<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 For the quarterly period ended June 30, 1999.
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. 333-11801-01 Trianon Industries Corp. Commission File No.
333-11801 Aetna Industries, Inc.
TRIANON INDUSTRIES CORP.
(FORMERLY KNOWN AS MS ACQUISITION CORP.)
AETNA INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-337-9803/38-200-7550
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
(Address of principal executive offices) (Zip Code)
1, rue Thomas Edison, Quartier des Chenes
78056 St. Quentin en Yvelines, France
24331 Sherwood Avenue, P.O. Box 3067, Centerline, Michigan 48015-0067
Registrant's telephone number, including area code (33-1) 39-412000
(810) 759-2200
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or 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
---------------
As of August 16, 1999, there were 1,000 shares of Aetna Industries, Inc. common
stock outstanding and 3,902,498 shares of Trianon Industries Corp. common stock
outstanding.
<PAGE> 2
INDEX
<TABLE>
<S> <C> <C>
PART I FINANCIAL INFORMATION
PAGE
Item 1. FINANCIAL STATEMENTS OF TRIANON INDUSTRIES CORP.
Condensed Consolidated Balance Sheets -
June 30, 1999 and December 31, 1998 3
Consolidated Statements of Operations and
Comprehensive Income (Loss)- three and six months ended
June 30, 1999 and June 30, 1998 4
Condensed Consolidated Statements of Cash Flows -
six months ended June 30, 1999 and June 30, 1998 5
Notes to Consolidated Financial Statements 6
FINANCIAL STATEMENTS OF AETNA INDUSTRIES, INC.
Condensed Consolidated Balance Sheets -
July 4, 1999 and December 31, 1998 12
Consolidated Statements of Operations and
Comprehensive Income (Loss) - three and six months ended
July 4, 1999 and June 28, 1998 13
Condensed Consolidated Statements of Cash Flows -
six months ended July 4, 1999 and June 28, 1998 14
Notes to Consolidated Financial Statements 15
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 17
Item 3. Qualitative and Quantitative Disclosure About
Market Risk 23
Item 4. Submission of Matters to a Vote of Security Holders. 23
PART II OTHER INFORMATION 25
Description of Exhibits 26
Signatures
Exhibit Index
</TABLE>
<PAGE> 3
PART I. FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS
TRIANON INDUSTRIES CORP.
CONDENSED CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
JUNE 30, 1999 DECEMBER 31, 1998
------------- -----------------
(UNAUDITED)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and marketable securities $ 31,138 $ 26,092
Accounts receivable (less allowance for doubtful
accounts of $2,143 and $1,921 respectively) 191,727 181,375
Inventories 106,880 115,287
Other current assets 13,288 9,801
--------- ---------
Total current assets 343,033 332,555
--------- ---------
Property, plant and equipment, net 187,153 203,271
Deferred costs and other assets 25,228 22,969
Goodwill 62,878 65,367
--------- ---------
TOTAL ASSETS $ 618,292 $ 624,162
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 186,340 $ 173,517
Accrued expenses 53,464 82,250
Current portion of long term and short term debt 180,823 157,004
--------- ---------
Total current liabilities 420,627 412,771
--------- ---------
Long-term debt, less current portion 158,654 167,477
Deferred income taxes and other long-term liabilities 18,402 19,370
Redeemable preferred stock 42,715 41,157
Series A - $100 stated value; 405,000 shares authorized; 142,424 shares
issued and outstanding
Series B - $100 stated value; 270,000 shares
authorized; 270,000 shares issued and outstanding
Stockholders' Equity (Deficit)
Class A, common stock - $.01 par value, 20,000,000
shares authorized, 3,902,498 shares issued and outstanding 39 39
Contributed paid-in capital 41,658 40,708
Retained earnings (accumulated deficit) (56,358) (54,910)
Accumulated other comprehensive income (loss) (7,445) (2,450)
--------- ---------
Total shareholders' equity (deficit) (22,106) (16,613)
TOTAL LIABILITIES, PREFERRED STOCK AND
SHAREHOLDER'S EQUITY (DEFICIT) $ 618,292 $ 624,162
========= =========
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE> 4
TRIANON INDUSTRIES CORP.
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME (LOSS)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
------------------ ----------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1999 1998 1999 1998
---- ---- ---- ----
(UNAUDITED) (UNAUDITED)
----------- -----------
<S> <C> <C> <C> <C>
Net sales $ 207,652 $ 188,101 $ 425,810 $ 322,251
Cost of sales 181,047 168,080 372,980 285,951
--------- --------- --------- ---------
Gross profit 26,605 20,021 52,830 36,300
Selling, general and administrative expenses and
research and development expenses 16,869 14,549 31,543 23,962
--------- --------- --------- ---------
Operating income (loss) 9,736 5,472 21,287 12,338
Interest expense, net 7,409 6,929 14,677 8,982
--------- --------- --------- ---------
Income (loss) before income taxes 2,327 (1,457) 6,610 3,356
Income tax provision 2,150 96 4,400 1,428
--------- --------- --------- ---------
Income (loss) before discontinued operations 177 (1,553) 2,210 1,928
Share in net income of equity investees
and minority interest 199 -- 199 --
Losses on discontinued operations, net of tax 385 959 1,157 1,490
--------- --------- --------- ---------
Net income (loss) before
Preferred stock dividends (407) (2,512) 854 438
Preferred stock dividends 1,156 362 2,302 362
--------- --------- --------- ---------
Net income (loss) available for common stockholders ($ 1,563) ($ 2,874) ($ 1,447) $ 76
--------- --------- --------- ---------
Other comprehensive income/(loss):
Foreign currency translation adjustment (1,625) (6,688) (4,995) (523)
--------- --------- --------- ---------
Comprehensive income ($ 3,188) ($ 9,562) ($ 6,442) ($ 447)
========= ========= ========= =========
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE> 5
TRIANON INDUSTRIES CORP.
CONDENSED CONSOLIDATED
STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, JUNE 30,
1999 1998
---- ----
(UNAUDITED)
<S> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES
Net income (loss) $ 854 $ 438
Adjustments to reconcile net income to net cash
provided by (used for) operating activities:
Depreciation and amortization 18,244 15,844
Other non cash charges 1,768 (45)
Changes in other assets and liabilities (1,188) 15,027
-------- --------
Net cash provided by (used for) operating activities 19,678 31,264
-------- --------
CASH FLOW FROM INVESTING ACTIVITIES
Additions to property, plant and equipment (15,086) (18,864)
(Increase) decrease in other assets (3,657) 1,135
-------- --------
Net cash provided by (used for) investing activities (18,743) (17,729)
-------- --------
CASH FLOW FROM FINANCING ACTIVITIES
Dividends paid -- (2,377)
Net increase (decrease) in borrowings under line of credit 36,432 10,603
Repayment of long term debt (81,362) (14,975)
Borrowings of long term loan 51,988 4,508
-------- --------
Net cash provided by (used for) financing activities 7,058 (2,241)
-------- --------
Exhange Rate Variation (2,947) 5
Net increase (decrease) in cash 5,046 11,299
Cash - beginning of year 26,092 11,626
-------- --------
Cash - end of period $ 31,138 $ 22,925
======== ========
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE> 6
TRIANON INDUSTRIES CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
1. DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION
Effective May 12, 1999, MS Acquisition Corp changed its name to Trianon
Industries Corp. Trianon Industries Corp. ("the Company") is the name of
the group formed by the combination of the activities of SOFEDIT S.A. and
Trianon Industries Corp.
Trianon Industries Corp. ("Trianon Industries"), through Aetna Industries
Inc. ("Aetna"), its wholly-owned subsidiary, is a leading direct supplier
of high quality modules, welded subassemblies and chassis parts used as
original equipment components in the North American automobile industry.
SOFEDIT S.A., ("Sofedit") a direct and indirect wholly-owned subsidiary of
the Company, is a leading direct supplier of welded subassemblies, body in
white parts, clutch, brake and accelerator pedal modules, fuel tanks and
crossmembers and chassis parts used as original equipment components by
manufacturers in the European automobile industry.
Trianon Industries and its direct and indirect wholly-owned United States
subsidiaries (i.e., Aetna Holdings, Inc., a Delaware corporation ("Aetna
Holdings"), Aetna Manufacturing Canada Ltd., a Michigan corporation ("Aetna
Canada"), and Aetna Export Sales Corp., a U.S. Virgin Islands corporation
("Export")) have fully and unconditionally guaranteed the 11 7/8% Senior
Notes due 2006 issued by Aetna in an aggregate principal amount of $85.0
million (the "Senior Notes"). Separate financial statements or other
disclosures relative to Aetna Holdings, Export or Aetna Canada have not
been presented as management has determined that such information is not
material to investors.
On April 14, 1998, Trianon Industries completed a combination with Societe
Financiere de Developpement Industriel et Technologique S.A., a French
societe anonyme (Sofedit) (the Combination). In connection with the
Combination, Sofedit's former stockholders transferred the outstanding
capital stock of Sofedit to Trianon Industries in exchange for: (i)
promissory notes of Trianon Industries in the principal amount of $40.9
million; (ii) dividends in an amount of approximately $1.0 million; (iii)
270,000 shares of Series B Preferred stock ($27.0 million stated value) of
Trianon Industries; (iv) 3.0 million shares of Common Stock of Trianon
Industries, and (v) the assumption of approximately $12.0 million of debt
of such former stockholders. The Combination has been accounted for as a
reverse acquisition because the former owners of Sofedit own approximately
75% of the fully diluted outstanding Common Stock of Trianon Industries as
a result of the Combination. For accounting purposes, Sofedit is considered
to be the acquirer of, and the predecessor to, Trianon Industries.
As a result of the Combination being accounted for as a reverse
acquisition, the financial statements included herein for the three month
period ended March 31, 1998 represent the historical information of
Sofedit, as predecessor. The consolidated balance sheet at June 30, 1999
represents the consolidated financial position of Sofedit and Trianon
Industries.
The accompanying unaudited condensed consolidated financial statements of
Trianon Industries have been prepared in accordance with Rule 10-01 of
Regulation S-X and do not include all the information and notes required by
generally accepted accounting principles for complete financial statements.
All adjustments, which include only normal recurring adjustments that are,
in the opinion of management, necessary for a fair presentation of the
results of the interim periods, have been made. The results of operations
for such interim periods are not necessarily indicative of results of
operations for a full year. The unaudited condensed consolidated financial
statements should be read in conjunction with the consolidated financial
statements and notes thereto for the year ended December 31, 1998.
The statements of operations and cash flows for the six months ended June
30, 1998 represent the six month financial data of Sofedit plus three
months financial data of Trianon Industries. On a pro forma basis, Trianon
Industries had net sales of $375.3 million, and pre-tax income of $2.7
million, for the six months ended June 30, 1998.
<PAGE> 7
TRIANON INDUSTRIES CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
2. INVENTORIES
Inventories are comprised of the following:
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1999 1998
--------- ---------
<S> <C> <C>
Raw materials $ 22,797 $ 27,131
Work-in-process 25,619 31,976
Finished goods 13,547 18,839
Tooling 47,529 40,724
--------- ---------
Inventories, gross 109,492 118,670
Less valuation allowance (2,612) (3,383)
--------- ---------
Total inventories $ 106,880 $ 115,287
========= =========
</TABLE>
Tooling inventory at Sofedit is included in work in process at December 31, 1998
and has been included in tooling at June 30, 1999
3. STOCKHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
ACCUMULATED
ADDITIONAL RETAINED OTHER TOTAL
CONTRIBUTED PAID IN EARNINGS COMPREHENSIVE STOCKHOLDER'S
CAPITAL CAPITAL (DEFICIT) INCOME (LOSS) EQUITY (DEFICIT)
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1998 $ 39 $ 40,708 ($54,910) ($2,450) ($16,613)
Reversal of Stock Offering Costs 950 950
Translation adjustment (4,995) (4,995)
Preferred Stock dividends -- -- (2,302) (2,302)
Net income (loss) -- -- 854 854
------- -------- -------- ------- --------
Balance at June 30, 1999 $ 39 $ 41,658 ($56,358) ($7,445) ($22,106)
------- -------- -------- ------- --------
</TABLE>
<PAGE> 8
TRIANON INDUSTRIES CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
4. ACQUISITION OF EMARC
The Company acquired 20% of the outstanding share capital of EMARC in
October 1998. Pursuant to a share purchase agreement dated May 21, 1999 and
amended on June 23, 1999, the Company agreed to pay an aggregate cash
consideration of approximately $15.8 million and to issue 192,800 shares of
its Common Stock to acquire the remaining 80% of the outstanding capital of
EMARC. Pursuant to the terms of the amended share purchase agreement, the
Company made a cash payment to acquire 10% of the outstanding capital of
EMARC in June, 1999 and placed the remaining funds in an escrow account. In
November 1999, the Company will release the remaining funds from escrow and
will issue the 192,800 shares of its Common Stock to EMARC's shareholders
and acquire the remaining 70% of the share capital of EMARC. In addition,
under the share purchase agreement, the former EMARC shareholders have been
granted the option to require the Company to repurchase the 192,800 shares
between June 15, 2001 and December 31, 2001, for approximately $15.
million. Furthermore, pursuant to the share purchase agreement, the Company
has agreed to employ a selling shareholder of EMARC in a management
position at the Company for a period of five years beginning in 1999. The
Company will also assume $40.6 million of existing debt of EMARC.
5. SUBSEQUENT EVENT - ACQUISTION OF ZENITH
Pursuant to a stock purchase agreement executed on May 10, 1999, TRIANON
Industries Corp. (as more specifically defined in the subsequent filing of
the 8-K on July 28, 1999) acquired all of the outstanding shares of Zenith
Industrial Corporation, a Michigan corporation ("Zenith"), on July 13,
1999, from its existing shareholders (the "Acquisition"), for an initial
purchase price of $101.0 million. In addition to such initial purchase
price, TRIANON Industries Corp. has agreed to make annual contingent
payments to the former shareholders of Zenith, based on income targets over
a period of three years. Moreover, TRIANON Industries Corp. has agreed to
pay to the former shareholders of Zenith additional compensation of an
aggregate amount of $6.0 million in three installments of $2.0 million each
over three years. On July 13, 1999, Zenith entered into a five year senior
secured reducing revolving credit facility for an aggregate amount of
$125.0 million. The revolving credit facility is fully guaranteed by
TRIANON Industries Corp., Zenith and Aetna Holdings Inc. a wholly-owned
direct Delaware subsidiary of TRIANON Industries Corp. Zenith plans to use
the funds under this credit facility to finance the $101.0 million initial
purchase price and for ongoing general corporate purposes.
6. OTHER EVENT - TENDER OFFER
On July 29, 1999, Aetna Industries announced the cash tender offer and
consent solicitation relating to its $85.0 million outstanding principal
amount of 11 7/8% Senior notes due 2006, Series B. Aetna will finance the
purchase price and the consent payments with the proceeds of a planned new
credit facility and a planned new offering of notes by Aetna's parent,
Trianon Industries Corp. ("Trianon"). The tender offer is conditioned upon,
among other things, the receipt of the consents and Trianon's completion of
the new offering of notes. Banc One Capital Markets, Inc. is acting as the
dealer manager for the tender offer and the consent solicitation. The
depositary for the offer is Norwest Bank Minnesota National Association.
<PAGE> 9
7. SHORT TERM & LONG TERM DEBT
In March, 1999, Trianon Industries entered into a revolving line of credit
with its principal bank for up to $10,000,000. The loans have been used to
make equity contributions to Aetna, and may be used to make additional
contributions or, if permitted, subordination loans to Aetna. The credit
agreement provides that funds borrowed will bear interest, (i) prior to
July 30, 1999, at Trianon Industries' option, at either (a) the bank's
prime rate or (b) .25% over LIBOR (as adjusted for reserve requirements of
the Federal Reserve System) and (ii) after July 30, 1999, at 2% over the
greater of the federal funds rate or the bank's prime rate. Trianon
Industries must also pay a commitment fee of 1/2% per annum on the unused
amount of the commitment. The loans were payable on June 30, 1999. As of
June 30, 1999, Trianon Industries had outstanding borrowings under the
credit agreement totaling $9,000,000. The credit agreement contains
certain restrictive covenants including covenants relating to financial
statement ratios.
