment of debts, the appointment
of a custodian, trustee, receiver or similar official for it or all or a
substantial part of its properties or any other relief under the Bankruptcy Code
or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, and such petition or case shall continue undismissed and
unstayed for a period of sixty (60) days; or an order, judgment or decree
approving or ordering any of the foregoing shall be entered in any such
proceeding;
(i) Any one or more money judgments, writs or warrants of attachment,
executions or similar processes involving an aggregate amount (exclusive of
amounts fully bonded or covered by insurance as to which the surety or insurer,
as the case may be, has acknowledged its liability in writing) in excess of
$500,000 shall be entered or filed against any Borrower or any of its
Subsidiaries or any of their respective properties and the same shall not be
dismissed, stayed or discharged for a period of sixty (60) days or in any event
later than five days prior to the date of any proposed sale thereunder;
(j) Any Security Document to which any Borrower or any of its Subsidiaries
is now or hereafter a party shall for any reason cease to be in full force and
effect or cease to be effective to give the Agent a valid and perfected security
interest in and Lien upon the Collateral purported to be covered thereby,
subject to no Liens other than Permitted Liens, in each case unless any such
cessation occurs in accordance with the terms thereof or is due to any act or
failure to act on the part of the Agent or any
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Lender; or any Borrower or any such Subsidiary shall assert any of the
foregoing; or any Subsidiary of any Borrower or any Person acting on behalf of
any such Subsidiary shall deny or disaffirm such Subsidiary's obligations under
the Guaranty;
(k) Any ERISA Event or any other event or condition shall occur or exist
with respect to any Plan or Multiemployer Plan and, as a result thereof,
together with all other ERISA Events and other events or conditions then
existing, the Company and its ERISA Affiliates have incurred or would be
reasonably likely to incur liability to any one or more Plans or Multiemployer
Plans or to the PBGC (or to any combination thereof) in excess of $500,000;
(l) Any one or more licenses, permits, accreditations or authorizations of
any Borrower or any of its Subsidiaries shall be suspended, limited or
terminated or shall not be renewed, or any other action shall be taken, by any
Governmental Authority in response to any alleged failure by any Borrower or any
of its Subsidiaries to be in compliance with applicable Requirements of Law, and
such action, individually or in the aggregate, has or would be reasonably likely
to have a Material Adverse Effect;
(m) Any one or more Environmental Claims shall have been asserted against
any Borrower or any of its Subsidiaries (or a reasonable basis shall exist
therefor); any Borrower and its Subsidiaries have incurred or would be
reasonably likely to incur liability as a result thereof; and such liability,
individually or in the aggregate, has or would be reasonably likely to have a
Material Adverse Effect;
(n) Any Borrower or any of its Subsidiaries shall be in breach of or
default under the terms of any one or more agreements for the lease of real
property upon which Collateral having an aggregate fair market value in excess
of $500,000 is maintained, and the effect of such breach or default is to
terminate, or permit the other party or parties thereto to terminate, such lease
or leases; or any agreement or contract to which the Borrower or any of its
Subsidiaries is a party shall be terminated or shall, for any other reason, fail
to be in full force and effect and enforceable in accordance with its terms, and
such event or condition, together with all other such events or conditions, if
any, has or would be reasonably likely to have a Material Adverse Effect;
(o) Any of the following shall occur: (i) any Person or group of Persons
acting in concert as a partnership or other group shall, as a result of a tender
or exchange offer, open market purchases, privately negotiated purchases or
otherwise, have become, after the date hereof, the "beneficial owner" (within
the meaning of such term under Rule 13d-3 under the Exchange Act) of securities
of the Company representing 25% or more of the combined voting power of the then
outstanding securities of the Company ordinarily (and apart from rights accruing
under special circumstances) having the right to vote in the election of
directors; or (ii) the Board of Directors of the Company shall cease to consist
of a majority of the individuals who constituted the Board of Directors as of
the date hereof or who shall have become a member thereof subsequent to the date
hereof after having been nominated, or otherwise approved in writing, by at
least a majority of individuals who constituted the Board of Directors of the
Company as of the date hereof (or their replacements approved as herein
required).
9.2 Remedies: Termination of Commitments, Acceleration, etc. Upon and at
any time after the occurrence and during the continuance of any Event of
Default, the Agent shall at the direction, or may with the consent, of the
Required Lenders, take any or all of the following actions at the same or
different times:
(a) Declare the Commitments, and the Issuer's obligation to issue Facility
Letters of Credit, to be terminated, whereupon the same shall terminate
(provided that, upon the occurrence of an Event of Default pursuant to Section
9.1(g) or Section 9.1(h), the Commitments and the Issuer's obligation to issue
Facility Letters of Credit shall automatically be terminated);
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(b) Declare all or any part of the outstanding principal amount of the
Loans to be immediately due and payable, whereupon the principal amount so
declared to be immediately due and payable, together with all interest accrued
thereon and all other amounts payable under this Agreement, the Notes and the
other Credit Documents, shall become immediately due and payable without
presentment, demand, protest, notice of intent to accelerate or other notice or
legal process of any kind, all of which are hereby knowingly and expressly
waived by each Borrower (provided that, upon the occurrence of an Event of
Default pursuant to Section 9.1(g) or Section 9.1(h), all of the outstanding
principal amount of the Loans and all other amounts described in this subsection
(b) shall automatically become immediately due and payable without presentment,
demand, protest, notice of intent to accelerate or other notice or legal process
of any kind, all of which are hereby knowingly and expressly waived by each
Borrower);
(c) Direct each Borrower to deposit (and each Borrower hereby agrees,
forthwith upon receipt of notice of such direction from the Agent, to deposit)
with the Agent from time to time such additional amount of cash as is equal to
the aggregate Stated Amount of all Facility Letters of Credit then outstanding
for the account of such Borrower (whether or not any beneficiary under any
Facility Letter of Credit shall have drawn or be entitled at such time to draw
thereunder), such amount to be held by the Agent in the Letter of Credit
Collateral Account as security for the Letter of Credit Exposure as described in
Section 2.2.7; and
(d) Exercise all rights and remedies available to it under this Agreement,
the other Credit Documents and applicable law.
9.3 Remedies: Set-Off. In addition to all other rights and remedies
available under the Credit Documents or applicable law or otherwise, upon and at
any time after the occurrence and during the continuance of any Event of
Default, each Lender may, and each is hereby authorized by each Borrower, at any
such time and from time to time, to the fullest extent permitted by applicable
law, without presentment, demand, protest or other notice of any kind, all of
which are hereby knowingly and expressly waived by each Borrower, to set off and
to apply any and all deposits (general or special, time or demand, provisional
or final) and any other property at any time held (including at any branches or
agencies, wherever located), and any other indebtedness at any time owing, by
such Lender to or for the credit or the account of any Borrower against any or
all of the Obligations to such Lender now or hereafter existing, whether or not
such Obligations may be contingent or unmatured, each Borrower hereby granting
to each Lender a continuing security interest in and Lien upon all such deposits
and other property as security for such Obligations. Each Lender agrees promptly
to notify the Company and the Agent after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
ARTICLE X.
THE AGENT
10.1 Appointment. Each Lender hereby irrevocably appoints and authorizes
Bank One to act as Agent hereunder and under the other Credit Documents and to
take such actions as agent on its behalf hereunder and under the other Credit
Documents, and to exercise such powers and to perform such duties, as are
specifically delegated to the Agent by the terms hereof or thereof, together
with such other powers and duties as are reasonably incidental thereto.
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10.2 Nature of Duties. The Agent shall have no duties or responsibilities
other than those expressly set forth in this Agreement and the other Credit
Documents. The Agent shall not have, by reason of this Agreement or any other
Credit Document, a fiduciary relationship in respect of any Lender; and nothing
in this Agreement or any other Credit Document, express or implied, is intended
to or shall be so construed as to impose upon the Agent any obligations or
liabilities in respect of this Agreement or any other Credit Document except as
expressly set forth herein or therein. The Agent may execute any of its duties
under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact that it selects with reasonable care. The
Agent shall be entitled to consult with legal counsel, independent public
accountants and other experts selected by it with respect to all matters
pertaining to this Agreement and the other Credit Documents and its duties
hereunder and thereunder and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts. The Lenders hereby acknowledge that the Agent shall not
be under any duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Credit Document unless
it shall be requested in writing to do so by the Required Lenders (or, where a
higher percentage of the Lenders is expressly required hereunder, such Lenders).
10.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action taken or omitted to be taken by it or such Person under or
in connection with the Credit Documents, except for its or such Person's own
gross negligence or willful misconduct, (ii) responsible in any manner to any
Lender for any recitals, statements, information, representations or warranties
herein or in any other Credit Document or in any document, instrument,
certificate, report or other writing delivered in connection herewith or
therewith, for the execution, effectiveness, genuineness, validity,
enforceability or sufficiency of this Agreement or any other Credit Document, or
for the financial condition of the Company, its Subsidiaries or any other
Person, or (iii) required to ascertain or make any inquiry concerning the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document or the existence or possible existence of
any Default or Event of Default, or to inspect the properties, books or records
of the Company or any of its Subsidiaries.
10.4 Reliance by Agent. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any notice, statement, consent or other
communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it in good faith to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons. The Agent may deem and treat each Lender as the owner of its interest
hereunder for all purposes hereof unless and until a written notice of the
assignment, negotiation or transfer thereof shall have been given to the Agent
in accordance with the provisions of this Agreement. The Agent shall be entitled
to refrain from taking or omitting to take any action in connection with this
Agreement or any other Credit Document (i) if such action or omission would, in
the reasonable opinion of the Agent, violate any applicable law or any provision
of this Agreement or any other Credit Document or (ii) unless and until it shall
have received such advice or concurrence of the Required Lenders (or, where a
higher percentage of the Lenders is expressly required hereunder, such Lenders)
as it deems appropriate or it shall first have been indemnified to its
satisfaction by the Lenders against any and all liability and expense (other
than liability and expense arising from its own gross negligence or willful
misconduct) that may be incurred by it by reason of taking, continuing to take
or omitting to take any such action. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Agent as a result of the
Agent's acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Lenders (or, where
a higher percentage of the Lenders is expressly required hereunder, such
Lenders), and such instructions and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders (including all subsequent
Lenders).
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10.5 Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representation
or warranty to it and that no act by the Agent or any such Person hereinafter
taken, including any review of the affairs of any Borrower and its Subsidiaries,
shall be deemed to constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that (i) it has, independently and
without reliance upon the Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, properties, financial
and other condition and creditworthiness of the Company and its Subsidiaries and
made its own decision to enter into this Agreement and extend credit to the
Borrowers hereunder, and (ii) it will, independently and without reliance upon
the 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 credit analysis,
appraisals and decisions in taking or not taking action hereunder and under the
other Credit Documents and to make such investigation as it deems necessary to
inform itself as to the business, prospects, operations, properties, financial
and other condition and creditworthiness of the Company and its Subsidiaries.
Except as expressly provided in this Agreement and the other Credit Documents,
the Agent shall have no duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
concerning the business, prospects, operations, properties, financial or other
condition or creditworthiness of the Company, its Subsidiaries or any other
Person that may at any time come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
10.6 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the Agent
shall have received written notice from a Borrower or a Lender referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that the Agent receives such a
notice, the Agent will give notice thereof to the Lenders as soon as reasonably
practicable; provided, however, that if any such notice has also been furnished
to the Lenders, the Agent shall have no obligation to notify the Lenders with
respect thereto. The Agent shall (subject to Sections 10.4 and 12.6) 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 Agent
shall have received such directions, the 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 interests of
the Lenders except to the extent that this Agreement expressly requires that
such action be taken, or not be taken, only with the consent or upon the
authorization of the Required Lenders or all of the Lenders.
10.7 Indemnification. To the extent the Agent is not reimbursed by or on
behalf of the Borrowers, and without limiting the obligation of the Borrowers to
do so, the Lenders agree (i) to indemnify the Agent and its officers, directors,
employees, agents, attorneys-in-fact and Affiliates, ratably in proportion to
their respective percentages as used in determining the Required Lenders as of
the date of determination, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, attorneys' fees and expenses) or
disbursements of any kind or nature whatsoever that may at any time (including,
without limitation, at any time following the repayment in full of the Loans and
the termination of the Commitments) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of this Agreement or any
other Credit Document or any documents contemplated by or referred to herein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Agent under or in connection with any of the foregoing, and (ii) to
reimburse the Agent upon demand, ratably in proportion to their respective
percentages as used in determining the Required Lenders as of the date of
determination, for any expenses incurred by the Agent in connection with the
preparation, negotiation, execution, delivery, administration, amendment,
modification, waiver or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities
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under, this Agreement or any of the other Credit Documents (including, without
limitation, reasonable attorneys' fees and expenses and compensation of agents
and employees paid for services rendered on behalf of the Lenders); provided,
however, that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting from the gross negligence or
willful misconduct of the party to be indemnified.
10.8 The Agent in its Individual Capacity. With respect to its Commitment,
the Loans made by it, the Facility Letters of Credit issued or participated in
by it and the Note or Notes issued to it, the Agent in its individual capacity
and not as Agent shall have the same rights and powers under the Credit
Documents as any other Lender and may exercise the same as though it were not
performing the agency duties specified herein; and the terms "Lenders,"
"Required Lenders," "holders of Notes" and any similar terms shall, unless the
context clearly otherwise indicates, include the Agent in its individual
capacity. The Agent and its Affiliates may accept deposits from, lend money to,
make investments in, and generally engage in any kind of banking, trust,
financial advisory or other business with the Borrowers, any of its Subsidiaries
or any of their respective Affiliates as if the Agent were not performing the
agency duties specified herein, and may accept fees and other consideration from
any of them for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
10.9 Successor Agent. The Agent may resign at any time by giving ten (10)
days' prior written notice to the Company and the Lenders. Upon any such notice
of resignation, the Required Lenders will, with the prior written consent of the
Company (which consent shall not be unreasonably withheld), appoint from among
the Lenders a successor to the Agent (provided that the Company's consent shall
not be required in the event a Default or Event of Default shall have occurred
and be continuing). If no successor to the Agent shall have been so appointed by
the Required Lenders and shall have accepted such appointment within such
ten-day period, then the retiring Agent may, on behalf of the Lenders and after
consulting with the Lenders and the Company, appoint a successor Agent from
among the Lenders. Upon the acceptance of any appointment as Agent by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Credit Documents. After any retiring Agent's
resignation as Agent, the provisions of this Article shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent. If no
successor to the Agent has accepted appointment as Agent by the thirtieth (30th)
day following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective, and the Lenders shall
thereafter perform all of the duties of the Agent hereunder and under the other
Credit Documents until such time, if any, as the Required Lenders appoint a
successor Agent as provided for herein above.
10.10 Collateral Matters. (a) The Agent is hereby authorized on behalf of
the Lenders, without the necessity of any notice to or further consent from the
Lenders, from time to time (but without any obligation) to take any action with
respect to the Collateral and the Security Documents that may be necessary to
perfect and maintain perfected the Liens upon the Collateral granted pursuant to
the Security Documents.
(b) The Lenders hereby authorize the Agent, at its option and in its
discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Commitments, termination or expiration of
all outstanding Facility Letters of Credit and payment in full of all of the
Obligations, (ii) constituting property sold or to be sold or disposed of as
part of or in connection with any disposition expressly permitted hereunder or
under any other Credit Document or to which the Required Lenders have consented
or (iii) otherwise pursuant to and in accordance with the provisions of any
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applicable Credit Document. Upon request by the Agent at any time, the Lenders
will confirm in writing the Agent's authority to release Collateral pursuant to
this subsection (b).
10.11 Issuer and Swingline Lender. The provisions of this Article (other
than SECTION 10.9) shall apply to the Issuer and Swingline Lender mutatis
mutandis to the same extent as such provisions apply to the Agent.
