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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED MARCH 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NO. 1-12235
TRIUMPH GROUP, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 51-0347963
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification Number)
organization)
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FOUR GLENHARDIE CORPORATE CENTER,
1255 DRUMMERS LANE, SUITE 200, WAYNE, PENNSYLVANIA 19087
(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code: (610) 975-0420
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $.001 PER SHARE
Title of Class
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Indicate by check mark whether the Registrant (1) has filed all reports to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The number of outstanding shares of the Registrant's Common Stock, par
value $.001 per share, and Class D Common Stock, par value $.001 per share, on
May 30, 1997 was 6,021,626 and 3,727,962, respectively. In making such
calculation, Registrant is not making a determination of the affiliate or
non-affiliate status of any holders of shares of Common Stock or Class D Common
Stock.
The aggregate market value of the shares of Common Stock held by
non-affiliates of the Registrant (computed by reference to the closing price of
such voting stock on the New York Stock Exchange on May 30, 1997 of $25 5/8) was
approximately $93,728,613.75.
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DOCUMENTS INCORPORATED BY REFERENCE
Portions of the following document are incorporated herein by reference:
Proxy Statement of Triumph Group, Inc. in connection with its 1997 Annual
Meeting of Stockholders is incorporated in part in Part III hereof, as specified
herein.
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TABLE OF CONTENTS
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ITEM NO. PAGE
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PART I
1. Business...................................................................... 2
2. Properties.................................................................... 14
3. Legal Proceedings............................................................. 14
4. Submission of Matters to a Vote of Security Holders........................... 14
PART II
5. Market for Registrant's Common Equity and Related Stockholder Matters......... 15
6. Selected Financial Data....................................................... 16
7. Management's Discussion and Analysis of Financial Condition and Results of
Operations.................................................................... 17
8. Financial Statements and Supplementary Data................................... 23
9. Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure.................................................................... 41
PART III
10. Directors and Executive Officers of Registrant................................ 41
11. Executive Compensation........................................................ 41
12. Security Ownership of Certain Beneficial Owners and Management................ 42
13. Certain Relationships and Related Transactions................................ 42
PART IV
14. Exhibits, Financial Statement Schedules and Reports on Form 8-K............... 43
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PART I
ITEM 1. BUSINESS
GENERAL OVERVIEW
The Company designs, engineers, manufactures, repairs and overhauls
aircraft components such as mechanical and electromechanical control systems,
aircraft and engine accessories, auxiliary power units ("APUs"), avionics and
aircraft instruments. The Company serves a broad spectrum of the aviation
industry, including commercial airlines and air cargo carriers, as well as
original equipment manufacturers ("OEMs") of aircraft and aircraft components,
on a worldwide basis.
PRODUCTS AND SERVICES
The Company's aviation products and services may generally be divided into
three categories: structural components, instrument and flight controls, and
operational components. The following is a description of some of the products
and services offered by the Company in each of these three categories:
Structural Components. The Company performs stretch forming, bending, die
forming, machining, welding, assembly and other fabrication on aircraft wings,
fuselages and skins for aircraft produced by OEMs such as McDonnell Douglas and
Boeing. The Company also manufactures metallic and composite bonded honeycomb
assemblies for fuselage, wings and flight control surface parts for commercial
airlines and other aircraft operators.
Instrument and Flight Controls. The Company designs and engineers
mechanical and electromechanical controls such as remote valve operators and
push/pull controls ranging from simple vent controls to sophisticated
flight-critical engine controls for OEMs and commercial airlines. The Company's
designs and engineering for such controls are proprietary because such designs
are not sold to the OEM for whom the control is manufactured. Consequently, the
OEM generally relies on the Company to repair or replace such component. The
Company also performs repair and overhaul services and supplies spare parts for
various types of cockpit instruments and gauges for a broad range of commercial
airlines on a worldwide basis.
Operational Components. The Company performs complete repair and overhaul
services on APUs for both commercial airlines and OEMs. APUs are used to provide
power for all non-propulsion aircraft functions such as air conditioning, lights
and other electrical functions. The Company also repairs and overhauls aircraft
accessories, including constant speed drives, pneumatic or electrically actuated
valves, cabin compressors, starters and generators, and manufactures refueling
booms. Certain of these components, like the APUs, are repaired pursuant to SFAR
36 certifications. Finally, the Company provides precision machining services
for other operational components manufactured from refractory and other metals
for the aviation and aerospace industry.
INDUSTRY OVERVIEW AND TRENDS
According to U.S. Department of Commerce statistics, the annual worldwide
market for aircraft, including components, is approximately $56.7 billion. This
market is expected to grow at an annual rate of 5% to 6% through 2000. Aviation
Week and Space Technology has stated that the global airline industry spends at
least $20 billion annually to maintain its aircraft. Both the aircraft component
production and component repair industries are highly fragmented, each
consisting of a limited number of well-capitalized companies, which offer a
broad range of products and services, and a large number of smaller, specialized
companies. The aviation industry has been consolidating at an increasing pace in
recent years, and it is expected that such consolidation will continue for the
foreseeable future.
A number of significant trends are currently affecting the market for the
design, engineering, manufacture, repair and overhaul of aircraft components.
These trends include the following:
Increases in Air Transit and Aircraft Production. Boeing's 1996 Market
Outlook projected that global air travel will increase by 70% and that the
number of passenger and cargo delivery aircraft in service will
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increase by 47% through the year 2005. This trend will be driven, in part, by
the anticipated continued growth of established carriers engaged in the air
freight and package delivery businesses. Average passenger seat miles flown is
also expected to increase significantly over the next few years. Further, many
new airlines are expected to commence operations in the United States and
abroad, especially in China and other countries in Asia where air traffic
previously was limited. Because start-up airlines generally do not invest in the
infrastructure necessary to service their aircraft, such airlines outsource all
or most of their repair and overhaul services. To meet their needs, certain
foreign and many start-up airlines have turned to older aircraft which generally
require more frequent servicing. Further, as aging aircraft are retired, new
aircraft production is increasing. The number of surplus aircraft is expected to
significantly decline while new aircraft production is expected to increase over
the next several years. The continued growth in air transit and aircraft
production will increase the demand for aircraft component purchases and
repairs.
Increased Outsourcing by Aircraft Operators and OEMs. Aircraft operators
have come under increasing pressure to reduce both operating and capital costs
associated with providing aviation services. While several of the expenditures
incurred by aircraft operators are beyond their direct control, such as fuel
prices and labor costs, aircraft operators seeking cost reductions have
increased purchases of certain components from third parties and have outsourced
repair and overhaul functions. Aircraft components sold by third party suppliers
and aircraft components that have been repaired and overhauled are generally
less expensive than new aircraft components sold by OEMs. In addition, OEMs are
increasingly becoming "assemblers" of aviation products by outsourcing more
manufacturing and repair functions to third parties. In this regard, the Company
supplies many OEMs with aircraft components and subassemblies, in addition to
performing repair and overhaul services. In addition, as consolidation in the
aviation services industry continues, aviation services consumers are requiring
vendors to offer a broader range of services including, in some instances,
inventory maintenance and management services. The Company believes that its
broad array of aviation products and services and its reputation for quality and
timely and reliable delivery will position the Company to continue to capitalize
on the outsourcing trend. The Company anticipates that increased reliance on
outsourcing will continue to cause consolidation in the industry since only
those suppliers with extensive capacities and adequate capital will secure such
agreements with OEMs and aircraft operators.
Reduction in the Number of Approved Suppliers and Vendors. In order to
reduce purchasing costs, streamline purchasing decisions and have greater
control over quality, purchasing departments of OEMs and aircraft operators have
been reducing the number of approved suppliers and vendors. In the past year,
several OEMs and aircraft operators have reduced their supplier and vendor lists
from as many as 50 to a core group of five to ten "mega-suppliers" or
"mega-vendors" who have the size and capacity to meet their needs. The Company
has secured a position on such lists of a number of OEMs and airlines. The
Company believes that this trend will continue in the future and that, due to
its established market presence and reputation for quality, the Company will
continue to be selected as an approved supplier and vendor. See "-- Government
Regulation."
Increased Maintenance and Safety Requirements. Under regulations
promulgated by the United States Federal Aviation Administration (the "FAA") and
similar agencies in other countries, including the Joint Aviation Authority (the
"JAA") and the Civil Aviation Administration of China (the "CAAC"), as well as
guidelines established by OEMs and aircraft operators, when an aircraft
component fails to perform within certain prescribed limits or after logging a
prescribed number of flight hours, the aircraft component must be brought to a
repair facility certified by the FAA or similar agency of a foreign nation for
various types of designated service or replacement. The FAA has changed the
nature of the licenses that it grants, from the grant of broad licenses for
aircraft accessories or instruments within broad classifications to more limited
licenses covering specific parts within more narrow classifications. The Company
holds many perpetual broad licenses that will continue unless abandoned,
suspended or revoked. In addition, aircraft components require regular
maintenance and inspection and replacement of "life-limited" components. The
trend toward more stringent maintenance requirements and more frequent
maintenance and overhaul has increased the size of the market for the repair of
such components, because the use of new components is not always cost effective.
In addition, a proposed change in FAA regulations will require aircraft repair
stations and others to implement and follow internal maintenance and safety
requirements in addition to FAA regulations. The Company
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believes that, because of its broad licenses and long-standing emphasis on
quality control, it will benefit from these higher maintenance and safety
standards.
Increased Emphasis on Component Traceability. Because of concerns
regarding the use of unapproved aircraft spare parts, regulatory authorities
have increased the level of documentation that must be maintained on spare
parts. This requirement has been extended by OEMs and aircraft operators to the
vendors of spare parts. The high cost of required technology to compete
effectively in the redistribution market has made entry into and survival in the
aircraft spare parts redistribution market increasingly difficult and expensive.
The Company has implemented technology to enable it to meet these more stringent
traceability requirements and intends to continue to do so in the future.
COMPETITIVE ADVANTAGES
The Company believes that it is well positioned to take advantage of trends
affecting the market for the design, engineering, manufacture, repair and
overhaul of aircraft components due to:
Broad Array of Products and Services. The Company offers the aviation
industry a consolidated point of purchase for a broad array of aviation products
and services. The Company designs, engineers and manufactures aircraft
components to fulfill the particular needs and requirements of its customers,
including electromechanical controls for McDonnell Douglas and fuselage
structural components for the 777 model aircraft for Boeing. In certain cases,
principally at Triumph Controls, Inc. ("TCI"), a subsidiary of the Company, the
Company owns the proprietary rights to these designs and, accordingly, the
customer generally relies on the Company to provide service on such aircraft
components at every stage of their useful lives, including the repair and
overhaul or replacement of such components. In addition, the Company
manufactures aviation components according to its customers' specifications. The
Company also performs repair and overhaul services for customers on various
aviation components manufactured by third parties such as AlliedSignal Inc.
("AlliedSignal"). In addition, the Company offers to maintain and manage
inventories of aircraft components and other products for certain of its
customers. In certain instances, the Company's customers require it to maintain
and manage their inventories.
Government Certifications. The Company operates nine FAA-certified repair
stations and has been granted licenses from the FAA and foreign regulatory
counterparts, including the JAA and the CAAC, to perform repair and overhaul
services on broad classifications of aircraft instruments and accessories.
Without such broad certifications and licenses, which are often expensive and
time-consuming to obtain and involve extensive audit procedures, other companies
are precluded from offering these products and services, thereby constituting a
significant barrier to entry. See "-- Government Regulation." In addition, the
Company holds two exclusive licenses issued by the FAA which permit the Company
to design, engineer, repair, test and release into service without FAA approval
certain products to its own specifications for certain aircraft components and
therefore to compete directly with OEMs with respect to such components. These
exclusive licenses, known as SFAR 36 certifications, enable the Company to
offer, on a proprietary basis, certain repaired parts relating to various
aircraft accessories such as APUs and constant speed drives to its customers at
a lower cost than other companies that must purchase replacement parts from
third parties.
Emphasis on Quality Control. The Company incurs significant expenses to
maintain the most stringent quality control of its products and services. In
addition to domestic and foreign governmental regulations, OEMs, commercial
airlines and other customers require that the Company satisfy certain
requirements relating to the quality of its products and services. The Company
has continually met or exceeded these requirements, and has successfully
completed many audits conducted on a regular basis by the Coordinated Agency for
Supplier Evaluation ("C.A.S.E."), a consortium of United States airlines. As a
C.A.S.E.-listed vendor, the Company is reviewed on a regular basis for quality
and efficiency. In addition, the Company conducts voluntary, thorough
self-auditing, utilizing inspectors from its various companies to audit other
companies in its Aviation Group. The Company also performs testing and
certification procedures on all of the products that it designs, engineers,
manufactures, repairs and overhauls, and maintains detailed records to ensure
traceability of the production of and service on each aircraft component. The
Company believes that its emphasis on quality control has enabled it to obtain
many of the FAA licenses it enjoys, including its exclusive
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SFAR 36 certifications. The expense required to institute and maintain the
Company's quality control procedures represents a barrier to entry for other
companies.
Broad Customer Base. Due to the Company's broad array of products and
services and its emphasis on quality control and timely delivery, the Company's
customers include virtually all of the world's major commercial airlines and an
increasing number of the most widely recognized air cargo carriers, including
Federal Express and United Parcel Service, and OEMs such as Boeing, McDonnell
Douglas, AirBus and AlliedSignal. The Company expects that its customer base
will continue to strengthen and broaden with increased cross-selling efforts by
the Company of its various products and services.
Established Industry Presence. The operating divisions and subsidiaries in
the Company's Aviation Group have substantial experience in the aviation
industry. These entities are characterized by experienced management and
highly-skilled employees. Because of its established industry presence, the
Company enjoys strong customer relations, name recognition and repeat business.
COMPANY STRATEGY
The Company intends to grow its aviation business through:
Expansion of Products and Services. The Company will continue to introduce
new aviation products and services to take advantage of the growing aviation
industry and the increasing demand for aviation products and services. In an
effort to expand its existing array of products and services and to capture
additional repair and overhaul business, the Company plans to expand, as
appropriate, its program for the distribution and inventory management of third
party aircraft components. The Company will also expand its assembly and
subassembly capabilities on certain aircraft components. By broadening its
products and services, the Company intends to further expand its position as a
consolidated point of purchase to the aviation industry, capitalizing on the
increasing trend toward outsourcing and the reduction by aircraft operators and
OEMs of the number of approved suppliers and vendors.
Increased International Marketing. The Company will continue to take
advantage of the expanding international market for aviation products and
services as worldwide air travel escalates and foreign nations, particularly
China and other countries in Asia, purchase used aircraft that require more
frequent repair and maintenance. The Company currently supplies products and
services to virtually every major commercial airline in the world and retains
independent sales representatives in a number of foreign countries. In addition,
the Company participates each year in several international trade shows,
including the Paris Air Show and the Singapore Air Show. The Company intends to
build on its existing international presence through continued market
penetration and, as appropriate opportunities arise, foreign acquisitions.
Capitalizing on Aviation Group Affiliation. Utilizing the group
affiliation of the Company's operating divisions and subsidiaries, the Company
plans to increase cross-selling of its various capabilities to its customers.
For example, one of the Company's operating divisions distributes certain
electromechanical controls manufactured by a subsidiary of the Company. The
Company's operating divisions and subsidiaries will continue to share
independent sales representatives and jointly bid on projects where appropriate,
while still maintaining their individual identities.
Expanded Operating Capacity. The Company plans to increase its operating
capacity to meet the expected increased growth and demand in the aviation
industry. The Company will increase its capital expenditures, including
expenditures for additional equipment and skilled labor, to support this
increased capacity. The Company intends to continue to invest in state of the
art machinery to increase its operating efficiencies and improve operating
margins.
Acquisitions. The Company expects to continue its growth through
acquisitions of other companies, assets or product lines that add to or
complement the Company's existing aviation products and services. The Company
successfully completed one acquisition in the 12 months ended March 31, 1997.
This acquisition, Advanced Materials Technologies, Inc. ("AMTI"), represents an
expansion of both the Company's existing aviation products and services and its
customer base. AMTI repairs and manufactures components for
APUs and gas turbine engines. The Company also purchased all of the assets of
J.D. Chapdelaine Co.
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("JDC Company"), as of April 30, 1997. JDC Company is engaged in the business of
repairing, overhauling, exchanging and selling instrumentation for the aviation
industry. Because of the fragmented nature of much of the market for aircraft
products and services, the Company believes that many additional acquisition
opportunities exist in the aviation industry. The Company is currently
evaluating several such acquisition opportunities. There can be no assurance
that the Company will successfully complete any of these acquisitions or, that
if so acquired, such entities will be properly integrated into the Company.
HISTORICAL BACKGROUND
The Company was formed by members of management and Citicorp Venture
Capital, Ltd. ("CVC") to acquire (the "Acquisition") certain businesses and
assets from IKON Office Solutions, Inc., formerly Alco Standard Corporation
("Alco"). In connection with the Acquisition, 19 members of management
contributed capital in the aggregate amount of approximately $1.1 million and
CVC, an institutional investor, contributed capital in the aggregate amount of
approximately $6.9 million.
In July 1993, the Company acquired substantially all of the assets relating
to Alco's aviation, metals processing and paper converting businesses for an
aggregate purchase price of approximately $115.2 million, including a
subordinated promissory note in the aggregate principal amount of $13.5 million
(the "Alco Note").
The businesses acquired from Alco as part of the Acquisition included a
major portion of the Company's aviation operations and its entire metals
operations, as well as Quality Park Products, Inc. ("Quality Park"), a paper
converting business. Following the Acquisition, the Company determined to focus
its efforts on its core businesses and, after restructuring, sold Quality Park
in March 1996 to Mail-Well I Corporation ("Mail-Well") for approximately $27.4
million in cash, and the assumption by Mail-Well of certain liabilities.
As part of the Company's strategy to grow its aviation businesses, the
Company has completed two material acquisitions since the Acquisition. In
January 1996, the Company acquired all of the assets and assumed certain of the
liabilities of TCI, formerly a division of Teleflex Incorporated ("Teleflex"),
for aggregate consideration of approximately $36.5 million, including a 10.5%
subordinated promissory note in the principal amount of $5.5 million (the
"Teleflex Note"). The Company also assumed liabilities and incurred transaction
related costs totalling $3.6 million. As part of the transaction, the Company
also sold shares of TCI representing a 10% minority interest and 10.5% junior
subordinated promissory notes in an aggregate principal amount of $0.8 million
to an affiliate of Teleflex and to certain members of management of TCI. The TCI
shares were convertible, at the option of the Company, into shares of the
Company's Common Stock, par value $.001 per share ("Common Stock"), which option
the Company exercised as to the shares held by the members of management of TCI
in October 1996, prior to its initial public offering. Contemporaneously, the
Company also exchanged the 10.5% junior subordinated promissory notes owned by
the members of management for shares of its Common Stock. TCI manufactures and
services mechanical and electromechanical controls for various end users,
primarily in the aviation industry.
In July 1996, the Company purchased all of the outstanding capital stock of
AMTI. The aggregate consideration for the AMTI acquisition was approximately
$7.5 million in cash paid at closing plus a total of approximately $2.8 million
to be paid through the year 2002 as consideration for a confidentiality and non-
competition agreement entered into by one of the former owners of AMTI. In
addition, the Company assumed certain liabilities and incurred transaction
related costs totalling $10.3 million. The Company also purchased for
approximately $0.5 million certain real estate leased to AMTI by its principal
stockholder. As part of the acquisition, the Company also acquired AMTI's wholly
owned subsidiary, Special Processes of Arizona, Inc. ("SPOA"). AMTI engages in
the repair and manufacture of components for APUs and gas turbine engines. SPOA
engages in the production and application of plasma coating used primarily by
the aviation industry.
PROPRIETARY RIGHTS
The Company benefits from its proprietary rights relating to certain
designs, engineering, manufacturing processes and repair and overhaul
procedures. For example, at TCI, the Company designs and engineers flight
control systems and retains the proprietary rights to these designs and
engineering. Accordingly, the customer
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generally relies on the Company to provide initial and additional components, as
well as to redesign, reengineer, replace or repair and provide overhaul services
on such aircraft components at every stage of their useful lives. In addition,
the Company has proprietary rights to certain of its manufacturing processes.
For certain products, the Company's unique manufacturing capabilities are
required by the customer's specifications or designs, thereby necessitating
reliance on the Company for production of such designed product. The Company
also holds several SFAR 36 certifications that permit it to develop proprietary
repair procedures to be used in certain repair and overhaul processes, enabling
the Company to offer the customer a lower cost alternative to purchasing the
OEM's replacement part.
RAW MATERIALS AND REPLACEMENT PARTS
The Company purchases raw materials, primarily consisting of steel and
aluminum coils, sheets and shapes, from various vendors. The Company also
purchases replacement parts which are utilized in its various repair and
overhaul operations. The Company believes that these raw materials and
replacement parts are generally available at competitive prices from numerous
sources.
OPERATING DIVISIONS AND SUBSIDIARIES
The Company operates through several operating divisions and subsidiaries
which are divided into two groups: the Aviation Group and the Metals Group. The
following chart describes the operations, customer base and certain other
information with respect to the Company's operating divisions and subsidiaries:
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OPERATING
DIVISION/SUBSIDIARY NUMBER OF
(YEAR ESTABLISHED) LOCATION BUSINESS TYPE OF CUSTOMERS EMPLOYEES
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Aviation Group
A. Biederman(1) Glendale, CA Sells and services Commercial airlines, 85
(1933) aircraft and industrial U.S. military and cargo
instruments. carriers.
Advanced Materials Tempe, AZ Repairs and Aviation OEMs and 220
Technologies, Inc.(1) manufactures components aircraft operators.
(1987) for APUs and
gas turbine engines.
Aerospace Technologies, Forth Worth, TX Manufactures Commercial airlines, 88
Inc.(1) metallic/composite U.S. military and
(1969) bonded honeycomb component supplier
assemblies and repairs industry.
fuselage, wing, flight
control surface parts
and other flight
critical components.
Air Lab(1) Seattle, WA Repairs and overhauls Commercial airlines, 39
(1974) aviation aircraft manufacturers,
instrumentation and avionics and instrument
controls. manufacturers, major
freight carriers,
corporate aircraft
operators and aviation
parts suppliers.
JDC Company(1) Ft. Lauderdale, FL Repairs and services Aircraft manufacturers 47
(1985) Georgetown, TX aircraft instruments. ranging from general
aviation to wide-body
air transport.
K-T Corporation Shelbyville, IN Performs stretch Aviation OEMs, U.S. 210
(1963) forming, bending, die military and aerospace,
forming, machining, mass transportation,
welding, assembly and energy and heavy
other fabrication on trucking industries.
aircraft wings,
fuselages and skins.
L.A. Gauge Co. Sun Valley, CA Machines, bonds and Defense, aerospace, 44
(1954) fabricates medical, automotive and
ultra-precision parts. computer industries.
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OPERATING
DIVISION/SUBSIDIARY NUMBER OF
(YEAR ESTABLISHED) LOCATION BUSINESS TYPE OF CUSTOMERS EMPLOYEES
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Lamar Electro-Air Wellington, KS Repairs and overhauls U.S. government, 112
Corporation(1)(2) aircraft and engine commercial airlines and
(1965) accessories, general aviation
manufactures pneumatic aircraft operators.
and electrically
actuated valves for
aircraft and assembles
axles and aluminum
wheels for automobiles.
Northwest Industries Albany, OR Machines and fabricates Aerospace, nuclear, 28
(1960) refractory, reactive, medical, electronic and
heat and chemical industries.
corrosion-resistant
precision products.
Special Processes of Phoenix, AZ Produces and applies Aviation OEMs and 16
Arizona, Inc.(1) plasma coating. aircraft operators.
(1987)
Triumph Air Repair, Phoenix, AZ Repairs and overhauls Worldwide commercial 131
Inc.(1)(2) APUs and supplemental airlines.
(1979) equipment.
Triumph Controls, North Wales, PA Designs and Aviation OEMs, 278
Inc.(1) manufactures mechanical shipyards, repair and
(1943) and electromechanical overhaul facilities,
control systems. airlines and U.S. and
NATO military forces.
Metals Group
Deluxe Specialties Mfg. Hutchinson, KS Manufactures fuel tanks U.S. manufacturers of 123
Co. and hydraulic mobile, material
(1961) reservoirs. handling, agricultural,
construction and power
generation equipment.
Great Western Steel Co. Chicago, IL Produces steel Manufacturers, 40
(1918) products, specializing primarily in the home
in flat rolled and office products
products. industries.
Kilroy Structural Steel Cleveland, OH Erects structural steel General contractors, 13
Co. frameworks. engineers and
(1918) architects of
commercial buildings
and bridges.
Triumph Industries Bridgeview, IL Produces and Computer and electronic 53
(1960) distributes specialty industries.
electrogalvanized
products.
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(1) Designates FAA-certified repair station.
(2) Designates SFAR 36 certification.
METALS PROCESSING AND DISTRIBUTION
The Company's Metals Group consists of three operating divisions and one
subsidiary with substantial experience in the metals industry. These businesses
include a leading producer of electrogalvanized steel products, a steel service
center specializing in flat rolled steel products and a leading manufacturer of
fuel tanks and hydraulic reservoirs. These entities supply products to several
hundred manufacturers and other customers in the computer, electronics and
agricultural industries on a regional and national basis. In addition, the
Company operates a business engaged in the erection of structural frameworks for
buildings and bridges in the midwestern United States.
The Company's Metals Group processes, converts and distributes steel and
steel products including electrogalvanized steel products which are stamped,
formed, welded and painted, and coated steel for the electronic and computer
industries. The Company's steel service center specializes in flat rolled
products and their processing, including hot or cold rolled sheet and coil and
galvanized sheet and coil used primarily by the
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home and office products and appliance industry. The Company's fuel tanks and
hydraulic reservoirs are used in off-highway mobile equipment units, which are
sold primarily to the agricultural industry.
The Company also erects structural framework, including steel members and
allied materials, for buildings and bridges, with a specialty in commercial and
industrial buildings. Included among the Company's recent projects are Jacobs'
Field, the Cleveland Indians' baseball stadium, and the Rock and Roll Hall of
Fame in Cleveland, Ohio. These structural erection services are provided on a
project-by-project basis primarily in the midwestern United States. These
projects are generally awarded on a fixed fee, competitive bid basis.
SALES AND MARKETING
Each of the Company's operating divisions and subsidiaries independently
conducts sales and marketing efforts directed at their respective customers and
industries and, in some cases, collaborate with other operating divisions and
subsidiaries within its group for cross-marketing efforts. Each sales force and
the respective officers of the operating divisions and subsidiaries are
responsible for obtaining new customers and maintaining relationships with
existing customers. Sales and marketing efforts are conducted primarily by
independent regional manufacturer's representatives and in-house personnel.
Generally, manufacturer's representatives receive a commission on sales and the
in-house sales personnel receive a base salary plus commission. Engaging
independent sales representatives at the local level facilitates responsiveness
to each customer's changing needs and current trends in each marketplace in
which the Company operates.
Presidents of each of the Company's operating divisions and subsidiaries in
the Aviation Group meet periodically to discuss ways to improve sales and
cross-marketing opportunities. The management of each operating division and
subsidiary of the Company also maintains close business relationships with many
customers, thereby furthering the sales and marketing efforts of their
businesses.
A significant portion of the Company's government and defense contracts are
awarded on a competitive bidding basis. The Company generally does not bid or
act as the primary contractor, but will typically bid and contract as a
subcontractor on contracts on a fixed fee basis. The Company generally sells to
its other customers on a fixed fee, negotiated contract or purchase order basis.
BACKLOG
As of March 31, 1997, the Company's Aviation and Metals Groups had
outstanding purchase orders representing an aggregate invoice price of
approximately $93.2 million and $22.1 million, respectively. As of March 31,
1996, the Company's Aviation and Metals Groups had outstanding purchase orders
representing an aggregate invoice price of approximately $68.4 million and $20.2
million, respectively. The Company believes that purchase orders in an aggregate
approximate amount of $14.7 million will not be shipped by the Aviation Group in
the 12 months ended March 31, 1998. The Company believes that all of the
purchase orders will be shipped by the Metals Group in the 12 months ended March
31, 1998.
COMPETITION
The aircraft components production and repair industry is highly
fragmented, consisting of both a limited number of well-capitalized companies
which offer a broad range of products and services and a large number of
smaller, specialized companies. The Company believes that the principal
competitive factors in the aviation products and services industry are quality,
turnaround time, overall customer service and price. See "-- Competitive
Advantages." The Company believes that it competes favorably on the basis of the
foregoing factors. The Company does not believe that the location of its repair
facilities is a significant factor to its customers in selecting the Company, as
substantially all of the components serviced by the Company are transported by
common carrier to the Company's facilities for service.
The Company competes with third party manufacturers, some of which are
divisions or subsidiaries of OEMs or other large companies in the manufacture of
aircraft components and subassemblies. Competition for the repair and overhaul
of aviation components comes from three primary sources, some with greater
9
<PAGE> 11
financial and other resources than the Company: OEMs, major commercial airlines
and other independent service companies. Certain major commercial airlines
continue to own and operate their own service centers, while others have begun
to sell their repair and overhaul services to other aircraft operators. The
repair and overhaul services provided by domestic airlines are primarily for
their own aircraft, although these airlines may outsource a limited amount of
repair and overhaul services to third parties. Foreign airlines that provide
repair and overhaul services typically provide these services not only for their
own aircraft but for other airlines as well. OEMs also maintain service centers
which provide repair and overhaul services for the components they manufacture.
Other independent service organizations also compete for the repair and overhaul
business of other users of aircraft components.
The Company's principal competitors in the metals industry include national
and regional steel mills, other steel service centers, steel erection companies
and pre-engineered building manufacturers. Some of these competitors have
greater financial and other resources than the Company.
GOVERNMENT REGULATION
The aviation industry is highly regulated in the United States by the FAA
and in other countries by similar agencies. The Company must be certified by the
FAA and, in some cases, by individual OEMs, in order to engineer and service
parts and components used in specific aircraft models. If material
authorizations or approvals were revoked or suspended, the operations of the
Company would be adversely affected. New and more stringent government
regulations may be adopted, or industry oversight heightened, in the future and
such new regulations, if enacted, or any industry oversight, if heightened, may
have an adverse impact on the Company.
The Company must also satisfy the requirements of its customers, including
OEMs, that are subject to FAA regulations, and provide these customers with
products and services that comply with the government regulations applicable to
aircraft components used in commercial flight operations. The FAA regulates
commercial flight operations and requires that aircraft components meet its
stringent standards. In addition, the FAA requires that various maintenance
routines be performed on aircraft components, and the Company currently
satisfies these maintenance standards in its repair and overhaul services.
Several of the Company's operating divisions are FAA-approved repair stations.
Currently, the FAA is granting licenses only for the manufacture or repair
of a specific aircraft component, rather than the broader licenses that have
been granted in the past. The FAA licensing process may be costly and
time-consuming. In order to obtain an FAA license, an applicant must satisfy all
applicable regulations of the FAA governing repair stations. These regulations
require that an applicant have experienced personnel, inspection systems,
suitable facilities and equipment. In addition, the applicant must demonstrate a
need for the license. Because an applicant must procure manufacturing and repair
manuals from third parties relating to a particular aircraft component in order
to obtain a license with respect to such component, the application process may
involve substantial cost.
The license approval processes for the JAA and the CAAC are similarly
stringent, involving potentially lengthy audits conducted by these regulatory
authorities.
The Company's aviation and metals operations are also subject to a variety
of worker and community safety laws. The Occupational Safety and Health Act of
1970 ("OSHA") mandates general requirements for safe workplaces for all
employees. In addition, OSHA provides special procedures and measures for the
handling of certain hazardous and toxic substances. Specific safety standards
have been promulgated for workplaces engaged in the treatment, disposal or
storage of hazardous waste. The Company believes that its operations are in
material compliance with OSHA's health and safety requirements.
ENVIRONMENTAL MATTERS
The Company's operations are subject to federal, state and local
environmental laws and regulation by government agencies, including the
Environmental Protection Agency (the "EPA"). Among other matters, these
regulatory authorities impose requirements that regulate the emission,
discharge, generation, manage-
10
<PAGE> 12
ment, transportation and disposal of hazardous materials, pollutants and
contaminants, govern public and private response actions to hazardous or
regulated substances which may be or have been released to the environment, and
require the Company to obtain and maintain licenses and permits in connection
with its operations. This extensive regulatory framework imposes significant
compliance burdens and risks on the Company. Although management believes that
the Company's operations and its facilities are in material compliance with such
laws and regulations, there can be no assurance that future changes in such
laws, regulations or interpretations thereof or the nature of the Company's
operations will not require the Company to make significant additional capital
expenditures to ensure compliance in the future.
Certain of the Company's facilities are currently the subject of
environmental remediation activities, the cost of which is subject to
indemnification provided by Alco pursuant to the Acquisition. One of these
facilities is connected with a site included on the National Priorities List of
Superfund sites maintained by the EPA. Another of these facilities is located on
a site included in the EPA's database of potential Superfund sites. Alco's
indemnification covers the Company for losses the Company might suffer in
connection with liabilities and obligations (and other liabilities and
obligations arising out of or in connection with the Acquisition) arising under
environmental, health and safety laws with respect to operations or use of those
facilities prior to their acquisition by the Company. More specifically, this
Alco indemnification covers both (i) the costs, claims and potential losses
associated with environmental matters identified in the purchase agreement for
the Acquisition as the result of environmental assessments or other disclosures
made in connection with the Acquisition, including the costs, claims and
potential losses associated with all the environmental remediation activities
and identified liabilities, and (ii) the losses connected to environmental
liabilities which were not identified in the purchase agreement and which arise
from conditions or activities existing at the facilities or operations acquired
from Alco prior to their acquisition from Alco, provided that they are
identified by the Company to Alco before July 22, 2000. Another of the Company's
facilities leased from Teleflex is located on a site placed on the EPA's
National Priorities List prior to its acquisition by the Company, and is subject
to indemnification provided by Teleflex for environmental liabilities arising
from activities or conditions existing at this facility prior to the Company's
acquisition. See "-- Risk Factors -- Potential Exposure to Environmental
Liabilities."
EMPLOYEES
As of March 31, 1997, the Company employed approximately 1,480 persons, of
whom 190 were management employees, 52 were sales and marketing personnel, 114
were technical personnel, 227 were administrative personnel and 897 were
production workers. As of March 31, 1997, approximately 226 employees were
subject to collective bargaining agreements. None of these collective bargaining
agreements will expire in the next 12 months. The Company has not experienced
any material labor-related work stoppage and considers its relations with its
employees to be good.
RISK FACTORS
Statements in this Annual Report on Form 10-K, including those concerning
the Company's expectations regarding the effect of industry trends on the
Company, competitive advantages, strategies, future sales, gross profits,
capital expenditures, selling, general and administrative expenses, and cash
requirements, include certain forward-looking statements. As such, actual
results may vary materially from such expectations. Factors which could cause
actual results to differ from expectations include dependence on the aviation
industry, requirements of capital, integration of acquired businesses,
government regulation, dependence on key customers, technological developments
and obsolete inventory. For a description of these and additional risks, see the
discussion below. There can be no assurance that the Company's results of
operations will not be adversely affected by one or more of these factors.
Dependence on Aviation Industry. A substantial percentage of the Company's
gross profit and operating income is derived from its Aviation Group. The
Company's aviation operations are focused on designing, engineering and
manufacturing aircraft components on new aircraft and performing repair and
overhaul services on existing aircraft and aircraft components. Therefore, the
Company's business is directly affected by economic factors and other trends
that affect its customers in the aviation industry, including a possible
11
<PAGE> 13
decrease in outsourcing by aircraft operators and OEMs or projected market
growth that may not materialize or be sustainable. When such economic and other
factors adversely affect the aviation industry, they tend to reduce the overall
customer demand for the Company's products and services, thereby decreasing the
Company's operating income. There can be no assurance that economic and other
factors that might affect the aviation industry will not have an adverse impact
on the Company's results of operations. See "-- Industry Overview and Trends."
Capital Requirements and Integration of Acquired Businesses. A key element
of the Company's strategy has been, and continues to be, internal growth and
growth through the acquisition of additional companies engaged in the aviation
industry. In order to grow internally, the Company will be required to make
significant capital expenditures. The Company's ability to grow by acquisition
is dependent upon, and may be limited by, the availability of suitable
acquisition candidates and capital, and by certain restrictions contained in the
Company's revolving credit facility (the "Credit Facility") and its other
financing arrangements. In addition, growth by acquisition involves risks that
could adversely affect the Company's operating results, including difficulties
in integrating the operations and personnel of acquired companies, the potential
amortization of acquired intangible assets and the potential loss of key
employees of acquired companies. There can be no assurance that the Company will
be able to obtain the capital necessary to pursue its internal growth and
acquisition strategy, consummate acquisitions on satisfactory terms or, if any
such acquisitions are consummated, satisfactorily integrate such acquired
businesses into the Company. See "-- Company Strategy" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations --
Liquidity and Capital Resources."
Competition. There are numerous competitors of the Company in both the
aviation services and metals processing and distribution industries. Competition
in the aviation industry comes from three primary sources: major commercial
airlines, many of which operate their own maintenance and overhaul units; OEMs,
which manufacture, repair and overhaul their own components; and other
independent service companies. The Company's principal competitors in the metals
industry include national and regional steel mills, other steel service centers,
steel erection companies and pre-engineered building manufacturers. Certain of
the Company's competitors in both aviation and metals have substantially greater
financial and other resources than the Company. There can be no assurance that
competitive pressures in either industry will not materially and adversely
affect the Company's business, financial condition or results of operations. See
"-- Competition."
Government Regulation and Industry Oversight. The aviation industry is
highly regulated in the United States by the FAA and in other countries by
similar agencies. The Company must be certified by the FAA and, in some cases,
by individual OEMs in order to engineer and service parts and components used in
specific aircraft models. If material authorizations or approvals were revoked
or suspended, the operations of the Company would be adversely affected. New and
more stringent government regulations may be adopted, or industry oversight
heightened, in the future and such new regulations, if enacted, or any industry
oversight, if heightened, may have an adverse impact on the Company. See
"-- Government Regulation."
Fluctuations in Operating Results. The Company's overall operating results
are affected by many factors, including the timing of orders from large
customers and the timing of expenditures to manufacture parts and purchase
inventory in anticipation of future sales of products and services. A large
portion of the Company's operating expenses are fixed. Because several operating
divisions and subsidiaries of the Company typically do not obtain long-term
purchase orders or commitments from their customers, they must anticipate the
future volume of orders based upon the historic purchasing patterns of their
customers and upon their discussions with customers as to their future
requirements. Cancellations, reductions or delays in orders by a customer or
group of customers could have a material adverse effect on the Company's
business, financial condition and results of operations. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
Dependence on Key Customers. There are no customers of the Company that
accounted for more than 10% of the Company's consolidated revenues during the
last fiscal year. Certain of the Company's operating divisions and subsidiaries
have significant customers, the loss of whom could have a material adverse
effect on their respective businesses.
12
<PAGE> 14
Technological Developments. The aviation industry is constantly undergoing
development and change, and accordingly, it is likely that new products,
equipment and methods of repair and overhaul service will be introduced in the
future. In order to keep pace with any new developments, the Company may need to
expend significant capital to purchase new equipment and machines or to train
its employees in the new methods of production and service. There can be no
assurance that the Company will be successful in developing new products or that
such capital expenditures will not have a material adverse effect on the
Company.
Risks Regarding the Company's Inventory. The Company offers to maintain
and manage inventories of aircraft components and other products for certain of
its customers. In addition, certain of the Company's customers require the
Company to maintain and manage their inventories. If this inventory is not used
by the Company, because the Company ceases to supply such customers with the
related products or services or because such components or other products become
obsolete, the Company will not realize any income to offset the expenses
incurred by the Company to acquire and maintain such inventory.