In May, 1999, Trianon Industries entered into a line of credit with its
principal bank for $41,300,000. The loans were used to finance the
repurchase $40,968,000 aggregate principal amount of Trianon Industries'
promissory notes and accrued interest thereon. The credit agreement
provides that funds borrowed will bear interest, (i) prior to July 30,
1999, at either (a) the bank's prime rate or (b) a rate mutually agreed
upon by Trianon Industries and the bank and (ii) after July 30, 1999, at
2% over the greater of the bank's prime rate or 1% over the federal funds
rate. The loans were payable on June 30, 1999. As of June 30, 1999,
Trianon Industries had outstanding borrowings under the credit agreement
totaling $55,925,000. The credit agreement contains restrictive covenants
including covenants relating to financial statement ratios.
8. COMBINING FINANCIAL INFORMATION OF TRIANON INDUSTRIES CORP BALANCE SHEET AS
OF JUNE 30, 1999
<TABLE>
<CAPTION>
AETNA
AETNA HOLDINGS TRIANON SOFEDIT ELIMINATIONS TOTAL
<S> <C> <C> <C> <C> <C> <C>
Total current assets $ 107,084 $ - $ 40 $ 255,336 $ (19,427) $ 343,033
Property, plant and
Equipment, net 70,338 6,370 110,445 - 187,153
Other long-term assets 28,715 15,845 123,751 23,933 (104,138) 88,106
----------- ------------- -------------- ------------ --------------- -------------
Total assets $ 206,137 $ 15,845 $ 130,161 $ 389,714 $ (123,565) $ 618,292
=========== ============= ============== ============ =============== =============
Total current liabilities 122,905 (438) 55,050 251,903 (8,793) 420,626
Long-term debt 88,125 - 12,032 61,452 (12,032) 149,577
Junior subordinated notes 9,077 9,077
Deferred income taxes and
other long-term liabilities 5,498 - 3,478 9,426 18,402
Redeemable preferred stock 42,715 42,715
Class A, common stock
$.01 par value,
12,000,000 shares
Authorized, 3,902,498
Outstanding 39 1,215 (1,215) 39
Additional paid-in capital 17,024 8,000 16,748 22,865 (22,979) 41,658
Retained earnings
(accumulated deficit) (27,428) (794) 99 39,110 (67,345) (56,358)
Cumulative translation
Adjustment 13 - - 3,743 (11,201) (7,445)
----------- ------------- -------------- ------------ --------------- -------------
Total shareholders equity
(deficit) (10,391) 7,206 16,886 66,933 (102,740) (22,106)
---------- -------------- --------------- ------------- ---------------- -------------
Total liabilities and
shareholders equity (deficit) $ 206,137 $ 15,845 $ 130,161 $389,714 $ (123,565) $ 618,292
========== ============== =============== ============= ================ ==============
</TABLE>
<PAGE> 10
TRIANON INDUSTRIES CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
8. COMBINING FINANCIAL INFORMATION OF TRIANON INDUSTRIES CORP. (CONTINUED)
CONSOLIDATED STATEMENT OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 1999
<TABLE>
<CAPTION>
AETNA
AETNA HOLDINGS TRIANON SOFEDIT TOTAL
<S> <C> <C> <C> <C> <C>
Net sales $ 132,480 $0 $0 $293,330 $425,810
Cost of sales 116,137 - - 256,843 372,980
--------- ------- ----------- ------------- ----------
Gross profit 16,343 - - 36,487 52,830
Selling, general and
Administrative expenses 10,008 - 943 18,854 29,805
Other expenses 812 - 355 570 1,737
--------- ------- ----------- ------------- ----------
Operating income (loss) 5,523 - (1,298) 17,063 21,228
Net interest expense 7,660 495 1,792 4,730 14,677
--------- ------- ----------- ------------- ----------
Income (loss) before income
Taxes (2,137) (495) (3,090) 12,333 6,611
Income tax provision (credit) (660) (168) (1,035) 6,263 4,400
--------- ------- ----------- ------------- ----------
Income (loss) before discontinued operations,
Preferred stock dividends, and equity investees (1,477) (327) (2,055) 6,070 2,210
Share in net income of equity investees - - - 199 199
Discontinued Operations - - - 1,157 1,157
Preferred stock dividend - - 2,302 - 2,302
--------- ------- ----------- ------------- -----------
Net income available to common
Stockholders $ (1,477) $ (327) $ (4,357) $ 4,714 $ (1,447)
--------- -------- ----------- ------------- -----------
Other comprehensive income (loss):
Foreign currency translation
Adjustment 257 - - $ (538) (4,995)
--------- ------- ------------ ------------- -----------
Comprehensive income (loss) $ (1,220) $ (327) $ (4,357) $ (5,252) $ 1,836
========= ======= ============ ============= ===========
</TABLE>
<PAGE> 11
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
8. COMBINING FINANCIAL INFORMATION OF TRIANON INDUSTRIES (CONTINUED)
CONSOLIDATED STATEMENT OF CASH FLOWS FOR THE SIX MONTHS ENDED JUNE 30, 1999
<TABLE>
<CAPTION>
AETNA
AETNA HOLDINGS TRIANON SOFEDIT ELIM TOTAL
<S> <C> <C> <C> <C> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES
Net cash provided by (used in)
operating activities $(8,364) $(432) $ 465 $28,008 $ - $ 19,678
CASH FLOW FROM INVESTING ACTIVITIES
Net cash used for (provided by)
investing activities (2,080) - (1,197) (15,466) - (18,743)
CASH FLOW FROM FINANCING ACTIVITIES
Net cash provided by financing 9,080 432 813 (3,267) - 7,058
Net effect of exchange rate 254 (51) (3,150) - (2,947)
Net increase in cash (1,110) - 30 6,126 - 5,046
Cash - beginning of year 1,185 - - 24,907 - 26,092
Cash - end of period $ 75 $ - $ 30 $31,033 $ - $ 31,138
</TABLE>
9. SEGMENT INFORMATION
The Company operates in one line of business, the design and manufacture of
highly engineered metal-formed components, complex modules and mechanical
assemblies for automotive OEM's in Europe and North America. The Company manages
the business under two segments, Europe and North America. The accounting policy
of the reportable segments are the same as those described in the summary of
significant accounting policies in the Company's annual report on Form 10-K. The
Company evaluates performance based on earnings before interest, income taxes,
net income of equity investees, minority interests and discontinued operations
(EBIT).
<TABLE>
<CAPTION>
June 30, June 30, December 31,
1999 1998 1998
OPERATING North North North
SEGMENTS Europe America Total Europe America Total Europe America Total
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $ 293,330 $ 132,480 $ 425,810 $ 221,943 $ 100,308 $ 322,251 $ 542,037 $ 168,809 $ 710,846
EBIT 17,063 4,225 21,288 9,835 2,503 12,338 19,255 (7,569) 11,686
Depreciation and
Amortization 12,571 5,673 18,244 10,917 4,927 15,844 23,405 8,438 31,843
Total assets $ 389,714 $ 228,578 $ 618,292 $ 418,663 $ 157,256 $ 575,919 $ 408,915 $ 215,247 $ 624,162
</TABLE>
10. COMMON STOCK AND PREFERRED STOCK
As of May 12, 1999 the capital structure of authorized shares of common stock
and preferred stock as amended in the Certificate of Amendment of Restated
Certification of Incorporation of Trianon Industries Corp are as follows:
Common Stock Shares: 20,000,000 Preferred Stock Shares: SERIES A - 405,000
SERIES B - 270,000 New Preferred - 2,000,000 Any dividends accruing on shares of
Series A preferred Stock may be paid, in lieu of cash dividends, by the issuance
of additional shares of Series A Preferred Stock (including fractional shares)
having an aggregate Stated Value at the time of such payment equal to the amount
of the dividend to be paid.
<PAGE> 12
AETNA INDUSTRIES, INC.
(A WHOLLY-OWNED SUBSIDIARY OF
TRIANON INDUSTRIES CORP.)
CONDENSED CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
JULY 4, DECEMBER 31,
1999 1998
---- ----
ASSETS (UNAUDITED)
<S> <C> <C>
CURRENT ASSETS:
Cash $ 75 $ 1,18
Accounts receivable (less allowance for doubtful
accounts of $437 and $411, respectively) 61,737 38,793
Inventories 41,268 47,764
Other current assets 4,004 3,390
--------- ---------
Total current assets 107,084 91,132
--------- ---------
Property, plant and equipment, net 70,338 71,922
Deferred costs and other assets 4,944 5,717
Goodwill 23,771 24,172
--------- ---------
Total Assets $ 206,137 $ 192,943
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 52,712 $ 48,874
Accrued expenses 12,393 10,896
Current portion of long term and short term debt 57,800 56,720
--------- ---------
Total current liabilities 122,905 116,490
--------- ---------
Long-term debt, less current portion 88,125 88,125
Deferred income taxes 5,498 5,498
Stockholder's equity (deficit)
Common stock - $.01 par value; 1,000 shares
issued and outstanding - -
Contributed capital 17,024 9,024
Accumulated deficit (27,428) (25,950)
Cumulative translation adjustment 13 (244)
--------- ---------
Total shareholders' equity (deficit) (10,391) (17,170)
--------- ---------
Total liabilities and shareholder equity $ 206,137 $ 192,943
(deficit) ========= =========
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE> 13
AETNA INDUSTRIES, INC.
(A WHOLLY-OWNED SUBSIDIARY OF
TRIANON INDUSTRIES CORP.)
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JULY 4, JUNE 28, JULY 4, JUNE 28,
1999 1998 1999 1998
---- ---- ---- ----
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Net Sales $ 65,660 $ 47,223 $ 132,480 $ 100,308
Cost of Sales 57,433 43,405 116,137 88,379
--------- --------- --------- ---------
Gross Profit 8,227 3,818 16,343 11,929
Selling, general and administrative expenses 5,848 4,940 10,820 9,426
--------- --------- --------- ---------
Operating income (loss) 2,379 (1,122) 5,523 2,503
Interest expense, net 3,845 3,187 7,660 6,053
--------- --------- --------- ---------
Income (loss) before income taxes (1,466) (4,309) (2,137) (3,550)
Income tax provision (credit) (534) (1,105) (660) (870)
--------- --------- --------- ---------
Net income (loss) ($932) ($3,204) ($1,477) ($2,680)
========= ========= ========= =========
Other Comprehensive income (loss):
Foreign currency translation adjustment 187 - 257 -
--------- --------- --------- ---------
Comprehensive income (loss) ($745) ($3,204) ($1,220) ($2,680)
========= ========= ========= =========
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE> 14
AETNA INDUSTRIES, INC.
(A WHOLLY-OWNED SUBSIDIARY OF
TRIANON INDUSTRIES CORP.)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JULY 4, JUNE 28,
1999 1998
---- ----
CASH FLOW FROM OPERATING ACTIVITIES (UNAUDITED)
<S> <C> <C>
Net income (loss) $ (1,477) $ (2,680)
Adjustments to reconcile net income to net cash
Provided by (used for) operating activities:
Depreciation and amortization 4,837 4,927
Changes in other assets and liabilities (11,724) (4,163)
-------- --------
Net cash provided by (used for) operating activities (8,364) (1,916)
CASH FLOWS FROM INVESTING ACTIVITIES
Additions to property, plant, and equipment (2,507) (9,389)
Increase in other assets 427 (954)
-------- --------
Net cash used for investing activities (2,080) (10,343)
CASH FLOWS FROM FINANCING ACTIVITIES
Net (decrease) increase in borrowings under line of credit 1,080 12,451
Capital Contribution 8,000 -
-------- --------
Net cash provided by (used for) financing activities 9,080 12,451
-------- --------
Exchange Rate Variation 254 -
Net increase (decrease) in cash (1,110) 192
Cash - beginning of year 1,185 23
-------- --------
Cash - end of period $ 75 $ 215
======== ========
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE> 15
AETNA INDUSTRIES, INC.
(A WHOLLY-OWNED SUBSIDIARY OF
TRIANON INDUSTRIES CORP.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
1. BASIS OF PRESENTATION
Aetna Industries, Inc. ("Aetna") is a wholly-owned indirect subsidiary
of Trianon Industries Corp. ("Trianon Industries") and is a wholly-owned
direct subsidiary of Aetna Holdings, Inc. ("Aetna Holdings") and has two
wholly-owned subsidiaries Aetna Export Sales Corp. ("Export") and Aetna
Manufacturing Canada Ltd ("Aetna Canada"). Trianon Industries is a
holding company that was formed for the sole purpose of purchasing Aetna
and does not have any significant operations, other than its investments
in its subsidiaries assets or liabilities, preferred stock and junior
subordinated debentures.
Trianon Industries, Holdings, Export and Canada have fully and
unconditionally guaranteed the 11 7/8% Senior Notes due 2006 issued by
Aetna in an aggregate principal amount of $85,000,000 (the "Senior
Notes"). Separate financial statements or other disclosures relative to
Aetna Holdings, Export or Aetna Canada have not been presented as
management has determined that such information is not material to
investors.
On April 14, 1998, Aetna's parent, Trianon Industries Corp. (Trianon
Industries) completed a combination with Societe Financiere de
Developpement Industriel et Technologique S.A., a French societe anonyme
(Sofedit) (the Combination). In connection with the Combination,
Sofedit's former stockholders transferred the outstanding capital stock
of Sofedit to Trianon Industries in exchange for: (i) promissory notes
of Trianon Industries in the principal amount of $40.9 million; (ii)
dividends in an amount of approximately $1.0 million; (iii) 270,000
shares of Series B Preferred stock ($27.0 million stated value) of
Trianon Industries; (iv) 3.0 million shares of Common Stock of Trianon
Industries, and (v) the assumption of approximately $12.0 million of
debt of such former stockholders. The Combination has been accounted for
as a reverse acquisition because the former owners of Sofedit own
approximately 75% of the fully diluted outstanding Common Stock of
Trianon Industries as a result of the Combination. For accounting
purposes, Sofedit is considered to be the acquirer of, and the
predecessor to, Trianon Industries.
The accompanying unaudited condensed consolidated financial statements
of Aetna have been prepared in accordance with Rule 10-01 of Regulation
S-X and do not include all the information and notes required by
generally accepted accounting principles for complete financial
statements. All adjustments, which include only normal recurring
adjustments that are, in the opinion of management, necessary for a fair
presentation of the results of the interim periods, have been made. The
results of operations for such interim periods are not necessarily
indicative of results of operations for a full year. The unaudited
condensed consolidated financial statements should be read in
conjunction with Aetna's consolidated financial statements and notes
thereto for the year ended December 31, 1998.
<PAGE> 16
AETNA INDUSTRIES, INC.
(A WHOLLY-OWNED SUBSIDIARY OF
TRIANON INDUSTRIES CORP.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
2. INVENTORIES Inventories are comprised of the following:
<TABLE>
<CAPTION>
JULY 4, DECEMBER 31,
1999 1998
---- ----
(UNAUDITED)
-----------
<S> <C> <C>
Raw materials $ 1,256 $ 881
Work-in-process 4,253 2,333
Finished goods 1,835 1,670
Tooling 30,112 40,724
-------- --------
Inventories valued at FIFO 37,456 45,608
LIFO Reserve (201) (200)
-------- --------
37,255 45,408
Purchased parts and purchased labor 4,013 2,356
-------- --------
Total inventories $ 41,268 $ 47,764
======== ========
</TABLE>
3. STOCKHOLDER'S EQUITY (DEFICIT)
<TABLE>
<CAPTION>
ACCUMULATED
OTHER TOTAL
CONTRIBUTED ACCUMULATED COMPREHENSIVE STOCKHOLDER'S
CAPITAL DEFICIT INCOME EQUITY (DEFICIT)
<S> <C> <C> <C> <C>
Balance at December 31, 1998 $ 9,024 $(25,951) $ (244) $(17,171)
Translation adjustment -- -- 257 257
Capital Contribution 8,000 -- -- 8,000
Net loss -- (1,477) -- (1,477)
-------- -------- -------- --------
Balance at July 4, 1999 $ 17,024 $(27,428) $ 13 $(10,391)
-------- -------- -------- --------
</TABLE>
4. OTHER EVENT - TENDER OFFER
On July 29, 1999, Aetna Industries announced the cash tender offer and
consent solicitation relating to its $85.0 million outstanding
principal amount of 11 7/8% Senior notes due 2006, Series B. Aetna will
finance the purchase price and the consent payments with the proceeds
of a planned new credit facility and a planned new offering of notes by
Aetna's parent, Trianon Industries Corp. ("Trianon"). The tender offer
is conditioned upon, among other things, the receipt of the consents
and Trianon's completion of the new offering of notes. Banc One Capital
Markets, Inc. is acting as the dealer manager for the tender offer and
the consent solicitation. The depositary for the offer is Norwest Bank
Minnesota National Association.