10.12 Other Agent. No Lender identified on the facing page of this
Agreement or otherwise designated pursuant hereto at any time as "Syndication
Agent" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as Lenders.
Without limiting the foregoing, no Lender so identified as a "Syndication Agent"
or the Arranger shall have or be deemed to have any fiduciary relationship with
any Lender. Each Lender acknowledges that it has not relied, and will not rely,
on any Lender so identified or the Arranger in deciding to enter into this
Agreement or in taking or not taking action hereunder, and any Lender so
identified and the Arranger shall be entitled to the same indemnifications and
other protections as provided in this Article X for the Agent.
ARTICLE XI.
GUARANTEE
11.1 Guarantee.
(a) The Company hereby unconditionally and irrevocably guarantees
to the Agent and the Lenders and their respective successors, endorsees,
transferees and assigns, the prompt and complete payment and performance by the
Foreign Subsidiary Borrowers when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations owing by such Foreign Subsidiary
Borrowers.
(b) The Company further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which are paid or incurred by the Agent, or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, the Company under this Section. This Section
shall remain in full force and effect until the Obligations are paid in full and
the Commitments are terminated, notwithstanding that from time to time prior
thereto the Borrowers may be free from any Obligations.
(c) No payment or payments made by any Borrower or any other
Person or received or collected by the Agent or any Lender from any Borrower or
any other Person by virtue of any action or proceeding or any set-off or
appropriation or application, at any time or from time to time, in reduction of
or in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Company hereunder which shall,
notwithstanding any such payment or payments, remain liable hereunder for the
Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The Company agrees that whenever, at any time, or from time
to time, it shall make any payment to the Agent or any Lender on account of its
liability under this Section, it will notify the Agent and such Lender in
writing that such payment is made under this Section for such purpose.
11.2 No Subrogation. Notwithstanding any payment or payments made by the
Company hereunder, or any set-off or application of funds of the Company by the
Agent or any Lender, the Company shall not be entitled to be subrogated to any
of the rights of the Agent or any Lender against the Foreign Subsidiary
Borrowers or against any collateral security or guarantee or right of offset
held by the
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Agent or any Lender for the payment of the Obligations, nor shall the
Company seek or be entitled to seek any contribution or reimbursement from the
Foreign Subsidiary Borrowers in respect of payments made by the Company
hereunder, until all amounts owing to the Agent and the Lenders by the Borrowers
on account of the Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to the Company on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by the Company in trust for the Agent
and the Lenders, segregated from other funds of the Company, and shall,
forthwith upon receipt by the Company, be turned over to the Agent in the exact
form received by the Company (duly endorsed by the Company to the Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as Agent may determine. The provisions of this paragraph shall
survive the termination of this Agreement and the payment in full of the
Obligations and the termination of the Commitments.
11.3 Amendments, etc. with respect to the Obligations; Waiver of Rights.
The Company shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Company, and without notice to or further
assent by the Company, any demand for payment of any of the Obligations made by
the Agent or the Required Lenders may be rescinded by the Agent or the Required
Lenders, and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Agent or the
Required Lenders, and any Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, in accordance with the provisions thereof as
the Agent (or the Required Lenders, as the case may be) may deem advisable from
time to time, and any collateral security, guarantee or right of offset at any
time held by the Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of the Agent or any
Lender shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Obligations or for this Agreement or
any property subject thereto. When making any demand hereunder against the
Company, the Agent or any Lender may, but shall be under no obligation to, make
a similar demand on any other Borrower or any other guarantor, and any failure
by the Agent or any Lender to make any such demand or to collect any payments
from any other Borrower or any such other guarantor or any release of the
Borrowers or such other guarantor shall not relieve the Company of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Agent or any
Lender against the Company. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
11.4 Guarantee Absolute and Unconditional. The Company waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by the Agent or any Lender upon this
Agreement or acceptance of this Agreement; the Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Agreement; and all
dealings among the Borrowers, on the one hand, and the Agent and the Lenders, on
the other, shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Agreement. The Company waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Foreign Subsidiary Borrowers and the Company with respect to the
Obligations. This Article XI shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity,
regularity or enforceability of this Agreement, any other Credit Document, any
of the Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Agent or any Lender, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance by any Borrower) which may at any time be
available to or be asserted by any Borrower against the Agent or any Lender, or
(c) any other circumstance whatsoever (with or without notice to or knowledge of
any Borrower) which constitutes, or might be construed to constitute, an
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equitable or legal discharge of the Borrowers for the Obligations, or of the
Company under this Section 11.4, in bankruptcy or in any other instance (other
than a defense of payment or performance by the Borrowers). When pursuing its
rights and remedies hereunder against the Company, the Agent and any Lender may,
but shall be under no obligation to, pursue such rights and remedies as it may
have against any Borrower or any other Person or against any collateral security
or guarantee for the Obligations or any right of offset with respect thereto,
and any failure by the Agent or any Lender to pursue such other rights or
remedies or to collect any payments from the Borrowers or any such other Person
or to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of the Borrowers or any such other Person
or of any such collateral security, guarantee or right of offset, shall not
relieve the Company of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of the Agent or any Lender against the Company. This Article XI shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Company and its successors and assigns, and shall
inure to the benefit of the Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until all the Obligations and
the obligations of the Company under this Agreement shall have been satisfied by
payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of this Agreement the Borrowers may be free
from any Obligations.
11.5 Reinstatement. This Article XI shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or Trustee or similar
officer for, any Borrower or any substantial part of its property, or otherwise,
all as though such payments had not been made.
11.6 Payments. The Company hereby agrees that all payments required to be
made by it hereunder will be made to the Agent without set-off or counterclaim
in accordance with the terms of the Obligations, including, without limitation,
in the currency in which payment is due.
ARTICLE XII.
MISCELLANEOUS
12.1 Fees and Expenses. Each Borrower agrees (i) whether or not the
transactions contemplated by this Agreement shall be consummated, to pay upon
demand all reasonable out-of-pocket costs and expenses of the Agent (including,
without limitation, the reasonable fees and expenses of counsel to the Agent) in
connection with (w) the Agent's due diligence investigation in connection with,
and the preparation, negotiation, execution, delivery and syndication of, this
Agreement and the other Credit Documents, and any amendment, modification or
waiver hereof or thereof or consent with respect hereto or thereto, (x) the
administration, monitoring and review of the Loans and the Collateral
(including, without limitation, out-of-pocket expenses for travel, meals,
long-distance telephone calls, wire transfers, facsimile transmissions and
copying and with respect to the engagement of appraisers, consultants, auditors
or similar Persons by the Agent at any time, whether before or after the
Closing, to render opinions concerning the Company's financial condition and the
value of the Collateral), (y) any attempt to inspect, verify, protect, collect,
sell, liquidate or otherwise dispose of any Collateral and (z) the creation,
perfection and maintenance of the perfection of the Agent's Liens upon the
Collateral, including, without limitation, Lien search, filing and recording
fees, (ii) to pay upon demand all reasonable out-of-pocket costs and expenses of
the Agent and each Lender (including, without limitation, reasonable attorneys'
fees and expenses) in connection with (y) any refinancing or restructuring of
the credit arrangement provided under this Agreement, whether in the nature of a
"work-out," in any insolvency or
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bankruptcy proceeding or otherwise and whether or not consummated, and (z) the
enforcement, attempted enforcement or preservation of any rights or remedies
under this Agreement or any of the other Credit Documents, whether in any
action, suit or proceeding (including any bankruptcy or insolvency proceeding)
or otherwise, and (iii) to pay and hold the Agent and each Lender harmless from
and against all liability for any intangibles, documentary, stamp or other
similar taxes, fees and excises, if any, including any interest and penalties,
and any finder's or brokerage fees, commissions and expenses (other than any
fees, commissions or expenses of finders or brokers engaged by the Agent or any
Lender), that may be payable in connection with the transactions contemplated by
this Agreement and the other Credit Documents.
12.2 Indemnification. Each Borrower agrees, whether or not the transactions
contemplated by this Agreement shall be consummated, to indemnify and hold the
Agent and each Lender and each of their respective directors, officers,
employees, agents and Affiliates (each, an "Indemnified Person") harmless from
and against any and all claims, losses, damages, obligations, liabilities,
penalties, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) of any kind or nature whatsoever, whether direct,
indirect or consequential (collectively, "Indemnified Costs"), that may at any
time be imposed on, incurred by or asserted against any such Indemnified Person
as a result of, arising from or in any way relating to the preparation,
execution, performance or enforcement of this Agreement or any of the other
Credit Documents, any of the transactions contemplated herein or therein or any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loans or Facility Letters of Credit
(including, without limitation, in connection with the actual or alleged
generation, presence, discharge or release of any Hazardous Substances on, into
or from, or the transportation of Hazardous Substances to or from, any real
property at any time owned or leased by any Borrower or any of its Subsidiaries,
any other Environmental Claims or any violation of or liability under any
Environmental Law), or any action, suit or proceeding (including any inquiry or
investigation) by any Person, whether threatened or initiated, related to any of
the foregoing, and in any case whether or not such Indemnified Person is a party
to any such action, proceeding or suit or a subject of any such inquiry or
investigation; provided, however, that no Indemnified Person shall have the
right to be indemnified hereunder for any Indemnified Costs to the extent
resulting from the gross negligence or willful misconduct of such Indemnified
Person. All of the foregoing Indemnified Costs of any Indemnified Person shall
be paid or reimbursed by the Borrowers, as and when incurred and upon demand.
12.3 Governing Law; Consent to Jurisdiction. THIS AGREEMENT AND THE OTHER
CREDIT DOCUMENTS HAVE BEEN EXECUTED, DELIVERED AND ACCEPTED IN, AND SHALL BE
DEEMED TO HAVE BEEN MADE IN, MICHIGAN AND SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN (WITHOUT REGARD TO
THE CONFLICTS OF LAW PROVISIONS THEREOF); EACH BORROWER HEREBY CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF ANY STATE COURT WITHIN WAYNE COUNTY, MICHIGAN OR
ANY FEDERAL COURT LOCATED WITHIN THE EASTERN DISTRICT OF THE STATE OF MICHIGAN
FOR ANY PROCEEDING INSTITUTED HEREUNDER OR UNDER ANY OF THE OTHER CREDIT
DOCUMENTS, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER CREDIT DOCUMENTS, OR ANY PROCEEDING TO WHICH THE AGENT OR ANY LENDER OR
ANY BORROWER IS A PARTY, INCLUDING ANY ACTIONS BASED UPON, ARISING OUT OF, OR IN
CONNECTION WITH ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE AGENT OR ANY LENDER OR ANY BORROWER. EACH
BORROWER IRREVOCABLY AGREES TO BE BOUND (SUBJECT TO ANY AVAILABLE RIGHT OF
APPEAL) BY ANY JUDGMENT RENDERED OR RELIEF GRANTED THEREBY AND FURTHER WAIVES
ANY OBJECTION THAT IT MAY HAVE BASED ON LACK OF JURISDICTION OR IMPROPER VENUE
OR FORUM NON CONVENIENS TO THE
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CONDUCT OF ANY SUCH PROCEEDING. EACH BORROWER CONSENTS THAT ALL SERVICE OF
PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS
SET FORTH HEREINBELOW, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON
THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE
UNITED STATES MAILS, PROPER POSTAGE PREPAID AND PROPERLY ADDRESSED. NOTHING IN
THIS SECTION SHALL AFFECT THE RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING ANY
ACTION OR PROCEEDING AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.
12.4 Notices. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telex, facsimile transmission or
cable communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered to the party to be notified at the following addresses:
(a) if to the Company or any Borrower, to Lason, Inc., 1305 Stephenson
Highway, Troy, Michigan 48083, Attention: Mr. William J. Rauwerdink,
Telecopy No. (248) 597-5818, with a copy to Seyburn, Kahn, Ginn, Bess,
Deitch & Serlin, Attention: Mr. Lawrence Deitch, Telecopy No. (248)
353-3727;
(b) if to the Agent, to Bank One, Michigan, 611 Woodward Avenue,
Detroit, Michigan 48226, Attention: Teresa Kalil, Telecopy No. (313)
226-0855; and
(c) if to any Lender, to it at the address set forth on its signature
page hereto (or if to any Lender not a party hereto as of the date hereof,
at the address set forth in its Assignment and Acceptance);
or in each case, to such other address as any party may designate for itself by
like notice to all other parties hereto. All such notices and communications
shall be deemed to have been given (i) if mailed as provided above by any method
other than overnight delivery service, on the third Business Day after deposit
in the mails, (ii) if mailed by overnight delivery service, telegraphed,
telexed, telecopied or cabled, when delivered for overnight delivery, delivered
to the telegraph company, confirmed by telex answerback, transmitted by
telecopier or delivered to the cable company, respectively, or (iii) if
delivered by hand, upon delivery; provided that notices and communications to
the Agent shall not be effective until received by the Agent.
12.5 Amendments, Waivers, etc. (a) No amendment, modification, waiver or
discharge or termination of, or consent to any departure by any Borrower from,
any provision of this Agreement or any other Credit Document, shall be effective
unless in a writing signed by the Required Lenders (or by the Agent at the
direction or with the consent of the Required Lenders), and then the same shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, modification, waiver,
discharge, termination or consent shall
(i) unless agreed to by each Lender directly affected thereby,
(i) reduce or forgive the principal amount of any Loan, reduce the rate of or
forgive any interest thereon, or reduce or forgive any fees or other Obligations
(other than fees payable to the Agent for its own account), or (ii) extend the
Maturity Date, the Termination Date or any other date fixed for the payment of
any principal of or interest on any Loan (other than additional interest payable
under Section 2.8(b) at the election of the Required Lenders, as provided
therein), any fees (other than fees payable to the Agent for its own account) or
any
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other Obligations or extend the expiry date of any Facility Letter of Credit
beyond the day prior to the Termination Date;
(ii) unless agreed to by all of the Lenders, (i) increase or
extend any Commitment of any Lender (it being understood that a waiver of any
Event of Default, if agreed to by the requisite Lenders hereunder, shall not
constitute such an increase), (ii) change the percentage of the aggregate
Commitments or of the aggregate unpaid principal amount of the Loans, or the
number or percentage of Lenders, that shall be required for the Lenders or any
of them to take or approve, or direct the Agent to take, any action hereunder
(including as set forth in the definition of "Required Lenders"), (iii) except
as may be otherwise specifically provided in this Agreement or in any other
Credit Document, release all or substantially all of the Collateral or release
any Guarantor from its obligations under the Guaranty, or (iv) change any
provision of Section 2.15 or this Section; and
(iii) unless agreed to by the Issuer, the Swingline Lender or the
Agent in addition to the Lenders required as provided hereinabove to take such
action, affect the respective rights or obligations of the Issuer, the Swingline
Lender or the Agent, as applicable, hereunder or under any of the other Credit
Documents;
and provided further that the Fee Letter and any Hedge Agreement to which any
Lender is a party may be amended or modified, and any rights thereunder waived,
in a writing signed by the parties thereto.
(b) In addition to amendments effected pursuant to the foregoing, Schedule
1.1(b) may be amended as follows:
(i) Schedule 1.1(b) will be automatically amended to add
Subsidiaries of the Company as additional Foreign Subsidiary Borrowers upon (A)
execution and delivery by the Company, any such Foreign Subsidiary Borrower and
the Agent, of a Joinder Agreement providing for any such Subsidiary to become a
Foreign Subsidiary Borrower, (B) delivery to the Agent of (a) a Foreign
Subsidiary Opinion in respect of such additional Foreign Subsidiary Borrower and
(b) such other documents with respect thereto as the Agent shall reasonably
request and (c) the written approval of the Agent in its sole discretion.
(ii) Schedule 1.1(b) will be automatically amended to remove any
Subsidiary as a Foreign Subsidiary Borrower upon (A) written notice by the
Company to the Agent to such effect and (B) repayment in full of all outstanding
Loans and all other obligations pursuant to any Loan Document of such Foreign
Subsidiary Borrower.