Reliance on Skilled Personnel. From time to time certain of the Company's
operating divisions and subsidiaries have experienced difficulties in attracting
and retaining skilled personnel to design, engineer, manufacture or repair and
overhaul sophisticated aircraft components. The ability of the Company to
operate successfully could be jeopardized if the Company is unable to attract
and retain a sufficient number of skilled personnel.
Existence of Collective Bargaining Agreements. Several of the Company's
subsidiaries are parties to collective bargaining agreements with labor unions.
None of these collective bargaining agreements will expire in the next 12
months. In the aggregate under those agreements, the Company currently employs
approximately 226 full-time employees, and from time to time employs up to an
additional 150 temporary employees for its steel erection business, all of whom
are members of labor unions. Currently, approximately 18% of the Company's
permanent employees are represented by labor unions and approximately 23.5% of
the Aviation Group's revenues and 87.6% of the Metals Group's revenues are
derived from the operating divisions and subsidiaries a portion of whose
employees are unionized. The Company's inability to negotiate acceptable
contracts with these unions could result in strikes by the affected workers and
increased operating costs as a result of higher wages or benefits paid to union
members. If the unionized workers were to engage in a strike or other work
stoppage, or other employees were to become unionized, the Company could
experience a significant disruption of its operations and higher ongoing labor
costs, which could have an adverse effect on the Company's business and results
of operations. See "-- Employees."
Product Liability; Claims Exposure. The Company's overall operations
expose it to potential liabilities for personal injury or death as a result of
the failure of an aircraft component that has been serviced by the Company, the
failure of an aircraft component designed or manufactured by the Company or the
irregularity of metal products processed or distributed by the Company. While
the Company believes that its liability insurance is adequate to protect it from
such liabilities and while no material claims have been made against the
Company, no assurance can be given that claims will not arise in the future or
that such insurance coverage will be adequate. Additionally, there can be no
assurance that insurance coverage can be maintained in the future at an
acceptable cost. Any such liability not covered by insurance or for which third
party indemnification is not available could have a material adverse effect on
the financial condition of the Company. See "Legal Proceedings."
Potential Exposure to Environmental Liabilities. The Company's business
operations and facilities are subject to a number of federal, state and local
environmental laws and regulations. Although management believes that the
Company's operations and facilities are in material compliance with such laws
and regulations, there can be no assurance that future changes in such laws,
regulations or interpretations thereof or the nature of the Company's operations
will not require the Company to make significant additional capital expenditures
to ensure compliance in the future. Certain of the Company's facilities are
currently the subject of environmental remediation activities, the cost of which
is subject to indemnification provided by Alco in connection with the
Acquisition. One of these facilities is connected with a site included on the
National Priorities List of Superfund sites maintained by the EPA. Another of
these facilities is located on a site included in the EPA's database of
potential Superfund sites. The Alco indemnification covers both (i) the costs
and claims associated with all of these environmental remediation activities and
liabilities, and (ii) the costs of unidentified environmental liabilities that
arise from conditions or activities existing at facilities
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<PAGE> 15
acquired from Alco prior to their acquisition from Alco and that are identified
before July 22, 2000. For a more detailed description of the Alco
indemnification, see "-- Environmental Matters." Another of the Company's
facilities leased from Teleflex is located on a site placed on the EPA's
National Priorities List prior to its acquisition by the Company, and is subject
to indemnification provided by Teleflex for environmental liabilities arising
from activities or conditions existing at this facility prior to the Company's
acquisition thereof. The Company does not maintain environmental liability
insurance, and if the Company were required to pay the expenses related to these
environmental liabilities, such expenses could have a material adverse effect on
the Company. See "-- Environmental Matters."
ITEM 2. PROPERTIES
The Company's executive offices are located in Wayne, Pennsylvania, where
the Company leases 5,100 square feet of space. This lease expires in September
2000. In addition, the Company currently owns or leases the following facilities
in which its operating divisions and subsidiaries are located:
<TABLE>
<CAPTION>
SQUARE OWNED/LEASE
LOCATION DESCRIPTION FOOTAGE EXPIRATION
- --------------------------------- --------------------------------- ------- -----------
<S> <C> <C> <C>
Aviation Group
Chandler, AZ................... Thermal processing facility and 7,000 2017
office
Phoenix, AZ.................... Plasma spray facility and office 13,500 2000
Phoenix, AZ.................... Repair and overhaul shop and 50,000 1999
office
Tempe, AZ...................... Manufacturing facility and office 13,500 Owned
Tempe, AZ...................... Machine shop 9,300 Owned
Glendale, CA................... Instrument shop, warehouse and 25,000 2005
office
Milpitas, CA................... Warehouse, repair shop and office 3,700 1997
Sun Valley, CA................. Machine shop and office 30,000 Owned
Ft. Lauderdale, FL............. Instrument shop, warehouse and 7,190 2002
office
Shelbyville, IN................ Manufacturing facility and office 192,300 Owned
Wellington, KS................. Repair and overhaul and office 90,000 1997
Albany, OR..................... Machine shop and office 25,000 Owned
North Wales, PA................ Manufacturing facility and office 111,400 2002
Fort Worth, TX................. Manufacturing facility and office 114,100 Owned
Georgetown, TX................. Instrument shop, warehouse and 2,240 1997
office
Seattle, WA.................... Instrument shop, warehouse and 10,000 1998
office
Metals Group
Bridgeview, IL................. Steel processing facility and 135,700 2006
office
Chicago, IL.................... Steel distribution facility and 140,000 Owned
office
Hutchinson, KS................. Manufacturing facility and office 75,000 Owned
Cleveland, OH.................. Steel fabrication facility and 163,000 Owned
office
Plain City, OH................. Office 2,000 1997
</TABLE>
The Company believes that its properties are adequate to support its
operations for the foreseeable future.
ITEM 3. LEGAL PROCEEDINGS
The Company is not presently involved in any material legal proceedings
outside of the ordinary course of business. The Company may in the future be
named as a defendant in lawsuits involving product defects, breach of warranty
or other actions relating to products that it manufactures or products that it
distributes that are manufactured by others. The Company believes that its
potential exposure is adequately covered by its aviation product and general
liability insurance.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
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<PAGE> 16
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Common Stock is traded on the New York Stock Exchange under the symbol
"TGI." The following table sets forth the range of high and low closing prices
for the Common Stock for the periods indicated:
<TABLE>
<CAPTION>
HIGH LOW
---- ---
<S> <C> <C>
FISCAL 1997
3rd Quarter(1).............................................. $27 1/4 $20 7/8
4th Quarter................................................. 31 3/4 24
</TABLE>
- ---------------
(1) Commencing on October 25, 1996, the day on which trading commenced following
the Company's initial public offering.
As of May 30, 1997, the reported closing price for the Common Stock was
$25 5/8. As of May 30, 1997, there were approximately 54 holders of record of
the Common Stock and the Company believes that its Common Stock was beneficially
owned by 758 persons.
The Company has never declared or paid cash dividends on any class of its
Common Stock and does not anticipate paying any cash dividends in the
foreseeable future. The Company currently intends to retain its earnings, if
any, and reinvest them in the development of its business. The Credit Facility,
the Teleflex Note and the Alco Note prohibit the Company from paying dividends
or making any distributions on its capital stock, except for the payment of
stock dividends and redemptions of an employee's shares of capital stock upon
termination of employment. At such time as no senior debt, such as the Credit
Facility, is outstanding, the Company is permitted by the Alco Note, but not by
the Teleflex Note, to pay dividends from 50% of excess cash flow.
Recent Sales of Unregistered Securities
The following sales of securities of the Company, including its
subsidiaries, took place on the dates indicated (transactions shown give
retroactive effect to the 65-for-one stock split of the Company's capital stock
immediately prior to the Company's initial public offering):
In July 1996, in connection with the acquisition of AMTI, the Company
granted to the President of AMTI an option to purchase 13,000 shares of the
Company's Class A Common Stock, par value $.001 per share ("Class A Common
Stock") at an exercise price of $1.87 per share and sold to such President
$17,162 principal amount of the Company's 14% junior subordinated promissory
notes ("14% JSDs"). The option was exercised on August 30, 1996. The 13,000
shares of Class A Common Stock and the 14% JSDs were subsequently exchanged into
13,000 and 1,027 shares of Common Stock, respectively, upon the Company's
initial public offering.
In August 1996, the Company granted to the President of Aerospace
Technologies, Inc., a subsidiary of the Company ("ATI"), an option to purchase
7,800 shares of Class A Common Stock at an exercise price of $1.87 per share,
and sold to such President $10,517 principal amount of the Company's 14% JSDs.
The option was exercised on September 25, 1996. The 7,800 shares of Class A
Common Stock and the 14% JSDs held by such President were exchanged into 7,800
and 616 shares of Common Stock, respectively, upon the Company's initial public
offering.
The foregoing transactions were deemed exempt from registration under the
Securities Act of 1933, as amended, pursuant to Section 4(2) thereof.
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<PAGE> 17
ITEM 6. SELECTED FINANCIAL DATA
The following selected historical financial data should be read in
conjunction with the Consolidated Financial Statements and related Notes thereto
and "Management's Discussion and Analysis of Financial Condition and Results of
Operations" included herein.
<TABLE>
<CAPTION>
PREDECESSOR COMPANY TRIUMPH GROUP, INC.
---------------------------- --------------------------------------------
EIGHT MONTHS TEN MONTHS
YEAR ENDED ENDED ENDED YEARS ENDED MARCH 31,
SEPTEMBER 30, MAY 31, MARCH 31, -------------------------------
1992(1) 1993(1) 1994 1995 1996(2) 1997(2)
------------- ------------ ---------- -------- --------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C>
HISTORICAL OPERATING DATA:
Aviation Group
Net sales................................... $ 76,346 $ 46,517 $ 57,257 $ 70,714 $ 100,166 $167,731
Cost of products sold....................... 55,254 34,568 39,941 51,395 70,643 110,932
------- ------- ------- ------- -------- --------
Gross profit................................ 21,092 11,949 17,316 19,319 29,523 56,799
Selling, general and administrative......... 9,161 5,830 6,799 8,761 12,915 24,228
Depreciation and amortization............... 2,060 1,413 1,379 1,780 2,513 5,066
------- ------- ------- ------- -------- --------
Operating income, before corporate
expense(3)................................ 9,871 4,706 9,138 8,778 14,095 27,505
Metals Group
Net sales................................... 78,258 57,216 72,738 93,451 86,608 82,747
Cost of products sold....................... 60,178 45,293 57,154 74,441 69,097 65,118
------- ------- ------- ------- -------- --------
Gross profit................................ 18,080 11,923 15,584 19,010 17,511 17,629
Selling, general and administrative......... 10,741 7,704 9,614 11,715 11,874 12,177
Depreciation and amortization............... 832 658 594 916 999 979
------- ------- ------- ------- -------- --------
Operating income, before corporate
expense................................... 6,507 3,561 5,376 6,379 4,638 4,473
------- ------- ------- ------- -------- --------
Combined operating income, before corporate
expense................................... $ 16,378 $ 8,267 14,514 15,157 18,733 31,978
======= =======
Corporate expense(4)........................ 1,573 1,606 2,522 4,371
Interest expense............................ 4,908 6,589 7,318 6,591
------- ------- -------- --------
Income from continuing operations, before
income taxes and extraordinary loss....... 8,033 6,962 8,893 21,016
Income tax expense.......................... 3,125 2,598 3,699 8,461
------- ------- -------- --------
Income from continuing operations, before
extraordinary loss........................ 4,908 4,364 5,194 12,555
Extraordinary loss, net of income taxes..... -- -- -- (1,478)
Income (loss) from discontinued
operations................................ (462) (2,852) 4,496 --
------- ------- -------- --------
Net income.................................. $ 4,446 $ 1,512 $ 9,690 $ 11,077
======= ======= ======== ========
Earning per share(5):
Income from continuing operations, before
extraordinary loss(5)..................... $ 0.73 $ 0.68 $ 0.80 $ 1.50
Shares used in computing earnings per
share(5).................................. 7,180 7,268 7,369 8,648
BALANCE SHEET DATA:
Working capital............................... $ 32,360 $ 33,296 $ 49,152 $ 39,609 $ 60,379 $ 56,288
Total assets.................................. 154,343 152,761 104,905 111,386 161,406 171,315
Long-term debt, including current portion..... 64,477 69,013 74,403 71,738 98,769 24,392
Redeemable preferred stock.................... -- -- 1,423 1,912 2,652 --
Total stockholders' equity.................... 69,283 63,398 5,080 6,094 15,065 91,413
</TABLE>
- ---------------
(1) Financial information related to the year ended September 30, 1992 and the
eight month period ended May 31, 1993 is unaudited and represents operating
results for the divisions and subsidiaries of the predecessor company which
were purchased by the Company as of June 1, 1993. Information is provided
through operating income to assist the reader in evaluating the Company's
historical operating trends. Financial information after operating income is
excluded as the information is not comparable to
16
<PAGE> 18
subsequent periods because of the significantly changed corporate
organization and capital structure which resulted from the Acquisition.
(2) The operating results of TCI, Air Lab and AMTI are included since the dates
of acquisition, January 1, 1996, October 2, 1995 and July 31, 1996,
respectively. The combined operations of TCI, Air Lab and AMTI contributed
$11.0 million and $62.7 million to the Aviation Group's net sales and $2.3
million and $15.4 million to the Aviation Group's operating income, before
corporate expense, for the fiscal years ended March 31, 1996 and 1997,
respectively.
(3) Operating income, before corporate expense, is presented by group to assist
the reader in evaluating each of the group's results of operations before
financing and corporate expenses.
(4) Corporate expenses primarily consist of compensation, rent and general costs
related to the operation of the Company's corporate office and other general
expenses of the Company including professional fees.
(5) Earnings per share information represents the Company's per share data and
weighted average Common Stock outstanding, restated to give retroactive
effect to the 65-for-one stock split effected immediately prior to the
Company's initial public offering, the dilutive effects of warrants, stock
issued during the period commencing 12 months prior to the Company's initial
public offering at prices below the public offering price, the conversion of
all of the Company's capital stock and junior subordinated promissory notes
("JSDs") immediately prior to the Company's initial public offering, the
exchange of capital stock and JSDs immediately prior to the Company's
initial public offering into shares of Common Stock and shares of the
Company's Class D Common Stock, par value $.001 per share, and an adjustment
for the interest on the JSDs net of tax expense. Primary and fully diluted
earnings per share are the same.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
(The following discussion should be read in conjunction with the
Consolidated Financial Statements contained elsewhere herein.)
FISCAL YEAR ENDED MARCH 31, 1997 COMPARED TO FISCAL YEAR ENDED MARCH 31, 1996
Aviation Group
Net sales. Net sales for the Aviation Group increased by $67.6 million, or
67.5%, to $167.7 million for fiscal 1997 from $100.2 million for fiscal 1996.
This increase was primarily due to the inclusion of an aggregate of $62.7
million and $11.0 million in net sales for TCI, Air Lab and AMTI in fiscal 1997
and fiscal 1996, respectively. Net sales for the other operating divisions and
subsidiaries in the Aviation Group, experienced a 17.8% increase in net sales
over fiscal 1996. Increased demand for overhaul and repair services from the
commercial airlines and cargo carriers, as well as increased orders of aircraft
components from OEMs, accounted for the increase in net sales in the Aviation
Group.
Costs of products sold. Costs of products sold for the Aviation Group
increased by $40.3 million, or 57.0%, to $110.9 million for fiscal 1997 from
$70.6 million for fiscal 1996. This increase was primarily due to inclusion of
$35.5 million and $6.0 million in fiscal 1997 and fiscal 1996, respectively, of
costs of products sold associated with net sales generated by TCI, Air Lab and
AMTI. The remaining increase is associated with the increase in net sales of the
remaining operating divisions and subsidiaries in the Aviation Group.
Gross profit. Gross profit for the Aviation Group increased by $27.3
million, or 92.4%, to $56.8 million for fiscal 1997 from $29.5 million for
fiscal 1996. Of this increase, $22.2 million was a result of the inclusion of
gross profit on the net sales generated by TCI, Air Lab and AMTI. In addition,
$5.1 million of gross profit was generated on the increased sales volume of the
other operating divisions and subsidiaries in the Aviation Group. As a
percentage of net sales, gross profit for the Aviation Group was 33.9% and 29.5%
for fiscal 1997 and fiscal 1996, respectively.
Selling, general and administrative expenses. Selling, general and
administrative expenses for the Aviation Group increased by $11.3 million, or
87.6%, to $24.2 million for fiscal 1997 from $12.9 million for fiscal 1996, due
to increased sales volume and the TCI, Air Lab and AMTI acquisitions.
17
<PAGE> 19
Depreciation and amortization. Depreciation and amortization for the
Aviation Group increased by $2.6 million, or 101.6%, to $5.1 million for fiscal
1997 from $2.5 million for fiscal 1996, primarily due to the assets acquired in
connection with the TCI, Air Lab and AMTI acquisitions.
Operating income. Operating income for the Aviation Group increased by
$13.4 million, or 95.1%, to $27.5 million for fiscal 1997 from $14.1 million for
fiscal 1996. This increase was assisted by the growth in aircraft production and
the increased outsourcing of repair and overhaul services by commercial aircraft
operators. This increase was also due to the addition of net sales and profits
generated by TCI, Air Lab, and AMTI, as well as the incremental operating income
resulting from increased sales volume. As a percentage of net sales, operating
income for the Aviation Group was 16.4% and 14.1% for fiscal 1997 and fiscal
1996, respectively.
Metals Group
Net sales. Net sales for the Metals Group decreased by $3.9 million, or
4.5%, to $82.7 million for fiscal 1997 from $86.6 million for fiscal 1996. This
decrease was primarily due to reduced sales volume at the Company's steel
erecting facility.
Costs of products sold. Costs of products sold for the Metals Group
decreased by $4.0 million, or 5.8%, to $65.1 million for fiscal 1997 from $69.1
million for fiscal 1996. This decrease was primarily due to the reduced sales
volume as a result of reorganizing the fabrication operations at the Company's
steel erecting facility.
Gross profit. Gross profit for the Metals Group increased by $.1 million,
or .7%, to $17.6 million for fiscal 1997 from $17.5 million for fiscal 1996, due
to the reasons discussed above. As a percentage of net sales, gross profit for
the Metals Group was 21.3% and 20.2% for fiscal 1997 and fiscal 1996,
respectively.
Selling, general and administrative expenses. Selling, general and
administrative expenses for the Metals Group increased by $.3 million, or 2.6%,
to $12.2 million for fiscal 1997 from $11.9 million for fiscal 1996.
Depreciation and amortization. Depreciation and amortization for the
Metals Group remained unchanged at $1.0 million for fiscal 1997 and 1996.
Operating income. Operating income for the Metals Group decreased by $.1
million, or 3.6%, to $4.5 million for fiscal 1997 from $4.6 million for fiscal
1996, due to the reasons discussed above. As a percentage of net sales,
operating income for the Metals Group was 5.4% for both years.
Overall Results
Corporate expenses. Corporate expenses increased by $1.9 million, or
73.3%, to $4.4 million for fiscal 1997 from $2.5 million for fiscal 1996. This
increase was primarily due to additional incentive compensation, staffing and
professional fees associated with public company reporting requirements.
Interest expense. Interest expense decreased by $0.7 million, or 9.9%, to
$6.6 million for fiscal 1997 from $7.3 million for fiscal 1996. This decrease
was primarily due to reduced debt levels associated with the application of the
proceeds from the initial public offering of the Company's Common stock and the
proceeds from the sale of Quality Park Products, Inc. ("Quality Park"),
partially offset by the acquisitions of TCI, Air Lab, and AMTI, the cash
portions of which were financed by borrowings under the Company's credit
agreement.
Income tax expense. The effective tax rate was 40.3% for fiscal 1997 and
41.6% for fiscal 1996.
Income from continuing operations, before extraordinary loss. Income from
continuing operations, before extraordinary loss increased by $7.4 million, or
141.7%, to $12.6 million for fiscal 1997 from $5.2 million for fiscal 1996. This
increase was primarily due to the contribution generated by TCI, Air Lab and
AMTI and the overall favorable conditions in the aviation industry resulting in
increased net sales of the Company's products and services.
18
<PAGE> 20
Income from discontinued operations. The Company had income from
discontinued operations of $4.5 million in fiscal 1996, principally as a result
of the sale of Quality Park, which resulted in an after-tax gain of $2.5
million, and improved operating results at Quality Park due to the favorable
effects of restructuring efforts.
Extraordinary loss. An extraordinary loss in fiscal 1997 of $1.5 million
(net of tax benefit of $1.0 million), relates to prepayment premiums and the
related write-off of unamortized deferred financing costs due to the early
retirement of 11% senior subordinated notes, senior term loans and the revolving
credit facility.
Net income. Net income increased by $1.4 million, or 14.3%, to $11.1
million for fiscal 1997 from $9.7 million for fiscal 1996. The increase in
fiscal 1997 net income was primarily attributable to the strong results of the
Aviation Group, partially offset by the extraordinary loss recorded in fiscal
1997 and the comparison to fiscal 1996 which included the results of
discontinued operations.
FISCAL YEAR ENDED MARCH 31, 1996 COMPARED TO FISCAL YEAR ENDED MARCH 31, 1995
Aviation Group
Net sales. Net sales for the Aviation Group increased by $29.5 million, or
41.6%, to $100.2 million for fiscal 1996 from $70.7 million for fiscal 1995.
This increase was primarily due to an $18.4 million increase in net sales for
the operating divisions and subsidiaries in the Aviation Group, representing a
26.0% increase in net sales over fiscal 1995, and the inclusion of an aggregate
of $11.0 million in net sales for TCI and Air Lab. Increased demand for overhaul
and repair services from the commercial airlines and cargo carriers, as well as
increased orders of aircraft components from OEMs, accounted for the increase in
net sales in the Aviation Group.
Costs of products sold. Costs of products sold for the Aviation Group
increased by $19.2 million, or 37.5%, to $70.6 million for fiscal 1996 from
$51.4 million for fiscal 1995. This increase was primarily due to $6.4 million
of increased costs of products sold associated with net sales generated by TCI
and Air Lab. The remaining increase is associated with the increase in net sales
of the remaining operating divisions and subsidiaries in the Aviation Group.
Gross profit. Gross profit for the Aviation Group increased by $10.2
million, or 52.8%, to $29.5 million for fiscal 1996 from $19.3 million for
fiscal 1995. Of this increase, $5.0 million was a result of the increased sales
volume and $0.6 million was a result of improved margins at the operating
divisions and subsidiaries in the Aviation Group. This increase was also
attributable to the inclusion of $4.6 million of gross profit on the net sales
generated by TCI and Air Lab. As a percentage of net sales, gross profit for the
Aviation Group was 29.5% and 27.3% for fiscal 1996 and fiscal 1995,
respectively.
Selling, general and administrative expenses. Selling, general and
administrative expenses for the Aviation Group increased by $4.2 million, or
47.4%, to $12.9 million for fiscal 1996 from $8.8 million for fiscal 1995, due
to increased sales volume and the TCI and Air Lab acquisitions.
Depreciation and amortization. Depreciation and amortization for the
Aviation Group increased by $0.7 million, or 41.2%, to $2.5 million for fiscal
1996 from $1.8 million for fiscal 1995, primarily due to the assets acquired in
connection with the TCI and Air Lab acquisitions.
Operating income. Operating income for the Aviation Group increased by
$5.3 million, or 60.6%, to $14.1 million for fiscal 1996 from $8.8 million for
fiscal 1995. This increase was assisted by the growth in aircraft production and
the increased outsourcing of repair and overhaul services by commercial aircraft
operators. This increase was also due to the addition of net sales and profits
generated by TCI and Air Lab, as well as the incremental operating income
resulting from increased sales volume. As a percentage of net sales, operating
income for the Aviation Group was 14.1% and 12.4% for fiscal 1996 and fiscal
1995, respectively.
19
<PAGE> 21
Metals Group
Net sales. Net sales for the Metals Group decreased by $6.8 million, or
7.3%, to $86.6 million for fiscal 1996 from $93.5 million for fiscal 1995. This
decrease was primarily due to weakened demand and lower selling prices for
flatrolled steel products processed by the Company. In addition, the Company's
electrogalvanized products experienced greater competition from hot-dipped
rolled steel products.
Costs of products sold. Costs of products sold for the Metals Group
decreased by $5.3 million, or 7.2%, to $69.1 million for fiscal 1996 from $74.4
million for fiscal 1995. This decrease was primarily due to the reduced sales
volume and lower costs of raw materials.
Gross profit. Gross profit for the Metals Group decreased by $1.5 million,
or 7.9%, to $17.5 million for fiscal 1996 from $19.0 million for fiscal 1995,
due to the reasons discussed above. As a percentage of net sales, gross profit
for the Metals Group was 20.2% and 20.3% for fiscal 1996 and fiscal 1995,
respectively.
Selling, general and administrative expenses. Selling, general and
administrative expenses for the Metals Group increased by $0.2 million, or 1.4%,
to $11.9 million for fiscal 1996 from $11.7 million for fiscal 1995.
Depreciation and amortization. Depreciation and amortization for the
Metals Group increased by $0.1 million, or 9.1%, to $1.0 million for fiscal 1996
from $0.9 million for fiscal 1995. This increase was primarily due to
depreciation of certain assets recently placed into service.
Operating income. Operating income for the Metals Group decreased by $1.7
million, or 27.3%, to $4.6 million for fiscal 1996 from $6.4 million for fiscal
1995, due to reasons discussed above. As a percentage of net sales, operating
income for the Metals Group was 5.4% and 6.8% for fiscal 1996 and fiscal 1995,
respectively.
Overall Results
Corporate expenses. Corporate expenses increased by $0.9 million, or
57.0%, to $2.5 million for fiscal 1996 from $1.6 million for fiscal 1995. This
increase was primarily due to additional incentive compensation, staffing and
professional fees.
Interest expense. Interest expense increased by $0.7 million, or 11.1%, to
$7.3 million for fiscal 1996 from $6.6 million for fiscal 1995. This increase
was primarily due to increased debt levels associated with the acquisitions of
TCI and Air Lab, the cash portions of which were financed by borrowings under
the Company's credit agreement.
Income tax expense. The effective tax rate was 41.6% for fiscal 1996 and
37.3% for fiscal 1995.
Income from continuing operations. Income from continuing operations
increased by $0.8 million, or 19.0%, to $5.2 million for fiscal 1996 from $4.4
million for fiscal 1995. This increase was primarily due to the net sales
generated by TCI and Air Lab and the overall favorable conditions in the
aviation industry resulting in increased net sales of the Company's products and
services.
Income (loss) from discontinued operations. The Company had income from
discontinued operations of $4.5 million in fiscal 1996, principally as a result
of the sale of Quality Park, which resulted in an after-tax gain of $2.5
million, and improved operating results at Quality Park due to the favorable
effects of restructuring efforts. The Company had a loss from discontinued
operations of $2.9 million in fiscal 1995 due to $2.0 million in operating
losses at Quality Park and a $0.9 million loss on the sale of certain assets of
Quality Park.
Net income. Net income increased by $8.2 million, or 540.9%, to $9.7
million for fiscal 1996 from $1.5 million for fiscal 1995. Of this increase,
$7.3 million was attributable to the income from the discontinued Quality Park
operations in fiscal 1996 as compared to the loss at these operations during
fiscal 1995. The increase in fiscal 1996 net income was also attributable to the
strong results of the Aviation Group, partially offset by a decline in
profitability in the Metals Group. As a percentage of net sales, net income was
5.2% and 0.9% for fiscal 1996 and fiscal 1995, respectively.
20
<PAGE> 22
LIQUIDITY AND CAPITAL RESOURCES
The Company's working capital needs are generally funded through cash flows
from operations and the credit agreement. The Company provided approximately
$8.1 million from operating activities and $11.2 million from investing
activities while using $18.9 million in financing activities, net of the
Company's initial public offering, primarily for retirement of debt for the
fiscal year ended March 31, 1997. As of March 31, 1997, $75.3 million was
available under the revolving credit facility.
On July 19, 1996, the Company entered into an unsecured five-year credit
agreement for $85.0 million ($50.0 million revolver and $35.0 million term
loan). On December 31, 1996, the Company amended the credit agreement increasing
the revolving credit facility to $85.0 million and retiring the term loan. The
term loan of $33.8 million was retired using proceeds from the Company's initial
public offering and borrowings under the Company's revolving credit facility.
On March 31, 1997, the Company entered into the Credit Facility with its
lenders to extend the maturity date of the existing credit agreement, reduce
interest rates and amend certain covenants. The Credit Facility contains
restrictions and covenants applicable to the Company which include limitations
on the ability to incur additional indebtedness, issue stock options or
warrants, make certain restricted payments and acquisitions, create liens, enter
into transactions with affiliates, sell substantial portions of its assets and
make capital expenditures. The Company's long-term debt generally prohibits the
Company from paying any dividends or making any distributions on its capital
stock.
The proceeds of borrowings under the Credit Facility and the proceeds from
the sale of the discontinued paper operations of Quality Park were used to
extinguish the outstanding balances of the revolving credit facility, the senior
term loans and the senior subordinated notes existing at March 31, 1996. The
early extinguishment of this debt resulted in an extraordinary loss of
approximately $1.5 million, net of an income tax benefit of approximately $1.0
million.
The Company's outstanding subordinated promissory notes consist of two
notes in the aggregate principal amount of $14.2 million at March 31, 1997.
Approximately $5.5 million was repaid on October 31, 1996 with the proceeds of
the Company's initial public offering.
The Company's 14% junior subordinated promissory notes were unsecured
obligations of the Company which were issued to certain members of management
and certain shareholders of the Company. In October 1996, these notes aggregated
approximately $9.5 million, including principal and accrued interest, and were
converted into common stock immediately prior to the consummation of the
Company's initial public offering.
The Company's 10.5% junior subordinated promissory notes are unsecured
obligations of the Company, which are contractually subordinated to all
liabilities of TCI and its subsidiaries. These notes were issued to TFX
Equities, Inc. and certain members of management of TCI and are due in equal
installments on December 31, 2005 and 2006, although the holders of these notes
have no right to demand payment of principal until all superior debt, as
defined, has been paid in full.
On July 31, 1996, the Company acquired all of the outstanding stock of AMTI
based in Tempe, Arizona for an aggregate purchase price of approximately $21.2
million, including cash consideration of approximately $8.0 million, an option
to purchase 13,000 shares of the Company's Class A common stock at an exercise
price of $1.87 per share, a five-year covenant not-to-compete contract valued at
$2.8 million and the assumption of liabilities and costs related to the
transaction of approximately $10.3 million. The acquisition was accounted for
under the purchase method, and the purchase price was allocated to the assets
based on their estimated fair values, with any excess recorded as cost over net
assets acquired. The acquisition was funded through the Company's long-term
borrowings.
Capital expenditures were approximately $8.2 million for the fiscal year
ended March 31, 1997 primarily for manufacturing machinery and equipment for the
Aviation Group. The Company funded these expenditures through borrowings under
its credit arrangements. The Company expects capital expenditures to be
approximately $11.0 million for its fiscal year ending March 31, 1998. Of this
amount, approximately $2.0 million is expected to be used to expand capacity at
the Company's stretch forming operations and the
21
<PAGE> 23
remainder will be used for upgrades of information systems, machinery and
equipment, primarily for the Aviation Group. The Company believes that cash
generated by operations and borrowings under the Credit Facility will be
sufficient to meet anticipated cash requirements for the next 12 months.
The Company has a stated policy to grow through acquisition and is
continuously evaluating various acquisition opportunities. As a result, the
Company currently is pursuing the potential purchase of a number of candidates.
In the event that more than one of these were successfully purchased, the
availability under the Credit Facility might be fully utilized and additional
cash requirements might have to be sourced. Given the Company's operating
results and the earnings potential of the acquisitions, various capital sources
should be receptive to fund the additional requirements.
In the third quarter of fiscal 1997, the Company completed the sale of
2,875,000 shares of its Common stock for $19.00 per share through an
underwritten public offering and the sale of 125,000 shares of its Common stock
for $17.67 per share through a direct sale by the Company. The net proceeds from
the sales, of approximately $51.8 million, were used to pay down a portion of
the Company's long-term borrowings under its five-year credit agreement and $5.5
million of the 10% subordinated promissory note.
FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995 relating to the Company's
future operations and prospects, including statements that are based on current
projections and expectations about the markets in which the Company operates,
and management's beliefs concerning future performance and capital requirements
based upon current available information. Actual results could differ materially
from management's current expectations and there can be no assurance that
additional capital will not be required or that additional capital, if required,
will be available on reasonable terms, if at all, at such times and in such
amounts as may be needed by the Company. In addition to these factors, among
other factors that could cause actual results to differ materially are
uncertainties relating to the integration of acquired businesses, general
economic conditions affecting the Company's two business segments, dependence of
certain of the Company's businesses on certain key customers as well as
competitive factors relating to the aviation and metals industries. For a more
detailed discussion of these and other factors affecting the Company, see the
risk factors described in the Company's registration statement on Form S-1 filed
with Securities and Exchange Commission and in Item 1 of this Annual Report on
Form 10-K.
22
<PAGE> 24
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
To the Board of Directors and Stockholders of Triumph Group, Inc.
We have audited the accompanying consolidated balance sheets of Triumph
Group, Inc. as of March 31, 1997 and 1996, and the related consolidated
statements of income, stockholders' equity, and cash flows for each of the three
years in the period ended March 31, 1997. Our audits also included the financial
statement schedule listed in the index at Item 14(a). These financial statements
and schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Triumph Group, Inc. at March 31, 1997 and 1996, and the consolidated results of
its operations and its cash flows for each of the three years in the period
ended March 31, 1997, in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial statement schedule, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
/s/ ERNST & YOUNG LLP
Philadelphia, Pennsylvania
April 23, 1997
23
<PAGE> 25
TRIUMPH GROUP, INC.
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
MARCH 31,
---------------------
1996 1997
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash................................................................. $ 539 $ 993
Accounts receivable, less allowance for doubtful accounts:
1996 -- $973 and 1997 -- $1,619................................... 29,680 39,220
Inventories.......................................................... 45,098 54,310
Estimated net realizable value of discontinued operations............ 27,350 --
Prepaid expenses and other........................................... 698 1,036
Deferred income taxes................................................ 1,917 1,795
-------- --------
Total current assets.............................................. 105,282 97,354
Property and equipment, net............................................ 36,552 48,349
Excess of cost over net assets acquired, net........................... 10,339 13,516
Intangible assets and other, net....................................... 9,233 12,096
-------- --------
Total assets................................................. $161,406 $171,315
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable..................................................... $ 18,203 $ 20,461
Accrued expenses..................................................... 15,757 16,255
Income taxes payable................................................. 2,137 3,951
Current portion of long-term debt.................................... 8,806 399
-------- --------
Total current liabilities......................................... 44,903 41,066
Long-term debt, less current portion................................... 89,963 23,993
Deferred income taxes and other........................................ 8,823 14,843
Redeemable preferred stock............................................. 2,652 --
Stockholders' equity:
Common stock, $.001 par value, 15,000,000 shares authorized,
5,801,898 shares issued and outstanding at March 31, 1997......... -- 6
Class D common stock convertible, $.001 par value, 6,000,000 shares
authorized, 3,947,690 shares issued and outstanding at March 31,
1997.............................................................. -- 4
Common stock; Classes A, B, and C (see Note 8)....................... 6 --
Capital in excess of par value....................................... 1,006 68,479
Retained earnings.................................................... 14,053 22,924
-------- --------
Total stockholders' equity........................................ 15,065 91,413
-------- --------
Total liabilities and stockholders' equity................... $161,406 $171,315
======== ========
</TABLE>
See notes to consolidated financial statements.
24
<PAGE> 26
TRIUMPH GROUP, INC.
CONSOLIDATED STATEMENTS OF INCOME
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
----------------------------------
1995 1996 1997
-------- -------- --------
<S> <C> <C> <C>
Net sales.................................................. $164,165 $186,774 $250,478
-------- -------- --------
Operating costs and expenses:
Cost of products sold.................................... 125,836 139,740 176,050
Selling, general and administrative...................... 22,060 27,288 40,748
Depreciation and amortization............................ 2,718 3,535 6,073
-------- -------- --------
150,614 170,563 222,871
-------- -------- --------
Operating income........................................... 13,551 16,211 27,607
Interest expense........................................... 6,589 7,318 6,591
-------- -------- --------
Income from continuing operations, before income taxes and
extraordinary loss....................................... 6,962 8,893 21,016
Income tax expense......................................... 2,598 3,699 8,461
-------- -------- --------
Income from continuing operations, before extraordinary
loss..................................................... 4,364 5,194 12,555
Extraordinary loss, net of income taxes.................... -- -- (1,478)
Income (loss) from discontinued operations................. (2,852) 4,496 --
-------- -------- --------
Net income................................................. $ 1,512 $ 9,690 $ 11,077
======== ======== ========
Income from continuing operations, before extraordinary
loss per share........................................... $ 0.68 $ 0.80 $ 1.50
Extraordinary loss per share............................... -- -- (0.17)
Income (loss) from discontinued operations per share....... (0.39) 0.61 --
-------- -------- --------
Net income per share....................................... $ 0.29 $ 1.41 $ 1.33
======== ======== ========
Shares used in computing income per share (in thousands)... 7,268 7,369 8,648
======== ======== ========
</TABLE>
See notes to consolidated financial statements.
25
<PAGE> 27
TRIUMPH GROUP, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COMMON CAPITAL IN
STOCK EXCESS OF TREASURY RETAINED
ALL CLASSES PAR VALUE STOCK EARNINGS TOTAL
----------- ---------- -------- --------- -------
<S> <C> <C> <C> <C> <C>
Balance at March 31, 1994....................... $ 6 $ 994 $ -- $ 4,080 $ 5,080
Net income.................................... 1,512 1,512
Redeemable preferred stock dividends.......... (473) (473)
Accretion of Redeemable preferred stock....... (16) (16)
Purchase of 26,000 shares of common stock..... (9) (9)
--- ------- ---- ------- -------
Balance at March 31, 1995....................... 6 994 (9) 5,103 6,094
Net income.................................... 9,690 9,690
Redeemable preferred stock dividends.......... (594) (594)
Accretion of Redeemable preferred stock....... (146) (146)
Sale of 26,000 shares of common stock......... 12 9 21
--- ------- ---- ------- -------
Balance at March 31, 1996....................... 6 1,006 -- 14,053 15,065
Net income.................................... 11,077 11,077
Issuance of 3,000,000 shares of common stock 3 51,757 51,760
in public offering and direct sale
(net of $1,250 issuance costs).............
Redeemable preferred stock dividends.......... (370) (370)
Accretion of Redeemable preferred stock....... (1,836) (1,836)
Compensation in stock options issued 80 80
to employee................................
Purchase of 45,500 shares of common stock..... (85) (85)
Acquisition consideration in stock options 164 164
issued.....................................
Exercise of options to purchase common 75 75
stock......................................
Conversion of minority interest in subsidiary 619 619
to common stock............................
Retirement of Treasury Stock.................. (10) 10 --
Exchange of Redeemable preferred stock for 4,858 4,858
common stock...............................
Exchange of junior subordinated promissory 1 10,005 10,006
notes for common stock.....................
--- ------- ---- ------- -------
Balance at March 31, 1997....................... $10 $ 68,479 $ -- $ 22,924 $91,413
=== ======= ==== ======= =======
</TABLE>
See notes to consolidated financial statements.