<PAGE> 17
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
TRIANON INDUSTRIES
RESULTS OF OPERATIONS
On April 14, 1998, Trianon Industries completed a combination with Societe
Financiere de Developpement Industriel et Technologique S.A., a French societe
anonyme (Sofedit) (the Combination). In connection with the Combination,
Sofedit's former stockholders transferred the outstanding capital stock of
Sofedit to Trianon Industries in exchange for: (i) promissory notes of Trianon
Industries in the principal amount of $40.9 million; (ii) dividends in an amount
of approximately $1.0 million; (iii) 270,000 shares of Series B Preferred stock
($27.0 million stated value) of Trianon Industries; (iv) 3.0 million shares of
Common Stock of Trianon Industries, and (v) the assumption of approximately
$12.0 million of debt of such former stockholders. The Combination has been
accounted for as a reverse acquisition because the former owners of Sofedit own
approximately 75% of the fully diluted outstanding Common Stock of Trianon
Industries as a result of the Combination. For accounting purposes, Sofedit is
considered to be the acquirer of, and predecessor of Trianon Industries.
As a result of the Combination being accounted for as a reverse acquisition, the
statements of operations and cash flows included herein for the six month period
ended June 30, 1998 represent the historical information of Sofedit, as
predecessor. The consolidated balance sheet at June 30, 1999 and December 31,
1998 represents the consolidated financial position of Sofedit and Trianon
Industries. The statements of operations and cash flows for the six months ended
June 30, 1999 represent the consolidated six month financial data of Sofedit and
Trianon Industries.
On August 28, 1999, Aetna Industries, Inc. launched a cash tender offer and
consent solicitation relating to it $85 million outstanding principal amount of
11 7/8% Senior Notes due 2006, Series B. Aetna will finance the purchase price
and the consent payments with the proceeds of a new credit facility and a new
offering of notes by Aetna's parent, Trianon Industries Corp ("Trianon"). The
tender offer is conditioned upon, among other things, the receipt of the
consents and Trianon's completion of the new offering of notes.
The following table sets forth, for the periods indicated, Trianon Industries's
statement of operations expressed as a percentage of net sales for six months
ended June 30, 1999 and proforma statement of operations for the six months
ended June 30, 1998. This table and subsequent discussions should be read in
conjunction with the condensed consolidated financial statements and related
notes thereto of Trianon Industries included elsewhere herein.
AS A PERCENTAGE OF NET SALES
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
------------------ ----------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 100.0%
Cost of sales 87.2% 89.4% 87.6% 88.2%
------------ ------------ ------------- -------------
Gross profit 12.8% 10.6% 12.4% 11.8%
Selling, general and administrative expenses 8.1% 7.7% 7.4% 7.6%
------------ ------------ ------------- -------------
Operating income (loss) 4.7% 2.9% 5.0% 4.1%
Interest expense, net 3.6% 3.7% 3.4% 3.4%
------------ ------------ ------------- -------------
Income (loss) before income taxes 1.2% (0.8%) 1.6% 0.7%
Income tax provision (credit) 1.0% 0.1% 1.0% 0.3%
Share in net income of equity
Investees and minority interests 0.1% 0.0% 0.0% 0.0%
Losses in discontinued operations 0.2% 0.5% 0.3% 0.4%
------------ ------------ ------------- -------------
Net income (loss) before preferred stock dividends (0.2%) (1.3%) 0.2% 0.0%
============ ============ ============= =============
</TABLE>
<PAGE> 18
THREE MONTHS ENDED JUNE 30, 1999 COMPARED TO THREE MONTHS ENDED JUNE
30, 1998
NET SALES: Net sales were $207.7 million, up 10.4% from the $188.1 million for
the three months ended June 30, 1999. Net sales in North America were 39.0%
higher in the three months ended June 30, 1999 than 1998. The increase in North
America Sales was due to lower sales in the second quarter 1998 because of the
model change over and subsequent launch of the DaimlerChrysler's Jeep Grand
Cherokee, and the launch of the CAMI Vitara, as well as an increase in tooling
and prototype sales. Net sales in Europe were up 0.8% in the second quarter 1999
from 1998, or 3.3% excluding the effects of foreign exchange. The increase in
European sales was due to both a general growth in the car market and to the
launch of the Renault Clio II, Peugeot 206, and the Mercedes Class S in 1998
which reached full production in 1999.
GROSS PROFIT: Gross profit was $26.6 million, or 12.8% of net sales, for the
three months ended June 30, 1999 compared to $20.0 million, or 10.6% of net
sales, for the same period in 1998. In North America, gross profit was $8.2
million for three months ended June 30, 1999 compared to $3.8 million for the
same period in 1998. North American gross profit was higher due to the increased
margin associated with higher Jeep Grand Cherokee sales and the margin
associated with the CAMI Vitara. In Europe, gross profit reached $18.2 million
or 12.8% of net sales, versus $16.6 million or 11.8% of net sales in 1998. The
increase in European gross margin is mainly due to reducing launch and project
costs and to the first effect of cost saving plans implemented at several
production facilities.
SELLING, GENERAL AND ADMINISTRATIVE ("SG&A") EXPENSES: SG&A expenses for the
three months ended June 30, 1999 were $16.9 million, or 8.1 % of net sales,
compared to $14.5 million, or 7.7% of net sales, for the same period in 1998.
Increased costs were due to increased project team activity and the
reinforcement of the current management structure.
INTEREST EXPENSE: Interest expense for the three months ended June 30, 1999 was
$7.4 million, or 3.6% of net sales, compared to $6.9 million, or 3.7% of net
sales in the same period in the prior year. The increase in interest expense is
due principally to a sharp increase in tooling inventory relating to two major
projects in North America. In Europe, interest expense was $2.4 million or 1.7%
of sales, versus $2.7 million for the same period in 1998. Excluding the effect
of exchange rate fluctuations, interest expense in Europe decreased by 10.1%.
INCOME TAXES: The income tax for the three months ended June 30, 1999 was $2.2
million with an effective tax rate of 92.4% as compared to a provision of $0.1
million for the same period in the prior year. The change in the effective tax
rate is mainly due to the loss incurred in North America and to reduced research
and development tax credit in France.
SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO PROFORMA SIX MONTHS ENDED JUNE 30,
1998
NET SALES: Net sales were $425.8 million, up 13.5% from the $375.3 million for
the six months ended June 30, 1999. Net sales in North America were 32.1% higher
in the first six months in 1999 than 1998. The increase in North America Sales
was due to the second quarter 1998 model change over and subsequent launch of
the DaimlerChrysler's Jeep Grand Cherokee, and the launch of the CAMI Vitara, as
well as an increase in tooling and prototype sales. Net sales in Europe were up
6.7% in the second quarter 1999 from 1998, or 6.0% excluding the effects of
foreign exchange. The increase in European sales was due to both a general
growth in the car market and to the launch of the Renault Clio II, Peugeot 206,
and the Mercedes Class S in 1998 which reached full production in 1999.
GROSS PROFIT: Gross profit was $52.8 million, or 12.4% of net sales, for the six
months ended June 30, 1999 compared to $44.2 million, or 11.8% of net sales, for
the same period in 1998. In North America, gross profit was $16.3 million for
six months ended June 30, 1999 compared to $11.3 million in 1998. Gross profit
increase North America is due to primarily increased profit from the Jeep Grand
Cherokee and the CAMI Vitara. In Europe, gross profit reached $36.5 million or
12.4% of net sales, versus $32.9 million or 12.0% of net sales in 1998. The
increase in European gross margin is mainly due to reducing launch and project
costs and to the first effect of cost saving plans implemented at several
production facilities.
<PAGE> 19
SELLING, GENERAL AND ADMINISTRATIVE ("SG&A") EXPENSES: SG&A expenses for the six
months ended June 30, 1999 were $31.5 million, or 7.4 % of net sales, compared
to $28.7 million, or 7.6% of net sales, for the same period in 1998. Increased
costs were due to increased project team activity and the reinforcement of the
current management structure.
INTEREST EXPENSE: Interest expense for the six months ended June 30, 1999 was
$14.7 million, or 3.5% of net sales, compared to $12.9 million, or 3.4% of net
sales in the same period in the prior year. The increase in interest expense is
due principally to a sharp increase in tooling inventory relating to two major
projects in North America. In Europe, interest expense was $4.7 million or 1.6%
of net sales, versus $4.7 million for the same period in 1998. Excluding the
effect of exchange rate fluctuations, interest expense in Europe decreased by
0.8%.
INCOME TAXES: The income tax for the six months ended June 30, 1999 was $4.4
million with an effective tax rate of 66.6% as compared to a provision of $1.2
million with an effective tax rate of 42.5% for the same period in the prior
year. The change in the effective tax rate is mainly due to loss incurred in
North America and to reduced research and development tax credit in France.
LIQUIDITY AND CAPITAL RESOURCES
Trianon Industries's primary sources of liquidity are cash generated from
operations and short-term and long-term debt, including the sale of receivables.
Trianon Industries's principal use for these funds is to finance working capital
needs, debt payments and planned maintenance and expansion activities. The
Company's liquidity is affected by both the cyclical nature of its business and
its level of net sales. The Company believes that operating cash flow and its
line of bank credit will be sufficient to cover its short-term and long-term
capital expenditures and debt payment obligations. Nevertheless, Trianon
Industries's ability to meet these liquidity demands will depend upon future
operating performance, which will be affected by prevailing economic conditions
and financial, business and other factors, certain of which are beyond Trianon
Industries's control.
FINANCIAL CONDITION
At June 30, 1999, Trianon Industries had available cash, cash equivalents and
marketable securities totaling $31.1 million, compared to $26.1 million at
December 31, 1998. At June 30, 1999, Trianon Industries had current assets of
$343.0 million, compared to $420.6 million in current liabilities, giving it
negative working capital of $77.6 million, compared to negative $80.2 million at
December 31, 1998.
At June 30, 1999, Trianon Industries had $3.1 million available under its
Amended and Restated Credit Agreement among Aetna, Trianon Industries, Aetna
Holdings, Aetna Export Sales Co., Aetna Canada and NBD Bank (the "Senior
Revolving Credit Facility").
On June 30, 1999, short-term debt consisted of $16.4 million of bank overdraft,
$106.1 million of lines of credit, $58.3 million bank borrowing. Long-term
debt consisted of Senior notes of $85.0 million, long-term bank loans of $38.3
million, leasing contracts of $26.3 million and junior debt of $9.1 million.
CASH FLOWS
Net cash provided by operating activities was $19.7 million compared to $31.3
million in the same period of the prior year. The principal reason for the
decrease in cash provided by operating activities is attributable to tooling
inventory increases, partially offset by increased depreciation and
amortization.
Net cash used for investing activities was $18.7 million and $17.7 million for
the six months ended June 30, 1999 and 1998, respectively. The change was due
principally to decreased capital expenditures in North America. Capital
expenditures in Europe reached $12.5 million for the six months ended June 30,
1999, compared to $12.8 million for the same period in 1998.
Net cash provided by financing was $7.1 million compared to cash used for
financing of $2.2 million for the six months ended June 30, 1999 and 1998
respectively. This change was principally due to an increase in medium term
loans in Europe in 1999.
<PAGE> 20
EUROPEAN MONETARY UNION
Since substantial portions of Trianon Industries's activities are carried out in
Europe, Trianon Industries is actively preparing for the introduction of a
single European currency. After January 1, 1999, Trianon Industries will be
required, upon the request of any party with which it transacts to use the euro
as a currency of payment in its European commercial activities in certain
financial transactions and in dealings with administrative bodies. On the basis
of currently available information, Trianon Industries does not expect that
expenses to be incurred in connection with the introduction of the euro as a
currency of payment for Trianon Industries will have a material adverse effect
on the results of operations or financial position of Trianon Industries.
YEAR 2000
Trianon Industries has conducted a review of its computer systems to identity
those areas that may not be Year 2000 compliant and is developing a plan to
resolve the issue. Trianon Industries believes that by modifying existing
software and obtaining new releases of licensed software, the Year 2000
transition can be carried out without significant operational expenses or
significant investments in computer systems improvements. On the basis of
currently available information, Trianon Industries does not expect that
expenses be incurred in connection with the continuing identification of systems
which are not Year 2000 compliant and with their replacement or upgrade will
have a material adverse impact on the results of operations or financial
position of Trianon Industries. There can be, however, no assurances of the
absence of any disruptions in Trianon Industries's own systems or those of its
customers and suppliers. Trianon Industries considers that sufficient resources
have been dedicated to address these issues in a timely manner.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In June, 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133 ("SFAS 133"), "Accounting for Derivative
Instruments and Hedging Activities". SFAS 133 addresses the accounting for
derivative instruments. This statement is not expected to have a material effect
on Trianon Industries's financial position or results of operations.
In April 1998, the Accounting Standards Executive Committee issued Statement of
Position 98-5 ("SOP") 98-5), "Reporting on the Costs of Start-up Activities.
This statement prescribes accounting treatment for start-up activities and is
effective for fiscal years beginning after December 15, 1998. The adoption of
this statement did not have a material effect on Trianon Industries's financial
position or result of operations.
FUTURE OPERATING RESULTS
With the exception of historical matters, the matters discussed in this
Quarterly Report on Form 10-Q are forward- looking statements that involve risks
and uncertainties, including, but not limited to, factors related to the highly
competitive nature of the automotive supplier industry and its sensitivity to
changes in general economic conditions, the results of financing efforts and
other factors discussed in Aetna's or Trianon Industries's filings with the
Securities and Exchange Commission. Such factors could cause Trianon
Industries's actual results during the remainder of 1999 and beyond to differ
materially from those expressed in any forward-looking statement made by or on
behalf of Aetna or Trianon Industries. There can be no assurance that additional
sources of financing will not be required during the next twelve months as a
result of unanticipated cash demands or opportunities for expansion or
acquisition, changes in growth strategy or adverse operating results. There can
be no assurance that any additional funds required, whether within the next
twelve months or thereafter, will be available to Aetna or Trianon Industries on
satisfactory terms.
<PAGE> 21
AETNA RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, Aetna's proforma
statement of operations expressed as a percentage of net sales. This table and
subsequent discussions should be read in conjunction with the condensed
consolidated financial statements and related notes thereto of Aetna included
elsewhere herein.
AS A PERCENTAGE OF NET SALES
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
------------------ ----------------
JUNE 30, JUNE 28, JUNE 30, JUNE 28,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 100.0%
Cost of sales 87.5% 91.9% 87.7% 88.1%
------------- ------------- ------------- -------------
Gross profit 12.5% 8.1% 12.3% 11.9%
Selling, general and
Administrative expenses 8.9% 10.5% 8.2% 9.4%
------------- ------------- ------------- -------------
Operating income (loss) 3.6% (2.4%) 4.2% 2.5%
Interest expense, net 5.9% 6.7% 5.8% 6.0%
------------- ------------- ------------- -------------
Income (loss) before
Income taxes (2.2%) (9.1%) (1.6%) (3.5%)
------------- ------------- ------------- -------------
Income tax provision (credit) (0.8%) (2.3%) (0.5%) (0.9%)
Foreign currency translation
Adjustment 0.3% 0.0% 0.2% 0.0%
Net loss (1.1%) (6.8%) (0.9%) (2.7%)
============= ============= ============= =============
</TABLE>
THREE MONTHS ENDED JULY 4, 1999 COMPARED TO PROFORMA THREE MONTHS ENDED JUNE
28, 1998
NET SALES: Net sales for the second quarter of 1999 were $65.7 million, or 39.2%
higher than second quarter 1998 sales of $47.2 million. Production sales of
$61.8 million in the second quarter of 1999 were up $19.6 million from $42.2
million in the same period of 1998, due to the second quarter 1998 model change
over and subsequent launch of the DaimlerChrysler's Jeep Grand Cherokee, and the
launch of the CAMI Vitara. Tooling and prototype sales were down $1.0 million
for the same period.