12.6 Assignments, Participations. (a) Each Lender may assign to one or more
other Eligible Assignees (each, an "Assignee") all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the outstanding Loans made by it, the Note or Notes
held by it and its participations in Letters of Credit); provided, however, that
(i) any such assignment (other than an assignment to a Lender or an Affiliate of
a Lender) shall not be made without the prior written consent of the Agent and
the Company (to be evidenced by its counterexecution of the relevant Assignment
and Acceptance), which consent shall not be unreasonably withheld (provided that
the Company's consent shall not be required in the event a Default or Event of
Default shall have occurred and be continuing), (ii) each such assignment shall
be of a uniform, and not varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement, (iii) except in the case of an
assignment to a Lender or an Affiliate of a Lender, no such assignment shall be
in an aggregate principal amount (determined as of the date of the Assignment
and Acceptance with respect to such assignment) less than (y) $5,000,000,
determined by combining the amount of the assigning Lender's outstanding Loans,
Letter of Credit Exposure and Unutilized Commitment being assigned pursuant to
such
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assignment (or, if less, the entire Commitment of the assigning Lender) or (z)
in the case of Swingline Loans, the entire Swingline Commitment and the full
amount of outstanding Swingline Loans, and (iv) the parties to each such
assignment will execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment, and will pay a nonrefundable processing fee
of $3,500 to the Agent for its own account. Upon such execution, delivery,
acceptance and recording of the Assignment and Acceptance, from and after the
effective date specified therein, which effective date shall be at least five
Business Days after the execution thereof (unless the Agent shall otherwise
agree), (A) the Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of the
assigning Lender hereunder with respect thereto and (B) the assigning Lender
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
rights under the provisions of this Agreement and the other Credit Documents
relating to indemnification or payment of fees, costs and expenses, to the
extent such rights relate to the time prior to the effective date of such
Assignment and Acceptance) and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of such assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto). The terms and
provisions of each Assignment and Acceptance shall, upon the effectiveness
thereof, be incorporated into and made a part of this Agreement, and the
covenants, agreements and obligations of each Lender set forth therein shall be
deemed made to and for the benefit of the Agent and the other parties hereto as
if set forth at length herein.
(b) The Agent will maintain at its address for notices referred to herein 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
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 purposes, absent manifest error, and the Borrowers, the
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 Borrowers and each Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an Assignee and, if required, counterexecuted by the
Company, together with the Note or Notes subject to such assignment and the
processing fee referred to in subsection (a) above, the Agent will (i) accept
such Assignment and Acceptance, (ii) on the effective date thereof, record the
information contained therein in the Register and (iii) give notice thereof to
the Company and the Lenders. Within five (5) Business Days after its receipt of
such notice, the Borrowers, at their own expense, will execute and deliver to
the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to
the order of the Assignee (and, if the assigning Lender has retained any portion
of its rights and obligations hereunder, to the order of the assigning Lender),
prepared in accordance with the provisions of Section 2.13 as necessary to
reflect, after giving effect to the assignment, the Commitments of the Assignee
and (to the extent of any retained interests) the assigning Lender, dated the
date of the replaced Note or Notes and otherwise in substantially the form of
Exhibit A. The Agent will return canceled Notes to the Company.
(d) Each Lender may, without the consent of the Company, the Agent or any
other Lender, sell to one or more other Persons (each, a "Participant")
participations in any portion comprising less than all of its rights and
obligations under this Agreement (including, without limitation, a portion of
its Commitment, the outstanding Loans made by it, the Note or Notes held by it
and its participations in Facility Letters of Credit); provided, however, that
(i) such Lender's obligations under this Agreement shall remain unchanged and
such Lender shall remain solely responsible for the performance of such
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obligations, (ii) no Lender shall sell any participation that, when taken
together with all other participations, if any, sold by such Lender, covers all
of such Lender's rights and obligations under this Agreement (other than to an
Affiliate of such Lender), (iii) the Borrower, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, and no Lender shall
permit any Participant to have any voting rights or any right to control the
vote of such Lender with respect to any amendment, modification, waiver, consent
or other action hereunder or under any other Credit Document (except as to
actions that would (x) reduce or forgive the principal amount of any Loan,
reduce the rate of or forgive any interest thereon, or reduce or forgive any
fees or other Obligations, (y) extend the Maturity Date, the Termination Date or
any other date fixed for the payment of any principal of or interest on any
Loan, any fees or any other Obligations, or (z) increase or extend any
Commitment of any Lender), and (iv) no Participant shall have any rights under
this Agreement or any of the other Credit Documents, each Participant's rights
against the granting Lender in respect of any participation to be those set
forth in the participation agreement, and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not granted such
participation. Notwithstanding the foregoing, each Participant shall have the
rights of a Lender for purposes of Sections 2.16(a), 2.16(b), 2.17, 2.18 and
9.3, and shall be entitled to the benefits thereto, to the extent that the
Lender granting such participation would be entitled to such benefits if the
participation had not been made, provided that no Participant shall be entitled
to receive any greater amount pursuant to any of such Sections than the Lender
granting such participation would have been entitled to receive in respect of
the amount of the participation made by such Lender to such Participant had such
participation not been made.
(e) Nothing in this Agreement shall be construed to prohibit any Lender
from pledging or assigning all or any portion of its rights and interest
hereunder or under any Note to any Federal Reserve Bank as security for
borrowings therefrom; provided, however, that no such pledge or assignment shall
release a Lender from any of its obligations hereunder.
(f) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section,
disclose to the Assignee or Participant or proposed Assignee or Participant any
information relating to the Company and its Subsidiaries furnished to it by or
on behalf of any other party hereto, provided that such Assignee or Participant
or proposed Assignee or Participant agrees in writing to keep such information
confidential to the same extent required of the Lenders under Section 12.14.
12.7 No Waiver. The rights and remedies of the Agent and the Lenders
expressly set forth in this Agreement and the other Credit Documents are
cumulative and in addition to, and not exclusive of, all other rights and
remedies available at law, in equity or otherwise. No failure or delay on the
part of the Agent or any Lender in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude other or further exercise thereof or
the exercise of any other right, power or privilege or be construed to be a
waiver of any Default or Event of Default. No course of dealing between any of
the Borrowers and the Agent or the Lenders or their agents or employees shall be
effective to amend, modify or discharge any provision of this Agreement or any
other Credit Document or to constitute a waiver of any Default or Event of
Default. No notice to or demand upon any Borrower in any case shall entitle any
Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the right of the Agent or any Lender to
exercise any right or remedy or take any other or further action in any
circumstances without notice or demand.
12.8 Successors and Assigns. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto, and all references herein to any party shall be deemed to
include its successors and assigns; provided, however, that (i) a Borrower
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shall not sell, assign or transfer any of its rights, interests, duties or
obligations under this Agreement without the prior written consent of all of the
Lenders and (ii) any Assignees and Participants shall have such rights and
obligations with respect to this Agreement and the other Credit Documents as are
provided for under and pursuant to the provisions of Section 12.6.
12.9 Survival. All representations, warranties and agreements made by or on
behalf of the Borrower or any of its Subsidiaries in this Agreement and in the
other Credit Documents shall survive the execution and delivery hereof or
thereof, the making and repayment of the Loans and the issuance and repayment of
the Facility Letters of Credit. In addition, notwithstanding anything herein or
under applicable law to the contrary, the provisions of this Agreement and the
other Credit Documents relating to indemnification or payment of fees, costs and
expenses, including, without limitation, the provisions of Article III and
Sections 10.7, 12.1 and 12.2, shall survive the payment in full of all Loans and
Letters of Credit, the termination of the Commitments and all Facility Letters
of Credit, and any termination of this Agreement or any of the other Credit
Documents.
12.10 Severability. To the extent any provision of this Agreement is
prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in such jurisdiction, without prohibiting or invalidating
such provision in any other jurisdiction or the remaining provisions of this
Agreement in any jurisdiction.
12.11 Construction. The headings of the various articles, sections and
subsections of this Agreement have been inserted for convenience only and shall
not in any way affect the meaning or construction of any of the provisions
hereof. Except as otherwise expressly provided herein and in the other Credit
Documents, in the event of any inconsistency or conflict between any provision
of this Agreement and any provision of any of the other Credit Documents, the
provision of this Agreement shall control.
12.12 Confidentiality. Each Lender agrees to keep confidential, pursuant to
its customary procedures for handling confidential information of a similar
nature and in accordance with safe and sound banking practices, all nonpublic
information provided to it by or on behalf of any Borrower or any of its
Subsidiaries in connection with this Agreement or any other Credit Document;
provided, however, that any Lender may disclose such information (i) to its
directors, employees and agents and to its auditors, counsel and other
professional advisors, (ii) at the demand or request of any bank regulatory
authority, court or other Governmental Authority having or asserting
jurisdiction over such Lender, as may be required pursuant to subpoena or other
legal process, or otherwise in order to comply with any applicable Requirement
of Law, (iii) in connection with any proceeding to enforce its rights hereunder
or under any other Credit Document or any other litigation or proceeding related
hereto or to which it is a party, (iv) to the Agent or any other Lender, (v) to
the extent the same has become publicly available other than as a result of a
breach of this Agreement and (vi) pursuant to and in accordance with the
provisions of Section 12.6(f).
12.13 Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. This Agreement
shall become effective upon the execution of a counterpart hereof by each of the
parties hereto and receipt by the Agent and the Borrowers of written or
telephonic notification of such execution and authorization of delivery thereof.
12.14 Disclosure of Information. Each Borrower agrees and consents to the
Agent's disclosure of information relating to this transaction to Gold Sheets
and other similar bank trade publications. Such information will consist of deal
terms and other information customarily found in such publications.
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12.15 Entire Agreement. THIS AGREEMENT AND THE OTHER DOCUMENTS AND
INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH (A) EMBODY THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES HERETO AND THERETO RELATING TO
THE SUBJECT MATTER HEREOF AND THEREOF, (B) SUPERSEDE ANY AND ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, ORAL OR WRITTEN, RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF, INCLUDING, WITHOUT LIMITATION, THE COMMITMENT
LETTER FROM BANK ONE TO THE COMPANY DATED JULY 15, 1999, BUT SPECIFICALLY
EXCLUDING THE FEE LETTER, AND (C) MAY NOT BE AMENDED, SUPPLEMENTED, CONTRADICTED
OR OTHERWISE MODIFIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
LASON, INC.
By: /s/ William J. Rauwerdink
-----------------------------------------
Title: Executive Vice President
--------------------------------------
and Chief Financial Officer
--------------------------------------
LASON CANADA COMPANY
By: /s/ William J. Rauwerdink
-----------------------------------------
Title: Executive Vice President
-----------------------------------------
and Chief Financial Officer
-----------------------------------------
LASON U.K., LTD.
By: /s/ William J. Rauwerdink
-----------------------------------------
Title: Executive Vice President
-----------------------------------------
and Chief Financial Officer
-----------------------------------------
(signatures continued)
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THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ Teresa Kalil
----------------------------------
Title: Vice President
-------------------------------
Address for notices:
c/o Bank One, Michigan
611 Woodward Avenue, Mail Suite
-----
Detroit, Michigan 48226
Attention: Teresa Kalil
Telephone: (313) 225-3432
Telecopy: (313) 226-0855
Lending Office:
c/o Bank One, Michigan
611 Woodward Avenue, Mail Suite
-----
Detroit, Michigan 48226
Attention: Teresa Kalil
Telephone: (313) 225-3432
Telecopy: (313) 226-0855
(signatures continued)
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COMERICA BANK
By: David C. Bird
-------------------------------------------
Title: Vice President
----------------------------------------
Address for notices:
Comerica Bank
500 Woodward Avenue, 9th Floor
Detroit, Michigan 48226-3268
Attention: David C. Bird
Telephone: (313) 222-5060
Telecopy: (313) 222-9514
Lending Office:
Comerica Bank
500 Woodward Avenue, 9th Floor
Detroit, Michigan 48226-3268
Attention: David C. Bird
Telephone: (313) 222-5060
Telecopy: (313) 222-9514
82
<PAGE> 1
EXHIBIT 10.24
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of this 1st day of June, 1999 (the
"Effective Date"), between LASON SYSTEMS, INC, a Delaware corporation, the
address of which is 1305 Stephenson Highway, Troy, Michigan, 48084
("Corporation"), and Gary L. Monroe, whose address is 4808 Deer Park Court,
Rochester Hills, Michigan 48306 ("Employee").
R E C I T A L S:
Corporation is engaged in the business of providing a wide range
of document management, records management and business communication services.
Employee is currently serving as Chairman of the Board and Chief Executive
Officer of Corporation, its parent, Lason, Inc., a Delaware corporation and of
its various affiliates.
Corporation and Employee are mutually desirous of extending
Employee's tenure for a 2 year period effective June 1, 1999.
The parties are desirous of entering into a contract of
employment on the terms and conditions set forth below.
THEREFORE, the parties agree as follows:
1. ENGAGEMENT OF EMPLOYEE. Corporation hereby employs Employee
for the term of this Agreement as set forth in Paragraph 4 and, during the term
of this Agreement, Employee agrees to provide the following services to
Corporation on the terms contained in this Agreement: Employee shall hold the
title of Chairman of the Board and Chief Executive Officer and shall be
responsible for providing the services customarily required of a Chief Executive
Officer including, but not limited to, direction of both Corporation's
day-to-day operations and its sales and marketing activities. Employee shall
devote his full time and attention to discharging the duties of his position and
shall report to Corporation's Board of Directors. For the purposes hereof, all
references to the term "Corporation" are understood to encompass Lason, Inc., a
Delaware corporation and its various affiliates; provided that it is understood
and agreed that Employee will be on the payroll of Lason Systems, Inc.
2. BASE COMPENSATION.
A. BASE SALARY. During the period of June 1, 1999 to May 31,
2000, Corporation shall pay to Employee a base salary of
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<PAGE> 2
Two Hundred Fifty Thousand ($250,000) Dollars. During the
period of June 1, 2000 to May 31, 2001, Corporation shall
pay to Employee a base salary of Two Hundred Seventy Five
Thousand ($275,000.00) Dollars. Such base salary shall be
paid in equal bi-weekly installments (less appropriate and
necessary withholdings for employment taxes), commencing on
Corporation's next regular pay day and continuing on the
same day of every other week thereafter during the term of
this Agreement.
B. BONUS. Predicated on Corporation's performance, Employee
shall be entitled to an annual bonus of a minimum of 50% of
the base salary set forth in Section 2(A) above. The amount
of the bonus shall be determined by Corporation's Board of
Directors.
C. BENEFITS. Employee shall have the right to receive or
participate in any fringe benefits, including, but not
limited to, personal days, group term life insurance
programs, disability insurance programs, medical expense
reimbursement plans, flexible benefit plans, so-called
qualified "pension or profit sharing plans," and other
reasonable and customary fringe benefits which may from
time-to-time be made available by Corporation's Board of
Directors (and further subject to any applicable
eligibility requirements of each such program). Further,
employee shall be entitled to an automobile allowance and
other similar benefits as determined by corporation's board
of directors.
3. STOCK OPTIONS. In addition to various stock options previously
granted to Employee, he shall be eligible to participate in Corporation's
various stock option plans as same may be in place from time to time, as
determined by Corporation's Board of Directors.
4. TERM AND SEVERANCE. The term of this Agreement shall be for
two (2) years from and after the Effective Date.
In the event that Employee is terminated during the term of this
Agreement with or without cause or in the event that he resigns because of a
material change in the scope of his duties or because of a change in control of
Corporation then, and in that event, Employee shall be entitled to receive
severance pay in an amount equal to his base salary plus his actual bonus for
the preceding
2
<PAGE> 3
year or an imputed bonus of 50% of base salary if he is discharged or suffers a
material change in duty prior to a bonus being established for the prior year.
Such severance pay shall be paid for the unexpired term of this Agreement or 12
months, whichever is greater.