26
<PAGE> 28
TRIUMPH GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
---------------------------------
1995 1996 1997
------- -------- --------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income.................................................. $ 1,512 $ 9,690 $ 11,077
Adjustments to reconcile net income to net cash provided by
operating activities:
Discontinued operations................................... 3,738 (4,396) --
Depreciation and amortization............................. 2,718 3,535 6,073
Other amortization included in interest expense........... 252 276 206
Provision for doubtful accounts receivable................ 14 243 959
Provision for deferred income taxes....................... 877 719 1,067
Interest on subordinated and junior subordinated
promissory
notes paid by issuance of additional notes............. 993 1,161 1,550
Write-off deferred financing costs........................ -- -- 915
Compensation in stock options issued to employee.......... -- -- 80
Changes in operating assets and liabilities, net of
acquisitions
and dispositions of businesses (see note 17)........... (4,457) 4,873 (13,778)
------- -------- --------
Net cash provided by operating activities................... 5,647 16,101 8,149
------- -------- --------
INVESTING ACTIVITIES
Capital expenditures, net................................... (3,229) (1,897) (8,183)
Proceeds from sale of discontinued operations............... 375 -- 27,350
Proceeds from sale of company, net of cash sold............. 1,192 -- --
Cost of businesses acquired, net of cash acquired........... -- (34,137) (7,950)
------- -------- --------
Net cash (used in) provided by investing activities......... (1,662) (36,034) 11,217
------- -------- --------
FINANCING ACTIVITIES
Net proceeds from common stock offering..................... -- -- 51,760
Net (decrease) increase in revolving credit facility........ (617) 2,129 (23,841)
(Purchase) sale of treasury stock, net...................... (9) 21 (10)
Proceeds from issuance of long-term debt.................... -- 20,827 54,065
Refinancing and retirement of long-term debt................ -- -- (93,616)
Repayment of debt and capital lease obligations............. (3,040) (3,251) (6,872)
Payment of deferred financing cost.......................... -- -- (398)
------- -------- --------
Net cash (used in) provided by financing activities......... (3,666) 19,726 (18,912)
------- -------- --------
Net change in cash.......................................... 319 (207) 454
Cash at beginning of year................................... 427 746 539
------- -------- --------
Cash at end of year......................................... $ 746 $ 539 $ 993
======= ======== ========
</TABLE>
See notes to consolidated financial statements.
27
<PAGE> 29
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
1. BASIS OF PRESENTATION
Triumph Group, Inc. ("Triumph") is a Delaware corporation which, through
its operating subsidiaries, is engaged in aviation services and metals
converting and distribution.
The accompanying consolidated financial statements include the accounts of
Triumph and its subsidiaries (collectively, the "Company") as of the dates and
for the periods indicated. Intercompany accounts and transactions have been
eliminated from the consolidated financial statements.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization
Triumph's aviation segment designs, engineers, manufactures or repairs and
overhauls aircraft components for commercial airlines, air cargo carriers and
original equipment manufacturers on a worldwide basis. Triumph's metals segment
manufactures, machines, processes and distributes metal products to customers in
the computer, construction, container, farm equipment and office furniture
industries, primarily within North America. The Company's trade accounts
receivable are exposed to credit risk; however, the risk is limited due to the
diversity of the customer base and the customer base's wide geographical area.
At March 31, 1997, the Company had no significant concentrations of credit risk.
No single customer accounts for more than 10% of the Company's sales; however,
the loss of any significant customer could have a material effect on the Company
and its operating subsidiaries.
Use of Estimates
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Earnings Per Share
Earnings per share for all periods presented is computed using the weighted
average number of shares of common stock outstanding after giving effect to the
65-for-one stock split described in Note 8. Common shares and options issued
during the period commencing 12 months prior to the initial public offering at
prices below the public offering price are presumed to have been in
contemplation of the public offering and are included in the calculation as if
they were outstanding for all periods presented. In addition, common share
equivalents such as warrants and options are included in the computation.
Earnings per share reflected in the consolidated statements of income for
all periods presented has been computed as described above, but also gives
effect to the exchange for common stock of all outstanding 14% junior
subordinated promissory notes and a portion of the 10.5% junior subordinated
promissory notes and all outstanding Redeemable preferred stock. Additionally,
income from continuing operations, before extraordinary loss has been increased
to reflect interest related to the junior subordinated promissory notes net of
income tax expense. Primary and fully diluted earnings per share are the same.
In February 1997, the Financial Accounting Standards Board issued Statement
No. 128, "Earnings Per Share", which is required to be adopted for annual and
quarterly periods ended after December 15, 1997. At that time, the Company will
be required to change the method currently used to compute earnings per share
and to restate all prior periods presented. Under the new requirements for
calculating primary earnings per share, the dilutive effect of stock options and
warrants will be excluded. The impact is estimated to result in an increase in
primary income from continuing operations, before extraordinary loss per share
for the years ended
28
<PAGE> 30
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
March 31, 1995, 1996 and 1997 of $0.07, $0.08 and $0.13 respectively. The impact
of Statement 128 on the calculation of fully diluted earnings per share for
these years is not expected to be material.
Property and Equipment
Property and equipment are recorded at cost and depreciated over the
estimated useful lives of the related assets by the straight-line method.
Buildings and improvements are depreciated over a period of 15 to 39 1/2 years,
and machinery and equipment are depreciated over a period of 7 to 15 years
(except for furnitures, fixtures and computer equipment which is depreciated
over a period of 3 to 10 years).
Effective April 1, 1996, the Company adopted Statement of Financial
Accounting Standards ("SFAS") No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed Of," which
establishes accounting standards for the impairment of long-lived assets,
certain identifiable intangibles and goodwill related to those assets. The
adoption of this standard had no effect on the Company's financial position,
results of operations, or liquidity.
Excess of Cost Over Net Assets Acquired
The excess of cost over the fair value of net assets acquired is being
amortized on a straight-line basis over twenty-five years. Accumulated
amortization at March 31, 1996 and 1997 was $105 and $609, respectively.
Intangible Assets
Intangible assets at March 31, 1996 and 1997 of $6,680 and $9,897,
respectively, consist primarily of patents, trademarks, aerospace designs, and
licensing agreements. Intangible assets are amortized on a straight-line basis
over their estimated useful lives which range from five to twenty-five years.
Accumulated amortization at March 31, 1996 and 1997 was $1,110 and $2,199,
respectively.
Revenue Recognition
Revenues are recorded when services are performed or when products are
shipped except for long-term construction contracts which are recorded on the
percentage-of-completion method based on the relationship between actual costs
incurred and total estimated costs at completion. Estimated costs to complete
for each contract are reviewed periodically as work progresses and appropriate
adjustments are made to revenue recognition percentages, if necessary. In the
event such estimates indicate a loss would be incurred on the contract, the
estimated amount of such loss would be recognized in the period the estimated
loss was determined. Sales from long-term construction contracts approximated
11%, 12% and 7% of total sales for the years ended March 31, 1995, 1996 and
1997, respectively.
Stock-Based Compensation
The Company follows Accounting Principles Board ("APB") Opinion No. 25,
"Accounting for Stock Issued to Employees," and related interpretations in
accounting for its employee stock-based compensation (see Note 10).
3. ACQUISITIONS
On July 31, 1996, the Company acquired all of the outstanding stock of
Advanced Materials Technologies, Inc. ("AMTI") based in Tempe, Arizona for an
aggregate purchase price of $21,183, including cash consideration of $7,950, an
option to purchase 13,000 shares of the Company's Class A Common Stock at an
exercise price of $1.87 per share valued at $164, a five-year covenant
not-to-compete contract valued at $2,800 and the assumption of liabilities and
costs related to the transaction of $10,269. AMTI repairs and refurbishes
29
<PAGE> 31
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
gas turbine engine components used in the aviation industry. The excess of the
purchase price over the fair value of net assets acquired of $2,870 was recorded
as excess of cost over net assets acquired and is being amortized over
twenty-five years on a straight-line basis.
In January 1996, the Company acquired substantially all of the assets of
Triumph Controls, Inc., formerly a division of Teleflex, Incorporated
(Teleflex), for an aggregate purchase price of $40,100. Triumph Controls, Inc.
manufactures and services mechanical controls for a broad range of end users,
primarily in the aviation industry. The purchase price includes cash paid to
Teleflex, a note to Teleflex, assumed liabilities and direct costs of the
acquisition. The aggregate purchase price was allocated to the assets based on
their estimated fair values, including $5,500 of intangible assets (patents,
trademarks and aerospace designs). The Company assumed certain liabilities of
$2,600 and incurred transaction-related costs of approximately $1,000. During
1997, the purchase price and purchase accounting estimates were finalized
resulting in an additional $560 of costs in excess of net assets acquired. In
conjunction with the Company's initial public offering (see Note 8), the Company
exchanged a portion of the common stock of Triumph Controls, Inc. for shares of
Common stock of the Company. As a result of the conversion, $520 was recorded as
excess of cost over net assets acquired to reflect the excess of fair market
value over book value as an increase in the purchase price. The excess of the
purchase price over the fair value of net assets acquired of $10,960 was
recorded as excess of cost over net assets acquired and is being amortized over
twenty-five years on a straight-line basis.
In October 1995, the Company acquired substantially all of the assets of
Air Lab, Inc. of Seattle, WA, for an aggregate purchase price of $3,400. Air
Lab, Inc. services instruments and avionics for the commercial aviation
industry. The purchase price includes cash paid to Air Lab, Inc., a long-term
liability related to a covenant not-to-compete contract, certain assumed
liabilities and direct costs of the acquisition.
These acquisitions have been accounted for under the purchase method and,
accordingly, are included in the consolidated financial statements from their
dates of acquisition. These acquisitions were funded by the Company's long-term
borrowings in place at the date of each respective acquisition.
The following unaudited pro forma information has been prepared assuming
the purchases of AMTI, Triumph Controls, Inc. and Air Lab, Inc. had taken place
at the beginning of the year prior to the year of acquisition:
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
---------------------
1996 1997
-------- --------
<S> <C> <C>
Net sales.............................................. $230,168 $258,959
Income from continuing operations, before extraordinary
loss................................................. 8,317 13,562
Income from continuing operations, before extraordinary
loss per share....................................... 1.22 1.62
Net income............................................. 12,813 12,084
Net income per share................................... 1.83 1.45
</TABLE>
The unaudited pro forma information includes adjustments for interest
expense that would have been incurred to finance the purchases, additional
depreciation based on the estimated fair market value of the property, plant,
and equipment acquired, and the amortization of the intangible assets arising
from the transactions. The unaudited pro forma financial information is not
necessarily indicative of the results of operations as they would have been had
the transactions been effected on the assumed dates.
30
<PAGE> 32
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
4. DISCONTINUED PAPER OPERATIONS
On March 31, 1996, the Company sold substantially all of the assets of its
paper converting subsidiary, Quality Park Products, Inc. of St. Paul, MN, to
Mail-Well, Inc. for approximately $27,350 in cash and the assumption by the
purchaser of certain liabilities.
The results of Quality Park Products, Inc. have been reported separately as
a component of discontinued operations in the Consolidated Statements of Income.
The following is a summary of the results of operations of the Company's
paper converting business:
<TABLE>
<CAPTION>
YEAR ENDED MARCH
31,
-------------------
1995 1996
------- -------
<S> <C> <C>
Net sales................................................ $84,170 $99,531
Income (loss) from operations (net of taxes -- $1,628 and
$1,156, respectively).................................. (2,852) 2,046
Gain on sale (net of taxes -- $1,633 in 1996)............ -- 2,450
------- -------
Income (loss) from discontinued operations............... $(2,852) $ 4,496
======= =======
</TABLE>
Interest expense of $1,700 and $2,045 was allocated to Quality Park
Products, Inc. for the years ended March 31, 1995 and 1996, respectively. Such
amounts are included in the income (loss) from discontinued operations of those
years. These costs were allocated based on the operation's actual borrowings.
5. INVENTORIES
Inventories are stated at the lower of cost (first-in, first-out or
last-in, first-out methods) or market. The components of inventories are as
follows:
<TABLE>
<CAPTION>
MARCH 31,
-------------------
1995 1996
------- -------
<S> <C> <C>
Raw materials............................................ $16,093 $15,863
Work-in-process.......................................... 12,862 17,295
Finished goods........................................... 16,570 21,694
------- -------
Total inventories at current FIFO cost................... 45,525 54,852
Less allowance to reduce certain current FIFO costs to
LIFO basis............................................. 427 542
------- -------
Total inventories........................................ $45,098 $54,310
======= =======
</TABLE>
Inventories would have been $427 and $542 higher than reported at March 31,
1996 and 1997, respectively, if the first-in, first-out method of determining
cost had been used for all inventories. Approximately 15% and 12% of the
inventory is valued using the LIFO method at March 31, 1996 and 1997,
respectively.
31
<PAGE> 33
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
6. INCOME TAXES
The components of income tax expense related to continuing operations is as
follows:
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
----------------------------
1995 1996 1997
------ ------ ------
<S> <C> <C> <C>
Current:
Federal........................................ $1,650 $2,689 $6,453
State.......................................... 71 291 941
------ ------ ------
1,721 2,980 7,394
Deferred:
Federal........................................ 685 574 1,169
State.......................................... 192 145 (102)
------ ------ ------
877 719 1,067
------ ------ ------
$2,598 $3,699 $8,461
====== ====== ======
</TABLE>
A reconciliation of the statutory federal income tax rate to the effective
tax rate is as follows:
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
----------------------
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Statutory federal income tax rate...................... 34.0% 34.0% 35.0%
State and local income tax rate, net of federal tax
benefit.............................................. 2.5 3.2 2.6
Miscellaneous permanent items and non-deductible
accruals............................................. -- 1.3 0.8
Other.................................................. 0.8 3.1 1.9
---- ---- ----
Effective income tax rate.............................. 37.3% 41.6% 40.3%
==== ==== ====
</TABLE>
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts reportable for income tax purposes. The components of
deferred tax assets and liabilities are as follows:
<TABLE>
<CAPTION>
MARCH 31,
-----------------
1996 1997
------ ------
<S> <C> <C>
Deferred tax assets:
Alternative minimum and other tax credits................ $1,171 $ --
Accruals and reserves.................................... 942 815
Accounts receivable...................................... 28 315
Inventories.............................................. 2,514 947
------ ------
$4,655 $2,077
Deferred tax liabilities:
Property and equipment................................... $3,491 $6,214
Discontinued operation................................... 2,521 --
Other assets............................................. 3,340 3,240
Prepaid expenses and other............................... 217 812
------ ------
9,569 10,266
------ ------
Net deferred tax liabilities............................... $4,914 $8,189
====== ======
</TABLE>
32
<PAGE> 34
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
Income taxes paid during the years ended March 31, 1995, 1996 and 1997 were
$838, $904 and $6,413, respectively. At March 31, 1996, the Company had
alternative minimum tax credit carryforwards of $1,558 for income tax purposes
which were fully utilized in the current year.
7. LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
MARCH 31,
-------------------
1996 1997
------- -------
<S> <C> <C>
Revolving credit facility................................ $22,157 $ 8,707
Senior term loans........................................ 32,460 --
Senior subordinated notes................................ 14,900 --
Subordinated promissory notes............................ 19,000 14,246
Junior subordinated promissory notes..................... 9,575 407
Other debt and capital lease obligations................. 677 1,032
------- -------
98,769 24,392
Less current portion..................................... 8,806 399
------- -------
$89,963 $23,993
======= =======
</TABLE>
On July 19, 1996, the Company entered into an unsecured credit agreement
for a $50,000 revolving credit facility and a $35,000 term loan. The proceeds of
the new term loan, amounts borrowed under the new revolving credit facility and
the proceeds received from the sale of Quality Park Products, Inc. (see Note 4)
were used to extinguish the outstanding balances of the revolving credit
facility, the senior term loans, and the senior subordinated notes existing at
March 31, 1996. The early extinguishment of this debt resulted in an
extraordinary loss of $1,478, net of an income tax benefit of $985 related to
the write-off of unamortized deferred financing fees and prepayment penalties.
On October 30, 1996, the Company paid down the then outstanding balance on
the revolving credit facility using the proceeds from the Company's initial
public offering (see Note 8). On December 31, 1996, the Company amended the
credit agreement increasing the revolving credit facility to $85,000 and
retiring the $33,750 term loan.
On March 31, 1997, the Company entered into an amended and restated credit
agreement ("Credit Facility") with its lenders to extend the maturity date of
the existing credit facility, reduce interest rates and amend certain covenants.
The Credit Facility bears interest at either LIBOR plus between 0.375% and 1.25%
or the prime rate (or the Federal funds rate plus 0.5% if greater) at the option
of the Company and expires on March 31, 2002. The variation in the interest rate
is based upon the Company's ratio of total indebtedness to earnings before
interest, taxes, and depreciation and amortization. In addition, the Company is
required to pay a commitment fee of between 0.125% and 0.25% on the unused
portion of the Credit Facility based upon the ratio described above. The Company
may repay or reduce amounts owed under the Credit Facility without penalty.
Additionally, the Company may allocate up to $5,000 of the available Credit
Facility for the issuance of letters of credit of which $1,000 was used as of
March 31, 1997.
At March 31, 1996 and 1997, the interest rate on borrowings under the
Credit Facility was 8.17% and 8.25%, respectively. As of March 31, 1997, $75,293
of additional borrowings were available under the Credit Facility.
The Subordinated Promissory Notes consist of two notes, an $8,000 principal
amount bearing interest at 10%, due in installments of $6,750 and $1,250 on June
1, 2002 and June 1, 2003, respectively, and $6,246 principal amount bearing
interest at 10.5%, due in equal installments on December 31, 2002 and Decem-
33
<PAGE> 35
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
ber 31, 2003. With regard to the 10.5% note, the Company, at its sole
discretion, may pay interest by issuance of additional 10.5% notes and elected
to do so for $0 and $746 for the years ended March 31, 1996 and 1997,
respectively. On October 30, 1996, the Company paid down approximately $5,500 of
the 10% Subordinated Promissory Note outstanding at March 31, 1996 using
proceeds from the Company's initial public offering.
The Junior Subordinated Promissory Notes ("Junior Notes") consisted of
unsecured obligations of the Company and one of its subsidiaries, were
subordinated to all liabilities of the Company and its subsidiaries and interest
was payable at 14%. The Company, at its sole discretion, was permitted to pay
interest by issuance of additional Junior Notes and elected to do so for $1,146
and $741 for the years ended March 31, 1996 and 1997, respectively. On October
30, 1996, the Junior Notes of the Company were exchanged for common stock of the
Company in conjunction with the Company's initial public offering.
The indentures under the debt agreements described above contain
restrictions and covenants which include limitations on the Company's ability to
incur additional indebtedness, issue stock options or warrants (excluding the
initial public offering and the employee stock option plan described in Notes 8
and 10), make certain restricted payments and acquisitions, create liens, enter
into transactions with affiliates, sell substantial portions of its assets, make
capital expenditures and pay cash dividends.
Additional covenants require compliance with financial tests, including
current ratio, leverage, interest coverage ratio, and maintenance of minimum net
worth.
The fair value of the Company's Credit Facility approximates the carrying
value. The fair value of the subordinated promissory notes is approximately
$17,000.
Maturities of long-term debt are as follows: 1998 - $399; 1999 - $418;
2000 - $104; 2001 - $111; 2002 - $8,707; thereafter, $14,653 through 2006.
Interest paid on indebtedness during the years ended March 31, 1995, 1996,
and 1997 amounted to $6,909, $7,552 and $5,986, respectively.
Financing fees and expenses of $764 incurred with respect to indebtedness
have been capitalized and are reflected in other assets. These fees and expenses
are being amortized over the terms of the related indebtedness (5-8 years).
Total amortization (included in interest expense) for the years ended March 31,
1995, 1996 and 1997 was $252, $276 and $206, respectively. On July 19, 1996, in
conjunction with the refinancing, $915 in unamortized deferred financing fees
related to the extinguished debt were written off and an additional $398 in
financing fees related to the new credit agreement were capitalized.
8. STOCKHOLDERS' EQUITY
In October 1996, the Company completed the sale of 2,500,000 shares of its
Common stock for $19.00 per share through an underwritten public offering and
the sale of 125,000 shares of its Common stock for $17.67 per share through a
direct sale by the Company. In addition, the Company granted the underwriters of
its public offering a 30-day option to purchase up to 375,000 additional shares
of its Common stock for $19.00 a share to cover over-allotments. In November
1996, the underwriters exercised the over-allotment option and the Company sold
an additional 375,000 shares of its Common stock. The net proceeds from the
sales were $51,760. The total net proceeds were used to pay down a portion of
the Company's long-term borrowings under its credit agreement and $5,500 of the
10% subordinated promissory note (see Note 7).
In October 1996, in conjunction with the sale of Common stock, the Company
recapitalized the Common stock through a 65-for-one stock split. All references
to shares and earnings per share data in the financial statements have been
restated to give effect to the stock split. In addition, the Company increased
the authorized number of shares of Common stock to 15,000,000 and Class D common
stock to 6,000,000.
34
<PAGE> 36
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
In October 1996, in conjunction with the public offering described above,
the Company exchanged all outstanding Redeemable preferred stock for common
stock. The liquidation value of the Redeemable preferred stock plus accumulated
dividends at the date of the exchange of $4,858 was converted to 281,318 shares
of common stock at the initial public offering price of $19.00 (less
underwriting discounts and commissions and estimated offering expenses payable
by the Company).
In addition, in October 1996, the Company exchanged all outstanding 14%
junior notes and a portion of the outstanding 10.5% junior notes for common
stock. The face value of the junior notes exchanged plus accrued but unpaid
interest at the date of exchange of $10,006 was exchanged for 579,395 shares of
common stock at the initial public offering price of $19.00 (less underwriting
discounts and commissions and estimated offering expenses payable by the
Company).
The holders of the Common stock and the Class D common stock are entitled
to one vote per share on all matters to be voted upon by the stockholders of
Triumph except that Class D does not participate in the voting of directors and
are entitled to participate ratably in any distributions.
The holders of Class D common stock may elect at any time to convert any or
all such shares into the Common stock on a share-for-share basis.
The Company issued a stock purchase warrant in conjunction with the
issuance of the senior subordinated notes which allows the holder to purchase
650,000 shares of Common stock for an aggregate exercise price of one hundred
dollars through July 31, 2003. The proceeds from the issuance of the senior
subordinated notes allocated to the warrants of $100 have been included in
capital in excess of par value.
On a pro forma basis, income from continuing operations, before
extraordinary loss and income from continuing operations, before extraordinary
loss per share for fiscal 1997 would have been $14,493 and $1.39, respectively,
if the public offering had occurred on April 1, 1996. The pro forma information
assumes reduced interest expense and applicable income tax adjustments resulting
from the application of the net proceeds from the offering and it assumes
10,390,000 shares of Common stock outstanding for the year. The pro forma
information does not necessarily reflect the actual results that would have
occurred nor is it necessarily indicative of future results.
The Company has Preferred stock of $100 par value, 250,000 shares
authorized. At March 31, 1996 and 1997 no shares of Preferred stock are
outstanding. At March 31, 1996, the Company had Class A, B and C common shares
outstanding, $.001 par value. The Class A had 6,500,455 shares authorized and
1,300,000 shares issued. The Class B and Class C were convertible to Class A and
had 4,550,000 and 455 shares authorized and issued, respectively. In conjunction
with the public offering, the Class A, B and C were converted to Common stock
and Class D common stock.
9. REDEEMABLE PREFERRED STOCK
The Redeemable preferred stock, $.01 par value, provided for 14% cumulative
dividends and redemption on July 21, 2004 or 91 days after the retirement date
of senior debt at the lesser of the liquidation value of $100 per share ($3,058)
plus all accumulated and unpaid dividends or 40% of the Company's equity value.
Accumulated and unpaid dividends of approximately $1,424 or $46.57 per share are
included in Redeemable preferred stock as of March 31, 1996. At March 31, 1996,
the Company had 30,575 shares of Redeemable preferred stock authorized and
issued.
The difference between the original issue price of $1,057 and the
liquidation value of $3,058 was being accreted through July 21, 2004 using the
effective interest method. On October 30, 1996, all shares of outstanding
Redeemable preferred stock were exchanged for common stock at the liquidation
value plus
35
<PAGE> 37
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
accumulated dividends (See Note 8). The accretion of $16, $146 and $1,836 for
the years ended March 31, 1995, 1996 and 1997, respectively, is charged to
retained earnings.
10. EMPLOYEE BENEFIT PLANS
Defined Benefit Pension Plan
Approximately 150 employees participate in a noncontributory defined
benefit pension plan sponsored by the Company. Normal retirement under the Plan
is age 65 and participants receive monthly benefits of a stated amount for each
year of service. The Company's funding policy for the Plan is to make the
minimum annual contributions required by applicable regulations. The net
periodic pension cost and related pension liability is not material.
Defined Contribution Pension Plan
The Company sponsors a defined contribution 401(k) plan, under which
salaried and certain hourly employees may defer a portion of their compensation.
Eligible participants may contribute to the plan up to 15% of their regular
compensation before taxes. During fiscal 1997, the Company increased its
matching contribution from 33% to 50% of the first 6% of compensation
contributed by the participant. All contributions and Company matches are
invested at the direction of the employee in one or more mutual funds. Company
matching contributions vest immediately and aggregated $404, $437 and $749 for
the years ended March 31, 1995, 1996 and 1997, respectively.
Other Postretirement Benefits
In connection with the acquisition of Triumph Controls, Inc., the Company
provides certain postretirement medical and insurance benefits to eligible
employees under a Collective Bargaining Agreement. For any employees who retired
through the date of the acquisition, the Seller retained all liabilities for
benefits due and administration of the postretirement benefits. The Company has
assumed responsibility for administration of the postretirement coverage for any
eligible employee who retires subsequent to the date of acquisition. The Company
will pay the costs related to these benefits upon retirement and will be
reimbursed by the Seller for its pro rata portion based on relative length of
service. The Company does not fund the plan.
The Company has recorded a total liability of approximately $1,100 (as
estimated by actuaries) for other postretirement benefits, of which
approximately $1,000 is estimated to be reimbursed by the Seller as of March 31,
1997. These amounts are included in Other Liabilities and Other Assets,
respectively. The discount rate used was 7%. The annual expense for such
benefits is not material.
Stock Option Plan
The Company adopted the 1996 Stock Option Plan (the "Plan") which became
effective in October 1996. The Plan provides for grants of stock options to
officers and key employees of the Company. Shares of the Company granted under
the Plan are in nonqualified and incentive stock options. On October 25, 1996,
the Company granted options to certain officers and managers to purchase 250,140
shares of the Company's Common stock at the fair market value at the date of
grant, of $19.00 per share. The options vest and become exercisable ratably over
a four-year period beginning on October 25, 1997. The options expire ten years
from the date of grant. In addition to the 250,140 outstanding options, 268,610
shares were available for issuance under the Plan at March 31, 1997.
During fiscal 1997, the Company adopted the disclosure-only option under
SFAS No. 123, "Accounting for Stock-Based Compensation." The Company uses the
accounting method under APB Opinion No. 25 (APB 25) and related interpretations
for its employee stock options. Under APB 25, when the exercise price
36
<PAGE> 38
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
of the Company's employee stock options equals the market price of the
underlying stock on the date of grant, no compensation expense is recognized.
Pro forma disclosure, as required by SFAS No. 123, regarding net income and
earnings per share has been determined as if the Company had accounted for its
employee stock options under the fair value method.
Option valuation models use highly subjective assumptions to determine the
fair value of traded options with no vesting or trading restrictions. Because
options granted under the Company's Stock option plan have vesting requirements
and cannot be traded, and because changes in the assumptions can materially
affect the fair value estimate, in management's opinion, the existing valuation
models do not necessarily provide a reliable measure of the fair value of its
employee stock options.
The fair value for these options was estimated at the date of grant using a
Black-Scholes option pricing model with the following weighted-average
assumptions: risk-free interest rate of 5.5%; no dividends; a volatility factor
of the expected market price of the Company's Common stock of .32 and a
weighted-average expected life of the options of 6 years.
For purposes of pro forma disclosures, the estimated fair value of the
options ($8.00 per share) is amortized to expense over the options' assumed
vesting period. Since the Company's stock options vest over four years and
additional options may be granted each year, the pro forma effect on net income
reported below, is not representative of the effect of fair value stock option
expense on future years' pro forma net income. The following pro forma
information has been prepared assuming the Company accounted for its stock
options under the fair value method:
<TABLE>
<CAPTION>
FOR THE YEAR ENDED
MARCH 31, 1997
------------------
<S> <C>
Pro forma net income......................................... $ 10,946
Pro forma earnings per share................................. $ 1.31
</TABLE>
11. LEASES
Capital lease assets are included in property and equipment and the related
obligations in other debt and capital lease obligations. Amortization of capital
lease assets is included in depreciation expense. At March 31, 1997, future
minimum payments under noncancelable operating leases with initial or remaining
terms of more than one year were as follows: 1998 - $1,874; 1999 - $1,678;
2000 - $1,525; 2001 - $1,133; 2002 - $1,011; thereafter (through 2006) - $2,908.
In the normal course of business, operating leases are generally renewed or
replaced by other leases.
Total rental expense was $950, $1,135 and $1,830 for the years ended March
31, 1995, 1996 and 1997, respectively.
37
<PAGE> 39
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
12. FIXED ASSETS
Net property and equipment at March 31, 1996 and 1997 is:
<TABLE>
<CAPTION>
MARCH 31,
-------------------
1996 1997
------- -------
<S> <C> <C>
Land..................................................... $ 3,009 $ 3,479
Buildings and improvements............................... 7,438 10,480
Machinery and equipment.................................. 32,823 45,494
------- -------
43,270 59,453
Less accumulated depreciation.......................... 6,718 11,104
------- -------
$36,552 $48,349
======= =======
</TABLE>
Depreciation expense for the years ended March 31, 1995, 1996 and 1997 was
$2,360, $2,977 and $4,480, respectively.
13. COMMITMENTS AND CONTINGENCIES
Certain of the Company's business operations and facilities are subject to
a number of federal, state and local environmental laws and regulations. The
Company is indemnified for environmental liabilities related to assets purchased
from IKON Office Solutions, Inc. (formerly Alco Standard Corporation) which
existed prior to the acquisition of the assets and any unidentified
environmental liabilities which arise subsequent to the date of settlement
through July 22, 2000, arising from conditions or activities existing at these
facilities prior to the acquisition. In the opinion of management, there are no
significant environmental concerns which would have a material effect on the
financial condition or operating results of the Company which are not covered by
such indemnification.
The Company is involved in certain litigation matters arising out of its
normal business activities. In the opinion of management, the ultimate
resolution of such litigation will not have a material effect on the financial
condition or operating results of the Company.
14. COLLECTIVE BARGAINING AGREEMENTS
Approximately 18% of the Company's labor force is covered under collective
bargaining agreements. These collective bargaining agreements expire over the
next several years.
38
<PAGE> 40
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
15. SEGMENT REPORTING
Selected financial information for each segment is as follows:
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
----------------------------------
1995 1996 1997
-------- -------- --------
<S> <C> <C> <C>
Net sales:
Aviation................................................. $ 70,714 $100,166 $167,731
Metals converting and distribution....................... 93,451 86,608 82,747
-------- -------- --------
$164,165 $186,774 $250,478
======== ======== ========
Operating income (expenses):
Aviation................................................. $ 8,778 $ 14,095 $ 27,505
Metals converting and distribution....................... 6,379 4,638 4,473
Corporate................................................ (1,606) (2,522) (4,371)
-------- -------- --------
$ 13,551 $ 16,211 $ 27,607
======== ======== ========
Assets:
Aviation................................................. $ 53,100 $101,219 $139,988
Metals converting and distribution....................... 32,550 29,965 28,815
Discontinued operations.................................. 20,165 27,350 --
Corporate................................................ 5,571 2,872 2,512
-------- -------- --------
$111,386 $161,406 $171,315
======== ======== ========
Capital expenditures:
Aviation................................................. $ 2,077 $ 1,684 $ 6,756
Metals converting and distribution....................... 1,152 213 1,285
Corporate................................................ -- -- 142
-------- -------- --------
$ 3,229 $ 1,897 $ 8,183
======== ======== ========
Depreciation and amortization:
Aviation................................................. $ 1,780 $ 2,513 $ 5,066
Metals converting and distribution....................... 916 999 979
Corporate................................................ 22 23 28
-------- -------- --------
$ 2,718 $ 3,535 $ 6,073
======== ======== ========
</TABLE>
39
<PAGE> 41
TRIUMPH GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
16. QUARTERLY FINANCIAL DATA (UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED
-----------------------------------------------
3/31/97 12/31/96 9/30/96(4) 6/30/96
---------- ----------- ---------- -------
<S> <C> <C> <C> <C>
Net sales................................... $ 66,687 $64,691 $ 63,916 $55,184
Gross profit................................ 19,050 20,964 18,376 16,038
Income from continuing operations, before
extraordinary loss........................ 4,392 3,724 2,630 1,809
Extraordinary loss, net of tax.............. -- -- (1,478) --
Net income.................................. 4,392 3,724 1,152 1,809
Income from continuing operations, before
extraordinary loss per share(3)........... 0.42 0.40 0.38 0.27
Net income per share(3)..................... 0.42 0.40 0.18 0.27
</TABLE>
<TABLE>
<CAPTION>
3/31/96(1) 12/31/95(2) 9/30/95 6/30/95
---------- ----------- ---------- -------
<S> <C> <C> <C> <C>
Net sales................................... $ 54,206 $46,492 $ 43,702 $42,374
Gross profit................................ 15,630 10,520 10,588 10,296
Income from continuing operations........... 1,850 1,199 1,131 1,014
Income from discontinued operations......... 4,008 315 64 109
Net income.................................. 5,858 1,514 1,195 1,123
Income from continuing operations per
share(3).................................. 0.28 0.19 0.18 0.16
Net income per share(3)..................... 0.82 0.23 0.19 0.17
</TABLE>
- ---------------
(1) In January 1996, the Company completed its acquisition of Triumph Controls,
Inc. The operating results of Triumph Controls, Inc. are included for the
full period.
(2) In October 1995, the Company completed its acquisition of Air Lab, Inc. The
operating results of Air Lab, Inc. are included in the quarters ended
December 31, 1995 and March 31, 1996.
(3) See Note 2 "Summary of Significant Accounting Policies" for information
regarding the calculation of income from continuing operations and net
income per share.
(4) On July 31, 1996, the Company completed its acquisition of AMTI. The
operating results of AMTI are included in the quarters ended September 30,
1996, December 31, 1996 and March 31, 1997.
17. SUPPLEMENTAL CASH FLOW INFORMATION
<TABLE>
<CAPTION>
YEARS ENDED MARCH 31,
--------------------------------
1995 1996 1997
------- ------- --------
<S> <C> <C> <C>
Changes in operating assets and liabilities, net of
acquisitions and dispositions of businesses:
Accounts receivable........................................ $(7,189) $ 3,540 $ (5,952)
Inventories................................................ (2,979) (4,201) (8,060)
Prepaid expenses and other current assets.................. 318 353 (323)
Accounts payable, accrued expenses, and accrued income
taxes payable........................................... 4,867 4,627 1,535
Other...................................................... 526 554 (978)
------- -------- ---------
$(4,457) $ 4,873 $(13,778)
======= ======== =========
Non-cash investing and financing activities:
Covenant not-to-compete contract liability related to
acquisition............................................. $ -- $ -- $ 2,800
Seller note related to acquired business................... -- 5,500 --
Assumption of liabilities related to acquisitions.......... -- 3,800 10,269
Non-cash proceeds from divestiture of discontinued
operation............................................... -- 10,300 --
Redeemable preferred stock issued in lieu of cash dividend
payments and accretion to face value.................... 530 740 2,206
</TABLE>
40
<PAGE> 42
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF REGISTRANT
DIRECTORS
The information required for Directors is included in the Proxy Statement
of the Company in connection with its 1997 Annual Meeting of Stockholders to be
held on July 24, 1997, under the heading "Proposal No. 1 -- Election of
Directors" and is incorporated herein by reference.
EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
EFFECTIVE DATE
OF
ELECTION TO
NAME AGE POSITION PRESENT POSITION
- --------------------------------- --- -------------------------------------- ----------------
<S> <C> <C> <C>
Richard C. Ill................... 54 President and Chief Executive Officer July 1, 1993
John R. Bartholdson.............. 52 Senior Vice President, Chief Financial July 1, 1993
Officer and Treasurer
Richard M. Eisenstaedt........... 51 Vice President, General Counsel and October 1, 1996
Secretary
Paul T. Stimmler................. 58 Vice President and Assistant Secretary July 1, 1993
Kevin E. Kindig.................. 40 Controller and Assistant Secretary July 1, 1993
</TABLE>
Richard C. Ill has been President and Chief Executive Officer and a
director of the Company since 1993. Mr. Ill joined Alco in 1968 and became Group
Vice President of Metalsource, a steel distribution business, in 1973. In 1975,
Mr. Ill became President of Triumph Industries and, in 1983, became President of
Metalsource. In 1988, Mr. Ill became President of Alco Diversified Services, a
division of Alco. He was named Vice President of Alco in 1989. Mr. Ill is a
member of the Advisory Board of Outward Bound, USA and the Board of Directors,
Chairman's Council and Policy and Planning Committee of the Steel Service Center
Institute.
John R. Bartholdson has been Senior Vice President, Chief Financial Officer
and Treasurer and a director of the Company since 1993. Mr. Bartholdson joined
Alco Diversified Services in the fall of 1992. Prior to joining Alco Diversified
Services, Mr. Bartholdson was employed for 14 years by Lukens, Inc., the last
five years in the position of Senior Vice President and Chief Financial Officer.
Mr. Bartholdson serves on the Board of Directors of PBHG Funds, Inc.
Richard M. Eisenstaedt became Vice President, General Counsel and Secretary
of the Company in October 1996. From 1988 to 1996, Mr. Eisenstaedt was an
attorney with Alco and Unisource Worldwide, Inc. ("Unisource"), an affiliate of
Alco, the last two years as General Counsel of Unisource.
Paul T. Stimmler has been Vice President of the Company since 1993 and also
served as Secretary of the Company until October 1996. From 1989 to 1993, Mr.
Stimmler was Group Vice President of Alco Diversified Services, responsible for
risk management, vehicle leasing, advertising, benefits administration and human
resources.
Kevin E. Kindig has been Controller of the Company since 1993. From 1985 to
1993, Mr. Kindig was employed by Lukens, Inc. in various positions, as
Manufacturing Accounting Manager since 1989 and as a financial analyst from 1985
to 1989.
ITEM 11. EXECUTIVE COMPENSATION
The information required regarding executive compensation is included in
the Proxy Statement of the Company in connection with its 1997 Annual Meeting of
Stockholders to be held on July 24, 1997, under the heading "Executive
Compensation" and is incorporated herein by reference.
41
<PAGE> 43
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required regarding security ownership is included in the
Proxy Statement of the Company in connection with its 1997 Annual Meeting of
Stockholders to be held on July 24, 1997, under the heading "Security Ownership
of Principal Stockholders and Management" and is incorporated herein by
reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required regarding certain relationships and related
transactions is included in the Proxy Statement of the Company in connection
with its 1997 Annual Meeting of Stockholders to be held on July 24, 1997, under
the heading "Certain Relationships and Related Transactions" and is incorporated
herein by reference.
42
<PAGE> 44
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
FINANCIAL STATEMENTS
(a)(1) The following consolidated financial statements are included in Item
8 of this report:
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Triumph Group, Inc.
Report of Ernst & Young LLP, Independent Auditors..................... 23
Consolidated Balance Sheets as of March 31, 1996 and 1997............. 24
Consolidated Statements of Income for the Fiscal Years Ended March 31,
1995, 1996 and 1997................................................. 25
Consolidated Statements of Stockholders' Equity for the Fiscal Years
Ended March 31, 1995, 1996 and 1997................................. 26
Consolidated Statements of Cash Flows for the Fiscal Years Ended March
31, 1995, 1996 and 1997............................................. 27
Notes to Consolidated Financial Statements............................ 28
</TABLE>
(a)(2) The following financial statement schedule is included in this
report:
<TABLE>
<S> <C>
Schedule II -- Valuation and Qualifying Accounts
</TABLE>
All other schedules have been omitted as not applicable or because the
information is included elsewhere in the Consolidated Financial Statements or
notes thereto.