GROSS PROFIT: Gross profit was $8.2 million, or 12.5% of net sales, for the
second quarter of 1999 compared to $3.8 million, or 8.1 % of net sales, for the
same period in 1998. The increase in gross profit was primarily the result of
higher production sales associated with DaimlerChrysler's Jeep Grand Cherokee
and the margin contribution of the recently launched CAMI Vitara.
SELLING, GENERAL AND ADMINISTRATIVE ("SG&A") EXPENSES: SG&A expenses for the
second quarter of 1999 were $5.8 million, or 8.8% of net sales, compared to $5.0
million, or 10.5% of net sales, for the same period in 1998. As a percent of net
sales, the decrease was a result of launch expense associated with the
DaimlerChrysler's Jeep Grand Cherokee and the CAMI Vitara that is no longer
being incurred.
INTEREST EXPENSE: Interest expense for the second quarter of 1999 was $3.9
million, or 5.9% of net sales, compared to $3.2 million or 6.7% of net sales for
the same period in 1998. Interest expense increased due to higher short - term
debt levels precipitated by outstanding tooling invoices associated with the
Saturn launch of the mid - size passenger car Epsilon platform.
<PAGE> 22
INCOME TAXES: The income tax credit in the second quarter of 1999 was $0.5
million with an effective tax rate of 36.4% as compared to an income tax credit
of $1.1 million with an effective tax rate of 25.6% for the same period in 1998.
SIX MONTHS ENDED JULY 4, 1999 COMPARED TO SIX MONTHS ENDED JUNE 28, 1998
NET SALES: Net sales for the six months ended 1999 were $132.5 million, or 32.1%
higher than second quarter 1998 sales of $100.3 million. Production sales of
$120.6 million for six months ended 1999 were up $25.9 million from $94.7
million for the same period in 1998, due to second quarter 1998 model change
over and subsequent launch of the DaimlerChrysler's Jeep Grand Cherokee, and the
launch of the CAMI Vitara. Tooling and prototype sales were up $6.6 million for
the same period.
GROSS PROFIT: Gross profit was $16.3 million, or 12.3% of net sales, for the six
months ended 1999 compared to $11.9 million, or 11.9 % of net sales, for the
same period in 1998. The increase in gross profit was primarily the result of
higher production sales associated with DaimlerChrysler's Jeep Grand Cherokee
and the launch of the CAMI Vitara.
SELLING, GENERAL AND ADMINISTRATIVE ("SG&A") EXPENSES: SG&A expenses for the six
months ended 1999 were $10.8 million, or 8.2% of net sales, compared to $9.4
million, or 9.4% of net sales, for the same period in 1998. As a percent of net
sales, the decrease was a result of launch expense associated with the Grand
Cherokee and the CAMI Vitara that is no longer being incurred.
INTEREST EXPENSE: Interest expense for six months ended 1999 was $7.7 million,
or 5.8% of net sales, compared to $6.1 million or 6.1% of net sales for the same
period in 1998. Interest expense increased due to higher short - term debt
levels precipitated by outstanding tooling invoices associated with the Saturn
launch of the mid - size passenger car Epsilon platform.
INCOME TAXES: The income tax credit for six months ended 1999 was $0.7 million
with an effective tax rate of 30.9% as compared to an income tax credit of $0.9
million with an effective tax rate of 24.5% for the same period in 1998.
LIQUIDITY AND CAPITAL RESOURCES
Aetna's principal capital requirements are to fund working capital needs, to
meet required debt payments and to complete planned maintenance and expansion
expenditures.
At July 4, 1999 there was $0.8 million available under the Senior Revolving
Credit Facility. Management currently anticipates that its operating cash flow,
together with available borrowings under the Senior Revolving Credit Facility
and the significant payment of outstanding tooling invoices associated with the
Saturn launch, will be sufficient to meet working capital requirements, capital
expenditure requirements, and interest requirements on debt obligations.
The terms of the indenture pursuant to which the Senior Notes were issued
contains certain restrictive covenants which include restrictions on the ability
of Aetna, Aetna Canada and Export from paying dividends or making certain other
payments to Aetna Holdings or Trianon Industries.
CASH FLOWS
Net cash flows used for operations for the six months ended July 4, 1999
aggregated $8.5 million. This compares to net cash used for operations of $1.9
million for the same period in 1998. The decrease in net cash from operations is
due primarily to account receivable invoicing for Saturn tooling and remaining
DaimlerChrysler's Jeep Grand Cherokee tooling invoices.
<PAGE> 23
Net cash flows used for investing activities aggregated $2.4 million for the six
months ended July 4, 1999 as compared to $10.3 million for the same period in
1998 and consists principally of capital expenditures. The major capital
projects during 1999 have been the purchase of equipment to support Aetna's
development lab for 3 dimensional remote welding, and the purchase and
installation of robots to support increased volume requirements for the GM rear
suspension assembly.
Net cash flows provided by financing aggregated $9.8 million for the six months
ended July 4, 1999 as compared to cash provided of $12.5 million for the same
period in the prior year. 1999 included an $8.0 million capital contribution
from Trianon, and an increase in borrowings under the Senior Revolving Credit
Facility of $1.1 million, while 1998 represented an increase in the borrowings
under the Senior Revolving Credit Facility.
ITEM 3. DISCLOSURE OF QUANTITATIVE AND QUALITATIVE INFORMATION ABOUT MARKET
RISKS
The financial condition and results of operations of the Company's operating
entities are reported in various foreign currencies (principally Euro and
British pounds sterling) and then translated into U.S. dollars at the applicable
exchange rate for inclusion in the Company's financial statements. As a result,
an appreciation of the dollar against these foreign currencies will have a
negative impact on the reported sales and operating profit of the Company.
Conversely, depreciation of the dollar against these foreign currencies will
have a positive impact. In addition, the Company incurs currency transaction
risk whenever it or one of its subsidiaries enters into either a purchase or
sale transaction using a different currency than the relevant entity's
functional currency. However, the nature of the Company's business results in
the Company generally matching revenues and expenses of the same currency.
Therefore, the Company does not currently use financial instruments to limit its
exposure to foreign transaction exposure risk. The Company does not currently
use financial instruments to limit its exposure to interest rate variations. The
portion of the company's outstanding debt obligations tied to variable interest
rates totals $125.9 million as of December 31, 1998.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
At the Annual Meeting of Stockholders of Trianon Industries Corp. held
on June 14, 1999 (the "Annual Meeting"), the following persons were nominated
for and elected as Director of Trianon Industries Corp. by the holders of Series
A-1 Common Stock:
<TABLE>
<CAPTION>
NUMBER OF SHARES
----------------
NOMINEE FOR WITHHELD
- ------- --- --------
<S> <C> <C>
Francis Barge 1,673,718 0
Felix Domenech 1,673,718 0
Jean-Rene Hergoualc'h 1,673,718 0
</TABLE>
At the Annual Meeting, the following persons were nominated for and elected
as Director of Trianon Industries Corp. by the holders of Series A-2 Common
Stock:
<TABLE>
<CAPTION>
NUMBER OF SHARES
----------------
NOMINEE FOR WITHHELD
- ------- --- --------
<S> <C> <C>
Gery Edouard Lanthier 1,326,282 0
Jean-Philippe Larramendy 1,326,282 0
</TABLE>
At the Annual Meeting, the following persons were nominated for and elected
as Director of Trianon Industries Corp. by the holders of Series A-3 Common
Stock:
<TABLE>
<CAPTION>
NUMBER OF SHARES
----------------
NOMINEE FOR WITHHELD
- ------- --- --------
<S> <C> <C>
David Howe 902,498 0
Michael Delaney 902,498 0
</TABLE>
<PAGE> 24
The number of shares of broker non-votes for the election of Directors was none.
The following proposal of the Board of Directors was submitted for adoption. The
board proposal was adopted by the votes indicated (which constituted the
affirmative vote of more than one-half of the shares voting).
The appointment of Arthur Andersen LLP as independent public accountants to
audit Trianon Industries Corp.'s consolidated financial statements for the
fiscal year ending December 31, 1999 was approved.
<TABLE>
<S> <C>
For the Proposal: 3,902,498
Against the Proposal: 0
Abstaining: 0
</TABLE>
The number of shares of broker non-votes in the above
<PAGE> 25
PART II. OTHER INFORMATION
ITEM 1. NOT APPLICABLE
ITEM 2. NOT APPLICABLE
ITEM 3. NOT APPLICABLE
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
ITEM 5. NOT APPLICABLE
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<PAGE> 26
EXHIBIT NO. DESCRIPTION OF EXHIBITS
3.1(i) Amendment to Trianon Industries Corp. Restated Certificate of
Incorporation filed with the Delaware Secretary of State on
May 12, 1999.
10.1 Revolving Credit Agreement dated March 31, 1999.
10.2 Sixth Amendment to Credit Agreement dated as of , 1999, by and
among Aetna Industries, Inc., the Guarantors party thereto, the
lenders, NBD Bank as the agent.
10.3 Credit Authorization between Bank One, Michigan and Trianon
Industries Corp., dated as of May 17, 1999.
10.4 Credit Agreement dated as of July 13, 1999.
27.1 Financial Data Schedule for Aetna Industries, Inc. (EDGAR Filing
Only)
27.2 Financial Data Schedule for Trianon Industries Corp. (EDGAR
Filing Only)
(b) Reports on Form 8-K
(c) None
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrants have duly caused this report to be signed on their behalf by the
undersigned thereunto duly authorized.
The signatory hereby acknowledges and adopts the typed form of his name in the
electronic filing of this document with the Securities and Exchange Commission.
Aetna Industries, Inc.
Date: August 16, 1999 By: /s/ Harold A. Brown
----------------------------------
Harold A. Brown
Secretary, Vice President, Finance
and Chief Financial Officer
Trianon Industries Corp.
Date: August 16, 1999 By: /s/ Harold A. Brown
----------------------------------
Harold A. Brown
Secretary, Vice President North America
<PAGE> 28
EXHIBIT INDEX
Exhibit No. Description of Exhibits
- ----------- -----------------------
3.1(i) Amendment to Trianon Industries Corp. Restated Certificate of
Incorporation filed with the Delaware Secretary of State on
May 12, 1999.
10.1 Revolving Credit Agreement dated March 31, 1999.
10.2 Sixth Amendment to Credit Agreement dated as of , 1999, by and
among Aetna Industries, Inc., the Guarantors party thereto, the
lenders, NBD Bank as the agent.
10.3 Credit Authorization between Bank One, Michigan and Trianon
Industries Corp., dated as of May 17, 1999.
10.4 Credit Agreement dated as of July 13, 1999.
27.1 Financial Data Schedule for Aetna Industries, Inc.
27.2 Financial Data Schedule for Trianon Industries Corp.
<PAGE> 1
EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
MS ACQUISITION CORP.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware (the "DGCL")
MS Acquisition Corp., a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation, by written consent in
lieu of a meeting dated December 31, 1998, duly adopted resolutions setting
forth proposed amendments to the Restated Certificate of Incorporation of the
Corporation, a copy of which is appended hereto. The resolution setting forth
the proposed amendments is as follows:
RESOLVED, that the Restated Certificate of Incorporation of the
Corporation (the "Restated Certificate") be amended as set forth in the
proposed amendments to the Restated Certificate attached hereto as Exhibit A
(the "Amendments").
FURTHER RESOLVED, that the Board of Directors of the Corporation,
declaring the advisability of the foregoing resolution, hereby submits the
Amendments to the stockholders of the Corporation for their approval in
accordance with Section 242 of the DGCL.
FURTHER RESOLVED, that if the stockholders of the Corporation adopt the
Amendments, the Chief Executive Officer, President, any Vice President, and
Secretary of the Corporation (the Proper Officers) be, and each hereby is,
authorized, empowered and directed, acting alone or with one or more other
Proper Officers, to execute and acknowledge a copy of the Certificate of
Amendment to the Restated Certificate of Incorporation of the Corporation
(the "Certificate of Amendment"), in the name and on behalf of the
Corporation and under its corporate seal or otherwise, and to cause such
duly executed and acknowledged Certificate of Amendment together with the
Amendments to be filed, together with any taxes and fees payable thereon,
with the office of the Delaware Secretary of State all in accordance with
the DGCL. The terms "execute(d)," "acknowledge(d)" and "filed" having such
meanings as set forth in Section 103 of the DGCL.
SECOND: That the stockholders of the Corporation duly approved such proposed
amendment by written consent in accordance with the provisions of Section 228 of
the DGCL.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the DGCL.
* * * * *
<PAGE> 2
IN WITNESS WHEREOF, MS Acquisition Corp. has caused this Certificate of
Amendment to be signed in its name and on its behalf by its President and
attested by its Secretary as of this 12th day of May, 1999.
MS ACQUISITION CORP.
By: /s/ Francis Barge
---------------------
Name: Francis Barge
Its: President
ATTEST:
By: /s/ Harold A. Brown
-----------------------------
Name: Harold A. Brown
Its: Secretary
<PAGE> 3
EXHIBIT A
AMENDMENTS TO RESTATED CERTIFICATE OF INCORPORATION
1. Article FIRST of the Restated Certificate of Incorporation is amended
to read in its entirety as follows:
"The name of the corporation is Trianon Industries Corp. (hereinafter
the "Corporation")."
2. The first sentence of Article FOURTH of the Restated Certificate of
Incorporation is amended to read in its entirety as follows:
"The total number of shares of capital stock which the Corporation
shall have authority to issue is 22,675,000 shares, consisting of
20,000,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"); and 2,675,000 shares of Preferred Stock, par value
$.01 per share (the "Preferred Stock")."
3. The fifth sentence of Article FOURTH of the Restated Certificate of
Incorporation is amended to read in its entirety as follows:
"The Preferred Stock will consist of:
(a) 405,000 shares of a class of Preferred Stock constituting
Series A Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock");
(b) 270,000 shares of a class of Preferred Stock constituting
Series B Preferred Stock, par value $.01 per share (the "Series B
Preferred Stock"); and
(c) 2,000,000 shares of a class of Preferred Stock constituting
New Preferred Stock, par value $.01 per share, in one or more series,
the terms of which may be set forth by resolution of the Board of
Directors, as provided by Section 1(b) of Part III of Article FOURTH
(the "New Preferred Stock")."
4. The second sentence of Section 1(a) of Part III of ARTICLE FOURTH of
the Restated Certificate of Incorporation is amended to read in its entirety
as follows:
"The Corporation is authorized to issue a class of Preferred Stock
designated as "Series A Preferred Stock" consisting of 405,000 shares
and a class of Preferred Stock designated as "Series B Preferred Stock"
consisting of 270,000 shares."
<PAGE> 4
5. The following sentence is added to Section 1(d) of Part III of ARTICLE
FOURTH of the Restated Certificate of Incorporation as the fourth sentence
thereof:
"Notwithstanding the foregoing, the Corporation may pay dividends on
the Series A Preferred, in lieu of cash dividends thereon, by the
issuance of additional shares of Series A Preferred Stock pursuant to
Section 2 of this Part III."
6. Section 2 of Part III of ARTICLE FOURTH of the Restated Certificate of
Incorporation is amended to read in its entirety as follows:
"Dividends.
(a) When, as and if declared by the Board of Directors, to the
extent funds are legally available therefor, dividends will be payable
on each Share, in cash, as provided herein. Dividends on the Shares
will be payable at a rate per annum equal to eleven percent (11%) of
the Stated Value thereof (the "Dividend Rate"). Such dividends shall be
payable semi-annually on the 13th day of February and August of each
year, commencing on February 13, 1997 with respect to the Series A
Preferred Stock and on the first 13th day of February or August to
occur subsequent to the Series B Accrual Date with respect to the
Series B Preferred Stock (each such date hereinafter referred to as a
"Dividend Payment Date" and each such dividend period hereinafter
referred to as a "Dividend Period"), except that if such date is not a
Business Day, then such dividend shall be payable on the next
succeeding Business Day, to the holders of record as they appear on the
register of the Corporation for the Shares.
(b) In the sole discretion of the Board of Directors, any
dividends accruing on shares of Series A Preferred Stock may be paid,
in lieu of cash dividends, by the issuance of additional shares of
Series A Preferred Stock (including fractional shares) having an
aggregate Stated Value at the time of such payment equal to the amount
of the dividend to be paid (a "PIK Dividend Payment"); provided that if
the Corporation pays less than the total amount of dividends then
accrued on the Series A Preferred Stock in the form of additional
shares of Series A Preferred Stock, such payment in shares shall be
made pro rata to the holders of Series A Preferred Stock based upon the
aggregate accrued but unpaid dividends on the shares of Series A
Preferred Stock held by such holder."