Additionally, in the event that Employee is terminated during the
term of this Agreement, with or without cause, or in the event that he resigns
because of a material change in his duties or because of a change in control of
Corporation, in addition to the severance pay arrangement described above, he
shall not be obligated to immediately re-pay any and all amounts advanced to him
prior to the date of termination under that certain Secured Promissory Note (the
"Note") dated June 5, 1998 and delivered by him to Lason, Inc. Rather, he shall
be entitled to enjoy the benefit of the full 10 year term of the Note which he
would have been entitled to had he remained in Corporation's employ through June
5, 2002.
Wherever used in this Agreement, the term "change in control"
shall have the meaning ascribed to it in Section 1.7 of Corporation's 1998
Equity Participation Plan (the "Plan"), which Plan is hereby incorporated herein
by reference for this purpose.
5. NON-COMPETITION/CONFIDENTIALITY. In consideration of the
compensation described in this Agreement, Employee agrees that while he is
employed by Corporation and should he elect to voluntarily leave Corporation's
employ prior to the expiration of the term of this Agreement (except in the
event of a material change in his duties or because of a change in control of
Corporation) then, and in that event, for the unexpired term of this Agreement,
(the "Non-Compete Period"), Employee shall not, either directly or indirectly
(and whether or not for compensation), work for, be employed by, own,
participate or engage in, or have any interest in, any person, firm, entity,
partnership, limited partnership, limited liability company, corporation or
business (whether as an employee, owner, partner, member, shareholder, officer,
director, agent, creditor, consultant or in any capacity which calls for the
rendering of personal services, advice, acts of management, operation or
control) that engages in activities in any of the counties in which Corporation
transacts business which are substantially the same as or competitive with the
activities engaged in by Corporation including but not limited to the following:
document management, records management and business communications, so long as
Corporation (or any successor) shall, directly or indirectly, be engaged in such
activity in such county. The foregoing shall not, however, be deemed to prevent
Employee from investing in any corporation the shares of which are traded on a
securities exchange or in the over-the-counter market.
3
<PAGE> 4
Employee further agrees that he shall not, directly or
indirectly, at any time during the Non-Compete Period: (i) divert or attempt to
divert from Corporation any business of any kind in which Corporation is
engaged; (ii) take any action that causes the termination of a business
relationship between Corporation and any customer or supplier of Corporation; or
(iii) induce or attempt to induce any person who is an employee of Corporation
to leave the employ of Corporation.
During the term of this Agreement and the Non-Compete Period,
Employee shall keep secret and inviolate and shall not divulge, communicate, use
to the detriment of Corporation or for the benefit of any other person or
persons or misuse in any way any knowledge or information of a confidential
nature, including, without limitation, all trade secrets, information, computer
programs, technical data, customer lists and unpublished matters relating to the
business, assets, accounts, books, records, customers and contracts of
Corporation which he may or hereafter come to know as a result of his
association with and which is unique to Corporation ("Confidential
Information"). Information shall not be considered Confidential Information if:
(i) the information is known by or subsequently becomes generally available to
the public through no fault or breach on the part of Employee; (ii) the
information is independently developed by Employee without the use of any
Confidential Information; or (iii) the Employee rightfully obtains the
information after the term of this Agreement from a third party that has the
right to disclose it. Employee may disclose Confidential Information if required
by any judicial or governmental request, requirement or order; provided that
Employee will take reasonable steps to give Corporation sufficient prior notice
in order to contest such request, requirement or order.
Employee has had knowledge of the affairs, trade secrets,
customers, potential customers and other proprietary information of Corporation,
and Employee acknowledges and agrees that compliance with the covenants set
forth in this Paragraph 5 is necessary for the protection of the business,
goodwill and other proprietary interests of Corporation and that any violation
of this Agreement will cause severe and irreparable injury to the business,
goodwill and proprietary interests of Corporation, which injury is not
compensable by money damages. Accordingly, in the event of a breach (or
threatened or attempted breach) of this Paragraph 5, Corporation and any
successor shall, in addition to any other rights and remedies, be entitled to
immediate appropriate injunctive relief or a decree of specific performance,
without the necessity of showing any irreparable injury or special damages.
If, in any judicial proceeding, a court shall refuse to enforce
any of the covenants included herein, then said unenforceable covenant(s) shall
be deemed eliminated from these provisions for the purpose of those proceedings
to the extent necessary to permit the remaining separate covenants to be
enforced. It is the intent
4
<PAGE> 5
and agreement of Corporation and Employee that these covenants be given the
maximum force, effect and application permissible under law.
The provisions of this Paragraph 5 shall survive the termination
of this Agreement.
6. MISCELLANEOUS. Employee shall not assign his rights and
obligations hereunder. Corporation may assign its rights and obligations
hereunder with the consent of Employee which consent shall not be unreasonably
withheld. Subject to the foregoing, all of the terms and conditions of this
Agreement shall be binding upon and shall inure to the benefit of the heirs,
successors, administrators, legal representatives and assigns, as the case may
be, of the parties hereto.
7. PARTIAL INVALIDITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable in any
manner, the remaining provisions of this Agreement shall nonetheless continue in
full force and effect without being impaired or invalidated in any way. In
addition, if any provision of this Agreement may be modified by a court of
competent jurisdiction such that it may be enforced, then that provision shall
be so modified and as modified shall be fully enforced.
8. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein, supersedes all prior and contemporaneous agreements, understandings and
negotiations, and any and all employment agreement(s) between Corporation and
Employee dated prior to the date hereof (including, but not limited to, that
certain letter agreement dated July 29, 1998); and no evidence of prior or
contemporaneous agreements, understandings and negotiations shall govern or be
used to construe or modify this Agreement. Except as provided in this Agreement,
no modification or alteration hereof shall be deemed effective unless in writing
and signed by the parties hereto. Neither this Agreement nor any of its
provisions may be changed, waived, or discharged orally, but only by an
instrument duly signed by the party against which enforcement of the change,
waiver, or discharge is sought.
9. NOTICES. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be in writing
and shall be deemed given (a) when personally delivered or sent by facsimile
transmission to the party to be given the notice or other communication or (b)
on the business day following the day such notice or other communication is sent
by overnight courier to the addresses set forth above or at such other address
as either party may designate from time to time by appropriate notice to the
other.
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10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
11. HEADINGS. The headings in this Agreement are for reference
only and shall not limit or otherwise affect any of the terms or provisions
hereof.
12. COUNTERPARTS. This Agreement may be executed in two (2) or
more counterparts, each of which shall be considered an original, but all of
which together shall constitute one and the same instrument.
THIS AGREEMENT was executed as of date and year first set forth
above.
"CORPORATION"
LASON SYSTEMS, INC., a Delaware
corporation
By: /s/ Robert A. Yanover
-------------------------------------------
Robert A. Yanover
Its:Member of Compensation Committee
"EMPLOYEE"
/s/ Gary L. Monroe
-------------------------------------------
GARY L. MONROE
6
<PAGE> 1
EXHIBIT 10.25
AMENDED AND RESTATED SECURED PROMISSORY NOTE
$2,600,000.00 June 5, 1999
Troy, Michigan
FOR VALUE RECEIVED, GARY L. MONROE ("BORROWER") promises to pay to the
order of Lason, Inc., a Delaware corporation (the "Company"), at 1350 Stephenson
Highway, Troy, Michigan 48083, or at such other place as the Company may
designate in writing, the principal sum of up to Two Million Six Hundred
Thousand and 00/100 U.S. Dollars ($2,600,000.00) (the "AVAILABLE CREDIT
FACILITY") or such lesser amount as shall have been advanced to the Borrower by
the Company under Section 1 of this Note (the "PRINCIPAL SUM"), together with
interest on the unpaid balance of the Principal Sum, as follows:
1. ANNUAL ADVANCES. This Note amends and restates the Note between the
Borrower and the Company dated June 5, 1998 (the "EXECUTION DATE"). The Company
advanced 25% of the Available Credit Facility to the Borrower on the Execution
Date. On each of the three (3) successive anniversary dates of the Execution
Date, the annual amount for which the Borrower may request an additional advance
will be determined as follows:
Number of option shares under the Borrower's May 29, 1998 option grant X
(Company's average closing share price for the twenty (20) trading days
immediately preceding the date of the Company's Annual Meeting of Shareholders -
$27.50) X 25% ( the "MULTIPLIER");
provided, however, that the amount funded in a particular year, when taken
together with previous advances under the Note, may not exceed the following
cumulative percentages of the Available Credit Facility for the following
anniversary dates:
Anniversary of Maximum Cumulative Percentage of Available Credit Facility
Execution Date ("MAXIMUM CUMULATIVE PERCENTAGE")
1st 50%
2nd 75%
3rd 100%
If the Company's average closing share price for any anniversary is above
$40.50, the Multiplier shall be increased above 25% to the extent necessary to
permit the Company to advance funds to the Borrower up to the Maximum Cumulative
Percentage for such year, in order to address shortfalls in the Maximum
Cumulative Percentage advanced by the Company to the Borrower in prior years. If
the Company's average closing share price for any anniversary is below $27.50,
the Borrower will not be entitled to an advance for that particular year, but no
reduction in the outstanding principal amount of the Note will be required.
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Notwithstanding anything to the contrary, (i) the Company shall advance
one hundred percent (100%) of the unadvanced portion of the Available Credit
Facility in the event of a change in control of the Company, as defined in the
Company's 1998 Equity Participation Plan (a "CHANGE IN CONTROL"), which occurs
prior to the fourth anniversary of the Execution Date if the Company's stock
price is at least $40.50 at the time the Change in Control occurs; (ii) if a
Change in Control occurs prior to the fourth anniversary of the Execution Date
and the Company's share price is greater than $27.50 and less than $40.50 at the
time the Change in Control occurs, then the Company shall advance an amount
equal to (A) the number of option shares under the Borrower's May 29, 1998
option grant multiplied by (the Company's share price at the time the Change in
Control occurs minus $27.50) minus (B) all amounts previously advanced under
this Note; and (iii) no amounts are to be advanced under this Note following the
fourth anniversary of the Execution Date, regardless of whether the entire
Available Credit Facility has been advanced. In the event that the amount
calculated under (ii) of the preceding sentence is a negative number, no
reduction in the outstanding principal amount of the Note will be required.
All share prices set forth in this Section 1 shall be appropriately
adjusted by the Company's Compensation Committee for any recapitalization, stock
dividend, stock split or similar change in the Company's capital structure.
2. INTEREST. Interest shall accrue on the unpaid balance of the
Principal Sum at the Applicable Federal Rate as in effect on the Execution Date
and on each successive anniversary date thereafter. In no event shall the
interest rate payable under this Note exceed the maximum rate permitted by law.
To the extent that Borrower is employed by the Company at the end of any
calendar year prior to the Maturity Date, as defined below, all accrued and
unpaid interest on the unpaid balance of the Principal Sum shall be deemed to
have been paid by Borrower to the Company, and shall be considered and treated
as increased W-2 earnings to Borrower.
3. MATURITY; PREPAYMENT. The Principal Sum, together with accrued and
unpaid interest thereon, shall be due and payable upon the first to occur of the
following: (i) June 5, 2008; (ii) termination of the Borrower's employment with
the Company for any reason, other than death or permanent disability (as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended), prior to
June 5, 2002; or (iii) acceleration of the Note upon an Event of Default as
described in Section 4 (the "MATURITY DATE"). If the Principal Sum is not paid
within five (5) days of the Maturity Date, interest shall thereafter accrue on
the unpaid balance of the Principal Sum at the per annum rate of three percent
(3%) plus the Applicable Federal Rate in effect on the Maturity Date. Borrower
may prepay any and all principal and accrued interest due under this Note at any
time without additional interest or penalty. All amounts outstanding under this
Note will be canceled and forgiven in the event of a Change in Control of the
Company; provided that the Note is not in default and has not matured prior to
the Change in Control.
4. SECURITY. To secure full and timely performance under this Note,
Borrower agrees to pledge or cause to be pledged, and to grant or cause to be
granted, a security interest in the Borrower's unexercised stock options under
that certain Stock Option Agreement between the
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<PAGE> 3
Borrower and the Company dated as of May 29, 1998, together with any Common
Stock of the Company acquired upon the exercise of such stock options or any
proceeds thereof (collectively, the "COLLATERAL"), pursuant to that certain
Amended and Restated Pledge and Security Agreement between the Borrower and the
Company dated as of June 5, 1999 (the "Pledge and Security Agreement"). This
Note is entitled to all benefits arising under, and is subject to the terms of,
the Pledge and Security Agreement, which among other things provides for the
acceleration of the Maturity Date hereof upon the occurrence of certain events.
All the representations, warranties, agreements, terms and conditions contained
in the Pledge and Security Agreement are incorporated herein. Borrower shall
execute and deliver or cause to be executed and delivered, all agreements,
instruments, documents and other written matter (collectively, the "SUPPLEMENTAL
DOCUMENTATION") that the Company may request, in form and substance acceptable
to the Company, to perfect and maintain perfected liens and a security interest
in the Collateral and which may be required by virtue of the Company's status as
a public company.
5. EVENT OF DEFAULT; ACCELERATION; OFFSET. During the continuance of an
Event of Default (as defined in the Pledge and Security Agreement), the
obligations evidenced by this Note, including, without limitation, the entire
unpaid Principal Sum together with any accrued interest, shall become
immediately due and payable without any notice or demand. During the continuance
of an Event of Default (as defined in the Pledge and Security Agreement), the
Company shall have the right to offset any amounts owing by the Company to
Borrower for whatever reason, including, but not limited to, salary, bonus or
expense reimbursement, against any unpaid portion of the Principal Sum advanced
by the Company and accrued interest thereon.
6. COSTS AND EXPENSES. In addition to all other sums payable under this
Note, Borrower also agrees to pay to the Company upon demand all costs and
expenses incurred by the Company in the enforcement of Borrower's obligations
under this Note, including, without limitation, reasonable attorneys' fees. If
Borrower fails to pay such costs and expenses within five (5) days of the
receipt by Borrower of the Company's written demand therefor, then interest
shall accrue on such costs and expenses at the rate specified in the second
sentence of Section 3 from the date of demand until the date of payment.
7. SEVERABILITY. If any provision of this Note is held to be invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Note shall remain in full force and effect and shall be construed liberally in
favor of the Company in order to effectuate the provisions of this Note.
8. GOVERNING LAW. This instrument shall be governed by and construed
according to the laws of the State of Michigan.
9. WAIVER. Borrower waives presentment, demand, notice of protest and
notice of dishonor and any and all other notices and demands in connection with
any delivery, acceptance, performance or default of this Note and agrees that
this Note may be modified only by an agreement in writing signed by the Company
and Borrower.
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<PAGE> 4
10. NO RIGHT TO CONTINUED EMPLOYMENT. The Company's acceptance of this
Note is a strictly voluntary undertaking on the part of the Company and shall
not constitute consideration for, or any inducement or condition of, the
employment of the Borrower by the Company. Nothing contained in this Note shall
give the Borrower the right to be retained in the service of the Company or to
interfere with or restrict the right of the Company, which is hereby expressly
reserved, to discharge or retire the Borrower at any time or for any reason not
prohibited by law, with or without cause.
11. MARGIN STOCK. Borrower represents and warrants that none of the
advances under this Note will be used for the purpose of buying or carrying
"margin stock," as that term is defined by Regulation U of the Federal Reserve
Board. "Margin stock" includes any equity security registered or having unlisted
trading privileges on a national securities exchange, any OTC security
designated as qualified for trading in the Nasdaq National Market System, any
debt security convertible into a margin stock or carrying a warrant or right to
subscribe to or purchase a margin stock, any warrant or right to subscribe to or
purchase a margin stock, and, with certain exceptions, securities issued by an
investment company registered under Section 8 of the Investment Company Act of
1940.