43
<PAGE> 45
(a)(3) The following is a list of exhibits. Where so indicated by footnote,
exhibits which were previously filed are incorporated by reference.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------------------------------------------------------------------------------
<C> <S>
3.1 Amended and Restated Certificate of Incorporation of Triumph Group, Inc.*
3.2 Bylaws of Triumph Group, Inc.*
4 Form of certificate evidencing Common Stock of Triumph Group, Inc.*
10.1 Form of Employment Agreement with Richard C. Ill.*
10.2 Form of Employment Agreement with John R. Bartholdson.*
10.3 Credit Agreement with PNC Bank, N.A. dated July 19, 1996.*
10.4 Guaranty of the Company to PNC Bank, N.A. dated July 19, 1996.*
10.5 Purchase Agreement dated as of July 22, 1993 between the Company and Citicorp Venture
Capital, Ltd.*
10.6 Subordinated Promissory Note dated June 1, 1993 payable to MDR Corporation, as
amended.*
10.7 Stockholders Agreement dated as of July 22, 1993 among the Company, Citicorp Venture
Capital, Ltd., World Equity Partners, L.P. and certain members of management of the
Company, as amended on May 9, 1995.***
10.8 Registration Agreement dated as of July 22, 1993 among the Company, Citicorp Venture
Capital, Ltd., World Equity Partners, L.P. and certain members of management of the
Company.*
10.9 Warrant dated July 22, 1993 issued to World Equity Partners, L.P.*
10.10 Warrant Agreement dated as of July 22, 1993 among the Company, Citicorp Venture
Capital, Ltd. and World Equity Partners, L.P.*
10.11 Asset Purchase Agreement dated as of December 31, 1995 among the Company, Triumph
Control Systems, Inc. and Teleflex Incorporated.*
10.12 Subordinated Promissory Note dated December 31, 1995 payable to Teleflex
Incorporated.*
10.13 Stock Purchase Agreement dated as of July 31, 1996 among The Triumph Group Holdings,
Inc., Advanced Materials Technologies, Inc. and certain members of management of
Advanced Materials Technologies, Inc.*
10.14 Executive Securities Agreement dated July 31, 1996 between the Company and Jay
Donkersloot, as amended.*
10.15 Non-Competition Agreement dated July 31, 1996 between the Company and Jay
Donkersloot.*
10.16 Note Modification Agreement dated December 31, 1995 between the Company and MDR
Corporation.*
10.17 Executive Stock Agreement dated as of May 9, 1995 between the Company and John M.
Brasch.*
10.18 Form of 1996 Stock Option Plan.*
10.19 Form of Executive Securities Agreement.*
10.20 Executive Stock Agreement between the Company and Richard C. Ill.*
10.21 Executive Stock Agreement between the Company and John R. Bartholdson.*
10.22 Executive Stock Agreement between the Company and Paul T. Stimmler.*
10.23 Executive Stock Agreement between the Company and Kevin E. Kindig.*
10.24 Amendment to Subordinated Promissory Note payable to MDR Corporation dated October
31, 1996.
10.25 First Amendment to Credit Agreement with PNC Bank, National Association, dated
December 31, 1996.
10.26 Replacement Revolving Credit Note dated December 31, 1996 payable to PNC Bank,
National Association.
10.27 Amended and Restated Credit Agreement with PNC Bank, National Association, dated as
of March 31, 1997.
10.28 Second Replacement Revolving Credit Note dated March 31, 1997 payable to PNC Bank,
National Association.
</TABLE>
44
<PAGE> 46
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------------------------------------------------------------------------------
<C> <S>
11.1 Statements re: computations of per share earnings.
21.1 Subsidiaries of Triumph Group, Inc.
27 Financial Data Schedule.
</TABLE>
- ---------------
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-10777), declared effective on October 24, 1996.
** Removed as a result of being paid in full from the proceeds of the Company's
initial public offering.
*** Removed as a result of being terminated upon the Company's initial public
offering.
REPORTS ON FORM 8-K
The Company filed no reports on Form 8-K during the quarter ended March 31,
1997 and through June 15, 1997.
45
<PAGE> 47
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this report to
be signed by the undersigned thereunto duly authorized.
TRIUMPH GROUP, INC.
Dated: June 23, 1997 By: /s/ RICHARD C. ILL
------------------------------------
Richard C. Ill
President and Chief Executive
Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed below by the following persons on behalf of
the Registrant and in the capacities and on the dates indicated.
<TABLE>
<C> <S> <C>
/s/ RICHARD C. ILL President, Chief Executive Officer and June 23, 1997
- -------------------------- Director (Principal Executive Officer)
Richard C. Ill
/s/ JOHN R. BARTHOLDSON Senior Vice President, Chief Financial June 23, 1997
- -------------------------- Officer, Treasurer and Director
John R. Bartholdson (Principal Financial Officer)
/s/ KEVIN E. KINDIG Controller (Principal Accounting Officer) June 23, 1997
- --------------------------
Kevin E. Kindig
/s/ RICHARD C. GOZON Director June 23, 1997
- --------------------------
Richard C. Gozon
/s/ CLAUDE F. KRONK Director June 23, 1997
- --------------------------
Claude F. Kronk
/s/ JOSEPH M. SILVESTRI Director June 23, 1997
- --------------------------
Joseph M. Silvestri
/s/ MICHAEL A. DELANEY Director June 23, 1997
- --------------------------
Michael A. Delaney
</TABLE>
46
<PAGE> 48
TRIUMPH GROUP, INC.
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
BALANCE AT ADDITIONS
BEGINNING OF CHARGED TO ADDITIONS (1) BALANCE AT
YEAR EXPENSE (DEDUCTIONS)(2) END OF YEAR
------------ ---------- --------------- -----------
<S> <C> <C> <C> <C>
For year ended March 31, 1997.................... 36
Allowance for doubtful accounts receivable..... 973 959 (349) 1,619
For year ended March 31, 1997.................... 59
Allowance for doubtful accounts receivable..... 766 243 (95) 973
For year ended March 31, 1997.................... 107
Allowance for doubtful accounts receivable..... 727 14 (82) 766
</TABLE>
- ---------------
(1) Additions consist of accounts receivable recoveries, miscellaneous
adjustments and amounts recorded in conjunction with the acquisitions of
Triumph Controls, Inc., Air Lab, Inc. and Advanced Materials Technologies,
Inc.
(2) Deductions represent write-offs of related accounts balances.
47
<PAGE> 1
Exhibit 10.24
The payment of principal and interest on the Note is subject to certain
subordination provisions set forth in paragraph 3. The Note was
originally issued on June 1, 1993 and has not been registered under
the Securities Act of 1933, as amended, or any comparable state
securities law. The transfer of the Note is subject to certain
restrictions set forth in paragraph 9.
AMENDMENT TO SUBORDINATED PROMISSORY NOTE
-----------------------------------------
AMENDMENT dated October __, 1996 ("Amendment") TO SUBORDINATED
PROMISSORY NOTE (the "Note") dated June 1, 1993 and modified on December 31,
1995, in the amount of $13,500,000 issued by TRIUMPH GROUP, INC., a Delaware
corporation, formerly The Triumph Group Holdings, Inc. (the "Company"), to ALCO
VENTURE CAPITAL CORPORATION, assignee of Alco Standard Corporation, which was
successor by merger to MDR Corporation (the "Seller"), or its permitted assigns
(the Seller and each of its permitted assigns is a "Holder").
The Note is hereby amended as set forth herein, and the Company and the
Holder hereby agree to such amendments, intending to be legally bound. This
Amendment shall, with the Note, constitute one and the same instrument. All
capitalized terms used in this Amendment, unless otherwise defined herein,
shall have the meanings ascribed thereto in the Note.
1. The Company has informed the Holder that it intends to prepay a
portion of the principal of the Note in immediately available funds pursuant to
Section 2(b)(i) thereof, in the amount of Five and One-Half Million Dollars
($5,500,000), on or before October 31, 1996.
2. Subject to all of the terms and conditions herein and
correctness of all representations and warranties made herein or pursuant
hereto, if the Company makes the prepayment as specified in paragraph 1 above,
then upon such payment being made, the following proviso shall be deemed added
to the end of Paragraph 2, clause (b)(i) of the Note: "; provided that, if by
October 1, 1997 the Company prepays all outstanding principal of this Note in
full, together with all accrued but unpaid interest thereon, the Company shall
be entitled to discount such principal prepayment by One Million Dollars
($1,000,000), provided further that accrued interest shall be calculated
without regard to such discount."
<PAGE> 2
3. The provisions of this Amendment shall be strictly construed
such that, if the Company does not meet in all respects each and every
condition in paragraphs 2 and 6 of this Amendment for the $1,000,000 discount
referenced in paragraph 2, such discount shall be void and of no effect, and
the Company shall be fully liable on the Note without regard to paragraph 2
above. Time is of the essence in the interpretation and performance of this
Amendment and the Note.
4. In furtherance and not limitation of paragraph 3, the Company
confirms and ratifies all the provisions of the Note including without
limitation the payment and prepayment provisions of Section 2(a) and (b)(ii),
which shall remain applicable whether or not the Company makes the prepayment
referenced in paragraph 1 above.
5. The Company hereby represents and warrants to the Holder that:
(a) The execution, delivery and performance of this Amendment,
including without limitation the prepayment provisions referenced above, have
been duly authorized by all requisite corporate actions, and do not and will
not violate, breach or conflict with the Company's charter or bylaws, or any
law, or any instrument, agreement or obligation binding upon the Company or any
of its assets, including without limitation the subordination provisions of the
Note or any Superior Debt Agreement;
(b) There has not occurred a continuing default or event of
default under any of the terms of any Superior Debt Agreement; and
(c) This Amendment has been duly executed by a duly authorized
officer and is legal, valid and binding on and enforceable against the Company
in accordance with its terms.
6. A further condition precedent to the discount referenced in
paragraph 2 above shall be the execution and delivery by the Company to the
Holder of certificates to the effect that the representations and warranties in
paragraph 5 above are true and correct as of the time of the prepayments
referenced in paragraph 1 and 2 and that no default or event of default shall
be caused by such prepayments under any Superior Debt Agreement; there shall be
attached to the certificate delivered as to the second such prepayment, a
contemporaneously
-2-
<PAGE> 3
dated written consent as to such prepayment form the holder(s) of the Superior
Debt.
7. The Company shall on demand indemnify and defend the Holder from
and against any claim, suit or loss arising in connection with any breach of
representation contained herein or in any certificate delivered pursuant
hereto.
8. If a claim is made upon the Holder for repayment or recovery of any
amount or amounts received by the Holder which had the effect of reducing the
liabilities of the Company under the Note and the Holder repays all or part of
such amount or amounts, then and in such event, the Company agrees that,
whether or not the Note shall have been satisfied or canceled, the Company
shall be and continue to remain liable to the Holder under the Note, without
regard to paragraph 2, to the same extent as if such amount had never
originally been received by the Holder.
9. This Amendment shall be governed by New York law. Execution of this
Amendment shall not constitute an agreement by
-3-
<PAGE> 4
the Holder to execute any other amendment or modification of the Note.
References to the Note in any document relating thereto shall be deemed to
include this Amendment. This Amendment may be executed in counterparts.
Executed and delivered on the date first above written.
TRIUMPH GROUP, INC.
By:___________________________
Name:
Title:
Accepted and Agreed
(execution hereof shall not
constitute an endorsement or
assignment of the Note):
ALCO VENTURE CAPITAL CORPORATION
By:______________________________
Name:
Title:
-4-
<PAGE> 1
EXHIBIT 10.25
FIRST AMENDMENT (this "AMENDMENT"), dated December 31, 1996,
to "CREDIT AGREEMENT" dated July 19, 1996 by and among TRIUMPH GROUP HOLDINGS,
INC., f/k/a The Triumph Group, Inc. (the "COMPANY") as a Borrower; each of the
other BORROWERS; TRIUMPH GROUP INC., f/k/a The Triumph Group Holdings, Inc. (the
"GUARANTOR"); the BANKS; and PNC BANK, NATIONAL ASSOCIATION, as "AGENT" for the
Banks.
WHEREAS, the Guarantor has completed its IPO;
WHEREAS, the Guarantor has changed its name to "Triumph Group,
Inc." and the Company has changed its name to "Triumph Group Holdings, Inc.";
WHEREAS, the parties have agreed to restructure the credit
facilities by converting the Term Loan into a Revolving Credit Loan and
increasing the Revolving Credit Commitment to $85,000,000;
WHEREAS, the Agent is willing to give the Borrowers
"pro-forma" credit for the IPO and reduce the rates at which Commitment Fees,
Letter of Credit Fees and interest rate margins are calculated to Level II under
the Pricing Grid, effective immediately and lasting at least until the Agent
receives the Borrowers' compliance certificate for the quarter ending December
31, 1996;
WHEREAS, the parties have agreed to replace the Debt Service
Coverage Ratio requirement with an Interest Coverage Ratio requirement; and
WHEREAS, since July 19, 1996 Advanced Materials
Technologies Inc. and Special Processes of Arizona, Inc. have
become Subsidiaries and are required under Section 8.2.9 of the
Credit Agreement to become Borrowers.
NOW, THEREFORE, intending to be legally bound, the parties
agree as follows:
1. Defined Terms. Capitalized terms not otherwise
defined in this Amendment will have the meanings that the Credit
Agreement gives to those terms.
<PAGE> 2
2. Amendments to Credit Agreement. The Credit
Agreement is hereby amended as follows:
(A) Section 1.1 Certain Definitions. The
definition of "Debt Service Coverage Ratio" is deleted; and all references to
the Debt Service Coverage Ratio in the Credit Agreement are replaced with
references to the "Interest Coverage Ratio," defined as follows:
INTEREST COVERAGE RATIO SHALL MEAN FOR ANY PERIOD OF
DETERMINATION THE RATIO OF (i) CONSOLIDATED NET INCOME (BEFORE
EXTRAORDINARY ITEMS) FOR SUCH PERIOD PLUS THE AMOUNT OF INCOME
TAX EXPENSE AND CONSOLIDATED INTEREST EXPENSE DEDUCTED FROM
EARNINGS IN DETERMINING SUCH CONSOLIDATED NET INCOME TO (ii)
CONSOLIDATED INTEREST EXPENSE FOR SUCH PERIOD.
(B) Article 3 Term Loans. The Term Loan, the outstanding
principal balance of which is $33,750,000 as of today, shall be deemed repaid
in full and refunded with the proceeds of a Revolving Credit Loan on December
31, 1996. The Term Loan Commitment is hereby terminated and all references to
Term Loans in the Credit Agreement are deleted.
(C) Section 8.2.16 Minimum Interest Coverage Ratio. The
minimum Debt Service Coverage Ratio requirement of Section 8.2.16 is deleted
and replaced with a minimum Interest Coverage Ratio requirement, to read
as follows:
THE BORROWER SHALL NOT PERMIT THE INTEREST COVERAGE RATIO,
CALCULATED AS OF THE END OF EACH FISCAL QUARTER FOR THE FOUR
FISCAL QUARTERS THEN ENDED, TO BE LESS THAN 2.5 TO 1.0. FOR
PURPOSES OF DETERMINING THE INTEREST COVERAGE RATIO FOR THE
QUARTER ENDING DECEMBER 31, 1996, THE BORROWERS MAY CALCULATE
CONSOLIDATED INTEREST EXPENSE ON A PRO-FORMA BASIS BY GIVING
EFFECT TO THE IPO FOR THE ENTIRE QUARTER.
(D) Schedule 1.1(B) Commitments of Banks. Schedule 1.1(B)
to the Credit Agreement is replaced with Schedule 1.1(B) attached to this
Amendment.
-2-
<PAGE> 3
3. Pricing. Notwithstanding anything in the Credit
Agreement to the contrary, pricing will be at level II under the Pricing Grid
from January 1, 1997 until a change is necessitated by the Total Indebtedness
to EBITDA Ratio for a quarter ending on or after December 31, 1996.
4. Joinder of New Borrowers. Advanced Materials
Technologies Inc. and Special Processes of Arizona, Inc. each (a) hereby
becomes a Borrower under the Credit Agreement; (b) joins in and agrees to be
bound by and perform in accordance with the terms of the Credit Agreement; and
(c) confirms that it is jointly and severally liable with the other Borrowers
to the Banks for all Obligations. Each and every reference to the term
"Borrowers" in the Credit Agreement shall be deemed to include Advanced
Materials Technologies Inc. and Special Processes of Arizona, Inc. from and
after today.
5. Conditions to Amendment. The effectiveness of this
Amendment and the obligation of the Bank to refund the Term Loan with a new
Revolving Credit Loan is subject to the satisfaction of the following
conditions:
(A) A replacement Revolving Credit Note in the
principal amount of $85,000,000 shall have been delivered to PNC
Bank, National Association;
(B) The representations and warranties of the Loan
Parties contained in Article 6 of the Credit Agreement shall be true as though
such representations and warranties had been made today, except (i)
representations and warranties which expressly relate solely to an earlier date
or time, which representations and warranties shall continue to be true as of
the specific dates or times referred to therein and (ii) for the Guarantor's
capitalization and ownership as shown on Schedule 6.1.2, which changed upon and
following the IPO;
(C) The Loan Parties shall have performed and
complied with all covenants and conditions of the Credit
Agreement as amended hereby;
(D) No Event of Default or Potential Default shall
have occurred and be continuing or shall exist; and
-3-
<PAGE> 4
(E) The Borrowers shall have delivered to the
Agent a duly executed and completed Loan Request for the new Revolving Credit
Loan.
6. Continuing Effectiveness of Credit Agreement and
Other Loan Documents. Except as amended hereby, the Credit
Agreement and other Loan Documents remain in full force and
effect.
-4-
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
ATTEST: TRIUMPH GROUP HOLDINGS, INC.
(f/k/a The Triumph Group,
Inc.)
____________________________ By:_______________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: President
ATTEST: THE TRIUMPH GROUP OPERATIONS,
INC.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Senior Vice President
ATTEST: TRIUMPH CONTROLS, INC.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
ATTEST: AEROSPACE TECHNOLOGIES, INC.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
-5-
<PAGE> 6
ATTEST: KILROY STEEL, INC.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
ATTEST: KILROY STRUCTURAL STEEL CO.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
ATTEST: TRIUMPH GROUP INC. (f/k/a The
Triumph Group Holdings, Inc.),
as Guarantor
____________________________ By:_________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Senior Vice President
ATTEST: ADVANCED MATERIALS
TECHNOLOGIES INC.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
ATTEST: SPECIAL PROCESSES OF ARIZONA,
INC.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
-6-
<PAGE> 7
PNC BANK, NATIONAL
ASSOCIATION, individually and
as Agent
By:_________________________
Title:_______________________
-7-
<PAGE> 8
Replacement
SCHEDULE 1.1(B)
COMMITMENTS OF BANKS
<TABLE>
<CAPTION>
Revolving
Credit
Bank Commitment Ratable Share
- ---- ---------- -------------
<S> <C> <C>
PNC Bank, National Association $85,000,000 100%
</TABLE>
<PAGE> 1
EXHIBIT 10.26
REPLACEMENT
REVOLVING CREDIT NOTE
$85,000,000 Berwyn, Pennsylvania
December 31, 1996
FOR VALUE RECEIVED, the undersigned, (the "Borrowers") jointly
and severally promise to pay the order of PNC BANK, NATIONAL ASSOCIATION (the
"Bank"), on or before the Expiration Date, the principal sum of Eighty-Five
Million Dollars ($85,000,000), or if less, the aggregate amount of the Bank's
ratable share of all Revolving Credit Loans made by the Banks to the Borrowers
under the "Credit Agreement" dated as of July 19, 1996, as amended, among the
Borrowers, Triumph Group, Inc. (f/k/a The Triumph Group Holdings, Inc.) as
Guarantor, the several other banks from time to time party thereto, and PNC
Bank, National Association, as "Agent" for the Banks.
The Borrowers shall pay interest on the unpaid principal
balance hereof from time to time outstanding from the date hereof at the rate or
rates per annum specified by the Borrowers pursuant to Section 4.1.1 of, or as
otherwise provided in, the Credit Agreement.
Upon the occurrence and during the continuation of an Event of
Default, the Borrowers shall pay interest on the entire principal amount of the
then outstanding Revolving Credit Loans evidenced by this Revolving Credit Note
at a rate per annum equal to two hundred basis points (2% per annum) above the
rate of interest otherwise applicable with respect to such loans. Such interest
rate will accrue before and after any judgment has been entered.
Subject to the provisions of the Credit Agreement, interest on
this Revolving Credit Note will be payable on the first Business Day of each
calendar quarter after the date hereof and on the Expiration Date.
If any payment or action to be made or taken hereunder shall
be stated to be or become due on a day which is not a Business Day, such payment
or action shall be made or taken on the next following Business Day and such
extension of time shall
<PAGE> 2
be included in computing interest or fees, if any, in
connection with such payment or action.
Subject to the provisions of the Credit Agreement, payments of
both principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the Principal Office in lawful money of the United
States of America in immediately available funds.
This Note is one of the Revolving Credit Notes referred to in,
and is entitled to the benefits of, the Credit Agreement and other Loan
Documents, including the representations, warranties, covenants, conditions,
security interests or Liens contained or granted therein. The Credit Agreement
among other things contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for prepayment, in certain
circumstances, on account of principal hereof prior to maturity upon the terms
and conditions therein specified.
All capitalized terms used herein shall, unless otherwise
defined herein, have the same meanings given to such terms in the Credit
Agreement.
Except as otherwise provided in the Credit Agreement, the
Borrowers waive presentment, demand, notice, protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or
enforcement of this Note and the Credit Agreement.
This Note shall bind the Borrowers and their successors and
assigns, and the benefits hereof shall inure to the benefit of the Bank and its
successors and assigns. All references herein to the "Borrowers" and the "Bank"
shall be deemed to apply to the Borrower and the Bank, respectively, and their
respective successors and assigns.
This Note and any other documents delivered in connection
herewith and the rights and obligations of the parties hereto and thereto shall
for all purposes be governed by and construed and enforced in accordance with
the internal laws of the Commonwealth of Pennsylvania without giving effect to
its conflicts of law principles.
<PAGE> 3
This Note amends, restates, and replaces the Revolving Credit
and Term Loan Notes from Borrowers to Bank dated July 19, 1996.
<PAGE> 4
IN WITNESS WHEREOF, the undersigned has executed this Note by
its duly authorized officers with the intention that it constitute a sealed
instrument.
ATTEST: TRIUMPH GROUP HOLDINGS, INC.
(f/k/a The Triumph Group,
Inc.)
____________________________ By:_______________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: President
ATTEST: THE TRIUMPH GROUP OPERATIONS,
INC.
____________________________ By:_________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Senior Vice President
ATTEST: TRIUMPH CONTROLS, INC.
____________________________ By:_________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
ATTEST: AEROSPACE TECHNOLOGIES, INC.
____________________________ By:_________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
<PAGE> 5
ATTEST: KILROY STEEL, INC.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
<PAGE> 6
ATTEST: KILROY STRUCTURAL STEEL CO.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
ATTEST: TRIUMPH GROUP INC. (f/k/a The
Triumph Group Holdings, Inc.),
as Guarantor
____________________________ By:_________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Senior Vice President
ATTEST: ADVANCED MATERIALS
TECHNOLOGIES INC.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
ATTEST: SPECIAL PROCESSES OF ARIZONA,
INC.
____________________________ By:________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Vice President
<PAGE> 1
EXHIBIT 10.27
$85,000,000 REVOLVING CREDIT FACILITY
AMENDED AND RESTATED CREDIT AGREEMENT
by and among
TRIUMPH GROUP, INC.
AS BORROWER
and
THE BANKS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION
AS AGENT
Dated as of March 31, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Article Page
<S> <C>
1. CERTAIN DEFINITIONS............................................................................... 1
1.1 Certain Definitions................................................................. 1
1.2 Construction........................................................................ 15
1.2.1 Number; Inclusion....................................................... 15
1.2.2 Determination........................................................... 15
1.2.3 Agent's Discretion and Consent.......................................... 15
1.2.4 Documents Taken as a Whole.............................................. 15
1.2.5 Headings................................................................ 15
1.2.6 Implied References to this Agreement.................................... 16
1.2.7 Persons................................................................. 16
1.2.8 Modifications to Documents.............................................. 16
1.2.9 From, To and Through.................................................... 16
1.2.10 Shall; Will............................................................. 16
1.3 Accounting Principles............................................................... 16
2. REVOLVING CREDIT FACILITY......................................................................... 17
2.1 Revolving Credit Commitments........................................................ 17
2.2 Nature of Banks' Obligations with Respect to Revolving Credit Loans. ............... 17
2.3 Commitment Fees..................................................................... 17
2.4 Revolving Credit Loan Requests...................................................... 18
2.5 Making Revolving Credit Loans....................................................... 18
2.6 Revolving Credit Notes.............................................................. 19
2.7 Use of Proceeds..................................................................... 19
2.8 Letter of Credit Subfacility. ...................................................... 19
2.8.1 Issuance of Letters of Credit........................................... 19
2.8.2 Participations.......................................................... 19
2.8.3 Letter of Credit Fees................................................... 20
2.8.4 Disbursements, Reimbursement............................................ 20
2.8.5 Documentation........................................................... 20
2.8.6 Determinations to Honor Drawing Requests................................ 21
2.8.7 Nature of Participation and Reimbursement Obligations. ................. 21
2.8.8 Indemnity............................................................... 22
2.8.9 Liability for Acts and Omissions........................................ 23
2.9 Extension by Banks of the Expiration Date........................................... 23
</TABLE>
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<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Article Page
<S> <C>
3. INTEREST RATES.................................................................................... 24
3.1 Interest Rate Options............................................................... 24
3.1.1 Revolving Credit Interest Rate Options.................................. 24
3.1.2 Rate Quotations......................................................... 24
3.2 Interest Periods.................................................................... 25
3.2.1 Ending Date and Business Day............................................ 25
3.2.2 Amount of Borrowing Tranche............................................. 25
3.2.3 Termination Before Expiration Date...................................... 25
3.2.4 Renewals................................................................ 25
3.3 Interest After Default.............................................................. 25
3.3.1 Letter of Credit Fees, Interest Rate.................................... 26
3.3.2 Other Obligations....................................................... 26
3.3.3 Acknowledgment.......................................................... 26
3.4 Euro-Rate Unascertainable........................................................... 26
3.4.1 Unascertainable......................................................... 26
3.4.2 Illegality; Increased Costs; Deposits Not Available..................... 26
3.4.3 Agent's and Banks' Rights............................................... 27
3.5 Selection of Interest Rate Options.................................................. 28
4. PAYMENTS.......................................................................................... 28
4.1 Payments............................................................................ 28
4.2 Pro Rata Treatment of Banks......................................................... 28
4.3 Interest Payment Dates.............................................................. 29
4.4 Voluntary Prepayments and Commitment Reductions..................................... 29
4.4.1 Right to Prepay......................................................... 29
4.4.2 Replacement of a Bank................................................... 30
4.4.3 Right to Reduce Commitments............................................. 31
4.5 Mandatory Prepayments and Commitment Reductions..................................... 31
4.5.1 [RESERVED].............................................................. 31
4.5.2 Permanent Reduction of Commitments...................................... 31
4.5.3 Application among Interest Rate Options................................. 31
4.6 Additional Compensation in Certain Circumstances.................................... 32
4.6.1 Increased Costs or Reduced Return Resulting From Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc.................. 32
4.6.2 Indemnity............................................................... 33
</TABLE>
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Article Page
<S> <C>
5. REPRESENTATIONS AND WARRANTIES................................................................... 33
5.1 Representations and Warranties..................................................... 33
5.1.1 Organization and Qualification......................................... 34
5.1.2 Capitalization and Ownership........................................... 34
5.1.3 Subsidiaries........................................................... 34
5.1.4 Power and Authority.................................................... 34
5.1.5 Validity and Binding Effect............................................ 35
5.1.6 No Conflict............................................................ 35
5.1.7 Litigation............................................................. 35
5.1.8 Title to Properties.................................................... 36
5.1.9 Financial Statements................................................... 36
5.1.10 Margin Stock........................................................... 36
5.1.11 Full Disclosure........................................................ 37
5.1.12 Taxes.................................................................. 37
5.1.13 Consents and Approvals................................................. 37
5.1.14 No Event of Default; Compliance with Instruments....................... 38
5.1.15 Patents, Trademarks, Copyrights, Licenses, Etc......................... 38
5.1.16 Insurance.............................................................. 38
5.1.17 Compliance with Laws................................................... 38
5.1.18 Material Contracts..................................................... 39
5.1.19 Investment Companies................................................... 39
5.1.20 Plans and Benefit Arrangements......................................... 39
5.1.21 Employment Matters..................................................... 40
5.1.22 Environmental Matters.................................................. 41
5.1.23 Senior Debt Status..................................................... 42
5.2 Updates to Schedules............................................................... 42
6. CONDITIONS OF LENDING............................................................................ 43
6.1 At Closing......................................................................... 43
6.1.1 Officer's Certificate.................................................. 43
6.1.2 Secretary's Certificate................................................ 43
6.1.3 Delivery of Loan Documents............................................. 44
6.1.4 Opinion of Counsel..................................................... 44
6.1.5 Legal Details.......................................................... 44
6.1.6 Payment of Fees........................................................ 44
6.1.7 Consents............................................................... 44
6.1.8 Officer's Certificate Regarding MACs................................... 45
</TABLE>
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<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Article Page
<S> <C>
6.1.9 No Violation of Laws................................................... 45
6.1.10 No Actions or Proceedings.............................................. 45
6.1.11 Insurance Policies; Certificates of Insurance; Endorsements. ......... 45
6.1.12 Other Credit Documents................................................. 45
6.2 Each Additional Loan............................................................... 45
7. COVENANTS........................................................................................ 46
7.1 Affirmative Covenants.............................................................. 46
7.1.1 Preservation of Existence, Etc......................................... 46
7.1.2 Payment of Liabilities, Including Taxes, Etc........................... 46
7.1.3 Maintenance of Insurance............................................... 47
7.1.4 Maintenance of Properties and Leases................................... 48
7.1.5 Maintenance of Patents, Trademarks, Etc................................ 48
7.1.6 Visitation Rights...................................................... 48
7.1.7 Keeping of Records and Books of Account................................ 48
7.1.8 Plans and Benefit Arrangements......................................... 49
7.1.9 Compliance with Laws................................................... 49
7.1.10 Use of Proceeds........................................................ 49
7.2 Negative Covenants................................................................. 49
7.2.1 Indebtedness........................................................... 49
7.2.2 Liens.................................................................. 50
7.2.3 Guaranties............................................................. 50
7.2.4 Loans and Investments.................................................. 51
7.2.5 Dividends and Related Distributions.................................... 51
7.2.6 Liquidations, Mergers, Consolidations, Acquisitions.................... 52
7.2.7 Dispositions of Assets or Subsidiaries................................. 53
7.2.8 Affiliate Transactions................................................. 53
7.2.9 Subsidiaries, Partnerships and Joint Ventures.......................... 54
7.2.10 Continuation of Present Business....................................... 54
7.2.11 Plans and Benefit Arrangements......................................... 54
7.2.12 Fiscal Year............................................................ 55
7.2.13 Issuance of Stock...................................................... 55
7.2.14 Changes in Organizational Documents.................................... 56
7.2.15 Capital Expenditures and Leases........................................ 56
7.2.16 Minimum Interest Coverage Ratio........................................ 56
7.2.17 Maximum Total Indebtedness to EBITDA Ratio............................. 57
7.2.18 Minimum Net Worth...................................................... 57
</TABLE>
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<PAGE> 6
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Article Page
<S> <C>
7.2.19 Minimum Current Ratio................................................. 57
7.2.20 Negative Pledges...................................................... 57
7.3 Reporting Requirements............................................................ 57
7.3.1 Quarterly Financial Statements........................................ 58
7.3.2 Annual Financial Statements........................................... 58
7.3.3 Compliance Certificate................................................ 59
7.3.4 Notice of Default..................................................... 59
7.3.5 Notice of Litigation.................................................. 59
7.3.6 Certain Events........................................................ 60
7.3.7 Budgets, Forecasts, Other Reports and Information..................... 60
7.3.8 Notices Regarding Plans and Benefit Arrangements...................... 61
7.3.8.1 Certain Events.......................................... 61
7.3.8.2 Notices of Involuntary Termination and Annual
Reports......................................................... 62
7.3.8.3 Notice of Voluntary Termination......................... 62
8. DEFAULT......................................................................................... 62
8.1 Events of Default................................................................. 62
8.1.1 Payments Under Loan Documents......................................... 62
8.1.2 Breach of Warranty.................................................... 63
8.1.3 Breach of Negative Covenants on Visitation Rights..................... 63
8.1.4 Breach of Other Covenants............................................. 63
8.1.5 Defaults in Other Agreements or Indebtedness.......................... 63
8.1.6 Final Judgments or Orders............................................. 63
8.1.7 Loan Document Unenforceable........................................... 64
8.1.8 Uninsured Losses; Proceedings Against Assets.......................... 64
8.1.9 Notice of Lien or Assessment.......................................... 64
8.1.10 Insolvency............................................................ 64
8.1.11 Events Relating to Plans and Benefit Arrangements..................... 65
8.1.12 Cessation of Business................................................. 65
8.1.13 Change of Control..................................................... 65
8.1.14 Involuntary Proceedings............................................... 66
8.1.15 Voluntary Proceedings................................................. 66
8.2 Consequences of Event of Default.................................................. 66
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or
Reorganization Proceedings............................................ 66
</TABLE>
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<PAGE> 7
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Article Page
<S> <C>
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings.................. 67
8.2.3 Set-off............................................................... 67
8.2.4 Suits, Actions, Proceedings........................................... 68
8.2.5 Application of Proceeds............................................... 68
9. THE AGENT....................................................................................... 69
9.1 Appointment....................................................................... 69
9.2 Delegation of Duties.............................................................. 69
9.3 Nature of Duties; Independent Credit Investigation................................ 69
9.4 Actions in Discretion of Agent; Instructions from the Banks....................... 70
9.5 Reimbursement and Indemnification of Agent by the Borrower........................ 70
9.6 Exculpatory Provisions............................................................ 71
9.7 Reimbursement and Indemnification of Agent by Banks............................... 71
9.8 Reliance by Agent................................................................. 72
9.9 Notice of Default................................................................. 72
Notices........................................................................... 72
9.11 Banks in Their Individual Capacities.............................................. 73
9.12 Holders of Notes.................................................................. 73
9.13 Equalization of Banks............................................................. 73
9.14 Successor Agent................................................................... 74
9.15 Agent's Fee....................................................................... 74
9.16 Availability of Funds............................................................. 74
9.17 Calculations...................................................................... 75
9.18 Beneficiaries..................................................................... 75
10. MISCELLANEOUS.................................................................................. 75
10.1 Modifications, Amendments or Waivers.............................................. 75
10.1.1 Increase of Commitment; Extension or Expiration Date.................. 75
10.1.2 Extension of Payment; Reduction of Principal Interest or
Fees; Modification of Terms of Payment................................ 76
10.1.3 Miscellaneous......................................................... 76
10.2 No Implied Waivers; Cumulative Remedies; Writing Required......................... 76
10.3 Reimbursement and Indemnification of Banks by the Borrower; Taxes................. 76
10.4 Holidays.......................................................................... 77
10.5 Funding by Branch, Subsidiary or Affiliate........................................ 78
10.5.1 Notional Funding...................................................... 78
10.5.2 Actual Funding........................................................ 78
</TABLE>
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<PAGE> 8
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Article Page
<S> <C>
10.6 Notices........................................................................... 79
10.7 Severability...................................................................... 79
10.8 Governing Law..................................................................... 79
10.9 Prior Understanding............................................................... 80
10.10 Duration; Survival................................................................ 80
10.11 Successors and Assigns............................................................ 80
10.12 Confidentiality................................................................... 81
10.13 Counterparts...................................................................... 82
10.14 Agent's or Bank's Consent......................................................... 82
10.15 Exceptions........................................................................ 82
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL............................................ 82
10.17 Tax Withholding Clause............................................................ 83
10.18 Public Filings.................................................................... 84
</TABLE>
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<PAGE> 9
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(B) - COMMITMENTS OF BANKS
SCHEDULE 1.1(P) - PERMITTED LIENS
SCHEDULE 5.1.1 - QUALIFICATIONS TO DO BUSINESS
SCHEDULE 5.1.2 - CAPITALIZATION
SCHEDULE 5.1.3 - SUBSIDIARIES
SCHEDULE 5.1.8 - TITLE TO PROPERTY
SCHEDULE 5.1.13 - CONSENTS AND APPROVALS
SCHEDULE 5.1.20 - EMPLOYEE BENEFIT PLAN DISCLOSURES
SCHEDULE 5.1.22 - ENVIRONMENTAL DISCLOSURES
SCHEDULE 7.2.1 - PERMITTED INDEBTEDNESS
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(P) - PRICING GRID
EXHIBIT 1.1(R) - REVOLVING CREDIT NOTE
EXHIBIT 2.4 - LOAN REQUEST
EXHIBIT 6.1.4 - OPINION OF COUNSEL
EXHIBIT 7.3.3 - COMPLIANCE CERTIFICATE
- viii -
<PAGE> 10
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of March 31,
1997 and is made by and among TRIUMPH GROUP, INC., a Delaware corporation, (the
"Borrower"), the BANKS (as hereinafter defined), and PNC BANK, NATIONAL
ASSOCIATION, in its capacity as agent for the Banks under this Agreement
(hereinafter referred to in such capacity as the "Agent").
WITNESSETH:
WHEREAS, the Agent currently provides a revolving credit facility for
the Borrower in an aggregate principal amount of up to $85,000,000 pursuant to a
Credit Agreement dated as of July 19, 1996, as amended (the "1996 Credit
Agreement"); and
WHEREAS, as of the date of this Agreement, the outstanding principal
balance of Revolving Credit Loans and Letters of Credit Outstanding under the
1996 Credit Agreement is $9,706,824.93, with two Letters of Credit accounting
for $1,000,000 of the total. Borrower acknowledges that such amounts, together
with interest as provided under the 1996 Credit Agreement, are owing to the
Agent without defense, offset or counterclaim.
WHEREAS, the revolving credit facility is available for the purpose of
refinancing existing indebtedness and for general corporate purposes, including
acquisitions; and
WHEREAS, the parties wish to amend and restate the 1996 Credit
Agreement in order to reduce the pricing on the credit facility, extend the
maturity date, amend certain of the covenants and make other changes following
the successful initial public offering of Capital Stock in the Borrower which
occurred in the fourth quarter of 1996 (the "IPO");
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1 Certain Definitions.
In addition to words and terms defined elsewhere in this Agreement, the
following words and terms shall have the following meanings, respectively,
unless the context hereof clearly requires otherwise:
<PAGE> 11
Affiliate as to any Person shall mean any other Person (i) which
directly or indirectly controls, is controlled by, or is under common control
with such Person, (ii) which beneficially owns or holds 10% or more of any class
of the voting or other equity interests of such Person, or (iii) 10% or more of
any class of voting interests or other equity interests of which is beneficially
owned or held, directly or indirectly, by such Person. Control, as used in this
definition, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise, including
the power to elect a majority of the directors or trustees of a corporation or
trust, as the case may be.
Agent shall mean PNC Bank, National Association, and its successors and
assigns.
Agent's Fee shall have the meaning assigned to that term in Section
9.15.
Agent's Letter shall have the meaning assigned to that term in Section
9.15.