7. The first sentence of Section 3(b) of Part III of ARTICLE FOURTH of the
Restated Certificate of Incorporation is amended to read in its entirety as
follows:
"To the extent not paid on any Dividend Payment Date, all dividends
which have accrued on any Shares then outstanding during the period
from and including the preceding Dividend Payment Date (or from and
including the Date of Issuance or the Series B Accrual Date, as the
case may be, for such Shares in the case of the initial Dividend
Payment Date for such Shares) to (but excluding) such Dividend Payment
Date shall be added on such Dividend Payment Date to the Preferred
Liquidation Value of such Shares (so that, without limitation,
dividends shall thereafter accrue in respect of the amount of such
accrued but unpaid dividends) and shall remain a part thereof until
(but only until) such dividends are paid including payment pursuant to
a PIK Dividend Payment."
8. Section 3(c) of Part III of ARTICLE FOURTH of the Restated Certificate
of Incorporation is amended to read in its entirety as follows:
"Priority for Shares. For so long as any Shares shall be outstanding,
no dividend or distribution, whether in cash, stock or other property,
shall be paid, declared and set apart for payment or made on any date
on or in respect to the Common Stock, or any other class or series of
stock of the Corporation ranking junior to the Shares (together with
the Common Stock, a "Junior Stock") as to dividends or distributions of
assets upon liquidation, dissolution or winding-up, and no payment on
account of the redemption, purchase or other acquisition or retirement
for value by the Corporation of shares of Common Stock or any other
Junior Stock shall be made on any date
<PAGE> 5
unless, in each case, the full amount of unpaid dividends accrued on
all outstanding Shares shall have been paid or contemporaneously are
declared and paid and all Shares issued as a PIK Dividend Payment are
redeemed by the Corporation pursuant to Section 4 of Part III;
provided, however, that the foregoing provisions of this sentence shall
not prohibit (i) a dividend payable solely in shares of Common Stock or
any other Junior Stock, (ii) the acquisition of any shares of any
Common Stock or any other Junior Stock upon conversion or exchange
thereof into or for any shares of any other class of Common Stock or
other Junior Stock or (iii) the acquisition of any shares of Common
Stock pursuant to the Stockholders Agreement."
9. The second sentence of Section 4(a) of Part III of ARTICLE FOURTH of
the Restated Certificate of Incorporation is amended to read in its entirety as
follows:
"On any Business Day, the Corporation, at its option, may redeem at the
Redemption Price therefor all of the issued and outstanding Shares
issued as a PIK Dividend Payment and on any Business Day prior to
February 13, 2007, the Corporation, at its option, may redeem at the
Redemption Price therefor all of the issued and outstanding Shares."
<PAGE> 1
EXHIBIT 10.1
March 31, 1999
MS Acquisition Corp.
24331 Sherwood
Centerline, MI 48015
RE: $10,000,000 REVOLVING CREDIT
Gentlemen:
The terms and conditions under which NBD Bank (the "Bank") may make
loans to MS Acquisition Corp., a Delaware corporation (the "Company"), are as
follows:
1. Definitions. As used herein the following terms shall have the
following respective meanings:
"Aetna" shall mean Aetna Industries, Inc., a Delaware
corporation.
"Aetna Holdings" shall mean Aetna Holdngs, Inc., a Delaware
corporation.
"Business Day" shall mean a day other than a Saturday, Sunday or
other day on which the Bank is not open to the public for carrying on
substantially all of its banking functions.
"Capital Stock" shall mean (i) in the case of any corporation,
all capital stock and any securities exchangeable for or convertible into
capital stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock in or to such association or entity, (iii) in the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distribution of assets of, the issuing Person, and
including, in all of the foregoing cases described in clauses (i), (ii), (iii)
or (iv), any warrants, rights or other options to purchase or otherwise acquire
any of the interests described in any of the foregoing cases.
"Commitment" shall have the meaning ascribed thereto in Section
2.
"Debt" of any person shall mean, as of any date (a) all
obligations of such person for borrowed money, (b) all obligations of such
person as lessee under any capital lease, (c) all obligations which are secured
by any Lien existing on any asset or property of such person whether or not the
obligation secured thereby shall have been assumed by such person, provided,
however, that Debt under this clause (c) shall not include indebtedness or
obligations secured by the interest of any lessor of real property in which such
person has a leasehold interest, as long as such indebtedness or obligation is
solely the indebtedness or obligation of such lessor or a third party and not of
such person, (d) the unpaid purchase price for goods, property or services
acquired by such person, except for trade accounts payable and similar unsecured
obligations arising in the ordinary course of business that are not materially
past due, (e) all liabilities of such person in respect of unfunded liabilities
under any pension plan of such person or of or for which such person is liable,
(f) all obligations of such person in respect of any interest
<PAGE> 2
rate or currency swap, rate cap or other similar transaction (valued in an
amount equal to the highest termination payment, if any, that would be payable
by such person upon termination for any reason on the date of determination),
and (g) all obligations of others similar in character to those described in
clauses (a) through (f) of this definition for which such person is contingently
liable, as obligator, guarantor, surety or in any other capacity, or in respect
of which obligations such person assures a creditor against loss or agrees to
take any action to prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business), including
without limitation all reimbursement obligations of such person in respect of
letters of credit, surety bonds or similar obligations and (h) all obligations
of such person to advance funds to, or to purchase assets, property or services
from, any other person in order to maintain the financial condition of such
other person.
"Dollars" and "$" shall mean the lawful money of the United
States of America.
"Eurodollar Business Day" shall mean, with respect to any
Eurodollar Rate Loan, a day which is both a Business Day and a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Eurodollar Interest Period" shall mean, with respect to any
Eurodollar Rate Loan, the period commencing on the day such Eurodollar Rate Loan
is made or converted to a Eurodollar Rate Loan and ending on the day which is
one or two months thereafter, as the Company may elect, and each subsequent
period commencing on the last day of the immediately preceding Eurodollar
Interest Period and ending on the day which is one or two months thereafter, as
the Company may elect, provided, however, that (a) any Eurodollar Interest
Period which commences on the last Eurodollar Business Day of a calendar month
(or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Eurodollar Business
Day of the appropriate subsequent calendar month, (b) each Eurodollar Interest
Period which would otherwise end on a day which is not a Eurodollar Business Day
shall end on the next succeeding Eurodollar Business Day or, if such next
succeeding Eurodollar Business Day falls in the next succeeding calendar month,
on the next preceding Eurodollar Business Day, and (c) no Eurodollar Interest
Period shall be permitted which would end after the Termination Date.
"Eurodollar Rate" shall mean, with respect to any Eurodollar
Rate Loan and the related Eurodollar Interest Period, the per annum rate that is
equal to the sum of:
(a) 250 basis points, plus
(b) the rate per annum obtained by dividing (i) the
per annum rate of interest at which deposits in Dollars for such Eurodollar
Interest Period and in an aggregate amount comparable to the amount of such
Eurodollar Rate Loan to be made hereunder are offered to the Bank by other prime
banks in the London interbank market at approximately 11:00 a.m. London time on
the second Eurodollar Business Day prior to the first day of such Eurodollar
Interest Period by (ii) an amount equal to one minus the stated maximum rate
(expressed as a decimal) of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
that are specified on the first day of such Eurodollar Interest Period by the
Board of Governors of the Federal Reserve System (or any successor agency
thereto) for determining the maximum reserve requirement with respect to
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of such Board) maintained by a member bank of such System; all as
conclusively determined by the Bank, such sum to be rounded up, if necessary, to
the nearest whole multiple of one one-hundredth of one percent (1/100 of 1%).
"Eurodollar Rate Loan" shall mean any Loan which bears interest
at the Eurodollar Rate.
<PAGE> 3
"Event of Default" shall mean any of the events or conditions
described in paragraph 9.
"Federal Funds Rate" shall mean the per annum rate determined by
the Bank from time to time as the opening Federal Funds Rate paid or payable by
the Bank in its regional Federal Funds market for overnight borrowings from
other banks.
"Floating Rate" shall mean the per annum rate equal to the
greater of (a) one percent (1%) per annum plus the Federal Funds Rate in effect
from time to time, or (b) the Prime Rate in effect from time to time; which
Floating Rate shall change simultaneously with any change in such Prime Rate or
Federal Funds Rate.
"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles applied on a basis consistent with that reflected
in the most recent financial statements of the Company submitted to the Bank
prior to the date hereof.
"Lien" shall mean any pledge, assignment, hypothecation,
mortgage, security interest, deposit arrangement, option, conditional sale or
title retaining contract, sale and leaseback transaction, lessor's or lessee's
interest under any lease, subordination of any claim or right, or any other type
of lien, charge or encumbrance.
"Loan" shall mean any borrowing pursuant hereto.
"Loan Documents" shall mean this letter agreement, the Note, the
Security Documents and all other agreements and documents executed pursuant
hereto at any time, in each case as amended or modified from time to time.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, assets, operations or condition (financial or otherwise) of
the Company and its Subsidiaries on a consolidated basis, (b) the ability of the
Company to perform its obligations under any Loan Document, or (c) the validity
of enforceability of any Loan Document or the rights or remedies of the Bank
under any Loan Document.
"Net Worth" shall mean, as of any date, the amount of any
capital stock, paid in capital and similar equity accounts plus (or minus in the
case of a deficit) the capital surplus and retained earnings of any Person, all
in accordance with Generally Accepted Accounting Principles.
"Note" shall mean the demand promissory note of the Company
evidencing the Loans, in the form annexed hereto as Exhibit A, as amended or
modified from time to time and together with any promissory note or notes issued
in exchange or replacement therefor.
"Overdue Rate" shall mean, with respect to principal and other
amounts payable by the Company hereunder (other than interest), a rate per annum
that is equal to the sum of two percent (2%) per annum plus the Floating Rate.
"Person" or "person" shall include an individual, a corporation,
an association, a partnership, a trust or estate, a joint stock company, an
unincorporated organization, a joint venture, a trade or business (whether or
not incorporated), a government (foreign or domestic) and any agency or
political subdivision thereof, or any other entity.
"Prime Rate" shall mean the per annum rate announced by the Bank
from time to time as its "prime rate" (it being acknowledged that such announced
rate may not necessarily be the lowest rate
<PAGE> 4
charged by the Bank to any of its customers), which Prime Rate shall change
simultaneously with any change in such announced rate.
"Prime Rate Loans" shall mean any Loan which bears interest at
the Prime Rate.
"Security Documents" shall mean each pledge agreement and other
collateral document executed in connection herewith which grants a lien or
security interest and all other agreements and documents executed pursuant
thereto at any time, in each case as amended or modified from time to time.
"SOFEDIT" shall mean Societe Financiere d' etudes de
Developpement Industrial et Technologique, a French societe anonyme.
"Subsidiary" of any person shall mean any other person (whether
now existing or hereafter organized or acquired) in which (other than directors
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and of
record, by such person or by one or more of the other Subsidiaries of such
person or by any combination thereof. Unless otherwise specified, reference to
"Subsidiary" shall mean a Subsidiary of the Company.
"Termination Date" shall mean the earliest to occur of (a) July
30, 1999, (b) the completion of any initial public offering by the Company or
(b) the date the Loans are accelerated by the Bank pursuant to Section 9.
2. Loans.
(a) The Bank agrees, subject to the terms and conditions of this
agreement, to make Loans to the Company, from time to time from and including
the effective date of this letter to but excluding the Termination Date, not to
exceed $10,000,000 in aggregate principal amount at any time outstanding (the
commitment to make Loans in such amount and subject to such terms and conditions
defined herein as the "Commitment"). The Loans shall be used to make equity
contributions or, if permitted, subordination loans to Aetna. The Loans shall be
evidenced by the Note, payable on the Termination Date. The Company may at any
time voluntarily prepay all or any part of the Loans outstanding at such time
(including any interest payable thereon), without premium or penalty, provided
that any Eurodollar Rate Loan may not be prepaid prior to the end of the
Eurodollar Interest Period with respect thereto.
(b) The Company agrees to pay to the Bank a commitment fee on
the daily average unused amount of the Commitment, for the period from the date
hereof to but excluding the Termination Date, at a rate equal to one half of one
percent (1/2%) per annum. Accrued commitment fee shall be payable on the last
Business Day of each month and on the Termination Date.
(c) Interest shall be payable on the Loans prior to the
Termination Date at the Prime Rate or the Eurodollar Rate, as elected by the
Company hereunder. Interest shall be payable after the Termination Date on
demand by the Bank at the Overdue Rate. Unless earlier payment is required
hereunder, interest will be payable on the last day of each month with respect
to Prime Rate Loans and the last day of the relevant Eurodollar Interest Period
with respect to all Eurodollar Rate Loans and on the Termination Date.
<PAGE> 5
(d) The Company shall give the Bank a verbal request, followed
immediately by a written request if required by the Bank, for each requested
Loan not later than 11:00 a.m. Detroit time (or such later time agreed to by the
Bank) on the Business Day such Loan is requested to be made if such Loan is a
Prime Rate Loan and on the date three Eurodollar Business Days prior to the date
such Loan is requested to be made if such Loan is a Eurodollar Rate Loan. Each
request for a Eurodollar Rate Loan shall be in a minimum amount of $1,000,000
and in integral multiples thereof, and shall also specify the allowable
Eurodollar Interest Period with respect thereto. The Bank may rely on all verbal
requests from any officer or other authorized person of the Company. Each
request for a Loan shall constitute a representation by the Company, and it is a
condition precedent to obtaining a Loan, that both before and after giving
effect to such Loan all the representations and warranties contained in Section
7 hereof are true and accurate on the date each Loan is to be made as if made on
and as of such date and that no Event of Default, or event or condition which
may become an Event of Default after notice or lapse time or both, has occurred
and is continuing.
(e) The Company may elect to continue a Eurodollar Rate Loan as
a Eurodollar Rate Loan, or may elect to convert a Prime Rate Loan to a
Eurodollar Rate Loan, in each case by giving written request therefor, or a
verbal request followed immediately by a written request, not later than 11:00
a.m. Detroit time three Eurodollar Business Days prior to the date such
continuation or conversion is requested, provided that an outstanding Eurdollar
Rate Loan may only be continued on the last day of the then current Eurodollar
Interest Period with respect to such Loan and provided, further, if a
continuation of a Loan as, or conversion of a Loan to, a Eurodollar Rate Loan is
requested, such request shall also specify the Eurodollar Interest Period to be
applicable thereto. If the Company shall not deliver such a notice with respect
to any Eurodollar Rate Loan, the Company shall be deemed to have elected to
convert such Loan on the last day of the then current Eurodollar Interest Period
with respect to such Loan to a Prime Rate Loan.
3. Increased Costs; Limitations on Requests. The Company agrees to
(a) reimburse the Bank for any increase in cost to the Bank of making or
maintaining the Loans hereunder, or any reduction in any sum receivable
hereunder by the Bank due to any change in any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect (including
without limitation the Federal Deposit Insurance Act) or any interpretation or
administration thereof by any governmental authority or compliance by the Bank
with any request or directive of any such authority (whether or not having the
force of law), including, without limitation, in the event any of the foregoing
(i) affect the basis of taxation of payments to the Bank of any amounts payable
by the Company pursuant to this agreement, (ii) impose, modify or deem
applicable any insurance assessment or reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by the Bank, or (iii) affect the amount of capital required or expected
to be maintained by the Bank or its parent bank holding company, and (b)
indemnify the Bank for any and all losses the Bank may incur if the Company
makes any payment of principal with respect to any Eurodollar Rate Loan on any
date other than the last day of a Eurodollar Interest Period applicable thereto
or if the Company fails to borrow any Loan after notice requesting such Loan has
been given to the Bank. A detailed statement as to the amount of such increased
cost or reduced sum receivable, prepared in good faith and submitted by the Bank
to the Company, shall be conclusive and binding for all purposes absent manifest
error in computation. The Company further agrees that it may not elect the
Eurodollar Rate if it is impracticable, unlawful or impossible for any reason
for the Bank to make or maintain a Eurodollar Rate Loan and, if it is unlawful
or impossible for the Bank to maintain an outstanding Eurodollar Rate Loan, such
Loan shall be immediately due and payable, together with accrued interest and
any amount specified herein on the last day of the then current Eurdollar
Interest Period applicable to such Loan if the Bank may lawfully continue to
maintain such Loan to such day or immediately if the Bank may not continue to
maintain such Loan to such day.