By: /s/ Gary L. Monroe
----------------------------
GARY L. MONROE
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<PAGE> 1
EXHIBIT 10.26
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
This Amended and Restated Pledge and Security Agreement ("Agreement"),
dated as of June 5, 1999 by and between GARY L. MONROE ("Borrower") and Lason,
Inc. (the "Company"). This Agreement amends and restates the Pledge and Security
Agreement dated June 5, 1998 between the Borrower and the Company.
Whereas, the Company may loan the Borrower the principal sum of up to
$2,600,000.00 pursuant to an Amended and Restated Secured Promissory Note dated
as of June 5, 1999 (the "Note").
NOW, THEREFORE, in order to induce the Company to make the loan, and
secure Borrower's obligations under the Note, the parties named herein agree as
follows:
1. PLEDGE. The Borrower hereby confirms the grant of a first
security interest to the Company in the following collateral (the "Collateral")
as of June 5, 1998:
(a) All unexercised stock options pursuant to that certain Stock
Option Agreement between the Borrower and the Company dated as of May 29, 1998
(the "Stock Options"); and
(b) Subject to Section 7 hereof, all of Borrower's right to, title and
interest in the shares of Common Stock that Borrower may acquire upon exercise
of the Stock Options (the "Exercise Shares"), all dividends and distributions
arising therefrom, payable therein or distributed in respect thereto, whether in
cash, property, stock or otherwise and whether now or hereafter declared, paid
or made, together with the right to receive and receipt therefor, together with
all proceeds thereof; provided, however, that if and so long as no default in
the observance and performance by the Borrower of any of the terms of this
Agreement or the Note, the Borrower shall have the right to receive all
dividends in respect to the Collateral paid in cash or in the stock of a
corporation or in other property; and provided further, that the Borrower shall
pledge to the Company any such stock or other property so distributed to
Borrower to secure Borrower's obligations to the Company and shall enter into
any such further agreements and execute such further documents as the Company
may require to effectuate such pledge or that may be required by virtue of the
Company's status as a public company.
The Borrower shall not be required to pledge or otherwise provide any
collateral to secure the Note other than the Collateral specified in this
Section 1.
2. PERFECTION OF SECURITY INTEREST. In order to perfect the Company's
security interest in the Collateral described in Section 1(a), the Borrower
agrees to deliver a UCC-1 financing statement to the Company for filing in the
Borrower's state of residence. In order to perfect the Company's security
interest in the Collateral described in Section 1(b), the Borrower agrees to
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deliver to the Company share certificates duly endorsed for transfer in blank
(or accompanied by one or more signed stock powers in blank), to be held by the
Company pursuant to the terms of this Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Borrower hereby
represents, warrants and agrees with the Company as follows:
(a) The Borrower has the legal capacity to execute this Agreement and
to carry out all of the terms, conditions, covenants and provisions contained
herein.
(b) If, whenever, and as often as, during the term of this Agreement,
any stock dividend, reclassification, readjustment or other change is declared
or made in the capital structure of the Company, all new, substituted and
additional shares or other securities issued upon exercise of the Stock Options
or in consideration of the Exercise Shares shall be held by the Company under
the terms of this Agreement in the same manner as the Stock Options.
(c) The Borrower has good right and lawful authority to pledge,
hypothecate, mortgage, assign, transfer, deliver, set over and confirm unto the
Company the Collateral as provided in this Agreement, and the Borrower shall
warrant and defend the title thereto and the Company's security interest therein
against the claims of all persons.
(d) So long as this Agreement is in effect, the Borrower shall not
sell, assign or transfer, and shall not pledge, hypothecate, mortgage or
otherwise encumber any right or rights with respect to the Collateral or any
rights or interest therein.
(e) Borrower agrees to execute Form F.R. G-3 and any other form
required to be executed pursuant to Regulation G and any other rules and
regulations of the Federal Reserve System with respect to the Collateral.
4. DEFAULT. Each of the following events or conditions constitutes an
"Event of Default":
(a) Failure by the Borrower to make any payment of principal or
interest under the Note on or before 30 days after the date such payment is due.
(b) [Reserved.]
(c) Any representation, warranty or other statement by or on behalf of
the Borrower contained in the Note or in this Agreement is false or misleading
in any material respect when made.
(d) The Borrower becomes insolvent or bankrupt or makes any assignment
for the benefit of creditors, or consents to the appointment of a trustee,
receiver or liquidator.
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(e) Bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings are instituted by or against the Borrower, which proceedings are not
dismissed or stayed within 60 days after they are instituted.
If, whenever and as often as, there shall have occurred an Event of
Default, the Company shall have at any time thereafter the rights and remedies
provided by law, including those contained in the Uniform Commercial Code in
force in Michigan, and without limiting the generality of the foregoing, (i) the
right to declare all amounts then remaining unpaid under the Note to be
immediately due and payable, and (ii) the right to take any available action or
proceeding, at law or in equity, to enforce its rights with respect to the
Collateral.
5. GOVERNING LAW. This transaction shall be governed by the laws of
the State of Michigan, and the Company shall have all of the rights and remedies
granted to a secured party under the Michigan Uniform Commercial Code.
6. AUTHORITY OF THE COMPANY. The Borrower hereby irrevocably
authorizes and empowers the Company, in its absolute discretion, at any time and
after any Event of Default as defined herein, to cancel Borrower's unexercised
stock options and complete stock powers and to transfer or cause to be
transferred on its books all of the Exercise Shares and the share certificates
relating thereto.
7. TERMINATION. Upon the earlier to occur of (a) June 5, 2002 and no
Event of Default by Borrower under the Note or this Agreement and (b) payment in
full of Borrower's obligations under the Note, all rights and interests of the
Company in and to the Collateral shall thereupon revest in the Borrower, and the
Company thereupon shall release the security interest granted in this Agreement,
reassign the Stock Options and Exercise Shares to the Borrower and deliver the
related share certificates (together with any related stock powers) to the
Borrower. In addition, when and if the Fair Market Value of the Exercise Shares,
if any, exceeds 125% ("Excess Value") of the Note Indebtedness and such Excess
Value continues for a period of 30 trading days then the security interest
granted in this Agreement shall be released with respect to those Exercise
Shares comprising such Excess Value only, and such shares shall be reassigned to
the Borrower and the related share certificates (together with any related stock
powers) shall be returned to the Borrower; provided however, that after such
release the Fair Market Value of the Exercise Shares is at least 100% of the
Note Indebtedness and such release is approved by the Chief Executive Officer of
the Company. For purposes of this Section 7, the Fair Market Value of the
Exercise Shares shall be determined by multiplying the number of Exercise Shares
times the closing price per Exercise Share as reported on The Nasdaq Stock
Market.
8. TAXES. The Borrower shall pay for any and all documentary stamps
or other taxes which may be imposed on the transfer and delivery to the Company,
or the retransfer and redelivery to the Borrower, of the Exercise Shares and the
other Collateral.
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9. COMPANY'S RIGHTS; EXCULPATION. The Collateral shall be held in the
possession of the Company, and in connection therewith, the Company shall have
the authority and power to take such actions and to exercise such powers
hereunder as are specifically delegated to the Company by the terms hereof,
together with such other powers as are reasonably incidental thereto. The
Company shall not be liable hereunder in its capacity as agent or bailee for any
action taken or omitted by it hereunder except for its gross negligence or
willful breach. The Company shall have no compensation hereunder and shall be
under no duty with respect to the Collateral except to account therefor in due
course, pursuant to the terms and conditions hereof.
10. ENTIRE AGREEMENT. This Agreement, the Note and the Stock Option
Agreement collectively constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof and are not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
11. MODIFICATION OF AGREEMENT. This Agreement may not be modified
except in writing and executed with the same formality as this Agreement.
12. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
13. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and addressed:
If to Lason, Inc., as follows:
Lason, Inc.
1350 Stephenson Highway
Troy, Michigan 48083
Attention: Corporate Counsel
If to the Borrower to:
Gary L. Monroe
4808 Deer Park Court
Rochester Hills, Michigan 48306
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14. FURTHER ASSURANCE. Each party shall execute and deliver to the
other such further documents and instruments, and shall perform such other acts,
as reasonably may be necessary or proper to carry out the purposes of this
Agreement.
BORROWER
By: /s/ Gary L. Monroe
--------------------------------------
GARY L. MONROE
LASON, INC.
By: /s/ William J. Rauwerdink
--------------------------------------
Name: William J. Rauwerdink
Title: Executive Vice President and
Chief Financial Officer
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EXHIBIT 10.27
AMENDED AND RESTATED SECURED PROMISSORY NOTE
$1,300,000.00 June 5, 1999
Troy, Michigan
FOR VALUE RECEIVED, WILLIAM J. RAUWERDINK ("BORROWER") promises to pay
to the order of Lason, Inc., a Delaware corporation (the "Company"), at 1350
Stephenson Highway, Troy, Michigan 48083, or at such other place as the Company
may designate in writing, the principal sum of up to One Million Three Hundred
Thousand and 00/100 U.S. Dollars ($1,300,000.00) (the "AVAILABLE CREDIT
FACILITY") or such lesser amount as shall have been advanced to the Borrower by
the Company under Section 1 of this Note (the "PRINCIPAL SUM"), together with
interest on the unpaid balance of the Principal Sum, as follows:
1. ANNUAL ADVANCES. This Note amends and restates the Note between the
Borrower and the Company dated June 5, 1998 (the "EXECUTION DATE"). The Company
advanced 25% of the Available Credit Facility to the Borrower on the Execution
Date. On each of the three (3) successive anniversary dates of the Execution
Date, the annual amount for which the Borrower may request an additional advance
will be determined as follows:
Number of option shares under the Borrower's May 29, 1998 option grant X
(Company's average closing share price for the twenty (20) trading days
immediately preceding the date of the Company's Annual Meeting of Shareholders -
$27.50) X 25% ( the "MULTIPLIER");
provided, however, that the amount funded in a particular year, when taken
together with previous advances under the Note, may not exceed the following
cumulative percentages of the Available Credit Facility for the following
anniversary dates:
Anniversary of Maximum Cumulative Percentage of Available Credit Facility
Execution Date ("MAXIMUM CUMULATIVE PERCENTAGE")
1st 50%
2nd 75%
3rd 100%
If the Company's average closing share price for any anniversary is above
$40.50, the Multiplier shall be increased above 25% to the extent necessary to
permit the Company to advance funds to the Borrower up to the Maximum Cumulative
Percentage for such year, in order to address shortfalls in the Maximum
Cumulative Percentage advanced by the Company to the Borrower in prior years. If
the Company's average closing share price for any anniversary is below $27.50,
the Borrower will not be entitled to an advance for that particular year, but no
reduction in the outstanding principal amount of the Note will be required.
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Notwithstanding anything to the contrary, (i) the Company shall advance
one hundred percent (100%) of the unadvanced portion of the Available Credit
Facility in the event of a change in control of the Company, as defined in the
Company's 1998 Equity Participation Plan (a "CHANGE IN CONTROL"), which occurs
prior to the fourth anniversary of the Execution Date if the Company's stock
price is at least $40.50 at the time the Change in Control occurs; (ii) if a
Change in Control occurs prior to the fourth anniversary of the Execution Date
and the Company's share price is greater than $27.50 and less than $40.50 at the
time the Change in Control occurs, then the Company shall advance an amount
equal to (A) the number of option shares under the Borrower's May 29, 1998
option grant multiplied by (the Company's share price at the time the Change in
Control occurs minus $27.50) minus (B) all amounts previously advanced under
this Note; and (iii) no amounts are to be advanced under this Note following the
fourth anniversary of the Execution Date, regardless of whether the entire
Available Credit Facility has been advanced. In the event that the amount
calculated under (ii) of the preceding sentence is a negative number, no
reduction in the outstanding principal amount of the Note will be required.
All share prices set forth in this Section 1 shall be appropriately
adjusted by the Company's Compensation Committee for any recapitalization, stock
dividend, stock split or similar change in the Company's capital structure.
2. INTEREST. Interest shall accrue on the unpaid balance of the
Principal Sum at the Applicable Federal Rate as in effect on the Execution Date
and on each successive anniversary date thereafter. In no event shall the
interest rate payable under this Note exceed the maximum rate permitted by law.
To the extent that Borrower is employed by the Company at the end of any
calendar year prior to the Maturity Date, as defined below, all accrued and
unpaid interest on the unpaid balance of the Principal Sum shall be deemed to
have been paid by Borrower to the Company, and shall be considered and treated
as increased W-2 earnings to Borrower.
3. MATURITY; PREPAYMENT. The Principal Sum, together with accrued and
unpaid interest thereon, shall be due and payable upon the first to occur of the
following: (i) June 5, 2008; (ii) termination of the Borrower's employment with
the Company for any reason, other than death or permanent disability (as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended), prior to
June 5, 2002; or (iii) acceleration of the Note upon an Event of Default as
described in Section 4 (the "MATURITY DATE"). If the Principal Sum is not paid
within five (5) days of the Maturity Date, interest shall thereafter accrue on
the unpaid balance of the Principal Sum at the per annum rate of three percent
(3%) plus the Applicable Federal Rate in effect on the Maturity Date. Borrower
may prepay any and all principal and accrued interest due under this Note at any
time without additional interest or penalty. All amounts outstanding under this
Note will be canceled and forgiven in the event of a Change in Control of the
Company; provided that the Note is not in default and has not matured prior to
the Change in Control.
4. SECURITY. To secure full and timely performance under this Note,
Borrower agrees to pledge or cause to be pledged, and to grant or cause to be
granted, a security interest in the Borrower's unexercised stock options under
that certain Stock Option Agreement between the
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Borrower and the Company dated as of May 29, 1998, together with any Common
Stock of the Company acquired upon the exercise of such stock options or any
proceeds thereof (collectively, the "COLLATERAL"), pursuant to that certain
Amended and Restated Pledge and Security Agreement between the Borrower and the
Company dated as of June 5, 1999 (the "Pledge and Security Agreement"). This
Note is entitled to all benefits arising under, and is subject to the terms of,
the Pledge and Security Agreement, which among other things provides for the
acceleration of the Maturity Date hereof upon the occurrence of certain events.
All the representations, warranties, agreements, terms and conditions contained
in the Pledge and Security Agreement are incorporated herein. Borrower shall
execute and deliver or cause to be executed and delivered, all agreements,
instruments, documents and other written matter (collectively, the "SUPPLEMENTAL
DOCUMENTATION") that the Company may request, in form and substance acceptable
to the Company, to perfect and maintain perfected liens and a security interest
in the Collateral and which may be required by virtue of the Company's status as
a public company.
5. EVENT OF DEFAULT; ACCELERATION; OFFSET. During the continuance of an
Event of Default (as defined in the Pledge and Security Agreement), the
obligations evidenced by this Note, including, without limitation, the entire
unpaid Principal Sum together with any accrued interest, shall become
immediately due and payable without any notice or demand. During the continuance
of an Event of Default (as defined in the Pledge and Security Agreement), the
Company shall have the right to offset any amounts owing by the Company to
Borrower for whatever reason, including, but not limited to, salary, bonus or
expense reimbursement, against any unpaid portion of the Principal Sum advanced
by the Company and accrued interest thereon.
6. COSTS AND EXPENSES. In addition to all other sums payable under this
Note, Borrower also agrees to pay to the Company upon demand all costs and
expenses incurred by the Company in the enforcement of Borrower's obligations
under this Note, including, without limitation, reasonable attorneys' fees. If
Borrower fails to pay such costs and expenses within five (5) days of the
receipt by Borrower of the Company's written demand therefor, then interest
shall accrue on such costs and expenses at the rate specified in the second
sentence of Section 3 from the date of demand until the date of payment.
7. SEVERABILITY. If any provision of this Note is held to be invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Note shall remain in full force and effect and shall be construed liberally in
favor of the Company in order to effectuate the provisions of this Note.
8. GOVERNING LAW. This instrument shall be governed by and construed
according to the laws of the State of Michigan.