Agreement shall mean this Amended and Restated Credit Agreement, as the
same may be supplemented or amended from time to time, including all schedules
and exhibits.
Alco Note shall mean the Subordinated Promissory Note dated June 1,
1993 issued by Borrower to MDR Corporation in the original principal amount of
$13,500,000, as amended by a Note Modification Agreement dated as of December
31, 1995 and by an Amendment to Subordinated Promissory Note dated October 31,
1996.
Annual Statements shall have the meaning assigned to that term in
Section 5.1.9(i).
Assignment and Assumption Agreement shall mean an Assignment and
Assumption Agreement by and among a Purchasing Bank, the Transferor Bank and the
Agent, as Agent and on behalf of the remaining Banks, substantially in the form
of Exhibit 1.1(A).
Authorized Officer shall mean those individuals, designated by written
notice to the Agent from the Borrower, authorized to execute notices, reports
and other documents on behalf of the Borrower required hereunder. The Borrower
may amend such list of individuals from time to time by giving written notice of
such amendment to the Agent.
Banks shall mean the financial institutions named on Schedule 1.1(B)
and their respective successors and assigns as permitted hereunder, each of
which is referred to herein as a Bank.
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<PAGE> 12
Base Rate shall mean the greater of (i) the interest rate per annum
announced from time to time by the Agent at its Principal Office as its then
prime rate, which rate may not be the lowest rate then being charged commercial
borrowers by the Agent, or (ii) the Federal Funds Effective Rate plus 1/2% per
annum.
Base Rate Option shall mean the Revolving Credit Base Rate Option.
Benefit Arrangement shall mean at any time an "employee benefit plan,"
within the meaning of Section 3(3) of ERISA, which is neither a Plan nor a
Multiemployer Plan and which is maintained, sponsored or otherwise contributed
to by any member of the ERISA Group.
Borrower shall mean Triumph Group, Inc.
Borrowing Date shall mean, with respect to any Loan, the date for the
making thereof or the renewal or conversion thereof to the same or a different
Interest Rate Option, which shall be a Business Day.
Borrowing Tranche shall mean specified portions of Loans outstanding as
follows: (i) any Loans to which a Euro-Rate Option applies which become subject
to the same Interest Rate Option under the same Loan Request by the Borrower and
which have the same Interest Period shall constitute one Borrowing Tranche, and
(ii) all Loans to which a Base Rate Option applies shall constitute one
Borrowing Tranche.
Business Day shall mean any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to be closed
for business in Pittsburgh, Pennsylvania.
Capital Stock shall mean any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
Closing Date shall mean March 31, 1997.
Commitment shall mean as to any Bank its Revolving Credit Commitment,
and Commitments shall mean the aggregate of the Revolving Credit Commitments of
all of the Banks.
Commitment Fee shall have the meaning assigned to that term in
Section 2.3.
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Consolidated EBITDA shall mean for any period of determination
Consolidated Net Income (before extraordinary items) for such period plus the
amount of income tax expense, interest expense, depreciation and amortization
expense deducted from earnings in determining such Consolidated Net Income. For
any period in which Borrower or one of its Subsidiaries has completed an
acquisition permitted under this Agreement, the calculation of Consolidated
EBITDA for such period shall reflect, on a pro forma basis, the financial
performance of the acquired entity or assets as though the acquisition had been
completed at the beginning of the period of determination.
Consolidated Net Worth shall mean as of any date of determination total
stockholders' equity of the Borrower and its Subsidiaries as of such date
determined and consolidated in accordance with GAAP.
Consolidated Interest Expense shall mean for any period of
determination the amount of cash interest expense deducted from the earnings of
the Borrower and its Subsidiaries in determining Consolidated Net Income for
such period in accordance with GAAP.
Consolidated Net Income shall mean for any fiscal period the net income
(or loss) after income taxes of the Borrower and its Subsidiaries for such
period determined and consolidated in accordance with GAAP.
Consolidated Total Indebtedness shall mean as of any date of
determination the aggregate of all Indebtedness, other than PIK Subordinated
Indebtedness, of the Borrower and its Subsidiaries as of such date determined
and consolidated in accordance with GAAP.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money
of the United States of America.
Environmental Complaint shall mean any written complaint setting forth
a cause of action for personal or property damage or natural resource damage or
equitable relief, order, notice of violation, citation, request for information
issued pursuant to any Environmental Laws by an Official Body, subpoena or other
written notice asserting or threatening a claim relating to, arising out of, or
issued pursuant to any of the Environmental Laws or any Environmental
Conditions, as the case may be.
Environmental Conditions shall mean any conditions of the environment,
including the workplace, the ocean, natural resources (including flora or
fauna), soil, surface water, groundwater, any actual or potential drinking water
supply sources, substrata or the ambient air, relating to or arising out of, or
caused by the use, handling, storage, treatment, recycling, generation,
transportation, release, spilling, leaking, pumping, emptying, discharging,
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<PAGE> 14
injecting, escaping, leaching, disposal, dumping, threatened release or other
management or mismanagement of Regulated Substances resulting from the use of,
or operations on, the Property.
Environmental Laws shall mean all federal, state, local and foreign
Laws and regulations, including permits, licenses, authorizations, bonds,
orders, judgments, consent decrees issued, or entered into, pursuant thereto,
relating to pollution or protection of human health or the environment or
employee safety in the workplace.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended or supplemented from time to time, and any successor
statute of similar import, and the rules and regulations thereunder, as from
time to time in effect.
ERISA Group shall mean, at any time, the Borrower and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control and all other entities which, together with
the Borrower, are treated as a single employer under Section 414 of the Internal
Revenue Code.
Euro-Rate shall mean with respect to the Loans comprising any Borrowing
Tranche to which the Euro-Rate Option applies for any Interest Period, the
interest rate per annum determined by the Agent by dividing (the resulting
quotient rounded upward to the nearest 1/16th of 1% per annum) (i) the rate of
interest determined by the Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the "offered"
eurodollar rate evidenced by Telerate display page 3750 (or such other display
on the Telerate system as may replace such page) at approximately 11:00 A.M.,
London time, two (2) London Business Days prior to the first day of such
Interest Period for an amount comparable to such Borrowing Tranche and having a
borrowing date and a maturity comparable to such Interest Period by (ii) a
number equal to 1.00 minus the Euro-Rate Reserve Percentage. The Euro-Rate may
also be expressed by the following formula:
Euro-Rate = Telerate page 3750
-----------------------------------
1.00 - Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Euro-Rate Option
outstanding on the effective date of any change in the Euro-Rate Reserve
Percentage as of such effective date. The Agent shall give prompt notice to the
Borrower of the Euro-Rate as determined or adjusted in accordance herewith,
which determination shall be conclusive absent manifest error.
Euro-Rate Option shall mean the Revolving Credit Euro-Rate Option.
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<PAGE> 15
Euro-Rate Reserve Percentage shall mean the maximum percentage
(expressed as a decimal rounded upward to the nearest 1/100 of 1%) as determined
by the Agent which is in effect during any relevant period, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency Liabilities") of a member bank in such System.
Event of Default shall mean any of the Events of Default described in
Section 8.1.
Expiration Date shall mean, with respect to the Revolving Credit
Commitments, the fifth anniversary of the Closing Date; provided that the
Expiration Date may be extended under Section 2.8.10.
Federal Funds Effective Rate for any day shall mean the rate per annum
(based on a year of 360 days and actual days elapsed and rounded upward to the
nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any
successor) on such day as being the weighted average of the rates on overnight
federal funds transactions arranged by federal funds brokers on the previous
trading day, as computed and announced by such Federal Reserve Bank (or any
successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "Federal Funds
Effective Rate" as of the date of this Agreement; provided, if such Federal
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
GAAP shall mean generally accepted accounting principles as are in
effect from time to time, subject to the provisions of Section 1.3, and applied
on a consistent basis both as to classification of items and amounts.
Governmental Acts shall have the meaning assigned to that term in
Section 2.8.8.
Guaranty of any Person shall mean any obligation of such Person
guaranteeing any liability or obligation of any other Person in any manner,
whether directly or indirectly, including any performance bond or other
suretyship arrangement and any other form of assurance against loss, except (i)
endorsement of negotiable or other instruments for deposit or collection in the
ordinary course of business, (ii) any guaranty of an obligation to indemnify or
hold harmless any other Person incurred in connection with an acquisition or
divestiture of Capital Stock or assets permitted under this Agreement, or (iii)
any guaranty by Borrower of
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<PAGE> 16
the obligations of any of its direct or indirect Subsidiaries incurred in the
ordinary course of business.
Historical Statements shall have the meaning assigned to that term in
Section 5.1.9(i).
Indebtedness shall mean, as to any Person at any time, any and all
indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations under any letter of
credit, currency swap agreement, interest rate swap, cap, collar or floor
agreement or other interest rate management device, (iv) any other transaction
(including forward sale or purchase agreements, capitalized leases and
conditional sales agreements) having the commercial effect of a borrowing of
money entered into by such Person to finance its operations or capital
requirements (but not including trade payables and accrued expenses incurred in
the ordinary course of business which are not represented by a promissory note
or other evidence of indebtedness), or (v) any Guaranty of Indebtedness for
borrowed money.
Interest Coverage Ratio shall mean for any period of determination the
ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Interest
Expense for such period.
Interest Period shall have the meaning assigned to such term in Section
3.2.
Interest Rate Option shall mean any Euro-Rate Option or Base Rate
Option.
Interim Statements shall have the meaning assigned to that term in
Section 5.1.9(i).
Internal Revenue Code shall mean the Internal Revenue Code of 1986, as
the same may be amended or supplemented from time to time, and any successor
statute of similar import, and the rules and regulations thereunder, as from
time to time in effect.
K-T IRB shall mean the proposed City of Shelbyville, Indiana,
Adjustable Rate Economic Development Revenue Bonds (K-T Corporation Project)
Series 1997 in the aggregate principal amount of $5,000,000.
K-T Letter of Credit shall mean the letter of credit to be issued by
PNC Bank, National Association in the face amount of $5,061,650 for the account
of The Triumph Group Operations, Inc., d/b/a K-T Corporation in support of the
K-T IRB.
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<PAGE> 17
Labor Contracts shall mean all employment agreements, employment
contracts, collective bargaining agreements and other agreements among the
Borrower or Subsidiary of the Borrower and its employees.
Law shall mean any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree or award of any Official Body.
Letter of Credit shall have the meaning assigned to that term in
Section 2.8.1.
Letter of Credit Fee shall have the meaning assigned to that term in
Section 2.8.3.
Letters of Credit Outstanding shall mean at any time the sum of (i) the
aggregate undrawn face amount of outstanding Letters of Credit and (ii) the
aggregate amount of all unpaid and outstanding Reimbursement Obligations. The
term does not include the K-T Letter of Credit.
Lien shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the filing).
Loan Documents shall mean this Agreement, the Notes and any other
instruments, certificates or documents delivered or contemplated to be delivered
hereunder or thereunder or in connection herewith or therewith, as the same may
be supplemented or amended from time to time in accordance herewith or
therewith, and Loan Document shall mean any of the Loan Documents.
Loan Request shall mean a request for Revolving Credit Loans made in
accordance with Section 2.4 or a request to select, convert to or renew a
Euro-Rate Option in accordance with Section 3.2, 9.13.
Loans shall mean collectively and Loan shall mean separately all
Revolving Credit Loans or any Revolving Credit Loan.
Material Adverse Change shall mean any set of circumstances or events
which (a) has or is reasonably expected to have any material adverse effect
whatsoever upon the validity or enforceability of this Agreement or any other
Loan Document, (b) is or is reasonably expected
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<PAGE> 18
to be material and adverse to the business, properties, assets, financial
condition, results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole , (c) impairs materially or is reasonably expected
to impair materially the ability of the Borrower and its Subsidiaries taken as a
whole to duly and punctually pay or perform its Indebtedness, or (d) impairs
materially or is reasonably expected to impair materially the ability of the
Agent or any of the Banks, to the extent permitted, to enforce their legal
remedies pursuant to this Agreement or any other Loan Document.
Month, with respect to an Interest Period under the Euro-Rate Option,
shall mean the interval between the days in consecutive calendar months
numerically corresponding to the first day of such Interest Period. If any
Euro-Rate Interest Period begins on a day of a calendar month for which there is
no numerically corresponding day in the month in which such Interest Period is
to end, the final month of such Interest Period shall be deemed to end on the
last Business Day of such final month.
Multiemployer Plan shall mean any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Borrower or any member of the ERISA Group is then making or accruing
an obligation to make contributions or, within the preceding five Plan years,
has made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
Notes shall mean the Revolving Credit Notes.
Notices shall have the meaning assigned to that term in Section 10.6.
Obligation shall mean any obligation or liability of any of the
Borrower to the Agent or any of the Banks, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due, under or in connection with this Agreement,
the Notes, the Letters of Credit, the Agent's Letter or any other Loan Document.
Official Body shall mean any national, federal, state, local or other
government or political subdivision or any agency, authority, bureau, central
bank, commission, department or instrumentality of either, or any court or
tribunal in each case whether foreign or domestic, with jurisdiction to act with
the force of law with respect to pertinent matters.
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<PAGE> 19
Partnership Interests shall have the meaning given to such term in
Section 5.1.3.
PBGC shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Investments shall mean:
(i) direct obligations of the United States of America or any agency or
instrumentality thereof or obligations backed by the full faith and credit of
the United States of America maturing in twelve (12) months or less from the
date of acquisition;
(ii) commercial paper maturing in 180 days or less rated not lower than
A-1, by Standard & Poor's Corporation or P-1 by Moody's Investors Service, Inc.
on the date of acquisition;
(iii) demand deposits, time deposits, money market account deposits or
certificates of deposit maturing within one year in commercial banks whose
obligations are rated A-1, A or the equivalent or better by Standard & Poor's
Corporation on the date of acquisition;
(iv) shares of money market mutual funds that invest substantially all
of their assets in the investments described in clauses (i) through (iii) above;
and
(v) investments in Subsidiaries permitted under this Agreement.
Permitted Liens shall mean:
(i) Liens for taxes, assessments, or similar charges, incurred in the
ordinary course of business and which are not yet due and payable;
(ii) Pledges or deposits made in the ordinary course of business to
secure payment of worker's compensation, or to participate in any fund in
connection with worker's compensation, unemployment insurance, old-age pensions
or other social security programs;
(iii) Liens of mechanics, materialmen, warehousemen, carriers, or other
like Liens, securing obligations incurred in the ordinary course of business
that are not yet due and payable and Liens of landlords securing obligations to
pay lease payments that are not yet due and payable or in default;
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<PAGE> 20
(iv) Good-faith pledges or deposits made in the ordinary course of
business to secure performance of bids, tenders, contracts (other than for the
repayment of borrowed money) or leases, not in excess of the aggregate amount
due thereunder, or to secure statutory obligations, or surety, appeal,
indemnity, performance or other similar bonds required in the ordinary course of
business;
(v) Encumbrances consisting of zoning restrictions, easements or other
restrictions on the use of real property, none of which materially impairs the
use of such property or the value thereof, and none of which is violated in any
material respect by existing or proposed structures or land use;
(vi) Liens, security interests and mortgages in favor of the Agent for
the benefit of the Banks;
(vii) Liens on property leased by the Borrower or Subsidiary of the
Borrower under capital and operating leases permitted in Section 7.2.15 securing
obligations of the Borrower or Subsidiary to the lessor under such leases;
(viii) Any Lien existing on the date of this Agreement and described on
Schedule 1.1(P), provided that the principal amount secured thereby is not
hereafter increased, and no additional assets become subject to such Lien;
(ix) Purchase Money Security Interests, provided that the aggregate
amount of loans and deferred payments secured by such Purchase Money Security
Interests shall not exceed $5,000,000 (excluding for the purpose of this
computation any loans or deferred payments secured by Liens described on
Schedule 1.1(P)); and
(x) The following, (A) if the validity or amount thereof is being
contested in good-faith by appropriate and lawful proceedings diligently
conducted so long as levy and execution thereon have been stayed and continue to
be stayed or (B) if a final judgment is entered and such judgment is discharged
within sixty (60) days of entry, and in either case they do not affect the
Collateral or, in the aggregate, materially impair the ability of the Borrower
to perform its Obligations hereunder or under the other Loan Documents:
(1) Claims or Liens for taxes, assessments or charges due
and payable and subject to interest or penalty, provided that the
Borrower maintains such reserves or other appropriate provisions as
shall be required by GAAP and pays all such taxes, assessments or
charges forthwith upon the commencement of proceedings to foreclose any
such Lien;
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<PAGE> 21
(2) Claims, Liens or encumbrances upon, and defects of title
to, real or personal property other than the Collateral, including any
attachment of personal or real property or other legal process prior to
adjudication of a dispute on the merits; or
(3) Claims or Liens of mechanics, materialmen, warehousemen,
carriers, or other statutory nonconsensual Liens.
(4) Liens resulting from final judgments or orders described
in Section 8.1.6.
Person shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, joint
venture, government or political subdivision or agency thereof, or any other
entity.
Plan shall mean at any time an employee pension benefit plan (including
a Multiple Employer Plan, but not a Multiemployer Plan) which is covered by
Title IV of ERISA or is subject to the minimum funding standards under Section
412 of the Internal Revenue Code and either (i) is maintained by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained by any entity which was
at such time a member of the ERISA Group for employees of any entity which was
at such time a member of the ERISA Group.
PIK Subordinated Indebtedness shall mean Indebtedness which by its
terms is subordinated to the Obligations of the Borrower to the Banks and on
which interest is payable, at the option of the payor, in cash or by the
issuance of additional Indebtedness that is likewise subordinated.
PNC Bank shall mean PNC Bank, National Association, its successors and
assigns.
Potential Default shall mean any event or condition which with notice,
passage of time or a determination by the Agent or the Required Banks, or any
combination of the foregoing, would constitute an Event of Default.
Pricing Grid means the chart attached hereto as Exhibit 1.1(P) which
sets forth the rates at which Commitment Fees, Letter Credit Fees and interest
rate margins are calculated on the basis of the Total Indebtedness to EBITDA
Ratio.
Principal Office shall mean the main banking office of the Agent in
Pittsburgh, Pennsylvania.
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<PAGE> 22
Prohibited Transaction shall mean any prohibited transaction as defined
in Section 4975 of the Internal Revenue Code or Section 406 of ERISA for which
neither an individual nor a class exemption has been issued by the United States
Department of Labor.
Property shall mean all real property, both owned and leased, of the
Borrower.
Purchase Money Security Interest shall mean Liens upon tangible
personal property securing loans to Borrower or any Subsidiary or deferred
payments by Borrower or such Subsidiary for the purchase of such tangible
personal property.
Purchasing Bank shall mean a Bank which becomes a party to this
Agreement by executing an Assignment and Assumption Agreement.
Ratable Share shall mean the proportion that a Bank's Commitment bears
to the Commitments of all of the Banks.
Regulated Substances shall mean any substance, including any solid,
liquid, semisolid, gaseous, thermal, thoriated or radioactive material, refuse,
garbage, wastes, chemicals, petroleum products, by-products, coproducts,
impurities, dust, scrap, heavy metals, any substance defined as a "hazardous
substance," "pollutant," "pollution," "contaminant," "hazardous or toxic
substance," "extremely hazardous substance," "toxic chemical," "toxic waste,"
"hazardous waste," "industrial waste," "residual waste," "solid waste,"
"municipal waste," "mixed waste," "infectious waste," "chemotherapeutic waste,"
"medical waste," "regulated substance" or any related materials, substances or
wastes as now or hereafter defined pursuant to any Environmental Laws,
ordinances, rules, regulations or other directives of any Official Body, the
generation, manufacture, extraction, processing, distribution, treatment,
storage, disposal, transport, recycling, reclamation, use, reuse, spilling,
leaking, dumping, injection, pumping, leaching, emptying, discharge, escape,
release or other management or mismanagement of which is regulated by the
Environmental Laws.
Regulation U shall mean Regulation U, T, G or X as promulgated by the
Board of Governors of the Federal Reserve System, as amended from time to time.
Reimbursement Obligation shall have the meaning assigned to such term
in Section 2.8.4(i).
Reportable Event means a reportable event described in Section 4043 of
ERISA and regulations thereunder with respect to a Plan or Multiemployer Plan.
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<PAGE> 23
Required Banks shall mean (i) if there are no Loans outstanding, Banks
whose Commitments aggregate at least 71% of the Commitments of all of the Banks,
or (ii) if there are Loans outstanding, Banks whose Loans outstanding aggregate
at least 71% of the total principal amount of the Loans outstanding hereunder.
Revolving Credit Base Rate Option shall mean the option of the Borrower
to have Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(i).
Revolving Credit Commitment shall mean, as to any Bank at any time, the
amount initially set forth opposite its name on Schedule 1.1(B) in the column
labeled "Amount of Commitment for Revolving Credit Loans," and thereafter on
Schedule I to the most recent Assignment and Assumption Agreement, and Revolving
Credit Commitments shall mean the aggregate Revolving Credit Commitments of all
of the Banks.
Revolving Credit Euro-Rate Option shall mean the option of the Borrower
to have Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(ii).
Revolving Credit Loans shall mean collectively and Revolving Credit
Loan shall mean separately all Revolving Credit Loans or any Revolving Credit
Loan made by the Banks or one of the Banks to the Borrower pursuant to
Section 2.1 or 2.8.4(i) hereof.
Revolving Credit Notes shall mean collectively and Revolving Credit
Note shall mean separately all the Revolving Credit Notes of the Borrower in the
form of Exhibit 1.1(R) evidencing the Revolving Credit Loans together with all
amendments, extensions, renewals, replacements, refinancings or refundings
thereof in whole or in part.
Revolving Facility Usage shall mean at any time the sum of the
Revolving Credit Loans outstanding and the Letters of Credit Outstanding.
Shares shall have the meaning assigned to that term in Section 5.1.2.
Subsidiary of any Person at any time shall mean (i) any corporation or
trust of which 50% or more (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled to
vote for the election of one or more directors or trustees (regardless of any
contingency which does or may suspend or dilute the voting rights) is at such
time owned directly or indirectly by such Person or one or more of such Person's
Subsidiaries, or any partnership of which such Person is a general partner or of
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<PAGE> 24
which 50% or more of the partnership interests is at the time directly or
indirectly owned by such Person or one or more of such Person's Subsidiaries, or
(ii) any corporation, trust, partnership or other entity which is controlled or
capable of being controlled by such Person or one or more of such Person's
Subsidiaries.
Subsidiary Shares shall have the meaning assigned to that term in
Section 5.1.3.
Total Indebtedness to EBITDA Ratio shall mean the ratio of Consolidated
Total Indebtedness to Consolidated EBITDA.
Transferor Bank shall mean the selling Bank pursuant to an Assignment
and Assumption Agreement.
1.2 Construction.
Unless the context of this Agreement otherwise clearly requires, the
following rules of construction shall apply to this Agreement and each of the
other Loan Documents:
1.2.1 Number; Inclusion.
references to the plural include the singular, the plural,
the part and the whole; "or" has the inclusive meaning represented by the phrase
"and/or," and "including" has the meaning represented by the phrase "including
without limitation";
1.2.2 Determination.
references to "determination" of or by the Agent or the
Banks shall be deemed to include good-faith estimates by the Agent or the Banks
(in the case of quantitative determinations) and good-faith beliefs by the Agent
or the Banks (in the case of qualitative determinations) and such determination
shall be conclusive absent manifest error;
1.2.3 Agent's Discretion and Consent.
whenever the Agent or the Banks are granted the right herein
to act in its or their sole discretion or to grant or withhold consent such
right shall be exercised in good-faith;
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1.2.4 Documents Taken as a Whole.
the words "hereof," "herein," "hereunder," "hereto" and
similar terms in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document as a whole and not to any particular
provision of this Agreement or such other Loan Document;
1.2.5 Headings.
the section and other headings contained in this Agreement
or such other Loan Document and the Table of Contents (if any), preceding this
Agreement or such other Loan Document are for reference purposes only and shall
not control or affect the construction of this Agreement or such other Loan
Document or the interpretation thereof in any respect;
1.2.6 Implied References to this Agreement.
article, section, subsection, clause, schedule and exhibit
references are to this Agreement or other Loan Document, as the case may be,
unless otherwise specified;
1.2.7 Persons.
reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement or other Loan Document, as the case may be, and
reference to a Person in a particular capacity excludes such Person in any other
capacity;
1.2.8 Modifications to Documents.
reference to any agreement (including this Agreement and any
other Loan Document together with the schedules and exhibits hereto or thereto),
document or instrument means such agreement, document or instrument as amended,
modified, replaced, substituted for, superseded or restated;
1.2.9 From, To and Through.
relative to the determination of any period of time, "from"
means "from and including," "to" means "to but excluding," and "through" means
"through and including"; and
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1.2.10 Shall; Will.
references to "shall" and "will" are intended to have the
same meaning.
1.3 Accounting Principles.
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and prepared
in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP.
2. REVOLVING CREDIT FACILITY
2.1 Revolving Credit Commitments.
Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Bank severally agrees to
make Revolving Credit Loans to the Borrower at any time or from time to time on
or after the date hereof to the Expiration Date provided that after giving
effect to such Loan the aggregate amount of Loans from such Bank shall not
exceed such Bank's Revolving Credit Commitment minus such Bank's Ratable Share
of the Letters of Credit Outstanding. Within such limits of time and amount and
subject to the other provisions of this Agreement, the Borrower may borrow,
repay and reborrow pursuant to this Section 2.1.
2.2 Nature of Banks' Obligations with Respect to Revolving Credit
Loans.
Each Bank shall be obligated to participate in each request for
Revolving Credit Loans pursuant to Section 2.4 in accordance with its Ratable
Share. The aggregate of each Bank's Revolving Credit Loans outstanding hereunder
to the Borrower at any time shall never exceed its Revolving Credit Commitment
minus its Ratable Share of the Letter of Credit Outstandings. The obligations of
each Bank hereunder are several. The failure of any Bank to perform its
obligations hereunder shall not affect the Obligations of the Borrower to any
other party nor the several obligations of the other Banks to the Borrower; nor
shall any other party be liable for the failure of such Bank to perform its
obligations hereunder. The Banks shall have no obligation to make Revolving
Credit Loans hereunder on or after the Expiration Date.
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2.3 Commitment Fees.
Accruing from the date hereof until the Expiration Date, the Borrower
agrees to pay to the Agent for the account of each Bank, as consideration for
such Bank's Revolving Credit Commitment hereunder, a nonrefundable commitment
fee (the "Commitment Fee"), calculated on a per annum (365 or 366 days, as
appropriate, and actual days elapsed) basis under the Pricing Grid, on the
average daily difference between the amount of (i) such Bank's Revolving Credit
Commitment as the same may be constituted from time to time and (ii) the
principal amount of such Bank's Ratable Share of Revolving Facility Usage. All
Commitment Fees shall be payable in arrears on the first Business Day of each
calendar quarter after the date hereof and on the Expiration Date or upon
acceleration of the Notes.
2.4 Revolving Credit Loan Requests.
Except as otherwise provided herein, the Borrower may from time to time
prior to the Expiration Date request the Banks to make Revolving Credit Loans,
or renew or convert the Interest Rate Option applicable to existing Revolving
Credit Loans pursuant to Section 3.2, by delivering to the Agent, not later than
(i) 2:00 p.m., Eastern time, three (3) Business Days prior to the proposed
Borrowing Date with respect to the making of Revolving Credit Loans to which the
Euro-Rate Option applies or the conversion to or the renewal of the Euro-Rate
Option for any Revolving Credit Loans; and (ii) 1:00 p.m., Eastern time on
either the proposed Borrowing Date with respect to the making of a Revolving
Credit Loan to which the Base Rate Option applies or the last day of the
preceding Interest Period with respect to the conversion to the Base Rate Option
for any Revolving Credit Loan, of a duly completed request therefor
substantially in the form of Exhibit 2.4 or a request by telephone immediately
confirmed in writing by letter, facsimile or telex in such form (each, a "Loan
Request"), it being understood that the Agent may rely on the authority of any
individual making such a telephonic request without the necessity of receipt of
such written confirmation. Each Revolving Credit Loan Request shall be
irrevocable and shall specify (i) the proposed Borrowing Date; (ii) the
aggregate amount of the proposed Revolving Credit Loans comprising each
Borrowing Tranche, which shall be in integral multiples of $500,000 and not less
than $1,000,000 for each Borrowing Tranche to which the Euro-Rate Option applies
and not less than the lesser of $200,000 or the maximum amount available for
Borrowing Tranches to which the Base Rate Option applies; (iii) whether the
Euro-Rate Option or Base Rate Option shall apply to the proposed Revolving
Credit Loans comprising the Borrowing Tranche; and (iv) in the case of a
Borrowing Tranche to which the Euro-Rate Option applies, an appropriate Interest
Period for the proposed Revolving Credit Loans comprising such Borrowing
Tranche.
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2.5 Making Revolving Credit Loans.
The Agent shall, promptly after receipt by it of a Loan Request
pursuant to Section 2.4, notify the Banks of its receipt of such Loan Request
specifying: (i) the proposed Borrowing Date and the time and method of
disbursement of such Revolving Credit Loans; (ii) the amount and type of each
such Revolving Credit Loan and the applicable Interest Period (if any); and
(iii) the apportionment among the Banks of the Revolving Credit Loans as
determined by the Agent in accordance with Section 2.2. Each Bank shall remit
the principal amount of each Revolving Credit Loan to the Agent such that the
Agent is able to, and the Agent shall, to the extent the Banks have made funds
available to it for such purpose, fund such Revolving Credit Loans to the
Borrower in U.S. Dollars and immediately available funds at the Principal Office
prior to 2:00 p.m., Eastern time, on the Borrowing Date, provided that if any
Bank fails to remit such funds to the Agent in a timely manner, the Agent may
elect in its sole discretion to fund with its own funds the Revolving Credit
Loans of such Bank on the Borrowing Date, and such Bank shall be subject to the
repayment obligation in Section 9.16.
2.6 Revolving Credit Notes.
The Obligation of the Borrower to repay the aggregate unpaid principal
amount of the Revolving Credit Loans made by each Bank, together with interest
thereon, shall be evidenced by a Revolving Credit Note dated the Closing Date
payable to the order of such Bank in a face amount equal to the Revolving Credit
Commitment of such Bank.
2.7 Use of Proceeds.
The proceeds of the Revolving Credit Loans shall be used for the
purpose of refinancing existing indebtedness and for general corporate purposes,
including acquisitions permitted hereunder.
2.8 Letter of Credit Subfacility.
2.8.1 Issuance of Letters of Credit.
Borrower may request the issuance of a letter of credit
(each a "Letter of Credit") by delivering to the Agent a completed application
and agreement for letters of credit in such form as the Agent may specify from
time to time by no later than 10:00 a.m., Eastern time, at least five (5)
Business Days, or such shorter period as may be agreed to by the Agent, in
advance of the proposed date of issuance. Subject to the terms and conditions
hereof and in reliance on the agreements of the other Banks set forth in this
Section 2.8, the Agent will issue
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a Letter of Credit provided that each Letter of Credit shall (A) have a maximum
maturity of twelve (12) months from the date of issuance, and (B) in no event
expire later than one Business Day prior to the Expiration Date and providing
that in no event shall (i) the Letters of Credit Outstanding exceed, at any one
time, $5,000,000 or (ii) the Revolving Facility Usage exceed, at any one time,
the Revolving Credit Commitments.
2.8.2 Participations.
Immediately upon issuance of each Letter of Credit, and
without further action, each Bank shall be deemed to, and hereby agrees that it
shall, have irrevocably purchased for such Bank's own account and risk from the
Agent an individual participation interest in such Letter of Credit and drawings
thereunder in an amount equal to such Bank's Ratable Share of the maximum amount
which is or at any time may become available to be drawn thereunder, and each
such Bank shall be responsible to reimburse the Agent immediately for its
Ratable Share of any disbursement under any Letter of Credit which has not been
reimbursed by Borrower in accordance with Section 2.8.4(i).
2.8.3 Letter of Credit Fees.
The Borrower shall pay (i) to the Agent for the ratable
account of the Banks a fee (the "Letter of Credit Fee") calculated on a per
annum (365 or 366 days, as appropriate, and actual days elapsed) basis under the
Pricing Grid, and (ii) to the Agent for its own account a fronting fee equal to
1/8% per annum, which fees shall be computed on the daily average Letters of
Credit Outstanding and shall be payable quarterly in arrears commencing with the
first Business Day of each calendar quarter following issuance of each Letter of
Credit and on the Expiration Date. The Borrower shall also pay to the Agent for
the Agent's sole account the Agent's then in effect customary fees and
administrative expenses payable with respect to the Letters of Credit as the
Agent may generally charge or incur from time to time in connection with the
issuance, maintenance, modification (if any), assignment or transfer (if any),
negotiation, and administration of Letters of Credit.
2.8.4 Disbursements, Reimbursement.
(i) Borrower shall be obligated immediately to
reimburse Agent for all amounts which Agent is required to advance pursuant to
the Letters of Credit (the "Reimbursement Obligation"). Such amounts advanced
shall become, at the time they are advanced, Revolving Credit Loans from the
Banks, unless Borrower discharges its Reimbursement Obligation before such
amounts are advanced. Such Revolving Credit Loans shall bear interest at the
rate applicable under the Base Rate Option unless the Borrower elects
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to have a different Interest Rate Option apply to such Revolving Credit Loans
pursuant to and in accordance with the provisions contained in Section 3.1.1.
(ii) The Agent will notify the (A) Borrower of
each demand or presentment for payment or other drawing under each Letter of
Credit, and (B) Banks of the amount required to be advanced pursuant to the
Letters of Credit. Before 10:00 a.m., Eastern time, on the date of any advance
the Agent is required to make pursuant to the Letters of Credit, each Bank shall
make available such Bank's Ratable Share of such advance in immediately
available funds to the Agent.
2.8.5 Documentation.
The Borrower agrees to be bound by the terms of the Agent's
application and agreement for Letters of Credit and the Agent's written
regulations and customary practices relating to Letters of Credit, though such
interpretation may be different from the Borrower's own. In the event of a
conflict between such application or agreement and this Agreement, this
Agreement shall govern. It is understood and agreed that, except in the case of
gross negligence or willful misconduct, the Agent shall not be liable for any
error, negligence and/or mistakes, whether of omission or commission, in
following the Borrower's instructions or those contained in the Letters of
Credit or any modifications, amendments or supplements thereto.
2.8.6 Determinations to Honor Drawing Requests.
In determining whether to honor any request for drawing
under any Letter of Credit by the beneficiary thereof, the Agent shall be
responsible only to determine that the documents and certificates required to be
delivered under such Letter of Credit have been delivered and that they comply
on their face with the requirements of such Letter of Credit.
2.8.7 Nature of Participation and Reimbursement Obligations.
The obligation of the Banks to participate in Letters of Credit
pursuant to Section 2.8.2 and the obligation of the Banks pursuant to Section
2.8.4(ii) to fund Revolving Credit Loans upon a draw under a Letter of Credit
and the Obligations of the Borrower to reimburse the Agent upon a draw under a
Letter of Credit pursuant to Section 2.8.4(i) shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms
of such sections under all circumstances, including the following circumstances:
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(i) the failure of the Borrower or any other
Person to comply with the conditions set forth in Sections 2.1, 2.4, 2.5 or 6.2
or as otherwise set forth in this Agreement for the making of a Revolving
Credit Loan, it being acknowledged that such conditions are not required for
the making of a Revolving Credit Loan under Section 2.8.4;
(ii) any lack of validity or enforceability of
any Letter of Credit;
(iii) the existence of any claim, set-off,
defense or other right which the Borrower or any Bank may have at any time
against a beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), the Agent or other bank or any
other Person or, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any underlying
transaction between the Borrower or its Subsidiaries and the beneficiary for
which any Letter of Credit was procured);
(iv) any draft, demand, certificate or other
document presented under any 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;
(v) payment by the Agent under any Letter of
Credit against presentation of a demand, draft or certificate or other document
which does not comply with the terms of such Letter of Credit;
(vi) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of the Borrower or its Subsidiaries;
(vii) any breach of this Agreement or any
other Loan Document by any party thereto;
(viii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing;
(ix) the fact that an Event of Default or a
Potential Default shall have occurred and be continuing; or
(x) the Expiration Date shall have passed or
this Agreement or the Commitments hereunder shall have been terminated;
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provided that none of the Banks nor the Borrower shall be precluded from
bringing any separate action based on any circumstances described in clauses
(ii) or (v) above.
2.8.8 Indemnity.
In addition to amounts payable as provided in Section 9.5,
the Borrower hereby agrees to protect, indemnify, pay and save harmless the
Agent from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable and actual fees,
expenses and disbursements of counsel) which the Agent may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit, other than as a result of (A) the gross negligence or willful misconduct
of the Agent as determined by a final judgment of a court of competent
jurisdiction, (B) the payment by the Agent under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
substantially comply with the terms of such Letter of Credit, or (C) subject to
the following clause (ii), the wrongful dishonor by the Agent of a proper demand
for payment made under any Letter of Credit; or (ii) the failure of the Agent to
honor a drawing under any such Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (all such acts or omissions herein
called "Governmental Acts").
2.8.9 Liability for Acts and Omissions.
As between the Borrower and the Agent, the Borrower assumes
all risks of the acts and omissions of, or misuse of the Letters of Credit by,
the respective beneficiaries of such Letters of Credit. In furtherance and not
in limitation of the foregoing, the Agent shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for an
issuance of any such 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 any such 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
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit (provided the beneficiary shall have
substantially complied with such conditions); (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
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of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Agent, including any Governmental Acts,
and none of the above shall affect or impair, or prevent the vesting of, any of
the Agent's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth above, any action taken or omitted by the Agent
under or in connection with the Letters of Credit issued by it or any documents
and certificates delivered thereunder, if taken or omitted in good-faith, shall
not put the Agent under any resulting liability to the Borrower.
2.9 Extension by Banks of the Expiration Date.
Upon or promptly after delivery by the Borrower of the annual financial
statements to be provided under Section 7.3.2 for the fiscal year ending
March 31, 1997 or any subsequent fiscal year, the Borrower may request a
one-year extension of the Expiration Date by written notice to the Banks, and
the Banks agree to respond to the Borrower's request for an extension within
sixty (60) days following receipt of the request; provided, however, that all
the Banks must consent to any extension of the Expiration Date and the failure
of the Banks to respond within such time period shall not in any manner
constitute an extension of the Expiration Date.
3. INTEREST RATES
3.1 Interest Rate Options.
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Loans as selected by it from the Base Rate Option or
Euro-Rate Option set forth below applicable to the Loans, it being understood
that, subject to the provisions of this Agreement, the Borrower may select
different Interest Rate Options and different Interest Periods to apply
simultaneously to the Loans comprising different Borrowing Tranches and may
convert to or renew one or more Interest Rate Options with respect to all or any
portion of the Loans comprising any Borrowing Tranche, provided that there shall
not be at any one time outstanding more than five (5) Borrowing Tranches in the
aggregate among all of the Loans. If at any time the designated rate applicable
to any Loan made by any Bank exceeds such Bank's highest lawful rate, the rate
of interest on such Bank's Loan shall be limited to such Bank's highest lawful
rate.
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3.1.1 Revolving Credit Interest Rate Options.
The Borrower shall have the right to select from the
following Interest Rate Options applicable to the Revolving Credit Loans:
(i) Revolving Credit Base Rate Option: A
fluctuating rate per annum (computed on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed) equal to the Base Rate plus the
applicable number of basis points calculated under the Pricing Grid, such
interest rate to change automatically from time to time effective as of the
effective date of each change in the Base Rate; or
(ii) Revolving Credit Euro-Rate Option: A rate
per annum (computed on the basis of a year of 360 days and actual days elapsed)
equal to the Euro-Rate plus the applicable number of basis points calculated
under the Pricing Grid.