<PAGE> 6
4. Conditions of Loans. On or before the date hereof, the Company
shall furnish to the Bank the Note duly executed and on or before the date ten
days after the date hereof the Company shall furnish to the Bank the following
documents, each in form and substance reasonably satisfactory to the Bank:
(a) Certified copies of all charter documents of the Company,
including those evidencing corporate action with respect to the Loan Documents
and the Loans hereunder, as the Bank shall request.
(b) Security Documents duly executed by the Company and such
other parties as may be required by the Bank in order to grant a first priority,
enforceable pledge of 64% of the Capital Stock of SOFEDIT and of 100% of the
Capital Stock of Aetna Holdings and Aetna, together with such original stock
certificates and other certificates and documents as may be required by the Bank
in connection therewith.
(c) Certified resolutions and legal opinions to the extent
required by the Bank, each in form and substance satisfactory to the Bank.
(d) Such other documents and agreements reasonably requested by
the Bank.
5. Affirmative Covenants. Until the expiration of this agreement
and thereafter until payment in full of all Debt under the Loan Documents of the
Company to the Bank and, the performance of all other obligations of the Company
under this agreement or otherwise owing by the Company to the Bank under any
other present or future agreement, the Company agrees that:
(a) It shall furnish or cause to be furnished to the Bank the
following financial statements, information and certificates, each in form and
substance reasonably satisfactory to the Bank, at the times indicated:
(i) Within 45 days after the end of each fiscal quarter
of the Company, the balance sheet of the Company as of the end of such quarter,
and the related statements of income and cash flow for such quarter, unaudited
but certified as correct in all material respects (subject to year-end
adjustments) by an officer of the Company.
(ii) Within 90 days after the end of each fiscal year of
the Company, a customary audit report of the Company for such fiscal year,
including the balance sheet of the Company as of the end of such fiscal year and
the related statements of income and cash flow of the company for the fiscal
year then ended, prepared by independent certified public accountants of
recognized standing.
(iii) Promptly, and in any event within three Business
Days after becoming aware thereof, written notice of the occurrence of any Event
of Default hereunder.
(iv) Promptly, such other information as the Bank may
reasonably request. Without limiting the foregoing, the Company agrees, upon the
reasonable request of the Bank, to permit the Bank or any of its agents or
representatives, upon reasonable notice and during normal business hours, to
examine and make copies of the records and books of account, and visit the
properties of, the Company and to discuss the affairs, finances and accounts of
the Company with its directors, officers, employees and auditors.
<PAGE> 7
(b) It shall comply in all material respects with all applicable
laws, rules, regulations and orders of any governmental authority, whether
federal, state, local or foreign, including without limitation all environmental
laws, do or cause to be done all things necessary to preserve and keep in full
force and effect its legal existence and it rights, licenses and permits
material to the conduct of its businesses, and maintain, preserve and protect
all property material to the conduct of its business and maintain in full force
and effect insurance with responsible and reputable insurance companies or
associations in such amounts and on such terms and conditions as is typically
carried by companies engaged in similar businesses and owning similar
properties. The Company further agrees to deliver such Security Documents and
other agreements and legal opinions as may be required to grant a first priority
lien and security interests on 100% of the Capital Stock of each domestic
Subsidiary of the Company now or hereafter formed and 64% of the Capital Stock
of each foreign Subsidiary directly owned by the Company now or hereafter
formed.
6. Negative Covenants. Until the expiration of this agreement and
thereafter until payment in full of all Debt under the Loan Documents of the
Company owing to the Bank and, the performance of all other obligations of the
Company under this agreement, the Company agrees that it shall not:
(a) Create, incur or suffer to exist any Liens on any of the
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company, other than
the following: (i) Liens for taxes not delinquent or for taxes being contested
in good faith by appropriate proceedings; (ii) Liens created and maintained in
the ordinary course of business which are not material in the aggregate and
which would not have a material adverse effect on the business or operations of
the Company; (iii) pledges or deposits required under law pursuant to workers
compensation laws, unemployment insurance laws or similar legislation; (iv)
Liens created in favor of the Bank; (v) deposits of money securing statutory
obligations of the Company; (vi) workers', mechanics' or similar liens arising
in the ordinary course of business, so long as such liens attach only to
equipment, fixtures and or real estate, for sums not yet due and payable or
which are being contested in good faith by appropriate proceedings or which are
in existence for less than thirty (30) days after the Company receives notice of
such lien; (vii) deposits securing, or in lieu of, surety, appeal or customs
bonds in proceedings in which the Company is a party, (viii) liens affecting
real property which constitute minor survey exceptions or defects or
irregularities in title, minor encumbrances, easements or reservations of, or
rights of others for, rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of such real property, and (ix) Liens listed on Schedule 6(a) hereto,
but not increase in the amount secured thereby, as reduced from time to time.
(b) Merge or consolidate with any person, or make any
substantial change in the nature of its business.
(c) Create, incur or in any manner become liable in respect of,
or suffer to exist, any Debt other than (i) Debt described in clause (d) of the
definition of Debt (ii) Debt owing to the Bank and (iii) Debt listed on Schedule
6(a) hereto.
(d) Purchase or otherwise acquire, whether in one or a series of
transactions, all or substantially all of the business, assets, rights, revenues
or property, real, personal or mixed, of any person, or any Capital Stock of any
person.
(e) Sell, lease, license, transfer, assign or otherwise dispose
of any material portion of its business, assets, rights or revenues or property,
real, personal or mixed, tangible or intangible, whether in one or a series of
transactions.
<PAGE> 8
(f) Make, declare or authorize any dividend, payment or other
distribution in respect of any class of its Capital Stock or any dividend,
payment or distribution in connection with the redemption, purchase, retirement
or other acquisition, direct or indirectly, of any shares of its Capital Stock
other than dividends in shares of Capital Stock.
(g) Enter into, become a party to or become liable in respect
of, any material contract or undertaking with any affiliate except in the
ordinary course of business and on terms not less favorable to the Company than
those which could be obtained if such contract or undertaking were in an
arms-length transaction with a person other than an affiliate.
(h) Permit or suffer the consolidated Net Worth of the Company
and its Subsidiaries to be less than negative $40,000,000 at any time.
7. Representations and Warranties. The Company represents and
warrants to the Bank that:
(a) The Company is a corporation duly organized, existing and in
good standing under the laws of the State of Delaware, and is duly qualified to
do business and is in good standing in each additional jurisdiction where such
qualification to be necessary except where failure to so qualify would not have
a Material Adverse Effect.
(b) The execution, delivery and performance by the company of
the Loan Documents are within its powers, have been duly authorized, and are not
in contravention of law or of the terms of any agreement or undertaking to which
the Company is a party or by which it may be bound.
(c) The Loan Documents are valid, binding and enforceable in
accordance with the terms thereof, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting creditors' rights generally and by general principals of equity
(regardless of whether enforcement is sought in a proceeding of equity or at
law).
(d) No consent, approval or authorization of or declaration or
filing with any governmental authority on the part of the Company is required in
connection with the execution, delivery and performance of the Loan Documents.
(e) No litigation or governmental proceeding is pending or, to
the knowledge of the officers of the Company, threatened against the Company or
any of its Subsidiaries which could have a Material Adverse Effect.
(f) All financial statements of the company furnished by the
Company to the Bank are complete and accurate in all material respects and
present fairly in all material respects the financial condition of the Company
as of the dates of such statements and the results of its operations for the
periods covered thereby, in accordance with Generally Accepted Accounting
Principles (subject, in the case of any statements other than year-end
statements, to year-end audit adjustments and the absence of footnotes), and
there has been no material adverse change in the condition of the Company,
financial or otherwise, since the date of the latest of such statements for the
Company.
(g) The Company is in compliance in all material respects with
all laws, rules, regulations, orders or similar requirements of any federal,
state or local governmental authority, including without limitation those
relating to any environmental matters.
(h) All representations and warranties contained in the Security
Documents are true and correct in all material respects.
<PAGE> 9
(i) The Security Documents, when delivered, will grant a first
priority, enforceable and perfected lien and security interest on 100% of the
Capital Stock of Aetna Holdings and Aetna and 64% of the Capital Stock of
SOFEDIT.
8. Fees; Expenses; Etc. The Company shall pay the reasonable fees
and other expenses incurred by the Bank in connection with this agreement,
including without limitation the reasonable fees and expenses of Dickinson
Wright PLLC, counsel for the Bank, in connection with preparation of this
agreement and the documents required hereunder, the reasonable legal fees and
expenses in connection with any amendments or modifications hereof and the
reasonable legal fees and other expenses in connection with any event of
default, any enforcement hereof or any related agreements. Additionally, the
Company hereby indemnifies and agrees to hold harmless the Bank and its
officers, directors, employees and agents (each, an "Indemnified Person") from
and against any and all claims, damages, losses, liabilities, costs or expenses
(collectively, "Claims") of any kind or nature whatsoever (including reasonable
attorneys fees in connection with any investigative, administrative or judicial
proceeding whether or not such Indemnified Person shall be designated as a party
thereto) which the Bank or any such Indemnified Person may incur or which may be
claimed against any of them by reason of or in connection or relating to this
agreement or any of the transactions contemplated hereby, any use by the Company
of any of the Loans, under any environmental laws or due to any other activities
or transactions of the Company to the maximum extent permitted by law; provided,
that the Company shall not be liable for any indemnification to any Indemnified
Person to the extent that any Claim arises from such Indemnified Person's gross
negligence or willful misconduct.
9. Events of Default. The occurrence of any of the following shall
be an Event of Default hereunder unless waived in writing by the Bank:
(a) Failure to make any payment (whether at stated maturity by
acceleration or otherwise) of principal or interest on the Note or any other
amount due under this agreement within five (5) days after any such amount
becomes due and payable; or
(b) (i) any default in any material respect in the performance
or observance of any covenant or agreement of the Company in Section 6 hereof,
or (ii) any default in the performance or observance of any other covenant or
agreement of the Company or any of its Subsidiaries contained in any Loan
Document or other default under any of the foregoing which default shall remain
unremedied for a period of ten (10) days or more; or
(c) any representation or warranty made by the Company herein,
in any Loan Document, document, statement or certificate furnished by or on
behalf of the Company or any of its Subsidiaries to the Bank, executed pursuant
thereto proves to be untrue in any material respect; or
(d) the Company or any of its Subsidiaries shall fail to pay any
part of the principal of, the premium, if any, or the interest on, or any other
payment of money due under any of its Debt (other than Debt hereunder), beyond
any period of grace provided with respect thereto, which individually or
together with other such Debt as to which any such failure exists has an
aggregate outstanding principal amount in excess of $1,000,000; or if the
Company or any of its Subsidiaries fails to perform or observe any other term,
covenant or agreement contained in, or if any other event or condition occurs or
exists under, any agreement, document or instrument evidencing or securing any
such Debt having such aggregate outstanding principal amount, or under which any
such Debt was incurred, issued or created, beyond any period of grace, if any,
provided with respect thereto if the effect of such failure is to cause, or
permit the holders of such Debt (or a trustee on behalf of such holders) to
cause, any payment in respect of such Debt to become due prior to its due date;
<PAGE> 10
(e) the Company or any of its Subsidiaries shall be dissolved or
liquidated (or any judgment, order or decree therefor shall be entered), or
shall generally not pay its debts as they become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors, or shall institute, or there shall be instituted
against the Company or any of its Subsidiaries any proceeding or case seeking to
adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief or protection of debtors or seeking the entry of an order for relief,
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its assets, rights, revenues or property,
and, if such proceeding is instituted against the Company or any of its
Subsidiaries and is being contested by the Company or any of its Subsidiaries in
good faith by appropriate proceedings, such proceeding shall remain undismissed
or unstayed for a period of 60 days; or the Company or any of its Subsidiaries
shall take any action (corporate or other) to authorize or further any of the
actions described above in this subsection; or
(f) the occurrence of any Material Adverse Effect; or
(g) any change, directly or indirectly, in the ownership of the
Company other than changes by reason of the transfer of Capital Stock of the
Company (i) pursuant to applicable laws of descent and distribution or among
such transferee's spouse and descendants (whether natural or adopted) and any
trust solely for the benefit of the transferee and/or other permitted
transferees, (ii) to any person, directly or indirectly controlling, controlled
by or under common control with such transferee and any partner or member or
similar interest of a transferee which is partnership or limited liability
company or similar entity, respectively, and (iii) to stockholders by reason of
a dividend of shares of Capital Stock.
Upon the occurrence and during the continuance of any Event of
Default, the Bank may terminate the Commitment or declare the Note and all other
amounts due hereunder or pursuant to the Note to be immediately due and payable,
or both, provided that in the case of any Event of Default under clause (e)
above the Commitment shall automatically terminate and all such amounts shall
automatically become due and payable, without notice. Additionally, upon any
Event of Default the Bank may exercise all of its rights and remedies under the
Loan Documents, under any other agreement or otherwise provided by law or
available to the Bank. In addition to the foregoing, upon the occurrence and
during the continuance of any Event of Default, the Bank may at any time and
from time to time, without notice to the Company (any requirement for such
notice being expressly waived by the Company) set off and apply against any and
all of the obligations of the Company now or hereafter existing under or
pursuant to this agreement, any and all deposits (general or special, time or
demand, provisional or final) at any time held and other Debt at any time owing
by the Bank to or for the credit or the account of the Company and any property
of the Company from time to time in possession of the Bank, irrespective of
whether or not the Bank shall have made any demand hereunder and although such
obligations may be contingent and unmatured. The Company hereby grants to the
Bank a lien on and security interest in all such deposits, Debt and property as
collateral security for the payment and performance of the obligations of the
Company under this agreement. The rights of the Bank under the foregoing
sentence are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which the Bank may have.
10. Notices. All notices, demands, request and consents hereunder
shall be in writing and shall be effective when received, except that any notice
or demand which by any provision of this agreement is required or provided to be
given or served to or upon the Company shall be deemed to have been given or
served for all purposes by being sent as registered mail, postage prepaid,
addressed as follows: MS Acquisition Corp., 24331 Sherwood, Centerline, MI
48015, Attention: Harold Brown, Telephone No. (810) 759 2200, Telecopy No. (810)
759 0508, MS Acquisition Corp. 1, Rue Thomas
<PAGE> 11
Edison, Quarteir des Chenes B.P. 605, 78056 St. Quentin en Yvelines Cedex,
France Telephone: 011-331-39-41-2000, Telecopy No. 011-331-30-48-5391,
Attention Jean-Claude Garolla or, if any other address shall at any time be
designated by the Company in writing to the Bank, to such other address.
11. Miscellaneous. The Loan Documents embody the entire agreement and
understanding between the Company and the Bank and supersedes all prior
agreements and understandings relating to the subject matter hereof. No
amendment, modification or waiver of any provision of this agreement nor any
consent to a departure therefrom shall be effective unless the same shall be in
writing and signed by the Bank and the Company. No failure of the Bank or of the
holder of the Note in exercising any right, power or privilege hereunder shall
affect such right, power or privilege, nor shall any single or partial exercise
thereof preclude any further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies of the Bank and those of the
holder of the Note under this agreement are cumulative and not exclusive of any
rights or remedies which either of them may otherwise have. All payments to be
made by the Company hereunder shall be made in immediately available funds to
the Bank at its main banking office in Detroit, Michigan not later than 1:00
p.m. Detroit time on the date on which such payment shall become due, and all
payments received after 1:00 p.m. shall be deemed received on the following
Business Day. All payments due hereunder which are not due on a Business Day
shall be due on the next succeeding Business Day and interest shall continue to
accrue at the applicable rate. All financial terms used but not defined herein
shall be interpreted in accordance with generally accepted accounting
principles.
12. Waiver of Jury Trial. The Bank and the Company, after consulting or
having had the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waive any right either of them may have to a trial by jury in any
litigation based upon or arising out of this agreement or any related instrument
or agreement or any of the transactions contemplated by this agreement or any
course of conduct, dealing, statements (whether oral or written) or actions of
either of them. Neither the Bank nor the Company shall seek to consolidate, by
counterclaim or otherwise, any such action in which a jury trial has been waived
with any other action in which a jury trial cannot be or has not been waived.