9. WAIVER. Borrower waives presentment, demand, notice of protest and
notice of dishonor and any and all other notices and demands in connection with
any delivery, acceptance, performance or default of this Note and agrees that
this Note may be modified only by an agreement in writing signed by the Company
and Borrower.
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10. NO RIGHT TO CONTINUED EMPLOYMENT. The Company's acceptance of this
Note is a strictly voluntary undertaking on the part of the Company and shall
not constitute consideration for, or any inducement or condition of, the
employment of the Borrower by the Company. Nothing contained in this Note shall
give the Borrower the right to be retained in the service of the Company or to
interfere with or restrict the right of the Company, which is hereby expressly
reserved, to discharge or retire the Borrower at any time or for any reason not
prohibited by law, with or without cause.
11. MARGIN STOCK. Borrower represents and warrants that none of the
advances under this Note will be used for the purpose of buying or carrying
"margin stock," as that term is defined by Regulation U of the Federal Reserve
Board. "Margin stock" includes any equity security registered or having unlisted
trading privileges on a national securities exchange, any OTC security
designated as qualified for trading in the Nasdaq National Market System, any
debt security convertible into a margin stock or carrying a warrant or right to
subscribe to or purchase a margin stock, any warrant or right to subscribe to or
purchase a margin stock, and, with certain exceptions, securities issued by an
investment company registered under Section 8 of the Investment Company Act of
1940.
By: /s/ William J. Rauwerdink
-------------------------------------
WILLIAM J. RAUWERDINK
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EXHIBIT 10.28
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
This Amended and Restated Pledge and Security Agreement ("Agreement"),
dated as of June 5, 1999 by and between WILLIAM J. RAUWERDINK ("Borrower") and
Lason, Inc. (the "Company"). This Agreement amends and restates the Pledge and
Security Agreement dated June 5, 1998 between the Borrower and the Company.
Whereas, the Company may loan the Borrower the principal sum of up to
$1,300,000.00 pursuant to an Amended and Restated Secured Promissory Note dated
as of June 5, 1999 (the "Note").
NOW, THEREFORE, in order to induce the Company to make the loan, and
secure Borrower's obligations under the Note, the parties named herein agree as
follows:
1. PLEDGE. The Borrower hereby confirms the grant of a first security
interest to the Company in the following collateral (the "Collateral") as of
June 5, 1998:
(a) All unexercised stock options pursuant to that certain Stock Option
Agreement between the Borrower and the Company dated as of May 29, 1998 (the
"Stock Options"); and
(b) Subject to Section 7 hereof, all of Borrower's right to, title and
interest in the shares of Common Stock that Borrower may acquire upon exercise
of the Stock Options (the "Exercise Shares"), all dividends and distributions
arising therefrom, payable therein or distributed in respect thereto, whether in
cash, property, stock or otherwise and whether now or hereafter declared, paid
or made, together with the right to receive and receipt therefor, together with
all proceeds thereof; provided, however, that if and so long as no default in
the observance and performance by the Borrower of any of the terms of this
Agreement or the Note, the Borrower shall have the right to receive all
dividends in respect to the Collateral paid in cash or in the stock of a
corporation or in other property; and provided further, that the Borrower shall
pledge to the Company any such stock or other property so distributed to
Borrower to secure Borrower's obligations to the Company and shall enter into
any such further agreements and execute such further documents as the Company
may require to effectuate such pledge or that may be required by virtue of the
Company's status as a public company.
The Borrower shall not be required to pledge or otherwise provide any
collateral to secure the Note other than the Collateral specified in this
Section 1.
2. PERFECTION OF SECURITY INTEREST. In order to perfect the Company's
security interest in the Collateral described in Section 1(a), the Borrower
agrees to deliver a UCC-1 financing statement to the Company for filing in the
Borrower's state of residence. In order to perfect the Company's security
interest in the Collateral described in Section 1(b), the Borrower agrees to
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deliver to the Company share certificates duly endorsed for transfer in blank
(or accompanied by one or more signed stock powers in blank), to be held by the
Company pursuant to the terms of this Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Borrower hereby
represents, warrants and agrees with the Company as follows:
(a) The Borrower has the legal capacity to execute this Agreement and
to carry out all of the terms, conditions, covenants and provisions contained
herein.
(b) If, whenever, and as often as, during the term of this Agreement,
any stock dividend, reclassification, readjustment or other change is declared
or made in the capital structure of the Company, all new, substituted and
additional shares or other securities issued upon exercise of the Stock Options
or in consideration of the Exercise Shares shall be held by the Company under
the terms of this Agreement in the same manner as the Stock Options.
(c) The Borrower has good right and lawful authority to pledge,
hypothecate, mortgage, assign, transfer, deliver, set over and confirm unto the
Company the Collateral as provided in this Agreement, and the Borrower shall
warrant and defend the title thereto and the Company's security interest therein
against the claims of all persons.
(d) So long as this Agreement is in effect, the Borrower shall not
sell, assign or transfer, and shall not pledge, hypothecate, mortgage or
otherwise encumber any right or rights with respect to the Collateral or any
rights or interest therein.
(e) Borrower agrees to execute Form F.R. G-3 and any other form
required to be executed pursuant to Regulation G and any other rules and
regulations of the Federal Reserve System with respect to the Collateral.
4. DEFAULT. Each of the following events or conditions constitutes an
"Event of Default":
(a) Failure by the Borrower to make any payment of principal or
interest under the Note on or before 30 days after the date such payment is due.
(b) [Reserved.]
(c) Any representation, warranty or other statement by or on behalf of
the Borrower contained in the Note or in this Agreement is false or misleading
in any material respect when made.
(d) The Borrower becomes insolvent or bankrupt or makes any assignment
for the benefit of creditors, or consents to the appointment of a trustee,
receiver or liquidator.
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(e) Bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings are instituted by or against the Borrower, which proceedings are not
dismissed or stayed within 60 days after they are instituted.
If, whenever and as often as, there shall have occurred an Event of
Default, the Company shall have at any time thereafter the rights and remedies
provided by law, including those contained in the Uniform Commercial Code in
force in Michigan, and without limiting the generality of the foregoing, (i) the
right to declare all amounts then remaining unpaid under the Note to be
immediately due and payable, and (ii) the right to take any available action or
proceeding, at law or in equity, to enforce its rights with respect to the
Collateral.
5. GOVERNING LAW. This transaction shall be governed by the laws of the
State of Michigan, and the Company shall have all of the rights and remedies
granted to a secured party under the Michigan Uniform Commercial Code.
6. AUTHORITY OF THE COMPANY. The Borrower hereby irrevocably authorizes
and empowers the Company, in its absolute discretion, at any time and after any
Event of Default as defined herein, to cancel Borrower's unexercised stock
options and complete stock powers and to transfer or cause to be transferred on
its books all of the Exercise Shares and the share certificates relating
thereto.
7. TERMINATION. Upon the earlier to occur of (a) June 5, 2002 and no
Event of Default by Borrower under the Note or this Agreement and (b) payment in
full of Borrower's obligations under the Note, all rights and interests of the
Company in and to the Collateral shall thereupon revest in the Borrower, and the
Company thereupon shall release the security interest granted in this Agreement,
reassign the Stock Options and Exercise Shares to the Borrower and deliver the
related share certificates (together with any related stock powers) to the
Borrower. In addition, when and if the Fair Market Value of the Exercise Shares,
if any, exceeds 125% ("Excess Value") of the Note Indebtedness and such Excess
Value continues for a period of 30 trading days then the security interest
granted in this Agreement shall be released with respect to those Exercise
Shares comprising such Excess Value only, and such shares shall be reassigned to
the Borrower and the related share certificates (together with any related stock
powers) shall be returned to the Borrower; provided however, that after such
release the Fair Market Value of the Exercise Shares is at least 100% of the
Note Indebtedness and such release is approved by the Chief Executive Officer of
the Company. For purposes of this Section 7, the Fair Market Value of the
Exercise Shares shall be determined by multiplying the number of Exercise Shares
times the closing price per Exercise Share as reported on The Nasdaq Stock
Market.
8. TAXES. The Borrower shall pay for any and all documentary stamps or
other taxes which may be imposed on the transfer and delivery to the Company, or
the retransfer and redelivery to the Borrower, of the Exercise Shares and the
other Collateral.
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9. COMPANY'S RIGHTS; EXCULPATION. The Collateral shall be held in the
possession of the Company, and in connection therewith, the Company shall have
the authority and power to take such actions and to exercise such powers
hereunder as are specifically delegated to the Company by the terms hereof,
together with such other powers as are reasonably incidental thereto. The
Company shall not be liable hereunder in its capacity as agent or bailee for any
action taken or omitted by it hereunder except for its gross negligence or
willful breach. The Company shall have no compensation hereunder and shall be
under no duty with respect to the Collateral except to account therefor in due
course, pursuant to the terms and conditions hereof.
10. ENTIRE AGREEMENT. This Agreement, the Note and the Stock Option
Agreement collectively constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof and are not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
11. MODIFICATION OF AGREEMENT. This Agreement may not be modified
except in writing and executed with the same formality as this Agreement.
12. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
13. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and addressed:
If to Lason, Inc., as follows:
Lason, Inc.
1350 Stephenson Highway
Troy, Michigan 48083
Attention: Corporate Counsel
If to the Borrower to:
William J. Rauwerdink
3172 Interlaken
Orchard Lake, Michigan 48323
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14. FURTHER ASSURANCE. Each party shall execute and deliver to the
other such further documents and instruments, and shall perform such other acts,
as reasonably may be necessary or proper to carry out the purposes of this
Agreement.
BORROWER
By: /s/ William J. Rauwerdink
----------------------------------------
WILLIAM J. RAUWERDINK
LASON, INC.
By: /s/ Gary L. Monroe
-----------------------------------------
Name: Gary L. Monroe
Title: Chairman of the Board and
Chief Executive Officer
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EXHIBIT 10.29
AMENDED AND RESTATED SECURED PROMISSORY NOTE
$910,000.00 June 5, 1999
Troy, Michigan
FOR VALUE RECEIVED, JOHN R. MESSINGER ("BORROWER") promises to pay to
the order of Lason, Inc., a Delaware corporation (the "COMPANY"), at 1350
Stephenson Highway, Troy, Michigan 48083, or at such other place as the Company
may designate in writing, the principal sum of up to Nine Hundred Ten Thousand
and 00/100 U.S. Dollars ($910,000.00) (the "AVAILABLE CREDIT FACILITY") or such
lesser amount as shall have been advanced to the Borrower by the Company under
Section 1 of this Note (the "PRINCIPAL SUM"), together with interest on the
unpaid balance of the Principal Sum, as follows:
1. ANNUAL ADVANCES. This Note amends and restates the Note between the
Borrower and the Company dated June 5, 1998 (the "EXECUTION DATE"). The Company
advanced 25% of the Available Credit Facility to the Borrower on the Execution
Date. On each of the three (3) successive anniversary dates of the Execution
Date, the annual amount for which the Borrower may request an additional advance
will be determined as follows:
Number of option shares under the Borrower's May 29, 1998 option grant X
(Company's average closing share price for the twenty (20) trading days
immediately preceding the date of the Company's Annual Meeting of Shareholders -
$27.50) X 25% ( the "MULTIPLIER");
provided, however, that the amount funded in a particular year, when taken
together with previous advances under the Note, may not exceed the following
cumulative percentages of the Available Credit Facility for the following
anniversary dates:
Anniversary of Maximum Cumulative Percentage of Available Credit Facility
Execution Date ("MAXIMUM CUMULATIVE PERCENTAGE")
1st 50%
2nd 75%
3rd 100%
If the Company's average closing share price for any anniversary is above
$40.50, the Multiplier shall be increased above 25% to the extent necessary to
permit the Company to advance funds to the Borrower up to the Maximum Cumulative
Percentage for such year, in order to address shortfalls in the Maximum
Cumulative Percentage advanced by the Company to the Borrower in prior years. If
the Company's average closing share price for any anniversary is below $27.50,
the Borrower will not be entitled to an advance for that particular year, but no
reduction in the outstanding principal amount of the Note will be required.
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Notwithstanding anything to the contrary, (i) the Company shall advance
one hundred percent (100%) of the unadvanced portion of the Available Credit
Facility in the event of a change in control of the Company, as defined in the
Company's 1998 Equity Participation Plan (a "CHANGE IN CONTROL"), which occurs
prior to the fourth anniversary of the Execution Date if the Company's stock
price is at least $40.50 at the time the Change in Control occurs; (ii) if a
Change in Control occurs prior to the fourth anniversary of the Execution Date
and the Company's share price is greater than $27.50 and less than $40.50 at the
time the Change in Control occurs, then the Company shall advance an amount
equal to (A) the number of option shares under the Borrower's May 29, 1998
option grant multiplied by (the Company's share price at the time the Change in
Control occurs minus $27.50) minus (B) all amounts previously advanced under
this Note; and (iii) no amounts are to be advanced under this Note following the
fourth anniversary of the Execution Date, regardless of whether the entire
Available Credit Facility has been advanced. In the event that the amount
calculated under (ii) of the preceding sentence is a negative number, no
reduction in the outstanding principal amount of the Note will be required.
All share prices set forth in this Section 1 shall be appropriately
adjusted by the Company's Compensation Committee for any recapitalization, stock
dividend, stock split or similar change in the Company's capital structure.
2. INTEREST. Interest shall accrue on the unpaid balance of the
Principal Sum at the Applicable Federal Rate as in effect on the Execution Date
and on each successive anniversary date thereafter. In no event shall the
interest rate payable under this Note exceed the maximum rate permitted by law.
To the extent that Borrower is employed by the Company at the end of any
calendar year prior to the Maturity Date, as defined below, all accrued and
unpaid interest on the unpaid balance of the Principal Sum shall be deemed to
have been paid by Borrower to the Company, and shall be considered and treated
as increased W-2 earnings to Borrower.
3. MATURITY; PREPAYMENT. The Principal Sum, together with accrued and
unpaid interest thereon, shall be due and payable upon the first to occur of the
following: (i) June 5, 2008; (ii) termination of the Borrower's employment with
the Company for any reason, other than death or permanent disability (as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended), prior to
June 5, 2002; or (iii) acceleration of the Note upon an Event of Default as
described in Section 4 (the "MATURITY DATE"). If the Principal Sum is not paid
within five (5) days of the Maturity Date, interest shall thereafter accrue on
the unpaid balance of the Principal Sum at the per annum rate of three percent
(3%) plus the Applicable Federal Rate in effect on the Maturity Date. Borrower
may prepay any and all principal and accrued interest due under this Note at any
time without additional interest or penalty. All amounts outstanding under this
Note will be canceled and forgiven in the event of a Change in Control of the
Company; provided that the Note is not in default and has not matured prior to
the Change in Control.
4. SECURITY. To secure full and timely performance under this Note,
Borrower agrees to pledge or cause to be pledged, and to grant or cause to be
granted, a security interest in the Borrower's unexercised stock options under
that certain Stock Option Agreement between the
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<PAGE> 3
Borrower and the Company dated as of May 29, 1998, together with any Common
Stock of the Company acquired upon the exercise of such stock options or any
proceeds thereof (collectively, the "COLLATERAL"), pursuant to that certain
Amended and Restated Pledge and Security Agreement between the Borrower and the
Company dated as of June 5, 1999 (the "Pledge and Security Agreement"). This
Note is entitled to all benefits arising under, and is subject to the terms of,
the Pledge and Security Agreement, which among other things provides for the
acceleration of the Maturity Date hereof upon the occurrence of certain events.
All the representations, warranties, agreements, terms and conditions contained
in the Pledge and Security Agreement are incorporated herein. Borrower shall
execute and deliver or cause to be executed and delivered, all agreements,
instruments, documents and other written matter (collectively, the "SUPPLEMENTAL
DOCUMENTATION") that the Company may request, in form and substance acceptable
to the Company, to perfect and maintain perfected liens and a security interest
in the Collateral and which may be required by virtue of the Company's status as
a public company.