3.1.2 Rate Quotations.
The Borrower may call the Agent on or before the date on
which a Loan Request is to be delivered to receive an indication of the rates
then in effect, but it is acknowledged that such projection shall not be binding
on the Agent or the Banks nor affect the rate of interest which thereafter is
actually in effect when the election is made.
3.2 Interest Periods.
At any time when the Borrower shall select, convert to or renew a
Euro-Rate Option, the Borrower shall notify the Agent thereof at least three (3)
Business Days prior to the effective date of such Euro-Rate Option by delivering
a Loan Request. The notice shall specify an interest period (the "Interest
Period") during which such Interest Rate Option shall apply, such Interest
Period to be one, two, three or six Months in the event of a Euro-Rate Option,
provided, that:
3.2.1 Ending Date and Business Day.
any Interest Period which would otherwise end on a date
which is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
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3.2.2 Amount of Borrowing Tranche.
each Borrowing Tranche of Euro-Rate Loans shall be in
integral multiples of $500,000 and not less than $1,000,000;
3.2.3 Termination Before Expiration Date.
the Borrower shall not select, convert to or renew an
Interest Period for any portion of the Loans that would end after the Expiration
Date; and
3.2.4 Renewals.
in the case of the renewal of a Euro-Rate Option at the end
of an Interest Period, the first day of the new Interest Period shall be the
last day of the preceding Interest Period, without duplication in payment of
interest for such day.
3.3 Interest After Default.
To the extent permitted by Law, upon the occurrence of an Event of
Default and until such time such Event of Default shall have been cured or
waived:
3.3.1 Letter of Credit Fees, Interest Rate.
the Letter of Credit Fees and the rate of interest for each
Loan otherwise applicable pursuant to the Pricing Grid shall be increased by
2.0% per annum; and
3.3.2 Other Obligations.
each other Obligation hereunder if not paid when due shall
bear interest at a rate per annum equal to the sum of the rate of interest
applicable under the Revolving Credit Base Rate Option plus an additional 2.0%
per annum from the time such Obligation becomes due and payable and until it is
paid in full.
3.3.3 Acknowledgment.
The Borrower acknowledges that such increased rates reflect,
among other things, the fact that such Loans or other amounts have become a
substantially greater risk given their default status and that the Banks are
entitled to additional compensation for such risk; and, all such interest shall
be payable by Borrower upon demand by Agent.
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3.4 Euro-Rate Unascertainable.
3.4.1 Unascertainable.
If on any date on which a Euro-Rate would otherwise be
determined, the Agent shall have determined that:
(i) adequate and reasonable means do not exist
for ascertaining such Euro-Rate, or
(ii) a contingency has occurred which
materially and adversely affects the London interbank eurodollar market relating
to the Euro-Rate, then the Agent shall have the rights specified in Section
3.4.3.
3.4.2 Illegality; Increased Costs; Deposits Not Available.
If at any time any Bank shall have determined that:
(i) the making, maintenance or funding of any
Loan to which a Euro-Rate Option applies has been made impracticable or unlawful
by compliance by such Bank in good-faith with any Law or any interpretation or
application thereof by any Official Body or with any request or directive of any
such Official Body (whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately
and fairly reflect the cost to such Bank of the establishment or maintenance of
any such Loan, or
(iii) after making all reasonable efforts,
deposits of the relevant amount in Dollars for the relevant Interest Period for
a Loan to which a Euro-Rate Option applies are not available to such Bank with
respect to such Loan in the London interbank market, then the Agent shall have
the rights specified in Section 3.4.3.
3.4.3 Agent's and Banks' Rights.
In the case of any event specified in subsection 3.4.1
above, the Agent shall promptly so notify the Banks and the Borrower thereof,
and in the case of an event specified in
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subsection 3.4.2 above, such Bank shall promptly so notify the Agent and endorse
a certificate to such notice as to the specific circumstances of such notice,
and the Agent shall promptly send copies of such notice and certificate to the
other Banks and the Borrower. Upon such date as shall be specified in such
notice (which shall not be earlier than the date such notice is given), the
obligation of (A) the Banks, in the case of such notice given by the Agent, or
(B) such Bank, in the case of such notice given by such Bank, to allow the
Borrower to select, convert to or renew a Euro-Rate Option shall be suspended
until the Agent shall have later notified the Borrower, or such Bank shall have
later notified the Agent, of the Agent's or such Bank's, as the case may be,
determination that the circumstances giving rise to such previous determination
no longer exist. If at any time the Agent makes a determination under subsection
3.4.1 of this Section 3.4 and the Borrower has previously notified the Agent of
its selection of, conversion to or renewal of a Euro-Rate Option and such
Interest Rate Option has not yet gone into effect, such notification shall be
deemed to provide for selection of, conversion to or renewal of the Base Rate
Option otherwise available with respect to such Loans. If any Bank notifies the
Agent of a determination under subsection 3.4.2 of this Section 3.4, the
Borrower shall, subject to the Borrower's indemnification Obligations under
Section 4.6.2, as to any Loan of the Bank to which a Euro-Rate Option applies,
on the date specified in such notice either convert such Loan to the Base Rate
Option otherwise available with respect to such Loan or prepay such Loan in
accordance with Section 4.4. Absent due notice from the Borrower of conversion
or prepayment, such Loan shall automatically be converted to the Base Rate
Option otherwise available with respect to such Loan upon such specified date.
3.5 Selection of Interest Rate Options.
If the Borrower fails to select a new Interest Period to apply to any
Borrowing Tranche of Euro-Rate Loans at the expiration of an existing Interest
Period applicable to such Borrowing Tranche in accordance with the provisions of
Section 3.1, the Borrower shall be deemed to have converted such Borrowing
Tranche to the Revolving Credit Base Rate Option, as applicable, commencing upon
the last day of the existing Interest Period.
4. PAYMENTS
4.1 Payments.
All payments and prepayments to be made in respect of principal,
interest, Commitment Fees, Letter of Credit Fees, Agent's Fee or other fees or
amounts due from the Borrower hereunder shall be payable prior to 1:00 p.m.,
Eastern time, on the date when due without presentment, demand, protest or
notice of any kind, all of which are hereby expressly
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waived by the Borrower, and without set-off, counterclaim or other deduction of
any nature, and an action therefor shall immediately accrue. Such payments shall
be made to the Agent at the Principal Office for the ratable accounts of the
Banks with respect to the Loans in U.S. Dollars and in immediately available
funds, and the Agent shall promptly distribute such amounts to the Banks in
immediately available funds, provided that in the event payments are received by
1:00 p.m., Eastern time, by the Agent with respect to the Loans and such
payments are not distributed to the Banks on the same day received by the Agent,
the Agent shall pay the Banks the Federal Funds Effective Rate with respect to
the amount of such payments for each day held by the Agent and not distributed
to the Banks. The Agent's and each Bank's statement of account, ledger or other
relevant record shall, in the absence of manifest error, be conclusive as the
statement of the amount of principal of and interest on the Loans and other
amounts owing under this Agreement and shall be deemed an "account stated."
4.2 Pro Rata Treatment of Banks.
Each borrowing shall be allocated to each Bank according to its Ratable
Share, and each selection of, conversion to or renewal of any Interest Rate
Option and each payment or prepayment by the Borrower with respect to principal,
interest, Commitment Fees, Letter of Credit Fees, or other fees (except for the
Agent's Fee) or amounts due from the Borrower hereunder to the Banks with
respect to the Loans, shall (except as provided in Section 3.4.2 [Illegality;
Increased Costs; Deposits not Available] in the case of an event specified in
Section 3.4, 3.4.1 [Euro-Rate Unascertainable], 4.4 [Voluntary Prepayments] or
4.6.1 [Additional Compensation in Certain Circumstances]) be made in proportion
to the applicable Loans outstanding from each Bank and, if no such Loans are
then outstanding, in proportion to the Ratable Share of each Bank.
4.3 Interest Payment Dates.
Interest on Loans to which the Base Rate Option applies shall be due
and payable in arrears on the first Business Day of each calendar quarter after
the date hereof and on the date such Loans are repaid in full. Interest on Loans
to which the Euro-Rate Option applies shall be due and payable on the last day
of each Interest Period for those Loans and, if such Interest Period is longer
than three (3) months, also on the last day of every third month during such
Interest Period. Interest on mandatory prepayments of principal under Section
4.5 shall be due on the date such mandatory prepayment is due. Interest on the
principal amount of each Loan or other monetary Obligation shall be due and
payable on demand after such principal amount or other monetary Obligation
becomes due and payable (whether on the stated maturity date, upon acceleration
or otherwise).
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4.4 Voluntary Prepayments and Commitment Reductions.
4.4.1 Right to Prepay.
The Borrower shall have the right at its option from time to
time to prepay the Loans in whole or part without premium or penalty (except as
provided in subsection 4.4.2 below or in Section 4.6):
(i) at any time with respect to any Loan to
which the Base Rate Option applies,
(ii) on the last day of the applicable
Interest Period with respect to Loans to which a Euro-Rate Option applies,
(iii) on the date specified in a notice by any
Bank pursuant to Section 3.4.2 [Illegality; Increased Costs; Deposits Not
Available] with respect to any Loan to which a Euro-Rate Option applies.
Whenever the Borrower desires to prepay any part of the
Loans, it shall provide a prepayment notice to the Agent on or before the date
of prepayment of Loans setting forth the following information:
(x) the date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(y) a statement indicating the application of the
prepayment; and
(z) the total principal amount of such prepayment, which
shall not be less than $200,000 for the Revolving Credit Loans.
All prepayment notices shall be irrevocable. The principal
amount of the Loans for which a prepayment notice is given, together with
interest on such principal amount except with respect to Loans to which the Base
Rate Option applies, shall be due and payable on the date specified in such
prepayment notice as the date on which the proposed prepayment is to be made.
Except as provided in Section 3.3.3, if the Borrower prepays a Loan but fail to
specify the applicable Borrowing Tranche which the Borrower is prepaying, the
prepayment shall be applied first to Loans to which the Base Rate Option
applies, then to Loans to which the Euro-Rate Option applies. Any prepayment
hereunder shall be subject to the Borrower's Obligation to indemnify the Banks
under Section 4.6.2.
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4.4.2 Replacement of a Bank.
In the event any Bank (i) gives notice under Section 3.4.2 or Section
4.6, (ii) does not fund Revolving Credit Loans because the making of such Loans
would contravene any Law applicable to such Bank, (iii) does not approve any
action as to which consent of the Required Banks is requested by the Borrower
and obtained hereunder, or (iv) becomes subject to the control of an Official
Body (other than normal and customary supervision), then the Borrower shall have
the right at its option, with the consent of the Agent, which shall not be
unreasonably withheld, to prepay the Loans of such Bank in whole, together with
all interest accrued thereon, and terminate such Bank's Commitment within ninety
(90) days after (w) receipt of such Bank's notice under Section 3.4.2 or 4.6.1,
(x) the date such Bank has failed to fund Revolving Credit Loans because the
making of such Loans would contravene Law applicable to such Bank, (y) the date
of obtaining the consent which such Bank has not approved, or (z) the date such
Bank became subject to the control of an Official Body, as applicable; provided
that the Borrower shall also pay to such Bank at the time of such prepayment any
amounts required under Section 4.6 and any accrued interest due on such amount
and any related fees; provided, however, that the Commitment of such Bank shall
be provided by one or more of the remaining Banks or a replacement bank
acceptable to the Agent; provided, further, the remaining Banks shall have no
obligation hereunder to increase their Commitments. Notwithstanding the
foregoing, the Agent may only be replaced subject to the requirements of Section
9.14 and provided that all Letters of Credit have expired, been terminated or
replaced or cash collateral or backup letters of credit shall have been
deposited.
4.4.3 Right to Reduce Commitments.
The Borrower shall have the right at its option from time to
time to reduce permanently the Revolving Credit Commitments upon at least one
Business Day's advance notice to the Agent. Each such permanent reduction shall
be in the minimum amount of $1,000,000 and shall reduce the Revolving Credit
Commitment of each Bank in proportion to its Ratable Share. Upon the effective
date of each permanent reduction in the Revolving Credit Commitments, the
Borrower shall also prepay, with interest and with any additional compensation
required under Section 4.6.2, the amount (if any) by which the Revolving
Facility Usage at the time of the reduction exceeds the amount of the Revolving
Commitments as reduced.
4.5 Mandatory Prepayments and Commitment Reductions.
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4.5.1 [RESERVED]
4.5.2 Permanent Reduction of Commitments.
All prepayments required pursuant to this Section 4.5. shall
be applied to the permanent reduction of the Revolving Credit Commitments.
4.5.3 Application among Interest Rate Options.
All prepayments required pursuant to this Section 4.5 shall
first be applied among the Interest Rate Options to the principal amount of the
Loans subject to a Base Rate Option, then to Loans subject to the Euro-Rate
Option. In accordance with Section 4.6.2, the Borrower shall indemnify the Banks
for any loss or expense, including loss of margin, actually incurred with
respect to any such prepayments applied against Loans subject to a Euro-Rate
Option on any day other than the last day of the applicable Interest Period.
4.6 Additional Compensation in Certain Circumstances.
4.6.1 Increased Costs or Reduced Return Resulting From
Taxes, Reserves, Capital Adequacy Requirements, Expenses, Etc.
If any Law, guideline or interpretation or any change in any
Law, guideline or interpretation or application thereof by any Official Body
charged with the interpretation or administration thereof or compliance with any
request or directive (whether or not having the force of Law) of any central
bank or other Official Body:
(i) subjects any Bank to any tax or changes
the basis of taxation with respect to this Agreement, the Notes, the Loans or
payments by the Borrower of principal, interest, Commitment Fees, or other
amounts due from the Borrower hereunder or under the Notes (except for taxes on
the overall net income of such Bank),
(ii) imposes, modifies or deems applicable any
reserve, special deposit or similar requirement against credits or commitments
to extend credit extended
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by, or assets (funded or contingent) of, deposits with or for the account of, or
other acquisitions of funds by, any Bank, or
(iii) imposes, modifies or deems applicable
any capital adequacy or similar requirement (A) against assets (funded or
contingent) of, or letters of credit, other credits or commitments to extend
credit extended by, any Bank, or (B) otherwise applicable to the obligations of
any Bank under this Agreement, and the result of any of the foregoing is to
increase the cost to, reduce the income receivable by, or impose any expense
(including loss of margin) upon any Bank with respect to this Agreement, the
Notes or the making, maintenance or funding of any part of the Loans (or, in the
case of any capital adequacy or similar requirement, to have the effect of
reducing the rate of return on any Bank's capital, taking into consideration
such Bank's customary policies with respect to capital adequacy) by an amount
which such Bank in its sole discretion deems to be material, such Bank shall
from time to time notify the Borrower and the Agent of the amount determined in
good-faith (using any averaging and attribution methods employed in good-faith)
by such Bank to be necessary to compensate such Bank for such increase in cost,
reduction of income or additional expense (to the extent not reflected in the
determination of Base Rate). Such notice shall set forth in reasonable detail
the basis for such determination. Such amount shall be due and payable by the
Borrower to such Bank ten (10) Business Days after such notice is given.
4.6.2 Indemnity.
In addition to the compensation required by subsection 4.6.1
of this Section 4.6, the Borrower shall indemnify each Bank against all
liabilities, losses or expenses (including loss of margin, any loss or expense
incurred in liquidating or employing deposits from third parties and any loss or
expense incurred in connection with funds acquired by a Bank to fund or maintain
Loans subject to the Euro-Rate Option) which such Bank actually sustains or
incurs as a consequence of any
(i) payment, prepayment, conversion or renewal
of any Loan to which the Euro-Rate Option applies on a day other than the last
day of the corresponding Interest Period (whether or not such payment or
prepayment is mandatory, voluntary or automatic and whether or not such payment
or prepayment is then due),
(ii) attempt by the Borrower to revoke
(expressly, by later inconsistent notices or otherwise) in whole or part any
notice relating to Loan Requests under Section 2.4 or Section 3.2 or prepayments
under Section 4.4, or
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(iii) default by the Borrower in the
performance or observance of any covenant or condition contained in this
Agreement or any other Loan Document, including any failure of the Borrower to
pay when due (by acceleration or otherwise) any principal, interest, Commitment
Fee or any other amount due hereunder.
If any Bank actually sustains or incurs any such loss or
expense, it shall from time to time notify the Borrower of the amount determined
in good-faith by such Bank (which determination may include such assumptions,
allocations of costs and expenses and averaging or attribution methods as such
Bank shall deem reasonable) to be necessary to indemnify such Bank for such loss
or expense. Such notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by the Borrower to such Bank
ten (10) Business Days after such notice is given.
5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties.
The Borrower represents and warrants to the Agent and each of the Banks
as follows:
5.1.1 Organization and Qualification.
The Borrower and each Subsidiary of the Borrower is a
corporation or partnership, duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization. The Borrower and
each Subsidiary of the Borrower has the lawful power to own or lease its
properties and to engage in the business it presently conducts or proposes to
conduct. The Borrower and each Subsidiary of the Borrower is duly licensed or
qualified and in good standing in each jurisdiction listed on Schedule 5.1.1 and
in all other jurisdictions where the property owned or leased by it or the
nature of the business transacted by it or both makes such licensing or
qualification necessary.
5.1.2 Capitalization and Ownership.
Schedule 5.1.2 states, as of the Closing Date, the
authorized capital stock of the Borrower, the issued and outstanding shares
(referred to herein as the "Shares") of such stock, and the names of any parties
beneficially owning, individually or through affiliates, more than 5% thereof.
All of the Shares have been validly issued and are fully paid and nonassessable.
There are no options, warrants or other rights outstanding to purchase any such
Shares except as indicated on Schedule 5.1.2.
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5.1.3 Subsidiaries.
Schedule 5.1.3 states, as of the Closing Date, the name of
each of the Borrower's Subsidiaries, its jurisdiction of incorporation, its
authorized capital stock, the issued and outstanding shares (referred to herein
as the "Subsidiary Shares") and the owners thereof if it is a corporation and
its outstanding partnership interests (the "Partnership Interest") if it is a
partnership. The Borrower and each Subsidiary of the Borrower has good and
marketable title to all of the Subsidiary Shares and Partnership Interests it
purports to own, free and clear in each case of any Lien. All Subsidiary Shares
and Partnership Interests have been validly issued, and all Subsidiary Shares
are fully paid and nonassessable. All capital contributions and other
consideration required to be made or paid in connection with the issuance of the
Partnership Interests have been made or paid, as the case may be. There are no
options, warrants or other rights outstanding to purchase any such Subsidiary
Shares or Partnership Interests except as indicated on Schedule 5.1.3.
5.1.4 Power and Authority.
The Borrower has full power to enter into, execute, deliver
and carry out this Agreement and the other Loan Documents to which it is a
party, to incur the Indebtedness contemplated by the Loan Documents and to
perform its Obligations under the Loan Documents to which it is a party, and all
such actions have been duly authorized by all necessary proceedings on its part.
5.1.5 Validity and Binding Effect.
This Agreement has been duly and validly executed and
delivered by the Borrower, and each other Loan Document which the Borrower is
required to execute and deliver on or after the date hereof will have been duly
executed and delivered by the Borrower on the required date of delivery of such
Loan Document. This Agreement and each other Loan Document constitutes, or will
constitute, legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with its terms, except to the extent that
enforceability of any of such Loan Document may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforceability of creditors' rights generally or limiting the right of specific
performance.
5.1.6 No Conflict.
Neither the execution and delivery of this Agreement or the
other Loan Documents by the Borrower nor the consummation of the transactions
herein or therein
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contemplated or compliance with the terms and provisions hereof or thereof by
them will conflict with, constitute a default under or result in any breach of
(i) the terms and conditions of the certificate of incorporation, bylaws or
other organizational documents of the Borrower or (ii) any Law or of any
material agreement, instrument, order, writ, judgment, injunction or decree to
which the Borrower is a party or by which it is bound or to which it is subject,
or result in the creation or enforcement of any Lien, charge or encumbrance
whatsoever upon any property (now or hereafter acquired) of the Borrower (other
than Liens granted under the Loan Documents).
5.1.7 Litigation.
There are no actions, suits, proceedings or investigations
pending or, to the knowledge of the Borrower, threatened against the Borrower or
any Subsidiary of the Borrower at law or equity before any Official Body which
individually or in the aggregate may result in any Material Adverse Change.
Neither the Borrower nor any Subsidiaries of the Borrower is in violation of any
order, writ, injunction or any decree of any Official Body which may result in
any Material Adverse Change.
5.1.8 Title to Properties.
The real property owned or leased by the Borrower and each
Subsidiary of the Borrower is described on Schedule 5.1.8. The Borrower and each
Subsidiary of the Borrower has good and marketable title to or valid leasehold
interests in all properties, assets and other rights which it purports to own or
lease or which are reflected as owned or leased on its books and records, free
and clear of all Liens and encumbrances except Permitted Liens, and subject to
the terms and conditions of the applicable leases. All leases of property are in
full force and effect without the necessity for any consent which has not
previously been obtained upon consummation of the transactions contemplated
hereby.
5.1.9 Financial Statements.
(i) Historical Statements. The Borrower has delivered
to the Agent copies of its audited consolidated and unaudited consolidating
year-end financial statements for and as of the end of the fiscal year ended
March 31, 1996 (the "Annual Statements"). In addition, the Borrower has
delivered to the Agent copies of its Form 10-Q for the period ended December 31,
1996 (the "Interim Statements") (the Annual and Interim Statements being
collectively referred to as the "Historical Statements"). The Historical
Statements were compiled from the books and records maintained by the Borrower's
management, are correct and complete and present fairly in all material respects
the financial
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condition of the Borrower as of their dates and the results of operations for
the fiscal periods then ended and have been prepared in accordance with GAAP
consistently applied, subject (in the case of the Interim Statements) to normal
year-end audit adjustments and the absence of footnotes.
(ii) Accuracy of Financial Statements. The Borrower
does not have any liabilities, contingent or otherwise, or forward or long-term
commitments that are not disclosed in the Historical Statements or in the notes
thereto, and except as disclosed therein there are no unrealized or anticipated
losses from any commitments of the Borrower or any Subsidiary of the Borrower
which may cause a Material Adverse Change. Since December 31, 1996, no Material
Adverse Change has occurred.
5.1.10 Margin Stock.
Neither the Borrower nor any of its Subsidiaries engages or
intends to engage principally, or as one of its important activities, in the
business of extending credit for the purpose, immediately, incidentally or
ultimately, of purchasing or carrying margin stock (within the meaning of
Regulation U). No part of the proceeds of any Loan has been or will be used,
immediately, incidentally or ultimately, to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying any
margin stock or to refund Indebtedness originally incurred for such purpose, or
for any purpose which entails a violation of or which is inconsistent with the
provisions of Regulation U of the Board of Governors of the Federal Reserve
System. Neither the Borrower nor any of its Subsidiaries holds or intends to
hold margin stock in such amounts that more than 25% of the reasonable value of
the assets of the Borrower or any of its Subsidiaries are or will be represented
by margin stock.
5.1.11 Full Disclosure.
Neither this Agreement nor any other Loan Document, nor any
certificate, statement, agreement or other documents furnished to the Agent or
any Bank in connection herewith or therewith, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein, in light of the circumstances under
which they were made, not misleading. On the Closing Date, there is no fact
known to the Borrower which materially adversely affects the business, property,
assets, financial condition, results of operations or prospects of the Borrower
or any Subsidiary of the Borrower which has not been set forth in this Agreement
or in the certificates, statements, agreements or other documents furnished in
writing to the Agent and the Banks prior to or at the date hereof in connection
with the transactions contemplated hereby.
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5.1.12 Taxes.
All federal, state, local and other tax returns required to
have been filed with respect to the Borrower and each Subsidiary of the Borrower
have been filed, and payment or adequate provision has been made for the payment
of all taxes, fees, assessments and other governmental charges which have or may
become due pursuant to said returns or to assessments received, except to the
extent that such taxes, fees, assessments and other charges are being contested
in good faith by appropriate proceedings diligently conducted and for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made. Other than extensions of tax return filing deadlines for
which the Borrower has applied in the ordinary course of business, there are no
agreements or waivers extending the statutory period of limitations applicable
to any federal income tax return of the Borrower or any of its Subsidiaries for
any period.
5.1.13 Consents and Approvals.
No consent, approval, exemption, order or authorization of, or
a registration or filing with, any Official Body or any other Person is required
by any Law or any agreement in connection with the execution, delivery and
carrying out of this Agreement and the other Loan Documents by the Borrower,
except as listed on Schedule 5.1.13, all of which shall have been obtained or
made on or prior to the Closing Date except as otherwise indicated on Schedule
5.1.13.
5.1.14 No Event of Default; Compliance with Instruments.
No event has occurred and is continuing and no condition
exists or will exist after giving effect to the borrowings to be made on the
Closing Date under the Loan Documents which constitutes an Event of Default or
Potential Default. Neither the Borrower nor any of its Subsidiaries is in
violation of (i) any term of its certificate of incorporation, bylaws, or other
organizational documents or (ii) any material agreement or instrument to which
it is a party or by which it or any of its properties may be subject or bound
where such violation would constitute a Material Adverse Change.
5.1.15 Patents, Trademarks, Copyrights, Licenses, Etc.
The Borrower and each Subsidiary of the Borrower owns or
possesses all the material patents, trademarks, service marks, trade names,
copyrights, licenses, registrations, franchises, permits and rights necessary to
own and operate its properties and to carry on its
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business as presently conducted and planned to be conducted by the Borrower and
its Subsidiaries, without known conflict with the rights of others.
5.1.16 Insurance.
All insurance policies and other bonds to which the Borrower
and each of its Subsidiaries is a party are valid and in full force and effect.
No notice has been given or claim made and no grounds exist to cancel or avoid
any of such policies or bonds or to reduce the coverage provided thereby. Such
policies and bonds provide adequate coverage from reputable and financially
sound insurers in amounts sufficient to insure the assets and risks of the
Borrower and each Subsidiary of the Borrower in accordance with prudent business
practice in the industries of the Borrower and its Subsidiaries.
5.1.17 Compliance with Laws.
The Borrower and its Subsidiaries are in compliance in all
material respects with all applicable Laws (other than Environmental Laws which
are specifically addressed in subsection 5.1.22) in all jurisdictions in which
the Borrower and its Subsidiaries do business except where the failure to so
comply would not constitute a Material Adverse Change.
5.1.18 Material Contracts.
All material contracts relating to the business operations of
the Borrower and each Subsidiary of the Borrower, including all employee benefit
plans and Labor Contracts are valid, binding and enforceable upon the Borrower
or each such Subsidiary and each of the other parties thereto in accordance with
their respective terms, and there is no default thereunder by the Borrower or
any such Subsidiary or, to the Borrower's knowledge, with respect to parties
other than the Borrower or any such Subsidiary, which could result in a Material
Adverse Change.
5.1.19 Investment Companies.
Neither the Borrower nor any of its Subsidiaries is an
"investment company" registered or required to be registered under the
Investment Company Act of 1940 or under the "control" of an "investment company"
as such terms are defined in the Investment Company Act of 1940 and shall not
become such an "investment company" or under such "control."
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5.1.20 Plans and Benefit Arrangements.
Except as set forth on Schedule 5.1.20:
(i) The Borrower and each member of the ERISA Group
are in compliance in all material respects with any applicable provisions of
ERISA with respect to all Benefit Arrangements, Plans and Multiemployer Plans.
There has been no Prohibited Transaction with respect to any Benefit Arrangement
or any Plan or, to the knowledge of the Borrower, with respect to any
Multiemployer Plan or Multiple Employer Plan, which could result in any material
liability of the Borrower or any other member of the ERISA Group. The Borrower
and all members of the ERISA Group have made when due any and all payments
required to be made under any agreement relating to a Multiemployer Plan or a
Multiple Employer Plan or any Law pertaining thereto. With respect to each Plan
and Multiemployer Plan, the Borrower and each member of the ERISA Group (i) have
fulfilled in all material respects their obligations under the minimum funding
standards of ERISA, (ii) have not incurred any liability to the PBGC, and (iii)
have not had asserted against them any penalty for failure to fulfill the
minimum funding requirements of ERISA.
(ii) To the Borrower's knowledge, each Multiemployer
Plan and Multiple Employer Plan is able to pay benefits thereunder when due.
(iii) Neither the Borrower nor any other member of
the ERISA Group has instituted or intends to institute proceedings to terminate
any Plan.
No event requiring notice to the PBGC under Section
302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur with
respect to any Plan, and no amendment with respect to which security is required
under Section 307 of ERISA has been made or is reasonably expected to be made to
any Plan.
(iv) The aggregate actuarial present value of
accumulated benefit obligations (as per Financial Accounting Standards Board
Opinion No. 87) under each Plan, as disclosed in, and as of the date of, the
most recent actuarial report for such Plan, does not exceed the aggregate fair
market value of the assets of such Plan.
(v) Neither the Borrower nor any other member of the
ERISA Group has incurred or reasonably expects to incur any material withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer Plan.
Neither the Borrower nor any other member of the ERISA Group has been notified
by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan
or Multiple Employer Plan has been
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terminated within the meaning of Title IV of ERISA and, to the knowledge of the
Borrower, no Multiemployer Plan or Multiple Employer Plan is reasonably expected
to be reorganized or terminated, within the meaning of Title IV of ERISA.
(vi) To the extent that any Benefit Arrangement is
insured, the Borrower and all members of the ERISA Group have paid when due all
premiums required to be paid for all periods through the Closing Date. To the
extent that any Benefit Arrangement is funded other than with insurance, the
Borrower and all members of the ERISA Group have made when due all contributions
required to be paid for all periods through the Closing Date.
(vii) All Plans, Benefit Arrangements and to the
knowledge of the Borrower Multiemployer Plans have been administered in all
material respects in accordance with their terms and the applicable provisions
of ERISA.
5.1.21 Employment Matters.
The Borrower and each of its Subsidiaries is in compliance
with the Labor Contracts and all applicable federal, state and local labor and
employment Laws including those related to equal employment opportunity and
affirmative action, labor relations, minimum wage, overtime, child labor,
medical insurance continuation, worker adjustment and relocation notices,
immigration controls and worker and unemployment compensation, where the failure
to comply would constitute a Material Adverse Change. There are no outstanding
grievances, arbitration awards or appeals therefrom arising out of the Labor
Contracts or current or threatened strikes, picketing, handbilling or other work
stoppages or slowdowns at facilities of the Borrower or any of its Subsidiaries
which in any case would constitute a Material Adverse Change.
5.1.22 Environmental Matters.
Except as disclosed on Schedule 5.1.22 and except as is not
reasonably likely to constitute or result in a Material Adverse Change:
(i) Neither the Borrower nor any Subsidiary of the
Borrower has received any Environmental Complaint from any Official Body or
private Person alleging that such Borrower or Subsidiary or, with respect to the
Property, any prior or subsequent owner of the Property is a potentially
responsible party under the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601, et seq., and the Borrower has no
reason to believe that such an Environmental Complaint is reasonably likely
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to be received. There are no pending or, to the Borrower's knowledge, threatened
Environmental Complaints relating to the Borrower or any Subsidiary of the
Borrower or, to the Borrower's knowledge with respect to the Property, any prior
or subsequent owner of the Property pertaining to, or arising out of, any
Environmental Conditions.
(ii) There are no circumstances at, on or under the
Property that constitute a breach of or non-compliance with any of the
Environmental Laws, and there are no Environmental Conditions at, on or under
the Property or, to the knowledge of the Borrower, at, on or under adjacent
property, that prevent compliance with the Environmental Laws at the Property.
(iii) Neither the Property nor any structures,
improvements, equipment, fixtures, activities or facilities thereon or
thereunder contain or use Regulated Substances except in compliance with
Environmental Laws. There are no processes, facilities, operations, equipment or
any other activities at, on or under the Property, or, to the knowledge of the
Borrower, at, on or under adjacent property, that currently result in the
release or threatened release of Regulated Substances onto the Property, except
to the extent that such releases or threatened releases are not a breach of or
otherwise not a violation of the Environmental Laws or are not likely to result
in a Material Adverse Change.
(iv) The Borrower and each Subsidiary of the Borrower
has all permits, licenses, authorizations, plans and approvals necessary under
the Environmental Laws for the conduct of the business of the Borrower and its
Subsidiaries as presently conducted. The Borrower and each Subsidiary of the
Borrower has submitted all notices, reports and other filings required by the
Environmental Laws to be submitted to an Official Body which pertain to past and
current operations on the Property.
(v) All past and present on-site generation, storage,
processing, treatment, recycling, reclamation, disposal or other use or
management of Regulated Substances at, on, or under the Property and all
off-site transportation, storage, processing, treatment, recycling, reclamation,
disposal or other use or management of Regulated Substances has been done by the
Borrower and its Subsidiaries in accordance with the Environmental Laws.
5.1.23 Senior Debt Status.
The Obligations of the Borrower under this Agreement, the
Notes, and each of the other Loan Documents to which it is a party do rank and
will rank at least pari passu in priority of payment with all other Indebtedness
of the Borrower except Indebtedness of the
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Borrower to the extent secured by Permitted Liens. There is no Lien upon or with
respect to any of the properties or income of the Borrower or any Subsidiary of
the Borrower which secures indebtedness or other obligations of any Person
except for Permitted Liens.
5.2 Updates to Schedules.
Should any of the information or disclosures provided on any
of the Schedules attached hereto become outdated or incorrect in any material
respect, the Borrower shall promptly provide the Agent in writing with such
revisions or updates to such Schedule as may be necessary or appropriate to
update or correct same; provided, however, that no Schedule shall be deemed to
have been amended, modified or superseded by any such correction or update, nor
shall any breach of warranty or representation resulting from the inaccuracy or
incompleteness of any such Schedule be deemed to have been cured thereby, unless
and until the Required Banks, in their sole and absolute discretion, shall have
accepted in writing such revisions or updates to such Schedule.
6. CONDITIONS OF LENDING
The obligation of each Bank to make Loans and of the Agent to
issue Letters of Credit hereunder is subject to the performance by the Borrower
of its Obligations to be performed hereunder at or prior to the making of any
such Loans or issuance of such Letters of Credit and to the satisfaction of the
following further conditions:
6.1 At Closing.
On the Closing Date:
6.1.1 Officer's Certificate.
The representations and warranties of the Borrower
contained in Article 5 shall be true and accurate on and as of the Closing Date
with the same effect as though such representations and warranties had been made
on and as of such date (except representations and warranties which relate
solely to an earlier date or time, which representations and warranties shall be
true and correct on and as of the specific dates or times referred to therein),
and the Borrower shall have performed and complied with all covenants and
conditions hereof, no Event of Default or Potential Default under this Agreement
shall have occurred and be continuing or shall exist; and there shall be
delivered to the Agent for the benefit of each Bank a certificate of the
Borrower, dated the Closing Date and signed by the
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Chief Executive Officer, President or Chief Financial Officer of the Borrower,
to each such effect.
6.1.2 Secretary's Certificate.
There shall be delivered to the Agent for the benefit
of each Bank a certificate dated the Closing Date and signed by the Secretary or
an Assistant Secretary of the Borrower, certifying as appropriate as to:
(i) all action taken by the Borrower in
connection with this Agreement and the other Loan Documents;
(ii) the names of the officer or officers
authorized to sign this Agreement and the other Loan Documents and the true
signatures of such officer or officers and specifying the Authorized Officers
permitted to act on behalf of the Borrower for purposes of this Agreement and
the true signatures of such officers, on which the Agent and each Bank may
conclusively rely; and
(iii) copies of its organizational documents,
including its certificate of incorporation and bylaws as in effect on the
Closing Date.
6.1.3 Delivery of Loan Documents.
The Notes shall have been duly executed and delivered
to the Agent for the benefit of the Banks.
6.1.4 Opinion of Counsel.
There shall be delivered to the Agent for the benefit
of each Bank a written opinion of Richard M. Eisenstaedt, general counsel for
the Borrower (who may rely on the opinions of such other counsel as may be
acceptable to the Agent), dated the Closing Date and in form and substance
satisfactory to the Agent and its counsel:
(i) as to the matters set forth in Exhibit
6.1.4; and
(ii) as to such other matters incident to the
transactions contemplated herein as the Agent may reasonably request.
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6.1.5 Legal Details.
All legal details and proceedings in connection with
the transactions contemplated by the Agreement and the other Loan Documents
shall be in form and substance satisfactory to the Agent and counsel for the
Agent, and the Agent shall have received all such other counterpart originals or
certified or other copies of such documents and proceedings in connection with
such transactions, in form and substance satisfactory to the Agent and said
counsel, as the Agent or said counsel may reasonably request.
6.1.6 Payment of Fees.
The Borrower shall pay or cause to be paid to the
Agent for itself and for the account of the Banks, to the extent not previously
paid, all commitment and other fees accrued through the Closing Date and the
costs and expenses for which the Agent and the Banks are entitled to be
reimbursed.
6.1.7 Consents.
All material consents required to effectuate the
transactions contemplated hereby as set forth on Schedule 5.1.13 shall have been
obtained.
6.1.8 Officer's Certificate Regarding MACs.
Since December 31, 1996, no Material Adverse Change
in the Borrower or Subsidiary of the Borrower shall have occurred; and there
shall be delivered to the Agent for the benefit of each Bank a certificate dated
the Closing Date and signed by the Chief Executive Officer, President or Chief
Financial Officer of the Borrower to such effect.
6.1.9 No Violation of Laws.
The making of the Loans shall not contravene any Law
applicable to the Borrower or any of the Banks.
6.1.10 No Actions or Proceedings.
No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of this Agreement or the consummation of the
transactions contemplated hereby or which, in the Agent's sole
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discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement or any of the other Loan Documents.
6.1.11 Insurance Policies; Certificates of Insurance;
Endorsements.
Upon the Agent's request, the Borrower shall deliver
evidence acceptable to the Agent that adequate insurance in compliance with
Section 7.1.3 is in full force and effect and that all premiums then due thereon
have been paid, together with a certified copy of the Borrower's casualty
insurance policy or policies evidencing coverage satisfactory to the Agent, with
an additional insured, special endorsement attached thereto in form and
substance satisfactory to the Agent and its counsel naming the Agent as
additional insured.
6.1.12 Other Credit Documents.
The Borrower shall have delivered to the Agent,
copies of all documents evidencing or securing any of its Indebtedness that will
remain outstanding after the Closing Date. The terms of all such Indebtedness
shall be satisfactory to the Agent in all respects.
6.2 Each Additional Loan.
At the time of making any Loans or issuing any Letters of
Credit other than Loans made or Letters of Credit issued on the Closing Date
hereunder and after giving effect to the proposed borrowings: the
representations and warranties of the Borrower contained in Article 5 shall be
true on and as of the date of such additional Loan or Letter of Credit with the
same effect as though such representations and warranties had been made on and
as of such date (except representations and warranties which expressly relate
solely to an earlier date or time, which representations and warranties shall be
true and correct on and as of the specific dates or times referred to therein)
and the Borrower shall have performed and complied with all covenants and
conditions hereof; no Event of Default or Potential Default shall have occurred
and be continuing or shall exist; the making of the Loans or issuance of such
Letter of Credit shall not contravene any Law applicable to the Borrower or any
Subsidiary of the Borrower or any of the Banks; and the Borrower shall have
delivered to the Agent a duly executed and completed Loan Request or application
for a Letter of Credit as the case may be.
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7. COVENANTS
7.1 Affirmative Covenants.
The Borrower covenants and agrees that until payment in full
of the Loans and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Borrower's other Obligations under the Loan
Documents and termination of the Revolving Credit Commitments, the Borrower
shall comply at all times with the following affirmative covenants:
7.1.1 Preservation of Existence, Etc.
The Borrower shall, and shall cause each of its
Subsidiaries to, maintain its corporate existence and its license or
qualification and good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license or
qualification necessary.