These provisions shall not be deemed to have been modified in any respect or
relinquished by either the Bank or the Company except by a written instrument
executed by both of them.
13. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of Michigan applicable to contracts made
and to be performed entirely within such State and without giving effect to
choice of law principles of such State.
14. Binding Effect. All representations, warranties, covenants and
agreements herein contained shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto whether or not so
expressed.
Should the foregoing be agreeable to you, as it is to us, please
indicate your agreement and acceptance by executing and returning the enclosed
copy of this letter, whereupon this agreement shall be effective as of the date
of this letter.
Very truly yours,
NBD BANK
By: Thomas A. Gamm
------------------
Its: Vice President
---------------
<PAGE> 12
Agreed and accepted:
MS ACQUISITION CORP.
By: Felix Domenech
Its: Executive Vice President-Finance
By: Jean-Claude Garolla
Its: Vice President & Chief Financial Officer
<PAGE> 13
EXHIBIT A
NOTE
$10,000,000 March 31, 1999
Detroit, Michigan
ON the Termination Date, for value received, MS ACQUISITION CORP., a
Delaware corporation (the "Company"), hereby unconditionally promises to pay to
the order of NBD BANK, a Michigan banking corporation (the "Bank"), at the
principal office of the Bank, in lawful money of the United States of America
and in immediately available funds, the principal sum of Ten Million Dollars
($10,000,000), or such lesser amount as is recorded on the schedule attached
hereto, or in the books and records of the Bank; and, to pay interest on the
unpaid principal balance hereof from time to time outstanding, in like money and
funds, at the rates and at the time set forth in the Letter Agreement referred
to below.
This Note evidences one or more loans made under a letter agreement of
even date herewith (as amended or modified from time to time, the "Letter
Agreement"), by and between the Company and the Bank, to which reference is
hereby made for a statement of the circumstances under which this Note shall be
immediately due and payable without notice or demand, the collateral security
for this Note and other terms relating hereto. Terms used but not defined herein
shall have the respective meanings ascribed thereto in the Letter Agreement.
The Bank is hereby authorized by the Company to record on the schedule
attached to this Note, or on its books and records, the date, amount and type of
each loan, the applicable interest rate (including any changes therein), the
amount of each payment of principal thereon and the other information provided
for on such schedule, which schedule or such books and records, as the case may
be, shall constitute prima facie evidence of the information so recorded,
provided, however, that any failure by the Bank to record any such information
shall not relieve the Company of its obligation to repay the outstanding
principal amount of such loans, all accrued interest thereon and any amount
payable with respect thereto in accordance with the terms of this Note and the
Letter Agreement.
The Company and each endorser or guarantor hereof waives demand,
presentment, protest, diligence, notice of dishonor and any other formality in
connection with this Note. The Company further agrees to pay, in addition to the
principal, interest and other sums due and payable hereon, all costs of
collecting this Note, as set forth in the Letter Agreement.
This Note is made under, and shall be governed by and construed in
accordance with, the laws of the State of Michigan applicable to contracts made
and to be performed entirely within such State and without giving effect to
choice of law principles of such State.
MS ACQUISITION CORP.
By:
----------------------------
Its:
----------------------
<PAGE> 14
Schedule to Note, dated
March 31, 1999, issued by MS Acquisition Corp. to NBD Bank
<TABLE>
<CAPTION>
Transaction Principal Interest Principal Principal Balance Notation
Date Amount of Loan Rate Amount Paid Outstanding Made by
---- -------------- ---- ----------- ----------- -------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 1
EXHIBIT 10.2
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT, dated as of June 30, 1999
(this "Amendment"), is among AETNA INDUSTRIES, INC., a Delaware corporation (the
"Company"), the guarantors set forth on the signature pages hereof
(collectively, the "Guarantors"), the Lenders set forth on the signature pages
hereof (collectively, the "Lenders") and BANK ONE, MICHIGAN, formerly known as
NBD Bank, a Michigan banking corporation, as agent for the Lenders (in such
capacity, the "Agent").
RECITALS
A. The Company, the Guarantors, the Agent and the Lenders are parties to
an Amended and Restated Credit Agreement dated as of April 10, 1998 (as now and
hereafter amended, the "Credit Agreement").
B. The Company and the Guarantors desire to amend the Credit Agreement,
and the Agent and the Lenders are willing to do so in accordance with the terms
hereof.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth in
Article III hereof, the Credit Agreement shall be amended as follows:
1.1 The definition of "Borrowing Base " in Section 1.1 is restated
as follows:
"Borrowing Base" shall mean, as of any date, the lesser of (a)
the sum, without duplication, of (i) an amount equal to 85% of the value of
Eligible Accounts Receivable plus (ii) an amount equal to 60% of the value of
Eligible Inventory not to exceed $9,500,000, plus (iii) an amount equal to 50%
of Eligible Tooling Inventory not to exceed (A) $15,000,000 from the Effective
Date hereof to and including August 31, 1999 or (B) $5,000,000 from and
including September 1, 1999 and thereafter, plus (iv) 80% of the value of
Eligible Fixed Assets owned by the Company and Manufacturing as of the Effective
Date, which amount is equal to $20,028,860 as of the Fifth Amendment Effective
Date, or (b) the amount calculated under clause (b) of the definition of
"Permitted Indebtedness" set forth in the Senior Note Indenture; provided,
however, that the Borrowing Base shall be determined on the basis of the most
current Borrowing Base Certificate required to be delivered by the Company
hereunder.
1.2 The definition of "Fixed Charge Coverage Ratio" in Section 1.1
is amended by deleting reference therein to "four fiscal quarters of the
Company" and substituting "twelve consecutive months" in place thereof.
1.3 The following definitions are hereby added to Section 1.1 in
appropriate alphabetical order:
<PAGE> 2
"Sixth Amendment" shall mean the Sixth Amendment to this
Agreement dated as of June 30, 1999.
"Sixth Amendment Effective Date" shall mean the date the Sixth
Amendment is effective.
1.4 Section 5.2(b) is restated as follows:
(b) Fixed Charge Coverage Ratio. Permit or suffer the Fixed
Charge Coverage Ratio to be less than: (i) 0.75:1.00 from and including June 30,
1999 through and including July 30, 1999; (ii) 1.00:1.00 from and including July
31, 1999 through and including September 29, 1999; (iii) 1.10:1.00 from and
including September 30, 1999 through and including December 30, 1999; (iv)
1.30:1.00 from and including December 31, 1999 through and including June 29,
2000; or (v) 1.60:1.00 at any time thereafter.
1.5 Section 5.2(c) is restated as follows:
(c) Senior Secured Funded Debt Ratio. Permit or suffer the
Senior Secured Funded Debt Ratio of the Company and Subsidiaries to exceed at
any time: (i) 7.50:1.00 from and including June 30, 1999 through and including
August 30, 1999; (ii) 5.00:1.00 from and including August 31, 1999 through and
including September 29, 1999; (iii) 3.00:1.00 from and including September 30,
1999 through and including December 30, 1999; (iv) 2.50:1.00 from and including
December 31, 1999 through and including June 29, 2000; or (v) 2.00:1.00 at any
time thereafter.
1.6 Section 5.2(e) is restated as follows:
(e) Net Worth. Permit or suffer the consolidated Net Worth of
the Company and its Subsidiaries to be less than the sum of: (a) negative
$12,000,000, plus (b) 50% of Net Income, adjusted as of December 31, 1999 as
calculated for the two consecutive fiscal quarters then ending and as adjusted
as of the end of each fiscal year of the Company thereafter as calculated for
the fiscal year ending; provided, that if such Net Income is negative in such
two fiscal quarters ending December 31, 1999 or any fiscal year thereafter, as
the case may be, the amount added for such period shall be zero and shall not
reduce the amount added for any other period.
1.7 Each reference under the description of the Facility A
Commitment amount for each Lender on the signature page for such Lender to (a)
"June 30, 1999" shall each be deleted and "August 31, 1999" shall be substituted
in each place thereof and (b) "July 1, 1999" shall each be deleted and
"September 1, 1999" shall be substituted in each place thereof.
ARTICLE II. REPRESENTATIONS. The Company and each Guarantor represent
and warrant to the Agent and the Lenders that:
2.1 The execution, delivery and performance of this Amendment is
within its powers, has been duly authorized and is not in contravention of any
statute, law or regulation known to it or of any terms of its Articles of
Incorporation or By-laws, or of any material agreement or undertaking to which
it is a party or by which it is bound.
<PAGE> 3
2.2 This Amendment is the legal, valid and binding obligation of the
Company and each Guarantor enforceable against each in accordance with the terms
hereof.
2.3 After giving effect to the amendments contained herein, the
representations and warranties contained in Article IV of the Credit Agreement
are true on and as of the date hereof with the same force and effect as if made
on and as of the date hereof.
2.4 After giving effect to the amendments contained herein, no Event
of Default or Default exists or has occurred and is continuing on the date
hereof. Without limiting the foregoing, no event of default or event or
condition which may become an event of default under the Senior Note Documents
has occurred or will be caused by this Amendment or any of the transactions
contemplated hereby.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not
become effective until each of the following conditions is satisfied:
3.1 The Company, the Guarantors and the Required Lenders shall have
signed this Amendment.
3.2 The Company and the Guarantors shall have delivered such
resolutions, officer's certificates and legal opinions as the Agent may
reasonably request.
3.3 The Company shall have delivered to the Agent such other
documents and satisfied such other conditions, if any, as reasonably requested
by the Agent.
ARTICLE IV. MISCELLANEOUS.
4.1 The Company has informed the Lenders and the Agent that Events
of Default have occurred due to a breach of Sections 5.2(b) and 5.2(c) (the
"Existing Defaults"), and the Company has requested that the Lenders and the
Agent waive the Existing Defaults subject to this Amendment becoming effective
pursuant to Article III hereof and the terms and conditions set forth herein.
Pursuant to such request, the Lenders and the Agent hereby waive the Existing
Defaults for the period prior to the effectiveness of this Amendment. The
Company acknowledges and agrees that the waiver contained herein is a limited
waiver, limited to the specific one time waiver described above. Such limited
waiver (a) shall not modify or waive any other term, covenant or agreement of
the Loan Documents, and (b) shall not be deemed to have prejudiced any present
or future right or rights which the Agent or the Lenders now have or may have
under the Loan documents. Without limiting the foregoing, it is acknowledged and
agreed that any breach of Sections 5.2(b) or (c) is not waived at any time after
the date hereof.
4.2 References in the Credit Agreement or in any other Loan Document
to the Credit Agreement shall be deemed to be references to the Credit Agreement
as amended hereby and as further amended from time to time.
4.3 The Company agrees to pay and to save the Agent harmless for the
payment of all reasonable documented costs and expenses arising in connection
with this Amendment, including the reasonable documented fees of counsel to the
Agent in connection with preparing this Amendment and the related documents.
4.4 The Company and each Guarantor acknowledge and agree that, to
the best of their knowledge, the Agent and the Lenders have fully performed all
of their obligations under all documents executed in
<PAGE> 4
connection with the Credit Agreement. The Company and each Guarantor represent
and warrant that they are not aware of any claims or causes of action against
the Agent or any Lender.
4.5 Except as expressly amended hereby, the Company and each
Guarantor agree that the Credit Agreement, the Notes, the Security Documents and
all other documents and agreements executed by the Company in connection with
the Credit Agreement in favor of the Agent or any Lender are ratified and
confirmed, as amended hereby, and shall remain in full force and effect in
accordance with their terms and that they are not aware of any set off,
counterclaim or defense with respect to any of the foregoing. Terms used but not
defined herein shall have the respective meanings ascribed thereto in the Credit
Agreement. This Amendment may be signed upon any number of counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument, and telecopied signatures shall be effective as originals.
<PAGE> 5
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of the day and year first above
written.
AETNA INDUSTRIES, INC.
By: /s/ Harold A. Brown
------------------------------------
Harold A. Brown
Its: Secretary, Vice President/
Finance and Chief Financial Officer
Guarantor
AETNA HOLDINGS, INC.
By: /s/ Harold A. Brown
------------------------------------
Harold A. Brown
Its: Secretary, Vice President/
Finance and Chief Financial Officer
Guarantor
AETNA EXPORT SALES CORP.
By: /s/ Harold A. Brown
------------------------------------
Harold A. Brown
Its: Treasurer and Secretary
Guarantor
TRIANON INDUSTRIES CORP., f/k/a MS
ACQUISITION CORP.
By: /s/ Harold A. Brown
--------------------------------------
Harold A. Brown
Its: Secretary and Vice President
North America
Guarantor
AETNA MANUFACTURING CANADA LTD.
By: /s/ Harold A. Brown
------------------------------------
Harold A. Brown
Its: Treasurer and Secretary
<PAGE> 6
BANK ONE, MICHIGAN, as a Lender and as
Agent
By:
---------------------------------------
Its:
---------------------------------------
PNC BUSINESS CREDIT, INC.
By:
---------------------------------------
Its:
---------------------------------------
NATIONAL BANK OF CANADA
By:
---------------------------------------
Its:
---------------------------------------
And
By:
---------------------------------------
Its:
---------------------------------------
MICHIGAN NATIONAL BANK
By:
---------------------------------------
Its:
---------------------------------------
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
<PAGE> 1
EXHIBIT 10.3
Bank One, Michigan
611 Woodward Avenue
Detroit, Michigan 48226
May 17, 1999
Trianon Industries Corp.
24331 Sherwood
Centerline, MI 48015
RE: $41,300,000 CREDIT AUTHORIZATION
Gentlemen:
The terms and conditions under which Bank One, Michigan, f/k/a NBD Bank
(the "Bank") may, in its sole and uncontrolled discretion, make loans to Trianon
Industries Corp., f/k/a MS Acquisition Corp., a Delaware corporation (the
"Company"), are as follows:
1. Definitions. As used herein the following terms shall have the
following respective meanings:
"Aetna" shall mean Aetna Industries, Inc., a Delaware
corporation.
"Aetna Holdings" shall mean Aetna Holdings, Inc., a Delaware
corporation.
"Automatic Termination Date" shall mean the earliest to occur of
(a) July 30, 1999, (b) the completion of any initial public offering by the
Company, (c) the completion of the consolidated refinancing for which the Bank
and Banc One Capital Markets, Inc. have been mandated or the completion of any
other significant financing by the Company or its Subsidiaries, (d) an
Insolvency Event or (e) the date the Bank makes demand for payment of the Loans
and all other indebtedness, obligations and liabilities under the Loan
Documents.
Insolvency Event shall mean the occurrence of any of the
following: the Company or any of its Subsidiaries shall be dissolved or
liquidated (or any judgment, order or decree therefor shall be entered), or
shall generally not pay its debts as they become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors, or shall institute, or there shall be instituted
against the Company or any of its Subsidiaries any proceeding or case seeking to
adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief or protection of debtors or seeking the entry of an order for relief,
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its assets, rights, revenues or property,
and, if such proceeding is instituted against the Company or any of its
Subsidiaries and is being contested by the Company or any of its Subsidiaries in
good faith by appropriate proceedings, such proceeding shall remain undismissed
or unstayed for a period of 60 days; or the Company or any of its Subsidiaries
shall take any action (corporate or other) to authorize or further any of the
actions described above in this subsection
"Business Day" shall mean a day other than a Saturday, Sunday or
other day on which the Bank is not open to the public for carrying on
substantially all of its banking functions.
"Capital Stock" shall mean (i) in the case of any corporation,
all capital stock and any securities exchangeable for or convertible into
capital stock, (ii) in the case of an association or business entity, any and
all shares,
<PAGE> 2
interests, participations, rights or other equivalents (however designated) of
corporate stock in or to such association or entity, (iii) in the case of a
partnership or limited liability company, partnership or membership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distribution of assets of, the issuing Person, and including, in all of the
foregoing cases described in clauses (i), (ii), (iii) or (iv), any warrants,
rights or other options to purchase or otherwise acquire any of the interests
described in any of the foregoing cases.
"Demand Note" shall mean the demand promissory note of the
Company evidencing the Loans, in the form annexed hereto as Exhibit A, as
amended or modified from time to time and together with any promissory note or
notes issued in exchange or replacement therefor.
"Dollars" and "$" shall mean the lawful money of the United
States of America.
"Federal Funds Rate" shall mean the per annum rate determined by
the Bank from time to time as the opening Federal Funds Rate paid or payable by
the Bank in its regional Federal Funds market for overnight borrowings from
other banks.