5. EVENT OF DEFAULT; ACCELERATION; OFFSET. During the continuance of an
Event of Default (as defined in the Pledge and Security Agreement), the
obligations evidenced by this Note, including, without limitation, the entire
unpaid Principal Sum together with any accrued interest, shall become
immediately due and payable without any notice or demand. During the continuance
of an Event of Default (as defined in the Pledge and Security Agreement), the
Company shall have the right to offset any amounts owing by the Company to
Borrower for whatever reason, including, but not limited to, salary, bonus or
expense reimbursement, against any unpaid portion of the Principal Sum advanced
by the Company and accrued interest thereon.
6. COSTS AND EXPENSES. In addition to all other sums payable under this
Note, Borrower also agrees to pay to the Company upon demand all costs and
expenses incurred by the Company in the enforcement of Borrower's obligations
under this Note, including, without limitation, reasonable attorneys' fees. If
Borrower fails to pay such costs and expenses within five (5) days of the
receipt by Borrower of the Company's written demand therefor, then interest
shall accrue on such costs and expenses at the rate specified in the second
sentence of Section 3 from the date of demand until the date of payment.
7. SEVERABILITY. If any provision of this Note is held to be invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Note shall remain in full force and effect and shall be construed liberally in
favor of the Company in order to effectuate the provisions of this Note.
8. GOVERNING LAW. This instrument shall be governed by and construed
according to the laws of the State of Michigan.
9. WAIVER. Borrower waives presentment, demand, notice of protest and
notice of dishonor and any and all other notices and demands in connection with
any delivery, acceptance, performance or default of this Note and agrees that
this Note may be modified only by an agreement in writing signed by the Company
and Borrower.
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10. NO RIGHT TO CONTINUED EMPLOYMENT. The Company's acceptance of this
Note is a strictly voluntary undertaking on the part of the Company and shall
not constitute consideration for, or any inducement or condition of, the
employment of the Borrower by the Company. Nothing contained in this Note shall
give the Borrower the right to be retained in the service of the Company or to
interfere with or restrict the right of the Company, which is hereby expressly
reserved, to discharge or retire the Borrower at any time or for any reason not
prohibited by law, with or without cause.
11. MARGIN STOCK. Borrower represents and warrants that none of the
advances under this Note will be used for the purpose of buying or carrying
"margin stock," as that term is defined by Regulation U of the Federal Reserve
Board. "Margin stock" includes any equity security registered or having unlisted
trading privileges on a national securities exchange, any OTC security
designated as qualified for trading in the Nasdaq National Market System, any
debt security convertible into a margin stock or carrying a warrant or right to
subscribe to or purchase a margin stock, any warrant or right to subscribe to or
purchase a margin stock, and, with certain exceptions, securities issued by an
investment company registered under Section 8 of the Investment Company Act of
1940.
By: /s/ John R. Messinger
---------------------------------
JOHN R. MESSINGER
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EXHIBIT 10.30
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
This Amended and Restated Pledge and Security Agreement ("Agreement"),
dated as of June 5, 1999 by and between JOHN R. MESSINGER ("Borrower") and
Lason, Inc. (the "Company"). This Agreement amends and restates the Pledge and
Security Agreement dated June 5, 1998 between the Borrower and the Company.
Whereas, the Company may loan the Borrower the principal sum of up to
$910,000.00 pursuant to an Amended and Restated Secured Promissory Note dated as
of June 5, 1999 (the "Note").
NOW, THEREFORE, in order to induce the Company to make the loan, and
secure Borrower's obligations under the Note, the parties named herein agree as
follows:
1. PLEDGE. The Borrower hereby confirms the grant of a first security
interest to the Company in the following collateral (the "Collateral") as of
June 5, 1998:
(a) All unexercised stock options pursuant to that certain Stock Option
Agreement between the Borrower and the Company dated as of May 29, 1998 (the
"Stock Options"); and
(b) Subject to Section 7 hereof, all of Borrower's right to, title and
interest in the shares of Common Stock that Borrower may acquire upon exercise
of the Stock Options (the "Exercise Shares"), all dividends and distributions
arising therefrom, payable therein or distributed in respect thereto, whether in
cash, property, stock or otherwise and whether now or hereafter declared, paid
or made, together with the right to receive and receipt therefor, together with
all proceeds thereof; provided, however, that if and so long as no default in
the observance and performance by the Borrower of any of the terms of this
Agreement or the Note, the Borrower shall have the right to receive all
dividends in respect to the Collateral paid in cash or in the stock of a
corporation or in other property; and provided further, that the Borrower shall
pledge to the Company any such stock or other property so distributed to
Borrower to secure Borrower's obligations to the Company and shall enter into
any such further agreements and execute such further documents as the Company
may require to effectuate such pledge or that may be required by virtue of the
Company's status as a public company.
The Borrower shall not be required to pledge or otherwise provide any
collateral to secure the Note other than the Collateral specified in this
Section 1.
2. PERFECTION OF SECURITY INTEREST. In order to perfect the Company's
security interest in the Collateral described in Section 1(a), the Borrower
agrees to deliver a UCC-1 financing statement to the Company for filing in the
Borrower's state of residence. In order to perfect the Company's security
interest in the Collateral described in Section 1(b), the Borrower agrees to
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deliver to the Company share certificates duly endorsed for transfer in blank
(or accompanied by one or more signed stock powers in blank), to be held by the
Company pursuant to the terms of this Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Borrower hereby
represents, warrants and agrees with the Company as follows:
(a) The Borrower has the legal capacity to execute this Agreement and
to carry out all of the terms, conditions, covenants and provisions contained
herein.
(b) If, whenever, and as often as, during the term of this Agreement,
any stock dividend, reclassification, readjustment or other change is declared
or made in the capital structure of the Company, all new, substituted and
additional shares or other securities issued upon exercise of the Stock Options
or in consideration of the Exercise Shares shall be held by the Company under
the terms of this Agreement in the same manner as the Stock Options.
(c) The Borrower has good right and lawful authority to pledge,
hypothecate, mortgage, assign, transfer, deliver, set over and confirm unto the
Company the Collateral as provided in this Agreement, and the Borrower shall
warrant and defend the title thereto and the Company's security interest therein
against the claims of all persons.
(d) So long as this Agreement is in effect, the Borrower shall not
sell, assign or transfer, and shall not pledge, hypothecate, mortgage or
otherwise encumber any right or rights with respect to the Collateral or any
rights or interest therein.
(e) Borrower agrees to execute Form F.R. G-3 and any other form
required to be executed pursuant to Regulation G and any other rules and
regulations of the Federal Reserve System with respect to the Collateral.
4. DEFAULT. Each of the following events or conditions constitutes an
"Event of Default":
(a) Failure by the Borrower to make any payment of principal or
interest under the Note on or before 30 days after the date such payment is due.
(b) [Reserved.]
(c) Any representation, warranty or other statement by or on behalf of
the Borrower contained in the Note or in this Agreement is false or misleading
in any material respect when made.
(d) The Borrower becomes insolvent or bankrupt or makes any assignment
for the benefit of creditors, or consents to the appointment of a trustee,
receiver or liquidator.
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(e) Bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings are instituted by or against the Borrower, which proceedings are not
dismissed or stayed within 60 days after they are instituted.
If, whenever and as often as, there shall have occurred an Event of
Default, the Company shall have at any time thereafter the rights and remedies
provided by law, including those contained in the Uniform Commercial Code in
force in Michigan, and without limiting the generality of the foregoing, (i) the
right to declare all amounts then remaining unpaid under the Note to be
immediately due and payable, and (ii) the right to take any available action or
proceeding, at law or in equity, to enforce its rights with respect to the
Collateral.
5. GOVERNING LAW. This transaction shall be governed by the laws of the
State of Michigan, and the Company shall have all of the rights and remedies
granted to a secured party under the Michigan Uniform Commercial Code.
6. AUTHORITY OF THE COMPANY. The Borrower hereby irrevocably authorizes
and empowers the Company, in its absolute discretion, at any time and after any
Event of Default as defined herein, to cancel Borrower's unexercised stock
options and complete stock powers and to transfer or cause to be transferred on
its books all of the Exercise Shares and the share certificates relating
thereto.
7. TERMINATION. Upon the earlier to occur of (a) June 5, 2002 and no
Event of Default by Borrower under the Note or this Agreement and (b) payment in
full of Borrower's obligations under the Note, all rights and interests of the
Company in and to the Collateral shall thereupon revest in the Borrower, and the
Company thereupon shall release the security interest granted in this Agreement,
reassign the Stock Options and Exercise Shares to the Borrower and deliver the
related share certificates (together with any related stock powers) to the
Borrower. In addition, when and if the Fair Market Value of the Exercise Shares,
if any, exceeds 125% ("Excess Value") of the Note Indebtedness and such Excess
Value continues for a period of 30 trading days then the security interest
granted in this Agreement shall be released with respect to those Exercise
Shares comprising such Excess Value only, and such shares shall be reassigned to
the Borrower and the related share certificates (together with any related stock
powers) shall be returned to the Borrower; provided however, that after such
release the Fair Market Value of the Exercise Shares is at least 100% of the
Note Indebtedness and such release is approved by the Chief Executive Officer of
the Company. For purposes of this Section 7, the Fair Market Value of the
Exercise Shares shall be determined by multiplying the number of Exercise Shares
times the closing price per Exercise Share as reported on The Nasdaq Stock
Market.
8. TAXES. The Borrower shall pay for any and all documentary stamps or
other taxes which may be imposed on the transfer and delivery to the Company, or
the retransfer and redelivery to the Borrower, of the Exercise Shares and the
other Collateral.
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9. COMPANY'S RIGHTS; EXCULPATION. The Collateral shall be held in the
possession of the Company, and in connection therewith, the Company shall have
the authority and power to take such actions and to exercise such powers
hereunder as are specifically delegated to the Company by the terms hereof,
together with such other powers as are reasonably incidental thereto. The
Company shall not be liable hereunder in its capacity as agent or bailee for any
action taken or omitted by it hereunder except for its gross negligence or
willful breach. The Company shall have no compensation hereunder and shall be
under no duty with respect to the Collateral except to account therefor in due
course, pursuant to the terms and conditions hereof.
10. ENTIRE AGREEMENT. This Agreement, the Note and the Stock Option
Agreement collectively constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof and are not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
11. MODIFICATION OF AGREEMENT. This Agreement may not be modified
except in writing and executed with the same formality as this Agreement.
12. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
13. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and addressed:
If to Lason, Inc., as follows:
Lason, Inc.
1350 Stephenson Highway
Troy, Michigan 48083
Attention: Corporate Counsel
If to the Borrower to:
John R. Messinger
3548 Charlwood
Rochester Hills, MI 48306
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14. FURTHER ASSURANCE. Each party shall execute and deliver to the
other such further documents and instruments, and shall perform such other acts,
as reasonably may be necessary or proper to carry out the purposes of this
Agreement.
BORROWER
By: /s/ John R. Messinger
-----------------------------------
JOHN R. MESSINGER
LASON, INC.
By: /s/ William J. Rauwerdink
-----------------------------------
Name: William J. Rauwerdink
Title: Executive Vice President and
Chief Financial Officer
5
<PAGE> 1
EXHIBIT 10.31
AMENDED AND RESTATED SECURED PROMISSORY NOTE
$520,000.00 June 5, 1999
Troy, Michigan
FOR VALUE RECEIVED, CARY W. NEWMAN ("BORROWER") promises to pay to the
order of Lason, Inc., a Delaware corporation (the "Company"), at 1350 Stephenson
Highway, Troy, Michigan 48083, or at such other place as the Company may
designate in writing, the principal sum of up to Five Hundred Twenty Thousand
and 00/100 U.S. Dollars ($520,000.00) (the "AVAILABLE CREDIT FACILITY") or such
lesser amount as shall have been advanced to the Borrower by the Company under
Section 1 of this Note (the "PRINCIPAL SUM"), together with interest on the
unpaid balance of the Principal Sum, as follows:
1. ANNUAL ADVANCES. This Note amends and restates the Note between the
Borrower and the Company dated June 5, 1998 (the "EXECUTION DATE"). The Company
advanced 25% of the Available Credit Facility to the Borrower on the Execution
Date. On each of the three (3) successive anniversary dates of the Execution
Date, the annual amount for which the Borrower may request an additional advance
will be determined as follows:
Number of option shares under the Borrower's May 29, 1998 option grant X
(Company's average closing share price for the twenty (20) trading days
immediately preceding the date of the Company's Annual Meeting of Shareholders -
$27.50) X 25% ( the "MULTIPLIER");
provided, however, that the amount funded in a particular year, when taken
together with previous advances under the Note, may not exceed the following
cumulative percentages of the Available Credit Facility for the following
anniversary dates:
Anniversary of Maximum Cumulative Percentage of Available Credit Facility
Execution Date ("MAXIMUM CUMULATIVE PERCENTAGE")
1st 50%
2nd 75%
3rd 100%
If the Company's average closing share price for any anniversary is above
$40.50, the Multiplier shall be increased above 25% to the extent necessary to
permit the Company to advance funds to the Borrower up to the Maximum Cumulative
Percentage for such year, in order to address shortfalls in the Maximum
Cumulative Percentage advanced by the Company to the Borrower in prior years. If
the Company's average closing share price for any anniversary is below $27.50,
the Borrower will not be entitled to an advance for that particular year, but no
reduction in the outstanding principal amount of the Note will be required.
1
<PAGE> 2
Notwithstanding anything to the contrary, (i) the Company shall advance
one hundred percent (100%) of the unadvanced portion of the Available Credit
Facility in the event of a change in control of the Company, as defined in the
Company's 1998 Equity Participation Plan (a "CHANGE IN CONTROL"), which occurs
prior to the fourth anniversary of the Execution Date if the Company's stock
price is at least $40.50 at the time the Change in Control occurs; (ii) if a
Change in Control occurs prior to the fourth anniversary of the Execution Date
and the Company's share price is greater than $27.50 and less than $40.50 at the
time the Change in Control occurs, then the Company shall advance an amount
equal to (A) the number of option shares under the Borrower's May 29, 1998
option grant multiplied by (the Company's share price at the time the Change in
Control occurs minus $27.50) minus (B) all amounts previously advanced under
this Note; and (iii) no amounts are to be advanced under this Note following the
fourth anniversary of the Execution Date, regardless of whether the entire
Available Credit Facility has been advanced. In the event that the amount
calculated under (ii) of the preceding sentence is a negative number, no
reduction in the outstanding principal amount of the Note will be required.
All share prices set forth in this Section 1 shall be appropriately
adjusted by the Company's Compensation Committee for any recapitalization, stock
dividend, stock split or similar change in the Company's capital structure.
2. INTEREST. Interest shall accrue on the unpaid balance of the
Principal Sum at the Applicable Federal Rate as in effect on the Execution Date
and on each successive anniversary date thereafter. In no event shall the
interest rate payable under this Note exceed the maximum rate permitted by law.
To the extent that Borrower is employed by the Company at the end of any
calendar year prior to the Maturity Date, as defined below, all accrued and
unpaid interest on the unpaid balance of the Principal Sum shall be deemed to
have been paid by Borrower to the Company, and shall be considered and treated
as increased W-2 earnings to Borrower.
3. MATURITY; PREPAYMENT. The Principal Sum, together with accrued and
unpaid interest thereon, shall be due and payable upon the first to occur of the
following: (i) June 5, 2008; (ii) termination of the Borrower's employment with
the Company for any reason, other than death or permanent disability (as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended), prior to
June 5, 2002; or (iii) acceleration of the Note upon an Event of Default as
described in Section 4 (the "MATURITY DATE"). If the Principal Sum is not paid
within five (5) days of the Maturity Date, interest shall thereafter accrue on
the unpaid balance of the Principal Sum at the per annum rate of three percent
(3%) plus the Applicable Federal Rate in effect on the Maturity Date. Borrower
may prepay any and all principal and accrued interest due under this Note at any
time without additional interest or penalty. All amounts outstanding under this
Note will be canceled and forgiven in the event of a Change in Control of the
Company; provided that the Note is not in default and has not matured prior to
the Change in Control.