7.1.2 Payment of Liabilities, Including Taxes, Etc.
The Borrower shall, and shall cause each of its
Subsidiaries to, duly pay and discharge all liabilities to which it is subject
or which are asserted against it, promptly as and when the same shall become due
and payable, including all taxes, assessments and governmental charges upon it
or any of its properties, assets, income or profits, prior to the date on which
penalties attach thereto, except to the extent that such liabilities, including
taxes, assessments or charges, are being contested in good-faith and by
appropriate and lawful proceedings diligently conducted and for which such
reserve or other appropriate provisions, if any, as shall be required by GAAP
shall have been made, but only to the extent that failure to discharge any such
liabilities would not result in any additional liability which would adversely
affect to a material extent the financial condition of the Borrower or
Subsidiary of the Borrower, provided that the Borrower and its Subsidiaries will
pay all such liabilities forthwith upon the commencement of proceedings to
foreclose any Lien which may have attached as security therefor.
7.1.3 Maintenance of Insurance.
The Borrower shall, and shall cause each of its
Subsidiaries to, insure its properties and assets against loss or damage by fire
and such other insurable hazards as such assets are commonly insured (including
fire, extended coverage, property damage, workers' compensation, public
liability and business interruption insurance) and against other risks
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(including errors and omissions) in such amounts as similar properties and
assets are insured by prudent companies in similar circumstances carrying on
similar businesses, and with reputable and financially sound insurers, including
self-insurance to the extent customary, all as reasonably determined by the
Agent. At the request of the Agent, the Borrower shall deliver (x) on the
Closing Date and annually thereafter an original certificate of insurance signed
by the Borrower's independent insurance broker describing and certifying as to
the existence of the insurance required to be maintained by this Agreement and
the other Loan Documents, together with a copy of the endorsement described in
the next sentence attached to such certificate and (y) from time to time a
summary schedule indicating all insurance then in force with respect to the
Borrower and its Subsidiaries. Such policies of insurance shall contain special
endorsements, in form and substance acceptable to the Agent, which shall (i)
specify the Agent as an additional insured as its interests may appear, with the
understanding that any obligation imposed upon the insured (including the
liability to pay premiums) shall be the sole obligation of the Borrower or
relevant Subsidiary and not that of the Agent, (ii) include effective waivers by
the insurer of all claims for insurance premiums against the Agent, (iii)
provide that no cancellation of such policies for any reason (including
non-payment of premium) nor any change therein shall be effective until at least
thirty (30) days after receipt by the Agent of written notice of such
cancellation or change, (iv) be primary without right of contribution of any
other insurance carried by or on behalf of any additional insureds, and (v)
provide that inasmuch as the policy covers more than one insured, all terms,
conditions, insuring agreements and endorsements (except limits of liability)
shall operate as if there were a separate policy covering each insured. The
Borrower shall notify the Agent promptly of any occurrence causing a material
loss or decline in value of insured assets and the estimated (or actual, if
available) amount of such loss or decline. Any monies received by the Agent
constituting insurance proceeds may, at the option of the Agent, be disbursed to
the Borrower or the relevant Subsidiary on such terms as are deemed appropriate
by the Agent for the repair, restoration and/or replacement of property in
respect of which such proceeds were received.
7.1.4 Maintenance of Properties and Leases.
The Borrower shall, and shall cause each of its
Subsidiaries to, maintain in good repair, working order and condition (ordinary
wear and tear excepted) in accordance with the general practice of other
businesses of similar character and size, all of those properties useful or
necessary to its business, and from time to time, the Borrower will make or
cause to be made all appropriate repairs, renewals or replacements thereof.
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7.1.5 Maintenance of Patents, Trademarks, Etc.
The Borrower shall, and shall cause each of its
Subsidiaries to, maintain in full force and effect all patents, trademarks,
trade names, copyrights, licenses, franchises, permits and other authorizations
necessary for the ownership and operation of its properties and business if the
failure so to maintain the same would constitute a Material Adverse Change.
7.1.6 Visitation Rights.
The Borrower shall, and shall cause each of its
Subsidiaries to, permit any of the officers or authorized employees or
representatives of the Agent or any of the Banks to visit and inspect any of its
properties and to examine and make excerpts from its books and records and
discuss its business affairs, finances and accounts with its officers, all in
such detail and at such times during normal business hours and as often as any
of the Banks may reasonably request, provided that each Bank shall provide the
Borrower and the Agent with reasonable notice prior to any visit or inspection.
In the event any Bank desires to conduct an audit of the Borrower, such Bank
shall make a reasonable effort to conduct such audit contemporaneously with any
audit to be performed by the Agent. The Borrower shall not be obligated to
reimburse the Agent and the Banks for more than one audit per year.
7.1.7 Keeping of Records and Books of Account.
The Borrower shall, and shall cause each of its
Subsidiaries to, maintain and keep proper books of record and account which
enable the Borrower and its Subsidiaries to issue financial statements in
accordance with GAAP and as otherwise required by applicable Laws of any
Official Body having jurisdiction over the Borrower or any Subsidiary of the
Borrower, and in which full, true and correct entries shall be made in all
material respects of all its dealings and business and financial affairs.
7.1.8 Plans and Benefit Arrangements.
The Borrower shall, and shall cause each member of
the ERISA Group to, comply with the provisions of ERISA and the Internal Revenue
Code applicable to each Plan and Benefit Arrangement except where such failure,
alone or in conjunction with any other failure, would not result in a Material
Adverse Change. Without limiting the generality of the foregoing, the Borrower
shall cause all of its Plans and all Plans maintained by any member of the ERISA
Group to be funded in accordance with the minimum funding requirements of ERISA
and shall make, and cause each member of the ERISA Group to make, in a timely
manner, all contributions due to Plans, Benefit Arrangements and Multiemployer
Plans.
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7.1.9 Compliance with Laws.
The Borrower shall, and shall cause each of its
Subsidiaries to, comply with all applicable Laws, including all Environmental
Laws, in all respects, provided that it shall not be deemed to be a violation of
this Section 7.1.9 if any failure to comply with any Law would not result in
fines, penalties, remediation costs, other similar liabilities or injunctive
relief which in the aggregate would constitute a Material Adverse Change.
7.1.10 Use of Proceeds.
The Borrower will use the proceeds of the Loans only
for lawful purposes in accordance with Section 2.7 as applicable and such uses
shall not contravene any applicable Law or any other provision hereof.
7.2 Negative Covenants.
The Borrower covenants and agrees that until payment in full
of the Loans and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Borrower's other Obligations hereunder and
termination of the Revolving Credit Commitments, the Borrower shall comply, and
shall cause its Subsidiaries to comply, with the following negative covenants:
7.2.1 Indebtedness.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, at any time create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness as set forth on
Schedule 7.2.1 (including any extensions or renewals thereof, provided there is
no increase in the amount thereof or other significant change in the terms
thereof unless otherwise specified on Schedule 7.2.1);
(iii) Capitalized and operating leases as and
to the extent permitted under Section 7.2.15;
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(iv) PIK Subordinated Indebtedness, provided
that no such Indebtedness shall mature earlier than one year after the
Expiration Date in effect at the time such Indebtedness was incurred;
(v) Indebtedness secured by Purchase Money
Security Interests not exceeding $5,000,000 in the aggregate outstanding at any
time; and
(vi) Indebtedness under lines of credit to
Borrower for money market borrowings of no more than $10,000,000 in the
aggregate outstanding at any time; and
(vii) Indebtedness assumed by Borrower or any
Subsidiary in an acquisition or merger permitted under Section 7.2.6(ii),
provided that such assumption did not and will not cause an Event of Default;
(viii) Other Indebtedness of Subsidiaries;
provided that the sum of the outstanding principal amount of (A) all
Indebtedness of Subsidiaries, other than PIK Subordinated Indebtedness, plus (B)
secured Indebtedness of the Borrower shall not at any time exceed 15% of
Consolidated Net Worth.
7.2.2 Liens.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, at any time create, incur, assume or suffer to exist any
Lien on any of its property or assets, tangible or intangible, now owned or
hereafter acquired, or agree or become liable to do so, except Permitted Liens.
7.2.3 Guaranties.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, at any time, directly or indirectly, become or be liable in
respect of any Guaranty, or assume, guarantee, become surety for, endorse or
otherwise agree, become or remain directly or contingently liable upon or with
respect to any obligation or liability of any other Person, except for
Guaranties of Indebtedness of the Borrower and its Subsidiaries permitted
hereunder.
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7.2.4 Loans and Investments.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, at any time make or suffer to remain outstanding any loan
or advance to, or purchase, acquire or own any stock, bonds, notes or securities
of, or any partnership interest (whether general or limited) in, or any other
investment or interest in, or make any capital contribution to, any other
Person, or agree, become or remain liable to do any of the foregoing, except:
(i) trade credit extended on usual and
customary terms in the ordinary course of business;
(ii) advances to employees to meet expenses
incurred by such employees in the ordinary course of business;
(iii) Permitted Investments;
(iv) loans, advances, investments and capital
contributions in and to the Subsidiaries of the Borrower; and
(v) acquisitions permitted under Section
7.2.6(ii).
7.2.5 Dividends and Related Distributions.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, make or pay, or agree to become or remain liable to make or
pay, any dividend or other distribution of any nature (whether in cash,
property, securities or otherwise) on account of or in respect of its shares of
capital stock or partnership interests on account of the purchase, redemption,
retirement or acquisition of its shares of capital stock (or warrants, options
or rights therefor) or partnership interests, except
(i) dividends or other distributions payable
to the Borrower by its Subsidiaries;
(ii) distributions to fund the quarterly
interest payments due on the Alco Note; provided that before making any such
quarterly payment, the Borrower demonstrates to the satisfaction of the Agent
that the Borrower will be in compliance with the financial covenants set forth
in Section 7.2 (specifically with the proposed Alco Note interest payment
included in the denominator in the calculation of the Debt Service Coverage
Ratio) and that no other Event of Default then exists or will result from the
payment;
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(iii) redemptions of an employee's Capital
Stock in the Borrower upon termination of employment; provided that before
making any such redemption, the Borrower demonstrates to the satisfaction of the
Agent that the Borrower will be in compliance with the financial covenants set
forth in Section 7.2 and that no other Event of Default then exists or will
result from the redemption;
(iv) dividends or other distributions payable
in stock; and
(iv) distributions to fund the interest and
principal payments due on the 10 1/2% junior subordinated promissory note issued
by Triumph Controls, Inc. to TFX Equities, Inc. dated January 23, 1996 in the
original aggregate principal amount of $344,000.
7.2.6 Liquidations, Mergers, Consolidations,
Acquisitions.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a
party to any merger or consolidation, or acquire by purchase, lease or otherwise
all or substantially all of the assets or capital stock of any other Person,
except that
(i) any Subsidiary may consolidate or merge
into the Borrower or another Subsidiary;
(ii) the Borrower or any of its Subsidiaries
may acquire assets or Capital Stock of other Persons engaged in the business of
aviation services, metals converting, or metals distribution provided that (a)
any such Person has a history of positive operating profits and reasonable
prospects for continuing to produce operating profits in the future; (b) no
Event of Default exists or will result from such acquisition; and (c) following
the closing of the acquisition, the Borrower will have at least $2,000,000 in
availability under the Revolving Credit Commitments; and
(iii) Quality Park Products, Inc. may be
dissolved.
7.2.7 Dispositions of Assets or Subsidiaries.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer
or dispose of, voluntarily or involuntarily, any of its properties or assets,
tangible or intangible (including sale, assignment, discount or other
disposition of accounts, contract rights, chattel paper, equipment or general
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intangibles with or without recourse or of capital stock, shares of beneficial
interest or partnership interests of a Subsidiary of the Borrower), except:
(i) transactions involving the sale of
inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in
the ordinary course of business which are no longer necessary or required in the
conduct of the Borrower's business;
(iii) any sale, transfer or lease of assets by
any Subsidiary of the Borrower to the Borrower or another Subsidiary;
(iv) any sale, transfer or lease of assets in
the ordinary course of business which are replaced by substitute assets acquired
or leased within the parameters of Section 7.2.15.
(v) any sale, transfer, or lease of assets the
after-tax proceeds of which, when added to the after-tax proceeds of other
sales, transfers and leases of assets in the same fiscal year, do not exceed
$2,000,000 in the aggregate for Borrower and its Subsidiaries; and
(vi) any sale, transfer or lease of assets,
other than those specifically excepted pursuant to clauses (i) through (v)
above, which is approved by the Required Banks.
7.2.8 Affiliate Transactions.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, enter into or carry out any transaction (including
purchasing property or services from or selling property or services to any
Affiliate of the Borrower or other Person) unless such transaction is not
otherwise prohibited by this Agreement, is entered into in the ordinary course
of business upon fair and reasonable arm's-length terms and conditions and is in
accordance with all applicable Law. The payment of customary directors fees
shall not be considered a prohibited Affiliate transaction.
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7.2.9 Subsidiaries, Partnerships and Joint Ventures.
(i) The Borrower shall not and shall not
permit any of its Subsidiaries to, become or agree to become a general or
limited partner in any general or limited partnership or a joint venturer in any
joint venture, except that the Borrower and its Subsidiaries may be general or
limited partners in any of its or their Subsidiaries.
(ii) The Borrower will not invest or advance
more than $50,000 to Triumph Group Foreign Sales Corporation.
7.2.10 Continuation of Present Business.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, engage in any business other than aviation services and
metals converting and distribution, substantially as conducted and operated by
the Borrower or Subsidiary during the present fiscal year, and the Borrower or
Subsidiary shall not permit any material change in such business.
7.2.11 Plans and Benefit Arrangements.
The Borrower shall not, and shall not permit any of
its Subsidiaries to:
(i) fail to satisfy the minimum funding
requirements of ERISA and the Internal Revenue Code with respect to any Plan;
(ii) request a minimum funding waiver from the
Internal Revenue Service with respect to any Plan;
(iii) engage in a Prohibited Transaction with
any Plan, Benefit Arrangement or Multiemployer Plan which, alone or in
conjunction with any other circumstances or set of circumstances resulting in
liability under ERISA, would constitute a Material Adverse Change;
(iv) permit the aggregate actuarial present
value of all benefit liabilities (whether or not vested) under each Plan,
determined on a plan termination basis, as disclosed in the most recent
actuarial report completed with respect to such Plan, to exceed, as of any
actuarial valuation date, the fair market value of the assets of such Plan by
more than $1,000,000;
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(v) fail to make when due any contribution to
any Multiemployer Plan that the Borrower or any member of the ERISA Group may be
required to make under any agreement relating to such Multiemployer Plan, or any
Law pertaining thereto;
(vi) withdraw (completely or partially) from
any Multiemployer Plan or withdraw (or be deemed under Section 4062(e) of ERISA
to withdraw) from any Multiple Employer Plan, where any such withdrawal is
likely to result in a material liability of the Borrower or any member of the
ERISA Group;
(vii) terminate, or institute proceedings to
terminate, any Plan, where such termination is likely to result in a material
liability to the Borrower or any member of the ERISA Group;
(viii) make any amendment to any Plan with
respect to which security is required under Section 307 of ERISA; or
(ix) fail to give any and all notices and make
all disclosures and governmental filings required under ERISA or the Internal
Revenue Code, where such failure is likely to result in a Material Adverse
Change.
7.2.12 Fiscal Year.
The Borrower shall not, and shall not permit any Subsidiary of
the Borrower to, change its fiscal year from the twelve-month period beginning
April 1 and ending March 31.
7.2.13 Issuance of Stock.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, issue any additional shares of its Capital Stock or any
options, warrants or other rights in respect thereof, except the issuance of
Capital Stock of the Borrower:
(i) pursuant to a secondary public offering;
(ii) to the existing shareholders, management,
and directors of the Borrower under stock option plans; or
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(iii) to World Equity Partners, L.P. pursuant
to warrants for the issuance of 650,000 shares.
7.2.14 Changes in Organizational Documents.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, amend any provisions of its certificate of incorporation
relating to capital stock without providing at least thirty (30) calendar days'
prior written notice to the Agent and the Banks and, in the event such change
would be adverse to the Banks as determined by the Agent in its sole discretion,
obtaining the prior written consent of the Required Banks.
7.2.15 Capital Expenditures and Leases.
The Borrower shall not, and shall not permit any of
its Subsidiaries to, make any payments on account of the purchase or lease of
any assets which if purchased would constitute fixed assets or which if leased
would constitute a capitalized lease, except for
(i) such payments in connection with
acquisitions permitted under Section 7.2.6(ii);
(ii) such payments up to $9,000,000 in the
aggregate for the fiscal year ending March 31, 1997;
(iii) such payments in an amount not to exceed
the greater of $9,000,000 or 150% of the previous year's depreciation (for the
Borrower its Subsidiaries, determined and consolidated in accordance with GAAP)
for any fiscal year ending after March 31, 1997; and
(iv) such payments up to $3,500,000 per year
in the aggregate under operating leases.
All such capital expenditures and leases shall be
made under usual and customary terms and in the ordinary course of business.
7.2.16 Minimum Interest Coverage Ratio.
The Borrower shall not permit the Interest Coverage
Ratio, calculated as of the end of each fiscal quarter for the four fiscal
quarters then ended, to be less than 3.0 to 1.0. For purposes of determining the
Interest Coverage Ratio for the rolling four-quarter period
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ending March 31, 1997, the Borrower may calculate Consolidated Interest Expense
on a pro-forma basis by giving effect to the IPO as though it occurred on
October 1, 1996.
7.2.17 Maximum Total Indebtedness to EBITDA Ratio.
The Borrower shall not at any time permit the Total
Indebtedness to EBITDA Ratio, calculated as of the end of each fiscal quarter
(with EBITDA to be measured for the four fiscal quarters then ending), to exceed
3.00 to 1.00.
7.2.18 Minimum Net Worth.
The Borrower shall not at any time permit
Consolidated Net Worth to be less than $82,000,000 plus (i) 50% of Consolidated
Net Income for each fiscal year in which net income was earned (as opposed to
net loss) beginning with the fiscal year ending March 31, 1998 (with the
necessary adjustment to be made as of the end of the relevant fiscal year) and
(ii) 100% of the proceeds (after the payment of any fees and expenses) from any
capital contribution to, or any sale or issuance of Capital Stock by, the
Borrower (with any necessary adjustment to be made upon the receipt of such
proceeds).
7.2.19 Minimum Current Ratio.
The Borrower shall not at any time permit the ratio
of current assets to current liabilities (for the Borrower and its Subsidiaries,
determined and consolidated in accordance with GAAP) to be less than 1.50 to
1.0.
7.2.20 Negative Pledges. The Borrower shall not and
shall not permit any of its Subsidiaries to, agree with any Person (i) to limit
its ability to provide collateral security to the Banks and (ii) to limit the
ability of Borrower's Subsidiaries to pay dividends or make other distributions
to Borrower.
7.3 Reporting Requirements.
The Borrower covenants and agrees that until payment in full
of the Loans and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Borrower's other Obligations hereunder and
under the other Loan Documents and termination of the Revolving Credit
Commitments, the Borrower will furnish or cause to be furnished to the Agent and
each of the Banks:
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7.3.1 Quarterly Financial Statements.
As soon as available and in any event within
forty-five (45) calendar days after the end of each of the first three fiscal
quarters in each fiscal year, the Borrower's financial statements, consisting of
consolidated balance sheets as of the end of such fiscal quarter and related
consolidated statements of income, stockholders' equity and cash flows for the
fiscal quarter then ended and the fiscal year through that date, all in
reasonable detail and certified (subject to normal year-end audit adjustments
and the absence of footnotes) by the Chief Executive Officer, President or Chief
Financial Officer of the Borrower as having been prepared in accordance with
GAAP, consistently applied, and setting forth in comparative form the respective
financial statements for the corresponding date and period in the previous
fiscal year.
7.3.2 Annual Financial Statement.
As soon as available and in any event within ninety
(90) days after the end of each fiscal year, consolidated financial statements
of the Borrower consisting of consolidated balance sheets as of the end of such
fiscal year, and related consolidated statements of income, stockholders' equity
and cash flows for the fiscal year then ended, all in reasonable detail and
setting forth in comparative form the financial statements as of the end of and
for the preceding fiscal year, with the consolidated statements being certified
by independent certified public accountants of nationally recognized standing
satisfactory to the Agent. The certificate or report of accountants shall be
free of qualifications (other than any consistency qualification that may result
from a change in the method used to prepare the financial statements as to which
such accountants concur) and shall not indicate the occurrence or existence of
any event, condition or contingency which would materially impair the prospect
of payment or performance of any covenant, agreement or duty of the Borrower
under any of the Loan Documents, together with a letter of such accountants
substantially to the effect that, based upon their ordinary and customary
examination of the affairs of the Borrower, performed in connection with the
preparation of such consolidated financial statements, and in accordance with
generally accepted auditing standards, they are not aware of the existence of
any condition or event which constitutes an Event of Default or Potential
Default or, if they are aware of such condition or event, stating the nature
thereof and confirming the Borrower's calculations with respect to the
certificate to be delivered pursuant to Section 7.3.3 with respect to such
financial statements.
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7.3.3 Compliance Certificate.
Concurrently with the financial statements of the
Borrower furnished to the Agent and to the Banks pursuant to Sections 7.3.1 and
7.3.2, a certificate of the Borrower signed by the Chief Executive Officer,
President or Chief Financial Officer of the Borrower, in the form of Exhibit
7.3.3, to the effect that, except as described pursuant to Section 7.3.4, (i)
the representations and warranties of the Borrower contained in Article 5 are
true on and as of the date of such certificate with the same effect as though
such representations and warranties had been made on and as of such date (except
representations and warranties which expressly relate solely to an earlier date
or time) and the Borrower has performed and complied with all covenants and
conditions hereof, (ii) no Event of Default or Potential Default exists and is
continuing on the date of such certificate and (iii) containing calculations in
sufficient detail to demonstrate compliance as of the date of the financial
statements with all financial covenants contained in Section 7.2 If an
acquisition permitted under Section 7.2.6(ii) occurred during the reporting
period covered by the compliance certificate and if the Borrower has provided
the Agent with audited historical financial statements on the acquired business,
the Borrower may also calculate the Section 7.2 financial covenants on a pro
forma basis to include the financial performance and condition of the acquired
business during the period; and the pro forma calculation of the Total
Indebtedness to EBITDA Ratio may be relied upon as a basis for a change in the
pricing level under the Pricing Grid.
7.3.4 Notice of Default.
Promptly after any officer of Borrower has learned of
the occurrence of an Event of Default or Potential Default, a certificate signed
by the Chief Executive Officer, President or Chief Financial Officer of Borrower
setting forth the details of such Event of Default or Potential Default and the
action which the Borrower proposes to take with respect thereto.
7.3.5 Notice of Litigation.
Promptly after the commencement thereof, notice of
all actions, suits, proceedings or investigations before or by any Official Body
or any other Person against the Borrower or Subsidiary of the Borrower which in
the good faith estimation of counsel for the Borrower involve a claim or series
of claims in excess of $750,000 or which if adversely determined would
constitute a Material Adverse Change with respect to the Borrower or Subsidiary
of the Borrower.
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7.3.6 Certain Events.
Written notice to the Agent:
(i) at least thirty (30) calendar days prior
thereto, with respect to any proposed sale or transfer of assets pursuant to
Section 7.2.7(iv) or (v).
(ii) within the time limits set forth in
Section 7.2.14, the amendment to the charter affecting the capital structure of
the Borrower or any of its Subsidiaries.
7.3.7 Budgets, Forecasts, Other Reports and
Information.
Promptly upon their becoming available to the
Borrower:
(i) the annual budget and any forecasts or
projections of the Borrower and its Subsidiaries, to be supplied at the request
of the Agent prior to commencement of the fiscal year to which any of the
foregoing may be applicable,
(ii) any reports including management letters
submitted to the Borrower by independent accountants in connection with any
annual, interim or special audit,
(iii) any reports, notices or proxy statements
generally distributed by the Borrower to its stockholders on a date no later
than the date supplied to the stockholders,
(iv) regular or periodic reports, including
Forms 10-K, 10-Q and 8-K, registration statements and prospectuses, filed by
the Borrower with the Securities and Exchange Commission,
(v) a copy of any order, issued by any
Official Body in any proceeding to which the Borrower or any of its Subsidiaries
is a party, and in which the amount in controversy exceeds $1,000,000,
(vi) such other reports and information as the
Banks may from time to time reasonably request. The Borrower shall also notify
the Banks promptly of the enactment or adoption of any Law which may result in a
Material Adverse Change with respect to the Borrower or any Subsidiary of the
Borrower, and
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(vii) within 60 days of closing on any
acquisition permitted under Section 7.2.6 in which the total consideration paid
by the Borrower or its Subsidiary exceeded $5,000,000, such financial
information as the Agent may reasonably request concerning the acquisition and
its effect on the financial conditions and performance of the Borrower.
7.3.8 Notices Regarding Plans and Benefit
Arrangements.
7.3.8.1 Certain Events.
Promptly upon becoming aware of the occurrence
thereof, notice (including the nature of the event and, when known, any action
taken or threatened by the Internal Revenue Service or the PBGC with respect
thereto) of:
(i) any Reportable Event with respect to the
Borrower or any member of the ERISA Group for which reporting to the PBGC has
not been waived,
(ii) any Prohibited Transaction which could
subject the Borrower or any member of the ERISA Group to a civil penalty
assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of
the Internal Revenue Code in connection with any Plan, Benefit Arrangement or
any trust created thereunder,
(iii) any assertion of material withdrawal
liability with respect to any Multiemployer Plan,
(iv) any partial or complete withdrawal from a
Multiemployer Plan by the Borrower or any member of the ERISA Group under Title
IV of ERISA (or assertion thereof), where such withdrawal is likely to result in
material withdrawal liability,
(v) withdrawal by the Borrower or any member
of the ERISA Group from a Multiple Employer Plan,
(vi) a failure by the Borrower or any member
of the ERISA Group to make a payment to a Plan required to avoid imposition of a
lien under Section 302(f) of ERISA,
(vii) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA, or
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(viii) any change in the actuarial assumptions
or funding methods used for any Plan (other than interest rate changes required
by Financial Standards Board Opinion No. 87), where the effect of such change is
to materially increase or materially reduce the unfunded benefit liability or
obligation to make periodic contributions.
7.3.8.2 Notices of Involuntary Termination and
Annual Reports.
Promptly after receipt thereof, copies of (a)
all notices received by the Borrower or any member of the ERISA Group of the
PBGC's intent to terminate any Plan administered or maintained by the Borrower
or any member of the ERISA Group, or to have a trustee appointed to administer
any such Plan; and (b) at the request of the Agent or any Bank each annual
report (IRS Form 5500 series) and all accompanying schedules, the most recent
actuarial reports, the most recent financial information concerning the
financial status of each Plan administered or maintained by the Borrower or any
member of the ERISA Group, and schedules showing the amounts contributed to each
such Plan by or on behalf of the Borrower or any member of the ERISA Group in
which any of their personnel participate or from which such personnel may derive
a benefit, and each Schedule B (Actuarial Information) to the annual report
filed by the Borrower or any member of the ERISA Group with the Internal Revenue
Service with respect to each such Plan.
7.3.8.3 Notice of Voluntary Termination.
Promptly upon the filing thereof, copies of
any Form 5310, or any successor or equivalent form to Form 5310, filed with the
PBGC in connection with the termination of any Plan.
8. DEFAULT
8.1 Events of Default.
An Event of Default shall mean the occurrence or existence of
any one or more of the following events or conditions (whatever the reason
therefor and whether voluntary, involuntary or effected by operation of Law):
8.1.1 Payments Under Loan Documents.
The Borrower shall fail to pay when due any principal
of any Loan (including scheduled installments, mandatory prepayments or the
payment due at maturity) or shall fail to
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pay, for more than two Business Days after the due date, any interest on any
Loan or when due any other amount owing hereunder or under the other Loan
Documents;
8.1.2 Breach of Warranty.
Any representation or warranty made at any time by
the Borrower herein or in any other Loan Document, or in any certificate, other
instrument or statement furnished pursuant to the provisions hereof or thereof,
shall prove to have been false or misleading in any material respect as of the
time it was made or furnished;
8.1.3 Refusal to Permit Inspections; Breach of
Negative Covenants.
The Borrower shall default in the observance or
performance of any covenant contained in Section 7.1.6 or Section 7.2;
8.1.4 Breach of Other Covenants.
The Borrower shall default in the observance or
performance of any other covenant, condition or provision hereof or of any other
Loan Document and such default shall continue unremedied for a period of ten
(10) Business Days after any officer of the Borrower becomes aware of the
occurrence thereof;
8.1.5 Defaults in Other Agreements or Indebtedness.
A default or event of default shall occur at any time
under the terms of any other agreement involving borrowed money or the extension
of credit or any other Indebtedness under which the Borrower or Subsidiary of
the Borrower may be obligated as a borrower or guarantor in excess of $750,000
in the aggregate, and such breach, default or event of default consists of the
failure to pay (beyond any period of grace permitted with respect thereto,
whether waived or not) any indebtedness when due (whether at stated maturity, by
acceleration or otherwise) or if such breach or default permits or causes the
acceleration of any indebtedness (and such right shall not have been waived) or
the termination of any commitment to lend;
8.1.6 Final Judgments or Orders.
Any final judgments or orders for the payment of
money in excess of $750,000 in the aggregate shall be entered against the
Borrower or any Subsidiary of the Borrower by a court having jurisdiction in the
premises, which judgment is not discharged,
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vacated, bonded or stayed pending appeal within a period of thirty (30) days
from the date of entry;
8.1.7 Loan Document Unenforceable.
Any of the Loan Documents shall cease to be legal,
valid and binding agreements enforceable against the party executing the same or
such party's successors and assigns (as permitted under the Loan Documents) in
accordance with the respective terms thereof or shall in any way be terminated
(except in accordance with its terms) or become or be declared ineffective or
inoperative or shall in any way be challenged or contested or cease to give or
provide the respective Liens, security interests, rights, titles, interests,
remedies, powers or privileges intended to be created thereby;
8.1.8 Uninsured Losses; Proceedings Against Assets.
There shall occur any material uninsured damage to or
loss, theft or destruction of the assets of the Borrower or any of its
Subsidiaries in excess of $1,000,000 or the assets of the Borrower or any of its
Subsidiaries are attached, seized, levied upon or subjected to a writ or
distress warrant; or such come within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors and the same is not cured
within sixty (60) days thereafter;
8.1.9 Notice of Lien or Assessment.
A notice of Lien or assessment in excess of $750,000
which is not a Permitted Lien is filed of record with respect to all or any part
of the assets of the Borrower or any of its Subsidiaries by the United States,
or any department, agency or instrumentality thereof, or by any state, county,
municipal or other governmental agency, including the Pension Benefit Guaranty
Corporation, or if any taxes or debts owing at any time or times hereafter to
any one of these becomes payable and the same is not paid within thirty (30)
days after the same becomes payable (unless the Borrower or such Subsidiary is
contesting the obligation as provided in Section 7.1.2);
8.1.10 Insolvency.
The Borrower or any Subsidiary of the Borrower ceases
to be solvent or admits in writing its inability to pay its debts as they
mature;
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8.1.11 Events Relating to Plans and Benefit
Arrangements.
Any of the following occurs: (i) any Reportable
Event, which the Agent determines in good-faith constitutes grounds for the
termination of any Plan by the PBGC or the appointment of a trustee to
administer or liquidate any Plan, shall have occurred and be continuing; (ii)
proceedings shall have been instituted or other action taken to terminate any
Plan, or a termination notice shall have been filed with respect to any Plan;
(iii) a trustee shall be appointed to administer or liquidate any Plan; (iv) the
PBGC shall give notice of its intent to institute proceedings to terminate any
Plan or Plans or to appoint a trustee to administer or liquidate any Plan; and,
in the case of the occurrence of (i), (ii), (iii) or (iv) above, the Agent
determines in good-faith that the amount of the Borrower's liability is likely
to exceed 10% of its Consolidated Tangible Net Worth; (v) the Borrower or any
member of the ERISA Group shall make any amendment to a Plan with respect to
which security is required under Section 307 of ERISA; (vi) the Borrower or any
member of the ERISA Group shall withdraw completely or partially from a
Multiemployer Plan; (vii) the Borrower or any member of the ERISA Group shall
withdraw (or shall be deemed under Section 4062(e) of ERISA to withdraw) from a
Multiple Employer Plan; or (viii) any applicable Law is adopted, changed or
interpreted by any Official Body with respect to or otherwise affecting one or
more Plans, Multiemployer Plans or Benefit Arrangements and, with respect to any
of the events specified in (v), (vi), (vii), or (viii), the Agent determines in
good-faith that any such occurrence is reasonably likely to materially and
adversely affect the total enterprise represented by the Borrower and the other
members of the ERISA Group;
8.1.12 Cessation of Business.
Except as otherwise permitted herein, the Borrower or
any Subsidiary of the Borrower ceases to conduct its business as contemplated or
the Borrower is enjoined, restrained or in any way prevented by court order from
conducting all or any material part of its business and such injunction,
restraint or other preventive order is not dismissed within thirty (30) days
after the entry thereof;
8.1.13 Change of Control.
There occurs an event or series of events by which
(i) any "person" or "group" (as such terms are defined in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder), other than Citicorp Venture Capital and
Affiliates, is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under such Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all shares that any such Person has the right to
acquire without
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condition, other than passage of time, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 20% of the total voting power of the then outstanding voting stock of the
Borrower, or (ii) (A) the Borrower consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all of its
properties and assets (determined on a consolidated basis for the Borrower and
its Subsidiaries taken as a whole) to any Person, or (B) any corporation
consolidates with or merges into the Borrower or a Subsidiary of the Borrower in
a transaction in which the outstanding voting stock of the Borrower is changed
into or exchanged for cash, securities or other property, other than a
transaction solely between the Borrower and a Subsidiary of the Borrower.
8.1.14 Involuntary Proceedings.
A proceeding shall have been instituted in a court
having jurisdiction in the premises seeking a decree or order for relief in
respect of the Borrower or any of its Subsidiaries in an involuntary case under
any applicable bankruptcy, insolvency, reorganization or other similar law now
or hereafter in effect, or for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or similar official) of
the Borrower or any of its Subsidiaries for any substantial part of its
property, or for the winding-up or liquidation of its affairs, and such
proceeding shall remain undismissed or unstayed and in effect for a period of
sixty (60) consecutive days or such court shall enter a decree or order granting
any of the relief sought in such proceeding; or
8.1.15 Voluntary Proceedings.
The Borrower or any of its Subsidiaries shall
commence a voluntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, shall consent to
the entry of an order for relief in an involuntary case under any such law, or
shall consent to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or other similar
official) of itself or for any substantial part of its property or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any action in furtherance of any of
the foregoing.
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8.2 Consequences of Event of Default.
8.2.1 Events of Default Other Than Bankruptcy,
Insolvency or Reorganization Proceedings.
If an Event of Default specified under subsections
8.1.1 through 8.1.13 of Section 8.1 shall occur and be continuing, the Banks and
the Agent shall be under no further obligation to make Loans or issue Letters of
Credit, as the case may be, and the Agent may, and upon the request of the
Required Banks, shall (i) by written notice to the Borrower, declare the unpaid
principal amount of the Notes then outstanding and all interest accrued thereon,
any unpaid fees and all other Indebtedness of the Borrower to the Banks
hereunder and thereunder to be forthwith due and payable, and the same shall
thereupon become and be immediately due and payable to the Agent for the benefit
of each Bank without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived, and (ii) require the Borrower
to, and the Borrower shall thereupon, deposit in a non-interest bearing account
with the Agent, as cash collateral for its Obligations under the Loan Documents,
an amount equal to the maximum amount currently or at any time thereafter
available to be drawn on all outstanding Letters of Credit, and the Borrower
hereby pledges to the Agent and the Banks, and grant to the Agent and the Banks
a security interest in, all such cash as security for such Obligations. Upon the
curing of all existing Events of Default to the satisfaction of the Required
Banks, the Agent shall return such cash collateral to the Borrower; and
8.2.2 Bankruptcy, Insolvency or Reorganization
Proceedings.
If an Event of Default specified under subsections
8.1.14 or 8.1.15 of Section 8.1 shall occur, the Banks shall be under no further
obligations to make Loans hereunder and the unpaid principal amount of the Notes
then outstanding and all interest accrued thereon, any unpaid fees and all other
Indebtedness of the Borrower to the Banks hereunder and thereunder shall be
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived; and
8.2.3 Set-off.
If an Event of Default shall occur and be continuing,
any Bank to whom any Obligation is owed by the Borrower hereunder or under any
other Loan Document or any participant of such Bank which has agreed in writing
to be bound by the provisions of Section 3.2 and 9.13 and any branch, Subsidiary
or Affiliate of such Bank or participant anywhere in the world shall have the
right, in addition to all other rights and remedies
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available to it, without notice to the Borrower, to set-off against and apply to
the then unpaid balance of all the Loans and all other Obligations of the
Borrower hereunder or under any other Loan Document any debt owing to, and any
other funds held in any manner for the account of, the Borrower by such Bank or
participant or by such branch, Subsidiary or Affiliate, including all funds in
all deposit accounts (whether time or demand, general or special, provisionally
credited or finally credited, or otherwise) now or hereafter maintained by the
Borrower for its own account (but not including funds held in custodian or trust
accounts) with such Bank or participant or such branch, Subsidiary or Affiliate.
Such right shall exist whether or not any Bank or the Agent shall have made any
demand under this Agreement or any other Loan Document, whether or not such debt
owing to or funds held for the account of the Borrower is or are matured or
unmatured and regardless of the existence or adequacy of any Guaranty or any
other security, right or remedy available to any Bank or the Agent; and
8.2.4 Suits, Actions, Proceedings.
If an Event of Default shall occur and be continuing,
and whether or not the Agent shall have accelerated the maturity of Loans to the
Borrower pursuant to any of the foregoing provisions of this Section 8.2, the
Agent or any Bank, if owed any amount with respect to the Notes, may proceed to
protect and enforce its rights by suit in equity, action at law and/or other
appropriate proceeding, whether for the specific performance of any covenant or
agreement contained in this Agreement or the Notes, including as permitted by
applicable Law the obtaining of the ex parte appointment of a receiver, and, if
such amount shall have become due, by declaration or otherwise, proceed to
enforce the payment thereof or any other legal or equitable right of the Agent
or such Bank; and
8.2.5 Application of Proceeds.
From and after the date on which the Agent has taken
any action pursuant to this Section 8.2 and until all Obligations of the
Borrower has been paid in full, any and all proceeds received by the Agent from
the exercise of any other remedy by the Agent, shall be applied as follows:
(i) first, to reimburse the Agent and the
Banks for out-of-pocket costs, expenses and disbursements, including reasonable
attorneys' and paralegals' fees and legal expenses, incurred by the Agent or the
Banks in connection with collection of any Obligations of the Borrower under any
of the Loan Documents;
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(ii) second, to the repayment of all
Indebtedness then due and unpaid of the Borrower to the Banks incurred under
this Agreement or any of the Loan Documents, whether of principal, interest,
fees, expenses or otherwise, in such manner as the Agent may determine in its
discretion; and
(iii) the balance, if any, to Borrower or as
required by Law.
9. THE AGENT
9.1 Appointment.
Each Bank hereby irrevocably designates, appoints and
authorizes PNC Bank to act as Agent for such Bank under this Agreement to
execute and deliver or accept on behalf of each of the Banks the other Loan
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note
by the acceptance of a Note shall be deemed irrevocably to authorize, the Agent
to take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and any other instruments and agreements referred to
herein, and to exercise such powers and to perform such duties hereunder as are
specifically delegated to or required of the Agent by the terms hereof, together
with such powers as are reasonably incidental thereto. PNC Bank agrees to act as
the Agent on behalf of the Banks to the extent provided in this Agreement.
9.2 Delegation of Duties.
The Agent may perform any of its duties hereunder by or
through agents or employees (provided such delegation does not constitute a
relinquishment of its duties as Agent) and, subject to Sections 9.5 and 9.6,
shall be entitled to engage and pay for the advice or services of any attorneys,
accountants or other experts concerning all matters pertaining to its duties
hereunder and to rely upon any advice so obtained.
9.3 Nature of Duties; Independent Credit Investigation.
The Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement a
fiduciary or trust relationship in respect of any Bank; and nothing in this
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Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement except as
expressly set forth herein. Each Bank expressly acknowledges (i) that the Agent
has not made any representations or warranties to it and that no act by the
Agent hereafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the Agent to any
Bank; (ii) that it has made and will continue to make, without reliance upon the
Agent, its own independent investigation of the financial condition and affairs
and its own appraisal of the creditworthiness of the Borrower in connection with
this Agreement and the making and continuance of the Loans hereunder; and (iii)
except as expressly provided herein, that the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Bank
with any credit or other information with respect thereto, whether coming into
its possession before the making of any Loan or at any time or times thereafter.
9.4 Actions in Discretion of Agent; Instructions from the
Banks.
The Agent agrees, upon the written request of the Required
Banks, to take or refrain from taking any action of the type specified as being
within the Agent's rights, powers or discretion herein, provided that the Agent
shall not be required to take any action which exposes the Agent to personal
liability or which is contrary to this Agreement or any other Loan Document or
applicable Law. In the absence of a request by the Required Banks, the Agent
shall have authority, in its sole discretion, to take or not to take any such
action, unless this Agreement specifically requires the consent of the Required
Banks or all of the Banks. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Banks, subject to Section
9.6. Subject to the provisions of Section 9.6, no Bank shall have any right of
action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Banks, or in the absence of such instructions, in the absolute
discretion of the Agent.
9.5 Reimbursement and Indemnification of Agent by the
Borrower.
Subject to the limitations set forth in the letter agreement
dated July 3, 1996 between the Agent and the Borrower, the Borrower
unconditionally agrees to pay or reimburse the Agent and save the Agent harmless
against (a) liability for the payment of all reasonable and actual out-of-pocket
costs, expenses and disbursements, including fees and expenses of counsel,
appraisers and environmental consultants, incurred by the Agent (i) in
connection with the development, negotiation, preparation, printing, execution,
administration, syndication, interpretation and performance of this Agreement
and the other Loan Documents, (ii) relating to any requested amendments, waivers
or consents pursuant to the provisions hereof, (iii) in connection with the
enforcement of this Agreement or any other Loan
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Document or collection of amounts due hereunder or thereunder or the proof and
allowability of any claim arising under this Agreement or any other Loan
Document, whether in bankruptcy or receivership proceedings or otherwise, and
(iv) in any workout, restructuring or in connection with the protection,
preservation, exercise or enforcement of any of the terms hereof or of any
rights hereunder or under any other Loan Document or in connection with any
foreclosure, collection or bankruptcy proceedings, and (b) all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Agent, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Agent hereunder or thereunder, provided that
the Borrower shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements if the same results from the Agent's gross negligence
or willful misconduct, or if the Borrower was not given notice of the subject
claim and the opportunity to participate in the defense thereof, at its expense
(except that the Borrower shall remain liable to the extent such failure to give
notice does not result in a loss to the Borrower), or if the same results from a
compromise or settlement agreement entered into without the consent of the
Borrower, which shall not be unreasonably withheld. In addition, the Borrower
agrees to reimburse and pay all reasonable out-of-pocket expenses of the Agent's
regular employees and agents engaged periodically to perform audits of the
Borrower's books, records and business properties, provided that, before an
Event of Default, the Borrower shall not be obligated to pay for more than one
such audit per year.
9.6 Exculpatory Provisions.
Neither the Agent nor any of its directors, officers,
employees, agents, attorneys or Affiliates shall (a) be liable to any Bank for
any action taken or omitted to be taken by it or them hereunder, or in
connection herewith including pursuant to any Loan Document, unless caused by
its or their own gross negligence or willful misconduct, (b) be responsible in
any manner to any of the Banks for the effectiveness, enforceability,
genuineness, validity or the due execution of this Agreement or any other Loan
Documents or for any recital, representation, warranty, document, certificate,
report or statement herein or made or furnished under or in connection with this
Agreement or any other Loan Documents, or (c) be under any obligation to any of
the Banks to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions hereof or thereof on the part of the
Borrower, or the financial condition of the Borrower, or the existence or
possible existence of any Event of Default or Potential Default. Neither the
Agent nor any Bank nor any of their respective directors, officers, employees,
agents, or Affiliates shall be liable to the Borrower for consequential damages
resulting from any breach of contract in connection with the
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negotiation, documentation, administration or collection of the Loans or any
of the Loan Documents.
9.7 Reimbursement and Indemnification of Agent by Banks.
Each Bank agrees to reimburse and indemnify the Agent (to the
extent not reimbursed by the Borrower and without limiting the Obligation of the
Borrower to do so) in proportion to its Ratable Share from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent, in its capacity as such,
in any way relating to or arising out of this Agreement or any other Loan
Documents or any action taken or omitted by the Agent hereunder or thereunder,
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (a) if the same results from the Agent's gross
negligence or willful misconduct, or (b) if such Bank was not given notice of
the subject claim and the opportunity to participate in the defense thereof, at
its expense (except that such Bank shall remain liable to the extent such
failure to give notice does not result in a loss to the Bank), or (c) if the
same results from a compromise and settlement agreement entered into without the
consent of such Bank, which shall not be unreasonably withheld. In addition,
each Bank agrees promptly upon demand to reimburse the Agent (to the extent not
reimbursed by the Borrower and without limiting the Obligation of the Borrower
to do so) in proportion to its Ratable Share for all amounts due and payable by
the Borrower to the Agent in connection with the Agent's periodic audit of the
Borrower's books, records and business properties.
9.8 Reliance by Agent.
The Agent shall be entitled to rely upon any writing,
telegram, telex or teletype message, resolution, notice, consent, certificate,
letter, cablegram, statement, order or other document or conversation by
telephone or otherwise believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon the advice and
opinions of counsel and other professional advisers selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action
hereunder unless it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
9.9 Notice of Default.
The Agent shall not be deemed to have knowledge or notice of
the occurrence of any Potential Default or Event of Default unless the Agent has
received written notice from a Bank
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or the Borrower referring to this Agreement, describing such Potential Default
or Event of Default and stating that such notice is a "notice of default."
9.10 Notices.
The Agent shall promptly send to each Bank a copy of all
notices received from the Borrower pursuant to the provisions of this Agreement
or the other Loan Documents promptly upon receipt thereof. The Agent shall
promptly notify the Borrower and the other Banks of each change in the Base Rate
and the effective date thereof.
9.11 Banks in Their Individual Capacities.
With respect to its Revolving Credit Commitments, the
Revolving Credit Loans made by it, the Agent shall have the same rights and
powers hereunder as any other Bank and may exercise the same as though it were
not the Agent, and the term "Banks" shall, unless the context otherwise
indicates, include the Agent in its individual capacity. PNC Bank and its
Affiliates and each of the Banks and their respective Affiliates may, without
liability to account, except as prohibited herein, make loans to, accept
deposits from, discount drafts for, act as trustee under indentures of, and
generally engage in any kind of banking or trust business with, the Borrower and
its Affiliates, in the case of the Agent, as though it were not acting as Agent
hereunder and in the case of each Bank, as though such Bank were not a Bank
hereunder.
9.12 Holders of Notes.
The Agent may deem and treat any payee of any Note as the
owner thereof for all purposes hereof unless and until written notice of the
assignment or transfer thereof shall have been filed with the Agent. Any
request, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
9.13 Equalization of Banks.
The Banks and the holders of any participations in any Notes
agree among themselves that, with respect to all amounts received by any Bank or
any such holder for application on any Obligation hereunder or under any Note or
under any such participation, whether received by voluntary payment, by
realization upon security, by the exercise of the right of set-off or banker's
lien, by counterclaim or by any other non-pro rata source, equitable adjustment
will
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be made in the manner stated in the following sentence so that, in effect, all
such excess amounts will be shared ratably among the Banks and such holders in
proportion to their interests in payments under the Notes, except as otherwise
provided in Sections 3.4.2, 4.4.2, or 4.6.1. The Banks or any such holder
receiving any such amount shall purchase for cash from each of the other Banks
an interest in such Bank's Loans in such amount as shall result in a ratable
participation by the Banks and each such holder in the aggregate unpaid amount
under the Notes, provided that if all or any portion of such excess amount is
thereafter recovered from the Bank or the holder making such purchase, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, together with interest or other amounts, if any, required by law
(including court order) to be paid by the Bank or the holder making such
purchase.
9.14 Successor Agent.
The Agent may resign as Agent by giving not less than thirty
(30) days' prior written notice to the Borrower. If the Agent shall resign under
this Agreement, then either (a) the Required Banks shall appoint from among the
Banks a successor agent for the Banks, subject to the consent of the Borrower,
such consent not to be unreasonably withheld, or (b) if a successor agent shall
not be so appointed and approved within the thirty (30) day period following the
Agent's notice to the Banks of its resignation, then the Agent shall appoint,
with the consent of the Borrower, such consent not to be unreasonably withheld,
a successor agent who shall serve as Agent until such time as the Required Banks
appoint and the Borrower consent to the appointment of a successor agent. Upon
its appointment pursuant to either clause (a) or (b) above, such successor agent
shall succeed to the rights, powers and duties of the Agent, and the term
"Agent" shall mean such successor agent, effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be terminated without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement. After the resignation of any Agent hereunder, the
provisions of this Article 9 shall inure to the benefit of such former Agent and
such former Agent shall not by reason of such resignation be deemed to be
released from liability for any actions taken or not taken by it while it was an
Agent under this Agreement.
9.15 Agent's Fee.
The Borrower shall pay to the Agent a nonrefundable fee (the
"Agent's Fee") under the terms of a letter (the "Agent's Letter") between the
Borrower and Agent, as amended from time to time.
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9.16 Availability of Funds.
Unless the Agent shall have been notified by a Bank prior to
the date upon which a Loan is to be made that such Bank does not intend to make
available to the Agent such Bank's portion of such Loan, the Agent may assume
that such Bank has made or will make such proceeds available to the Agent on
such date and the Agent may, in reliance upon such assumption (but shall not be
required to), make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such Bank,
the Agent shall be entitled to recover such amount on demand from such Bank (or,
if such Bank fails to pay such amount forthwith upon such demand from the
Borrower) together with interest thereon, in respect of each day during the
period commencing on the date such amount was made available to the Borrower and
ending on the date the Agent recovers such amount, at a rate per annum equal to
the applicable interest rate in respect of the Loan.
9.17 Calculations.
In the absence of gross negligence or willful misconduct, the
Agent shall not be liable for any error in computing the amount payable to any
Bank whether in respect of the Loans, fees or any other amounts due to the Banks
under this Agreement. In the event an error in computing any amount payable to
any Bank is made, the Agent, the Borrower and each affected Bank shall,
forthwith upon discovery of such error, make such adjustments as shall be
required to correct such error, and any compensation therefor will be calculated
at the Federal Funds Effective Rate.
9.18 Beneficiaries.
Except as expressly provided herein, the provisions of this
Article 9 are solely for the benefit of the Agent and the Banks, and the
Borrower shall not have any rights to rely on or enforce any of the provisions
hereof. In performing its functions and duties under this Agreement, the Agent
shall act solely as agent of the Banks and does not assume and shall not be
deemed to have assumed any obligation toward or relationship of agency or trust
with or for the Borrower.
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10. MISCELLANEOUS
10.1 Modifications, Amendments or Waivers.
With the written consent of the Required Banks, the Agent,
acting on behalf of all the Banks, and the Borrower may from time to time enter
into written agreements amending or changing any provision of this Agreement or
any other Loan Document or the rights of the Banks or the Borrower hereunder or
thereunder, or may grant written waivers or consents to a departure from the due
performance of the Obligations of the Borrower hereunder or thereunder. Any such
agreement, waiver or consent made with such written consent shall be effective
to bind all the Banks and the Borrower; provided, that, without the written
consent of all the Banks, no such agreement, waiver or consent may be made which
will:
10.1.1 Increase of Commitment; Extension or
Expiration Date.
Increase the amount of the Revolving Credit
Commitment of any Bank hereunder or extend the Expiration Date;
10.1.2 Extension of Payment; Reduction of Principal
Interest or Fees; Modification of Terms of Payment.
Whether or not any Loans are outstanding, extend the
time for payment of principal or interest of any Loan, the Commitment Fee or any
other fee payable to any Bank, or reduce the principal amount of or the rate of
interest borne by any Loan or reduce the Commitment Fee or any other fee payable
to any Bank, or otherwise affect the terms of payment of the principal of or
interest of any Loan, the Commitment Fee or any other fee payable to any Bank;
10.1.3 Miscellaneous
Amend Sections 4.2 [Pro Rata Treatment of Banks], 9.6
[Exculpatory Provisions], 9.13 [Equalization of Banks] or this Section 10.1,
alter any provision regarding the pro rata treatment of the Banks, change the
definition of Required Banks, or change any requirement providing for the Banks
or the Required Banks to authorize the taking of any action hereunder provided
further, that no agreement, waiver or consent which would modify the interests,
rights or obligations of the Agent in its capacity as Agent or as the issuer of
Letters of Credit shall be effective without the written consent of the Agent.
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10.2 No Implied Waivers; Cumulative Remedies; Writing
Required.
No course of dealing and no delay or failure of the Agent or
any Bank in exercising any right, power, remedy or privilege under this
Agreement or any other Loan Document shall affect any other or future exercise
thereof or operate as a waiver thereof, nor shall any single or partial exercise
thereof or any abandonment or discontinuance of steps to enforce such a right,
power, remedy or privilege preclude any further exercise thereof or of any other
right, power, remedy or privilege. The rights and remedies of the Agent and the
Banks under this Agreement and any other Loan Documents are cumulative and not
exclusive of any rights or remedies which they would otherwise have. Any waiver,
permit, consent or approval of any kind or character on the part of any Bank of
any breach or default under this Agreement or any such waiver of any provision
or condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
10.3 Reimbursement and Indemnification of Banks by the
Borrower; Taxes.
The Borrower agrees unconditionally upon demand to pay or
reimburse to each Bank (other than the Agent, as to which the Borrower's
Obligations are set forth in Section 9.5) and to save such Bank harmless against
(i) liability for the payment of all reasonable and actual out-of-pocket costs,
expenses and disbursements (including fees and expenses of outside counsel for
each Bank except with respect to (a) and (b) below), incurred by such Bank (a)
in connection with the administration and interpretation of this Agreement, and
other instruments and documents to be delivered hereunder, (b) relating to any
amendments, waivers or consents pursuant to the provisions hereof, (c) in
connection with the enforcement of this Agreement or any other Loan Document, or
collection of amounts due hereunder or thereunder or the proof and allowability
of any claim arising under this Agreement or any other Loan Document, whether in
bankruptcy or receivership proceedings or otherwise, and (d) in any workout,
restructuring or in connection with the protection, preservation, exercise or
enforcement of any of the terms hereof or of any rights hereunder or under any
other Loan Document or in connection with any foreclosure, collection or
bankruptcy proceedings, or (ii) all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against such Bank, in its capacity as such, in any way relating to or arising
out of this Agreement or any other Loan Documents or any action taken or omitted
by such Bank hereunder or thereunder, provided that the Borrower shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements (A) if
the same results from such Bank's gross negligence or willful misconduct, or (B)
if the Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that the Borrower
shall
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remain liable to the extent such failure to give notice does not result in a
loss to the Borrower), or (C) if the same results from a compromise or
settlement agreement entered into without the consent of the Borrower, which
shall not be unreasonably withheld. The Banks will attempt to minimize the fees
and expenses of legal counsel for the Banks which are subject to reimbursement
by the Borrower hereunder by considering the usage of one law firm to represent
the Banks and the Agent if appropriate under the circumstances. The Borrower
agrees unconditionally to pay all stamp, document, transfer, recording or filing
taxes or fees and similar impositions now or hereafter determined by the Agent
or any Bank to be payable in connection with this Agreement or any other Loan
Document, and the Borrower agrees unconditionally to save the Agent and the
Banks harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such taxes, fees or impositions.
10.4 Holidays.
Whenever payment of a Loan to be made or taken hereunder shall
be due on a day which is not a Business Day such payment shall be due on the
next Business Day and such extension of time shall be included in computing
interest and fee, except that the Loans shall be due on the Business Day
preceding the Expiration Date if the Expiration Date is not a Business Day.
Whenever any payment or action to be made or taken hereunder (other than payment
of the Loans) shall be stated to be due on a day which is not a business Day,
such payment or action shall be made or taken on the next following Business Day
(except as provided in Section 3.2 with respect to Interest Periods under the
Euro-Rate Option), and such extension of time shall not be included in computing
interest or fees, if any, in connection with such payment or action.
10.5 Funding by Branch, Subsidiary or Affiliate.
10.5.1 Notional Funding.
Each Bank shall have the right from time to time,
without notice to the Borrower, to deem any branch, Subsidiary or Affiliate
(which for the purposes of this Section 10.5 shall mean any corporation or
association which is directly or indirectly controlled by or is under direct or
indirect common control with any corporation or association which directly or
indirectly controls such Bank) of such Bank to have made, maintained or funded
any Loan to which the Euro-Rate Option applies at any time, provided that
immediately following (on the assumption that a payment were then due from the
Borrower to such other office), and as a result of such change, the Borrower
would not be under any greater financial obligation pursuant to Section 4.6 than
they would have been in the absence
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of such change. Notional funding offices may be selected by each Bank without
regard to the Bank's actual methods of making, maintaining or funding the Loans
or any sources of funding actually used by or available to such Bank.
10.5.2 Actual Funding.
Each Bank shall have the right from time to time to
make or maintain any Loan by arranging for a branch, Subsidiary or Affiliate of
such Bank to make or maintain such Loan subject to the last sentence of this
Section 10.5.2. If any Bank causes a branch, Subsidiary or Affiliate to make or
maintain any part of the Loans hereunder, all terms and conditions of this
Agreement shall, except where the context clearly requires otherwise, be
applicable to such part of the Loans to the same extent as if such Loans were
made or maintained by such Bank, but in no event shall any Bank's use of such a
branch, Subsidiary or Affiliate to make or maintain any part of the Loans
hereunder cause such Bank or such branch, Subsidiary or Affiliate to incur any
cost or expenses payable by the Borrower hereunder or require the Borrower to
pay any other compensation to any Bank (including any expenses incurred or
payable pursuant to Section 5.6 which would otherwise not be incurred).
10.6 Notices.
All notices, requests, demands, directions and other
communications (as used in this Section 10.6, collectively referred to as
"notices") given to or made upon any party hereto under the provisions of this
Agreement shall be by telephone or in writing (including telex or facsimile
communication) unless otherwise expressly permitted hereunder and shall be
delivered or sent by telex or facsimile to the respective parties at the
addresses and numbers set forth under their respective names on the signature
pages hereof or in accordance with any subsequent unrevoked written direction
from any party to the others. All notices shall, except as otherwise expressly
herein provided, be effective (a) in the case of telex or facsimile, when
received, (b) in the case of hand-delivered notice, when hand-delivered, (c) in
the case of telephone, when telephoned, provided, however, that in order to be
effective, telephonic notices must be confirmed in writing no later than the
next day by letter, facsimile or telex, (d) if given by mail, four (4) days
after such communication is deposited in the mail with first-class postage
prepaid, return receipt requested, and (e) if given by any other means
(including by air courier), when delivered; provided, that notices to the Agent
shall not be effective until received. Any Bank giving any notice to the
Borrower shall simultaneously send a copy thereof to the Agent, and the Agent
shall promptly notify the other Banks of the receipt by it of any such notice.
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10.7 Severability.
The provisions of this Agreement are intended to be severable.
If any provision of this Agreement shall be held invalid or unenforceable in
whole or in part in any jurisdiction, such provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
10.8 Governing Law.
Each Letter of Credit and Section 2.8 shall be subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, as the same may be
revised or amended from time to time, and to the extent not inconsistent
therewith, the internal laws of the Commonwealth of Pennsylvania without regard
to its conflict of laws principles and the balance of this Agreement shall be
deemed to be a contract under the Laws of the Commonwealth of Pennsylvania and
for all purposes shall be governed by and construed and enforced in accordance
with the internal laws of the Commonwealth of Pennsylvania without regard to its
conflict of laws principles.
10.9 Prior Understanding.
This Agreement and the other Loan Documents supersede all
prior understandings and agreements, whether written or oral, between the
parties hereto and thereto relating to the transactions provided for herein and
therein, including any prior confidentiality agreements and commitments.
10.10 Duration; Survival.
All representations and warranties of the Borrower contained
herein or made in connection herewith shall survive the making of Loans and
issuance of Letters of Credit and shall not be waived by the execution and
delivery of this Agreement, any investigation by the Agent or the Banks, the
making of Loans, issuance of Letters of Credit, or payment in full of the Loans.
All covenants and agreements of the Borrower contained in Sections 7.1, 7.2 and
7.3 herein shall continue in full force and effect from and after the date
hereof so long as the Borrower may borrow or request Letters of Credit hereunder
and until termination of the Revolving Credit Commitments and payment in full of
the Loans and expiration or termination of all Letters of Credit. All covenants
and agreements of the Borrower contained herein relating to the payment of
additional compensation or expenses and indemnification, including those set
forth in the Notes, Article 4 and Sections 9.5, 9.7 and 10.3, shall survive
payment in
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full of the Loans, expiration or termination of the Letters of Credit and
termination of the Revolving Credit Commitments.
10.11 Successors and Assigns.
This Agreement shall be binding upon and shall inure to the
benefit of the Banks, the Agent, the Borrower and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights and Obligations hereunder or any interest herein. Each Bank may, at its
own cost, make assignments of or sell participations in all or any part of its
Revolving Credit Commitment and the Loans made by it to one or more banks or
other financial institutions, subject to the consent of the Borrower and the
Agent with respect to any assignee, such consent not to be unreasonably
withheld, and provided that assignments may not be made in amounts less than
$5,000,000. In the case of an assignment, upon receipt by the Agent of the
Assignment and Assumption Agreement, the assignee shall have, to the extent of
such assignment (unless otherwise provided therein), the same rights, benefits
and obligations as it would have if it had been a signatory Bank hereunder, the
Commitments in Section 2.1 shall be adjusted accordingly, and upon surrender of
any Note subject to such assignment, the Borrower shall execute and deliver a
new Note to the assignee in an amount equal to the amount of the Revolving
Credit Commitment assumed by it and a new Revolving Credit Note to the assigning
Bank in an amount equal to the Revolving Credit Commitment retained by it
hereunder. The assigning Bank shall pay to the Agent a service fee in the amount
of $3,500 for each assignment. In the case of a participation, the selling Bank
shall notify the Borrower and the Agent of the participants identity, and the
participant shall only have the rights specified in Section 8.2.3 (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto and not to include any voting rights except with
respect to changes of the type referenced in clauses 10.1.1., 10.1.2. or 10.1.3
under Section 10.1), all of such Bank's obligations under this Agreement or any
other Loan Document shall remain unchanged, and all amounts payable by the
Borrower hereunder or thereunder shall be determined as if such Bank had not
sold such participation. Any assignee or participant which is not incorporated
under the Laws of the United States of America or a state thereof shall deliver
to the Borrower and the Agent the form of certificate described in Section 10.17
relating to federal income tax withholding. Each Bank may furnish any publicly
available information concerning the Borrower or its Subsidiaries and any other
information concerning the Borrower or its Subsidiaries in the possession of
such Bank from time to time to assignees and participants (including prospective
assignees or participants), provided that such assignees and participants agree
to be bound by the provisions of Section 10.12.
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10.12 Confidentiality.
The Agent and the Banks each agree to keep confidential all
information obtained from the Borrower or its Subsidiaries which is nonpublic
and confidential or proprietary in nature (including any information the
Borrower specifically designates as confidential), except as provided below, and
to use such information only in connection with their respective capacities
under this Agreement and for the purposes contemplated hereby. The Agent and the
Banks shall be permitted to disclose such information (i) to outside legal
counsel, accountants and other professional advisors who need to know such
information in connection with the administration and enforcement of this
Agreement, subject to agreement of such Persons to maintain the confidentiality,
(ii) to assignees and participants as contemplated by Section 10.11, (iii) to
the extent requested by any bank regulatory authority or, with notice to the
Borrower, as otherwise required by applicable Law or by any subpoena or similar
legal process, or in connection with any investigation or proceeding arising out
of the transactions contemplated by this Agreement, (iv) if it becomes publicly
available other than as a result of a breach of this Agreement or becomes
available from a source not subject to confidentiality restrictions, or (v) if
the Borrower shall have consented to such disclosure.
10.13 Counterparts.
This Agreement may be executed by different parties hereto on
any number of separate counterparts, each of which, when so executed and
delivered, shall be an original, and all such counterparts shall together
constitute one and the same instrument.
10.14 Agent's or Bank's Consent.
Whenever the Agent's or any Bank's consent is required to be
obtained under this Agreement or any of the other Loan Documents as a condition
to any action, inaction, condition or event, the Agent and each Bank shall be
authorized to give or withhold such consent in its sole and absolute discretion
and to condition its consent upon the giving of additional collateral, the
payment of money or any other matter.
10.15 Exceptions.
The representations, warranties and covenants contained herein
shall be independent of each other, and no exception to any representation,
warranty or covenant shall be deemed to be an exception to any other
representation, warranty or covenant contained herein unless expressly provided,
nor shall any such exceptions be deemed to permit any action or omission that
would be in contravention of applicable Law.
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10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.
THE BORROWER HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF THE COURT OF COMMON PLEAS OF CHESTER COUNTY AND THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO THE
BORROWER AT THE ADDRESSES PROVIDED FOR IN SECTION 10.6 AND SERVICE SO MADE SHALL
BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. THE BORROWER WAIVES ANY
OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS
PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE. THE BORROWER, THE AGENT AND THE BANKS HEREBY WAIVE TRIAL
BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT
OF OR RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE COLLATERAL TO
THE FULL EXTENT PERMITTED BY LAW.
10.17 Tax Withholding Clause.
Each Bank or assignee or participant of a Bank that is not
incorporated under the Laws of the United States of America or a state thereof
agrees that it will deliver to each of the Borrower and the Agent two (2) duly
completed copies of the following: (i) Internal Revenue Service Form W-9, 4224
or 1001, or other applicable form prescribed by the Internal Revenue Service,
certifying that such Bank, assignee or participant is entitled to receive
payments under this Agreement and the other Loan Documents without deduction or
withholding of any United States federal income taxes, or is subject to such tax
at a reduced rate under an applicable tax treaty, or (ii) Internal Revenue
Service Form W-8 or other applicable form or a certificate of the Bank, assignee
or participant indicating that no such exemption or reduced rate is allowable
with respect to such payments. Each Bank, assignee or participant required to
deliver to the Borrower and the Agent a form or certificate pursuant to the
preceding sentence shall deliver such form or certificate as follows: (A) each
Bank which is a party hereto on the Closing Date shall deliver such form or
certificate at least five (5) Business Days prior to the first date on which any
interest or fees are payable by the Borrower hereunder for the account of each
Bank; (B) each assignee or participant shall deliver such form or certificate at
least five (5) Business Days before the effective date of such assignment or
participation (unless the Agent in its sole discretion shall permit such
assignee or participant to deliver such form or certificate less than five (5)
Business Days before such date in which case it shall be due on the
-84-
<PAGE> 94
date specified by the Agent). Each Bank, assignee or participant which so
delivers a Form W-8, W-9, 4224 or 1001 further undertakes to deliver to each of
the Borrower and the Agent two (2) additional copies of such form (or a
successor form) on or before the date that such form expires or becomes obsolete
or after the occurrence of any event requiring a change in the most recent form
so delivered by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Borrower or the Agent, either
certifying that such Bank, assignee or participant is entitled to receive
payments under this Agreement and the other Loan Documents without deduction or
withholding of any United States federal income taxes or is subject to such tax
at a reduced rate under an applicable tax treaty or stating that no such
exemption or reduced rate is allowable. The Agent shall be entitled to withhold
United States federal income taxes at the full withholding rate unless the Bank,
assignee or participant establishes an exemption or that it is subject to a
reduced rate as established pursuant to the above provisions.
10.18 Public Filings. The Agent agrees to use reasonable
efforts to provide to the Borrower this Agreement, any other Loan Document and
any amendments or supplements hereto or thereto in a computer readable format if
so requested by the Borrower in connection with public filings.
-85-
<PAGE> 95
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
ATTEST: TRIUMPH GROUP, INC.
_____________________________ By:____________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Senior Vice President
Address for Notices:
Four Glenhardie Corporate Center
1255 Drummers Lane, Suite 200
Wayne, PA 19087-1565
Telecopier No. (610) 975-0563
Attention: John R. Bartholdson
Telephone No. (610) 975-0420
PNC BANK, NATIONAL
ASSOCIATION, individually and as Agent
By:________________________________
Title:_____________________________
Address for Notices:
1000 Westlakes Drive, Suite 200
Berwyn, PA 19312
Telecopier No. (610) 725-5799
Attention: Warren C. Engle
Telephone No. (610) 725-5740
and
One PNC Plaza, Fourth Floor Annex
245 Fifth Avenue
Pittsburgh, PA 15222-2707
Attention: Arlene Ohler
Telephone No. (412) 762-3627
-86-
<PAGE> 96
Telecopier No. (412) 762-8672
-87-
<PAGE> 97
EXHIBIT 1.1(P)
PRICING GRID(1)
<TABLE>
<CAPTION>
======================================================================================================================
LEVEL I LEVEL II LEVEL III LEVEL IV
- ----------------------------------------------------------------------------------------------------------------------
Basis for Pricing If the Total If the Total If the Total If the Total
Indebtedness to Indebtedness to Indebtedness to Indebtedness to
EBITDA Ratio is EBITDA Ratio is EBITDA Ratio is EBITDA Ratio is
less than or equal greater than .50 to greater than 1.00 greater than 1.50
to .50 to 1. 1 but less than or to 1 but less than to 1 but less than
equal to 1.00 to 1. or equal to 1.50 to 1. or equal to 2.00 to 1.
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Commitment Fee(2) 12.5 15.0 17.5 20.0
- ----------------------------------------------------------------------------------------------------------------------
Euro-Rate plus(3) 37.5 50.0 65.0 80.0
- ----------------------------------------------------------------------------------------------------------------------
Base Rate plus(2) 0 0 0 0
- ----------------------------------------------------------------------------------------------------------------------
Letter of Credit Fee(2) 37.5 50.0 65.0 80.0
======================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
===================================================================
LEVEL V LEVEL VI
- -------------------------------------------------------------------
Basis for Pricing If the Total If the Total
Indebtedness to Indebtedness to
EBITDA Ratio is EBITDA Ratio is
greater than 2.00 greater than 2.50
to 1 but less than to 1.
or equal to 2.50 to
1.
- -------------------------------------------------------------------
<S> <C> <C>
Commitment Fee(2) 22.5 25.0
- -------------------------------------------------------------------
Euro-Rate plus(3) 100.0 125.0
- -------------------------------------------------------------------
Base Rate plus(2) 0 0
- -------------------------------------------------------------------
Letter of Credit Fee(2) 100.0 125.0
===================================================================
</TABLE>
(1) All prices are expressed in basis points per annum; basis points in
"Euro-Rate" and "Base Rate" rows represent margins added to those rates
in computing the interest rate(s) payable on the Revolving Credit
Loans. Pricing levels are determined quarterly on the basis of the
Total Indebtedness to EBITDA Ratio set forth in the compliance
certificates submitted under Section 7.3.3. Changes in pricing levels
will become effective on the fifth Business Day following the Agent's
receipt of a compliance certificate indicating a change in the Total
Indebtedness to EBITDA Ratio which requires a change in pricing level.
Pricing will be at level II from the Closing Date until any change is
necessitated by the Total Indebtedness to EBITDA Ratio for the quarter
ending March 31, 1997.
(2) Commitment Fees, Base Rate interest and Letter of Credit Fees are
calculated on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed.
(3) Euro-Rate interest is calculated on the basis of a year of 360 days and
actual days elapsed.
-88-
<PAGE> 1
Exhibit 10.28
SECOND REPLACEMENT
REVOLVING CREDIT NOTE
$85,000,000 Berwyn, Pennsylvania
as of March 31, 1997
FOR VALUE RECEIVED, the undersigned, (the "Borrower") promise
to pay the order of PNC BANK, NATIONAL ASSOCIATION, (the "Bank"), on or before
the Expiration Date, the principal sum of Eighty-Five Million Dollars
($85,000,000), or if less, the aggregate amount of the Bank's ratable share of
all Revolving Credit Loans made by the Banks to the Borrower under the "Credit
Agreement" dated as of March 31, 1997 among the Borrower, the several other
banks from time to time party thereto, and PNC Bank, National Association, as
"Agent" for the Banks.
The Borrower shall pay interest on the unpaid principal
balance hereof from time to time outstanding from the date hereof at the rate or
rates per annum specified by the Borrower pursuant to Section 3.1.1 of, or as
otherwise provided in, the Credit Agreement.
Upon the occurrence and during the continuation of an Event of
Default, the Borrower shall pay interest on the entire principal amount of the
then outstanding Revolving Credit Loans evidenced by this Revolving Credit Note
at a rate per annum equal to two hundred basis points (2% per annum) above the
rate of interest otherwise applicable with respect to such loans. Such interest
rate will accrue before and after any judgment has been entered.
Subject to the provisions of the Credit Agreement, interest on
this Revolving Credit Note will be payable on the first Business Day of each
calendar quarter after the date hereof and on the Expiration Date.
If any payment or action to be made or taken hereunder shall
be stated to be or become due on a day which is not a Business Day, such payment
or action shall be made or taken on the next following Business Day and such
extension of time shall
<PAGE> 2
be included in computing interest or fees, if any, in connection with such
payment or action.
Subject to the provisions of the Credit Agreement, payments of
both principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the Principal Office in lawful money of the United
States of America in immediately available funds.
This Note is one of the Revolving Credit Notes referred to in,
and is entitled to the benefits of, the Credit Agreement and other Loan
Documents, including the representations, warranties, covenants, conditions,
security interests or Liens contained or granted therein. The Credit Agreement
among other things contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for prepayment, in certain
circumstances, on account of principal hereof prior to maturity upon the terms
and conditions therein specified.
All capitalized terms used herein shall, unless otherwise
defined herein, have the same meanings given to such terms in the Credit
Agreement.
Except as otherwise provided in the Credit Agreement, the
Borrower waives presentment, demand, notice, protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or
enforcement of this Note and the Credit Agreement.
This Note shall bind the Borrower and its successors and
assigns, and the benefits hereof shall inure to the benefit of the Bank and its
successors and assigns. All references herein to the "Borrower" and the "Bank"
shall be deemed to apply to the Borrower and the Bank, respectively, and their
respective successors and assigns.
This Note and any other documents delivered in connection
herewith and the rights and obligations of the parties hereto and thereto shall
for all purposes be governed by and construed and enforced in accordance with
the internal laws of the Commonwealth of Pennsylvania without giving effect to
its conflicts of law principles.
<PAGE> 3
This Note amends, restates and replaces the Replacement
Revolving Credit Note dated December 31, 1996 of Borrower and its Subsidiaries
to Bank.
IN WITNESS WHEREOF, the undersigned has executed this Note by
its duly authorized officers with the intention that it constitute a sealed
instrument.
ATTEST: TRIUMPH GROUP, INC.
_____________________________ By:_________________________
Name: Richard M. Eisenstaedt Name: John R. Bartholdson
Title: Secretary Title: Senior Vice President
<PAGE> 1
Exhibit 11.1
TRIUMPH GROUP, INC.
STATEMENT OF COMPUTATION OF EARNINGS PER SHARE
FOR THE YEARS ENDED MARCH 31, 1995, 1996 AND 1997
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Years ended March 31,
-------------------------------------------
1995 1996 1997
----------- ----------- -----------
<S> <C> <C> <C>
SUPPLEMENTAL EARNINGS PER SHARE:
Weighted Average Number of Outstanding Common Shares 5,850,455 5,850,455 5,804,960
Weighted Average Number of Shares Issued During Period -- -- 1,283,583
Dilutive Effect of Outstanding Warrant 649,995 649,995 649,995
Dilutive Effect of 1996 Stock Options Issued 28,782
Dilutive Effect of Options Issued Within One Year of Filing
At a Price Below the Estimated IPO Price 36,334 36,334 14,259
Dilutive Effect of the Conversion of the Minority
Interest in Triumph Controls, Inc. 38,530 38,530 5,789
Conversion of Redeemable Preferred Stock 225,128 259,564 281,318
Conversion of 14% Junior Subordinated Promissory Notes 467,263 534,089 579,395
----------- ----------- -----------
Adjusted Weighted Average Number of Outstanding Common
Shares and Common Share Equivalents 7,267,705 7,368,967 8,648,081
=========== =========== ===========
Income From Continuing Operations, Before Extraordinary Loss $ 4,364 $ 5,194 $ 12,555
Interest related to 14% Junior Subordinated Promissory Notes 993 1,146 741
Income Tax Effect (397) (458) (296)
----------- ----------- -----------
Earnings on Common Shares from Continuing Operations, 4,960 5,882 13,000
Before Extraordinary Loss
Extraordinary Loss -- -- (1,478)
(Loss)/Earnings on Common Shares from Discontinued Operations (2,852) 4,496 --
----------- ----------- -----------
Earnings on Common Shares $ 2,108 $ 10,378 $ 11,522
=========== =========== ===========
Adjusted Earnings per Common Share
Continuing Operations, Before Extraordinary Loss $ 0.682 $ 0.798 $ 1.503
Extraordinary Loss -- -- (0.171)
Discontinued Operations (0.392) 0.610 --
----------- ----------- -----------
Total $ 0.290 $ 1.408 $ 1.332
=========== =========== ===========
</TABLE>
Page 1
<PAGE> 1
Exhibit 21.1
SCHEDULE 21.1
Subsidiaries of Triumph Group, Inc.
Triumph Group Holdings, Inc.
The Triumph Group Operations, Inc.
Aerospace Technologies, Inc.
Kilroy Steel, Inc.
Kilroy Structural Steel Co.
Quality Park Products, Inc.
Triumph Controls, Inc.
Advanced Materials Technologies, Inc.
Special Processes of Arizona, Inc.
Triumph/JDC Company
Triumph Group Foreign Sales Corporation
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> MAR-31-1997
<PERIOD-START> APR-01-1996
<PERIOD-END> MAR-31-1997
<CASH> 993
<SECURITIES> 0
<RECEIVABLES> 40,839
<ALLOWANCES> 1,619
<INVENTORY> 54,310
<CURRENT-ASSETS> 97,354
<PP&E> 59,453
<DEPRECIATION> 11,104
<TOTAL-ASSETS> 171,315
<CURRENT-LIABILITIES> 41,066
<BONDS> 23,993
0
0
<COMMON> 10
<OTHER-SE> 91,403
<TOTAL-LIABILITY-AND-EQUITY> 171,315
<SALES> 250,478
<TOTAL-REVENUES> 250,478
<CGS> 176,050
<TOTAL-COSTS> 222,871
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,591
<INCOME-PRETAX> 21,016
<INCOME-TAX> 8,461
<INCOME-CONTINUING> 12,555
<DISCONTINUED> 0
<EXTRAORDINARY> (1,478)
<CHANGES> 0
<NET-INCOME> 11,077
<EPS-PRIMARY> 1.33
<EPS-DILUTED> 1.33
</TABLE>