4. SECURITY. To secure full and timely performance under this Note,
Borrower agrees to pledge or cause to be pledged, and to grant or cause to be
granted, a security interest in the Borrower's unexercised stock options under
that certain Stock Option Agreement between the
2
<PAGE> 3
Borrower and the Company dated as of May 29, 1998, together with any Common
Stock of the Company acquired upon the exercise of such stock options or any
proceeds thereof (collectively, the "COLLATERAL"), pursuant to that certain
Amended and Restated Pledge and Security Agreement between the Borrower and the
Company dated as of June 5, 1999 (the "Pledge and Security Agreement"). This
Note is entitled to all benefits arising under, and is subject to the terms of,
the Pledge and Security Agreement, which among other things provides for the
acceleration of the Maturity Date hereof upon the occurrence of certain events.
All the representations, warranties, agreements, terms and conditions contained
in the Pledge and Security Agreement are incorporated herein. Borrower shall
execute and deliver or cause to be executed and delivered, all agreements,
instruments, documents and other written matter (collectively, the "SUPPLEMENTAL
DOCUMENTATION") that the Company may request, in form and substance acceptable
to the Company, to perfect and maintain perfected liens and a security interest
in the Collateral and which may be required by virtue of the Company's status as
a public company.
5. EVENT OF DEFAULT; ACCELERATION; OFFSET. During the continuance of an
Event of Default (as defined in the Pledge and Security Agreement), the
obligations evidenced by this Note, including, without limitation, the entire
unpaid Principal Sum together with any accrued interest, shall become
immediately due and payable without any notice or demand. During the continuance
of an Event of Default (as defined in the Pledge and Security Agreement), the
Company shall have the right to offset any amounts owing by the Company to
Borrower for whatever reason, including, but not limited to, salary, bonus or
expense reimbursement, against any unpaid portion of the Principal Sum advanced
by the Company and accrued interest thereon.
6. COSTS AND EXPENSES. In addition to all other sums payable under this
Note, Borrower also agrees to pay to the Company upon demand all costs and
expenses incurred by the Company in the enforcement of Borrower's obligations
under this Note, including, without limitation, reasonable attorneys' fees. If
Borrower fails to pay such costs and expenses within five (5) days of the
receipt by Borrower of the Company's written demand therefor, then interest
shall accrue on such costs and expenses at the rate specified in the second
sentence of Section 3 from the date of demand until the date of payment.
7. SEVERABILITY. If any provision of this Note is held to be invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Note shall remain in full force and effect and shall be construed liberally in
favor of the Company in order to effectuate the provisions of this Note.
8. GOVERNING LAW. This instrument shall be governed by and construed
according to the laws of the State of Michigan.
9. WAIVER. Borrower waives presentment, demand, notice of protest and
notice of dishonor and any and all other notices and demands in connection with
any delivery, acceptance, performance or default of this Note and agrees that
this Note may be modified only by an agreement in writing signed by the Company
and Borrower.
3
<PAGE> 4
10. NO RIGHT TO CONTINUED EMPLOYMENT. The Company's acceptance of this
Note is a strictly voluntary undertaking on the part of the Company and shall
not constitute consideration for, or any inducement or condition of, the
employment of the Borrower by the Company. Nothing contained in this Note shall
give the Borrower the right to be retained in the service of the Company or to
interfere with or restrict the right of the Company, which is hereby expressly
reserved, to discharge or retire the Borrower at any time or for any reason not
prohibited by law, with or without cause.
11. MARGIN STOCK. Borrower represents and warrants that none of the
advances under this Note will be used for the purpose of buying or carrying
"margin stock," as that term is defined by Regulation U of the Federal Reserve
Board. "Margin stock" includes any equity security registered or having unlisted
trading privileges on a national securities exchange, any OTC security
designated as qualified for trading in the Nasdaq National Market System, any
debt security convertible into a margin stock or carrying a warrant or right to
subscribe to or purchase a margin stock, any warrant or right to subscribe to or
purchase a margin stock, and, with certain exceptions, securities issued by an
investment company registered under Section 8 of the Investment Company Act of
1940.
By: /s/ Cary W. Newman
---------------------------------------
CARY W. NEWMAN
4
<PAGE> 1
EXHIBIT 10.32
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
This Amended and Restated Pledge and Security Agreement ("Agreement"),
dated as of June 5, 1999 by and between CARY W. NEWMAN ("Borrower") and Lason,
Inc. (the "Company"). This Agreement amends and restates the Pledge and Security
Agreement dated June 5, 1998 between the Borrower and the Company.
Whereas, the Company may loan the Borrower the principal sum of up to
$520,000.00 pursuant to an Amended and Restated Secured Promissory Note dated as
of June 5, 1999 (the "Note").
NOW, THEREFORE, in order to induce the Company to make the loan, and
secure Borrower's obligations under the Note, the parties named herein agree as
follows:
1. PLEDGE. The Borrower hereby confirms the grant of a first security
interest to the Company in the following collateral (the "Collateral") as of
June 5, 1998:
(a) All unexercised stock options pursuant to that certain Stock Option
Agreement between the Borrower and the Company dated as of May 29, 1998 (the
"Stock Options"); and
(b) Subject to Section 7 hereof, all of Borrower's right to, title and
interest in the shares of Common Stock that Borrower may acquire upon exercise
of the Stock Options (the "Exercise Shares"), all dividends and distributions
arising therefrom, payable therein or distributed in respect thereto, whether in
cash, property, stock or otherwise and whether now or hereafter declared, paid
or made, together with the right to receive and receipt therefor, together with
all proceeds thereof; provided, however, that if and so long as no default in
the observance and performance by the Borrower of any of the terms of this
Agreement or the Note, the Borrower shall have the right to receive all
dividends in respect to the Collateral paid in cash or in the stock of a
corporation or in other property; and provided further, that the Borrower shall
pledge to the Company any such stock or other property so distributed to
Borrower to secure Borrower's obligations to the Company and shall enter into
any such further agreements and execute such further documents as the Company
may require to effectuate such pledge or that may be required by virtue of the
Company's status as a public company.
The Borrower shall not be required to pledge or otherwise provide any
collateral to secure the Note other than the Collateral specified in this
Section 1.
2. PERFECTION OF SECURITY INTEREST. In order to perfect the Company's
security interest in the Collateral described in Section 1(a), the Borrower
agrees to deliver a UCC-1 financing statement to the Company for filing in the
Borrower's state of residence. In order to perfect the Company's security
interest in the Collateral described in Section 1(b), the Borrower agrees to
1
<PAGE> 2
deliver to the Company share certificates duly endorsed for transfer in blank
(or accompanied by one or more signed stock powers in blank), to be held by the
Company pursuant to the terms of this Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Borrower hereby
represents, warrants and agrees with the Company as follows:
(a) The Borrower has the legal capacity to execute this Agreement and
to carry out all of the terms, conditions, covenants and provisions contained
herein.
(b) If, whenever, and as often as, during the term of this Agreement,
any stock dividend, reclassification, readjustment or other change is declared
or made in the capital structure of the Company, all new, substituted and
additional shares or other securities issued upon exercise of the Stock Options
or in consideration of the Exercise Shares shall be held by the Company under
the terms of this Agreement in the same manner as the Stock Options.
(c) The Borrower has good right and lawful authority to pledge,
hypothecate, mortgage, assign, transfer, deliver, set over and confirm unto the
Company the Collateral as provided in this Agreement, and the Borrower shall
warrant and defend the title thereto and the Company's security interest therein
against the claims of all persons.
(d) So long as this Agreement is in effect, the Borrower shall not
sell, assign or transfer, and shall not pledge, hypothecate, mortgage or
otherwise encumber any right or rights with respect to the Collateral or any
rights or interest therein.
(e) Borrower agrees to execute Form F.R. G-3 and any other form
required to be executed pursuant to Regulation G and any other rules and
regulations of the Federal Reserve System with respect to the Collateral.
4. DEFAULT. Each of the following events or conditions constitutes an
"Event of Default":
(a) Failure by the Borrower to make any payment of principal or
interest under the Note on or before 30 days after the date such payment is due.
(b) [Reserved.]
(c) Any representation, warranty or other statement by or on behalf of
the Borrower contained in the Note or in this Agreement is false or misleading
in any material respect when made.
(d) The Borrower becomes insolvent or bankrupt or makes any assignment
for the benefit of creditors, or consents to the appointment of a trustee,
receiver or liquidator.
2
<PAGE> 3
(e) Bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings are instituted by or against the Borrower, which proceedings are not
dismissed or stayed within 60 days after they are instituted.
If, whenever and as often as, there shall have occurred an Event of
Default, the Company shall have at any time thereafter the rights and remedies
provided by law, including those contained in the Uniform Commercial Code in
force in Michigan, and without limiting the generality of the foregoing, (i) the
right to declare all amounts then remaining unpaid under the Note to be
immediately due and payable, and (ii) the right to take any available action or
proceeding, at law or in equity, to enforce its rights with respect to the
Collateral.
5. GOVERNING LAW. This transaction shall be governed by the laws of the
State of Michigan, and the Company shall have all of the rights and remedies
granted to a secured party under the Michigan Uniform Commercial Code.
6. AUTHORITY OF THE COMPANY. The Borrower hereby irrevocably authorizes
and empowers the Company, in its absolute discretion, at any time and after any
Event of Default as defined herein, to cancel Borrower's unexercised stock
options and complete stock powers and to transfer or cause to be transferred on
its books all of the Exercise Shares and the share certificates relating
thereto.
7. TERMINATION. Upon the earlier to occur of (a) June 5, 2002 and no
Event of Default by Borrower under the Note or this Agreement and (b) payment in
full of Borrower's obligations under the Note, all rights and interests of the
Company in and to the Collateral shall thereupon revest in the Borrower, and the
Company thereupon shall release the security interest granted in this Agreement,
reassign the Stock Options and Exercise Shares to the Borrower and deliver the
related share certificates (together with any related stock powers) to the
Borrower. In addition, when and if the Fair Market Value of the Exercise Shares,
if any, exceeds 125% ("Excess Value") of the Note Indebtedness and such Excess
Value continues for a period of 30 trading days then the security interest
granted in this Agreement shall be released with respect to those Exercise
Shares comprising such Excess Value only, and such shares shall be reassigned to
the Borrower and the related share certificates (together with any related stock
powers) shall be returned to the Borrower; provided however, that after such
release the Fair Market Value of the Exercise Shares is at least 100% of the
Note Indebtedness and such release is approved by the Chief Executive Officer of
the Company. For purposes of this Section 7, the Fair Market Value of the
Exercise Shares shall be determined by multiplying the number of Exercise Shares
times the closing price per Exercise Share as reported on The Nasdaq Stock
Market.
8. TAXES. The Borrower shall pay for any and all documentary stamps or
other taxes which may be imposed on the transfer and delivery to the Company, or
the retransfer and redelivery to the Borrower, of the Exercise Shares and the
other Collateral.
3
<PAGE> 4
9. COMPANY'S RIGHTS; EXCULPATION. The Collateral shall be held in the
possession of the Company, and in connection therewith, the Company shall have
the authority and power to take such actions and to exercise such powers
hereunder as are specifically delegated to the Company by the terms hereof,
together with such other powers as are reasonably incidental thereto. The
Company shall not be liable hereunder in its capacity as agent or bailee for any
action taken or omitted by it hereunder except for its gross negligence or
willful breach. The Company shall have no compensation hereunder and shall be
under no duty with respect to the Collateral except to account therefor in due
course, pursuant to the terms and conditions hereof.
10. ENTIRE AGREEMENT. This Agreement, the Note and the Stock Option
Agreement collectively constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof and are not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
11. MODIFICATION OF AGREEMENT. This Agreement may not be modified
except in writing and executed with the same formality as this Agreement.
12. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
13. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and addressed:
If to Lason, Inc., as follows:
Lason, Inc.
1350 Stephenson Highway
Troy, Michigan 48083
Attention: Corporate Counsel
If to the Borrower to:
Cary W. Newman
1094 Park Place Court
Bloomfield Hills, MI 48302
4
<PAGE> 5
14. FURTHER ASSURANCE. Each party shall execute and deliver to the
other such further documents and instruments, and shall perform such other acts,
as reasonably may be necessary or proper to carry out the purposes of this
Agreement.
BORROWER
By: /s/ Cary W. Newman
----------------------------------------
CARY W. NEWMAN
LASON, INC.
By: /s/ William J. Rauwerdink
----------------------------------------
Name: William J. Rauwerdink
Title: Executive Vice President and
Chief Financial Officer
5
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 8,153
<SECURITIES> 0
<RECEIVABLES> 132,296
<ALLOWANCES> 0
<INVENTORY> 13,780
<CURRENT-ASSETS> 186,946
<PP&E> 151,761
<DEPRECIATION> 54,275
<TOTAL-ASSETS> 676,604
<CURRENT-LIABILITIES> 91,235
<BONDS> 0
0
0
<COMMON> 178
<OTHER-SE> 364,645
<TOTAL-LIABILITY-AND-EQUITY> 676,604
<SALES> 273,168
<TOTAL-REVENUES> 273,168
<CGS> 170,189
<TOTAL-COSTS> 170,189
<OTHER-EXPENSES> 101,654
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,013
<INCOME-PRETAX> (3,688)
<INCOME-TAX> (448)
<INCOME-CONTINUING> (3,240)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,240)
<EPS-BASIC> (0.18)
<EPS-DILUTED> (0.18)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
SIX MONTHS ENDED JUNE 30, 1998 HAVE BEEN RESTATED TO REFLECT THE MERGER
WITH M-R GROUP PLC, ACCOUNTED FOR AS A POOLING-OF-INTERESTS. SEE PART I,
ITEM 1, NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - NOTE 2.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 8,171
<SECURITIES> 0
<RECEIVABLES> 87,660
<ALLOWANCES> 0
<INVENTORY> 7,900
<CURRENT-ASSETS> 123,079
<PP&E> 58,259
<DEPRECIATION> 0
<TOTAL-ASSETS> 353,094
<CURRENT-LIABILITIES> 54,781
<BONDS> 0
0
0
<COMMON> 147
<OTHER-SE> 187,161
<TOTAL-LIABILITY-AND-EQUITY> 353,094
<SALES> 151,622
<TOTAL-REVENUES> 151,622
<CGS> 92,314
<TOTAL-COSTS> 92,314
<OTHER-EXPENSES> 39,991
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,125
<INCOME-PRETAX> 17,192
<INCOME-TAX> 6,372
<INCOME-CONTINUING> 10,820
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 10,820
<EPS-BASIC> .74
<EPS-DILUTED> .71
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
12 MONTHS ENDED DECEMBER 31, 1998 HAVE BEEN RESTATED TO REFLECT THE MERGER WITH
M-R GROUP PLC, ACCOUNTED FOR AS A POOLING-OF-INTERESTS. SEE PART I, ITEM 1,
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - NOTE 2.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 6,910
<SECURITIES> 0
<RECEIVABLES> 105,530
<ALLOWANCES> 0
<INVENTORY> 12,649
<CURRENT-ASSETS> 151,221
<PP&E> 84,714
<DEPRECIATION> 0
<TOTAL-ASSETS> 507,146
<CURRENT-LIABILITIES> 91,560
<BONDS> 0
0
0
<COMMON> 176
<OTHER-SE> 329,888
<TOTAL-LIABILITY-AND-EQUITY> 507,146
<SALES> 362,367
<TOTAL-REVENUES> 362,367
<CGS> 227,304
<TOTAL-COSTS> 227,304
<OTHER-EXPENSES> 91,617
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,923
<INCOME-PRETAX> 38,523
<INCOME-TAX> 15,355
<INCOME-CONTINUING> 23,168
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 23,168
<EPS-BASIC> 1.48
<EPS-DILUTED> 1.40
</TABLE>