"Floating Rate" shall mean the per annum rate equal to the
greater of (a) one percent (1%) per annum plus the Federal Funds Rate in effect
from time to time, or (b) the Prime Rate in effect from time to time; which
Floating Rate shall change simultaneously with any change in such Prime Rate or
Federal Funds Rate.
"Loan" shall mean any borrowing pursuant hereto.
"Loan Documents" shall mean this letter agreement, the Demand
Note, the Security Documents and all other agreements and documents executed
pursuant hereto at any time, in each case as amended or modified from time to
time.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, assets, operations or condition (financial or otherwise) of
the Company and its Subsidiaries on a consolidated basis, (b) the ability of the
Company to perform its obligations under any Loan Document, or (c) the validity
of enforceability of any Loan Document or the rights or remedies of the Bank
under any Loan Document.
"Negotiated Rate" shall mean, with respect to any Negotiated
Rate Loan, the rate per annum agreed upon between the Company and the Bank at
the time such Negotiated Rate Loan is made.
"Negotiated Interest Period" shall mean, with respect to any
Negotiated Rate Loan, the period commencing on the day such Negotiated Rate Loan
is made or converted to a Negotiated Rate Loan and ending on the date agreed
upon between the Company and the Bank at the time such Negotiated Rate Loan is
made, and each subsequent period commencing on the last day of the immediately
preceding Negotiated Interest Period and ending on the date agreed upon between
the Company and the Bank at the time such Negotiated Rate Loan is elected to be
continued as a Negotiated Rate Loan by the Company.
"Negotiated Rate Loan" shall mean any Loan which bears interest
at the Negotiated Rate.
"Overdue Rate" shall mean, with respect to principal and other
amounts payable by the Company hereunder (other than interest), a rate per annum
that is equal to the sum of two percent (2%) per annum plus the Floating Rate.
<PAGE> 3
"Prime Rate" shall mean the per annum rate announced by the Bank
from time to time as its "prime rate" (it being acknowledged that such announced
rate may not necessarily be the lowest rate charged by the Bank to any of its
customers), which Prime Rate shall change simultaneously with any change in such
announced rate.
"Prime Rate Loan" shall mean any Loan which bears interest at
the Prime Rate.
"Security Documents" shall mean each pledge agreement and other
collateral document executed in connection herewith which grants a lien or
security interest and all other agreements and documents executed pursuant
thereto at any time, in each case as amended or modified from time to time.
"SOFEDIT" shall mean Societe Financiere d' etudes de
Developpement Industrial et Technologique, a French societe anonyme.
"Subsidiary" shall mean any corporation or other entity of any
kind at least a majority of the Capital Stock of which is owned, directly or
indirectly, by the Company.
2. Loans.
(a) The Bank may, in its sole and uncontrolled discretion and,
subject to the terms and conditions of this agreement, make Loans to the
Company, from time to time from and including the effective date of this letter
to but excluding the Automatic Termination Date, not to exceed $41,300,000 in
aggregate principal amount at any time outstanding. The Loans will be used
solely to repurchase the promissory notes described on Schedule 1 hereto ( the
"Shareholder Notes") and to pay up to $400,0000 of accrued interest on the
Shareholder Notes. The Loans shall be evidenced by the Demand Note, payable on
the earlier of demand by the Bank in its sole discretion or the Automatic
Termination Date. The Company may at any time voluntarily prepay all or any part
of the Loans outstanding at such time (including any interest payable thereon),
without premium or penalty, provided that any Negotiated Rate Loan may not be
prepaid prior to the end of the Negotiated Interest Period with respect thereto.
(b) Interest shall be payable on the Loans prior to the
Automatic Termination Date at the Prime Rate or the Negotiated Rate, as elected
by the Company hereunder. Interest shall be payable after the Automatic
Termination Date at the Overdue Rate. Interest is payable on demand by the Bank
in its sole discretion, provided that, unless earlier demand is made by the Bank
in its sole discretion, interest will be payable on the last day of each month
with respect to Prime Rate Loans and the last day of the relevant Negotiated
Interest Period with respect to all Negotiated Rate Loans and on the Automatic
Termination Date.
(c) The Company shall give the Bank a verbal request, followed
immediately by a written request if required by the Bank, for each requested
Loan not later than 11:00 a.m. Detroit time (or such later time agreed to by the
Bank) on the Business Day such Loan is requested to be made if such Loan is a
Prime Rate Loan and on the date one Business Days prior to the date such Loan is
requested to be made if such Loan is a Negotiated Rate Loan. Each request for a
Negotiated Rate Loan shall be in a minimum amount of $1,000,000 and in integral
multiples thereof. The Bank may rely on all verbal requests from any officer or
other authorized person of the Company. Each request for a Loan shall constitute
a representation by the Company, that both before and after giving effect to
such Loan all the representations and warranties contained in Section 5 hereof
are true and accurate on the date each Loan is to be made as if made on and as
of such date.
(d) The Company may elect to continue a Negotiated Rate Loan as
a Negotiated Rate Loan, or may elect to convert a Prime Rate Loan to a
Negotiated Rate Loan, in each case by giving written request therefor, or a
verbal request followed immediately by a written request, not later than 11:00
a.m. Detroit time one Business Days prior to the date such continuation or
conversion is requested, provided that an outstanding Negotiated Rate Loan may
only be continued on the last day of the then current Negotiated Interest Period
with respect to such Loan and provided, further, if a
<PAGE> 4
continuation of a Loan as, or conversion of a Loan to, a Negotiated Rate Loan is
requested, such request shall also specify the Negotiated Interest Period to be
applicable thereto. If the Company shall not deliver such a notice with respect
to any Negotiated Rate Loan, the Company shall be deemed to have elected to
convert such Loan on the last day of the then current Negotiated Interest Period
with respect to such Loan to a Prime Rate Loan.
3. Increased Costs; Limitations on Requests. The Company agrees to
(a) reimburse the Bank for any increase in cost to the Bank of making or
maintaining the Loans hereunder, or any reduction in any sum receivable
hereunder by the Bank due to any change in any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect (including
without limitation the Federal Deposit Insurance Act) or any interpretation or
administration thereof by any governmental authority or compliance by the Bank
with any request or directive of any such authority (whether or not having the
force of law), including, without limitation, in the event any of the foregoing
(i) affect the basis of taxation of payments to the Bank of any amounts payable
by the Company pursuant to this agreement, (ii) impose, modify or deem
applicable any insurance assessment or reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by the Bank, or (iii) affect the amount of capital required or expected
to be maintained by the Bank or its parent bank holding company, and (b)
indemnify the Bank for any and all losses the Bank may incur if the Company
makes any payment of principal with respect to any Negotiated Rate Loan on any
date other than the last day of a Negotiated Interest Period applicable thereto
or if the Company fails to borrow any Loan after notice requesting such Loan has
been given to the Bank. A detailed statement as to the amount of such increased
cost or reduced sum receivable, prepared in good faith and submitted by the Bank
to the Company, shall be conclusive and binding for all purposes absent manifest
error in computation.
4. Conditions of Loans. On or before the date hereof, the Company
shall furnish to the Bank the following documents, each in form and substance
reasonably satisfactory to the Bank:
(a) Certified copies of all charter documents of the Company,
including those evidencing corporate action with respect to the Loan Documents
and the Loans hereunder, as the Bank shall request.
(b) Security Documents duly executed by the Company and such
other parties as may be required by the Bank in order to grant a first priority
(on a pari passu basis with all other debt of the Company owing to the Bank),
enforceable pledge of 64% of the Capital Stock of SOFEDIT and of 100% of the
Capital Stock of Aetna Holdings and Aetna, together with such original stock
certificates and other certificates and documents as may be required by the Bank
in connection therewith.
(c) Certified resolutions and legal opinions to the extent
required by the Bank, each in form and substance satisfactory to the Bank.
(d) The Demand Note duly executed by the Company.
(e) Such other documents and agreements reasonably requested by
the Bank.
5. Representations and Warranties. The Company represents and
warrants to the Bank that:
(a) The Company is a corporation duly organized, existing and in
good standing under the laws of the State of Delaware, and is duly qualified to
do business and is in good standing in each additional jurisdiction where such
qualification to be necessary except where failure to so qualify would not have
a Material Adverse Effect.
(b) The execution, delivery and performance by the company of
the Loan Documents are within its powers, have been duly authorized, and are not
in contravention of law or of the terms of any agreement or undertaking to which
the Company is a party or by which it may be bound.
<PAGE> 5
(c) The Loan Documents are valid, binding and enforceable in
accordance with the terms thereof, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting creditors' rights generally and by general principals of equity
(regardless of whether enforcement is sought in a proceeding of equity or at
law).
(d) No consent, approval or authorization of or declaration or
filing with any governmental authority on the part of the Company is required in
connection with the execution, delivery and performance of the Loan Documents.
(e) No litigation or governmental proceeding is pending or, to
the knowledge of the officers of the Company, threatened against the Company or
any of its Subsidiaries which could have a Material Adverse Effect.
(f) All financial statements of the Company furnished by the
Company to the Bank are complete and accurate in all material respects and
present fairly in all material respects the financial condition of the Company
as of the dates of such statements and the results of its operations for the
periods covered thereby, in accordance with generally accepted accounting
principles, and there has been no Material Adverse Effect since the date of the
latest of such statements for the Company.
(g) The Company is in compliance in all material respects with
all laws, rules, regulations, orders or similar requirements of any federal,
state or local governmental authority, including without limitation those
relating to any environmental matters.
(h) All representations and warranties contained in the Security
Documents are true and correct in all material respects.
(i) The Security Documents grant a first priority, enforceable
and perfected lien and security interest on 100% of the Capital Stock of Aetna
Holdings and Aetna and 64% of the Capital Stock of SOFEDIT.
6. Fees; Expenses; Etc. The Company shall pay the reasonable fees
and other expenses incurred by the Bank in connection with this agreement,
including without limitation the reasonable fees and expenses of Dickinson
Wright PLLC, counsel for the Bank, in connection with preparation of this
agreement and the documents required hereunder, the reasonable legal fees and
expenses in connection with any amendments or modifications hereof and the
reasonable legal fees and other expenses in connection with any event of
default, any enforcement hereof or any related agreements. Additionally, the
Company hereby indemnifies and agrees to hold harmless the Bank and its
officers, directors, employees and agents (each, an "Indemnified Person") from
and against any and all claims, damages, losses, liabilities, costs or expenses
(collectively, "Claims") of any kind or nature whatsoever (including reasonable
attorneys fees in connection with any investigative, administrative or judicial
proceeding whether or not such Indemnified Person shall be designated as a party
thereto) which the Bank or any such Indemnified Person may incur or which may be
claimed against any of them by reason of or in connection or relating to this
agreement or any of the transactions contemplated hereby, any use by the Company
of any of the Loans, under any environmental laws or due to any other activities
or transactions of the Company to the maximum extent permitted by law; provided,
that the Company shall not be liable for any indemnification to any Indemnified
Person to the extent that any Claim arises from such Indemnified Person's gross
negligence or willful misconduct.
7. Remedies. On the Automatic Termination Date, the Bank may
exercise all of its rights and remedies under the Loan Documents, under any
other agreement or otherwise provided by law or available to the Bank. In
addition to the foregoing, upon the occurrence and during the continuance of any
Automatic Termination Date, the Bank may at any time and from time to time,
without notice to the Company (any requirement for such notice being expressly
waived by the Company) set off and apply against any and all of the obligations
of the Company now or hereafter existing under or pursuant to this agreement,
any and all deposits (general or special, time or demand, provisional or final)
at any time held
<PAGE> 6
and other debt at any time owing by the Bank to or for the credit or the account
of the Company and any property of the Company from time to time in possession
of the Bank, irrespective of whether or not the Bank shall have made any demand
hereunder and although such obligations may be contingent and unmatured. The
Company hereby grants to the Bank a lien on and security interest in all such
deposits, debt and property as collateral security for the payment and
performance of the obligations of the Company under this agreement. The rights
of the Bank under the foregoing sentence are in addition to other rights and
remedies (including, without limitation, other rights of setoff) which the Bank
may have.
8. DISCRETIONARY LOANS; DEMAND OBLIGATIONS. NOTWITHSTANDING ANY
PROVISION OF THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT THE BANK SHALL AT
NO TIME BE OBLIGATED TO MAKE ANY LOAN HEREUNDER, DESPITE COMPLIANCE WITH ANY
EXPRESS CONDITIONS PRECEDENT THERETO. ADDITIONALLY, NOTWITHSTANDING ANY
PROVISION OF THIS AGREEMENT OR THE DEMAND NOTE, IT IS UNDERSTOOD AND AGREED THAT
THE DEMAND NOTE SUBJECT TO BEING CALLED AT ANY TIME WITHOUT REASON UPON ACTUAL
DEMAND BY THE BANK. THE INCLUSION OF PERIODIC INTEREST PAYMENTS IS MERELY TO
PROVIDE TERMS FOR THE PAYMENT OF INTEREST IN THE ABSENCE OF ACTUAL DEMAND, AND
THE INCLUSION OF THE AUTOMATIC TERMINATION DATE MAKES THIS DEMAND NOTE PAYABLE
WITHOUT AN ACTUAL DEMAND UPON THE OCCURRENCE THEREOF, AND NEITHER OF THE
FOREGOING AFFECTS OR IMPAIRS THE BANK'S ABSOLUTE RIGHT TO DEMAND PAYMENT OF THIS
DEMAND NOTE AT ANY TIME WITHOUT REASON, AND THE COMPANY SPECIFICALLY
ACKNOWLEDGES THAT THE BANK MAY AT ANY TIME DEMAND PAYMENT OF THIS DEMAND NOTE
FOR ANY REASON, WHETHER RELATED TO THE COMPANY OR UNRELATED TO THE COMPANY, OR
FOR NO REASON, ALL IN THE BANK'S SOLE DISCRETION.
9. Notices. All notices, demands, request and consents hereunder
shall be in writing and shall be effective when received, except that any notice
or demand which by any provision of this agreement is required or provided to be
given or served to or upon the Company shall be deemed to have been given or
served for all purposes by being sent as registered mail, postage prepaid,
addressed as follows: Trianon Industries Corp., 24331 Sherwood, Centerline, MI
48015, Attention: Harold Brown, Telephone No. (810) 759 2200, Telecopy No. (810)
759 0508, Trianon Industries Corp., Thomas Edison, Quarteir des Chenes B.P. 605,
78056 St. Quentin en Yvelines Cedex, France Telephone: 011-331-39- 41-2000,
Telecopy No. 011-331-30-48-5391, Attention Jean-Claude Garolla or, if any other
address shall at any time be designated by the Company in writing to the Bank,
to such other address.
10. Miscellaneous. The Loan Documents embody the entire agreement
and understanding between the Company and the Bank and supersedes all prior
agreements and understandings relating to the subject matter hereof. No
amendment, modification or waiver of any provision of this agreement nor any
consent to a departure therefrom shall be effective unless the same shall be in
writing and signed by the Bank and the Company. No failure of the Bank or of the
holder of the Demand Note in exercising any right, power or privilege hereunder
shall affect such right, power or privilege, nor shall any single or partial
exercise thereof preclude any further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies of the Bank and those
of the holder of the Demand Note under this agreement are cumulative and not
exclusive of any rights or remedies which either of them may otherwise have. All
payments to be made by the Company hereunder shall be made in immediately
available funds to the Bank at its main banking office in Detroit, Michigan not
later than 1:00 p.m. Detroit time on the date on which such payment shall become
due, and all payments received after 1:00 p.m. shall be deemed received on the
following Business Day. All payments due hereunder which are not due on a
Business Day shall be due on the next succeeding Business Day and interest shall
continue to accrue at the applicable rate. The Company further agrees to deliver
such Security Documents and other agreements and legal opinions as may be
required to grant a first priority lien and security interests on 100% of the
Capital Stock of each domestic Subsidiary of the Company now or hereafter formed
and 64% of the Capital Stock of SOFEDIT.
11. Waiver of Jury Trial. The Bank and the Company, after consulting
or having had the opportunity to consult with counsel, knowingly, voluntarily
and intentionally waive any right either of them may have to a trial by jury in
any litigation based upon or arising out of this agreement or any related
instrument or agreement or any of the transactions
<PAGE> 7
contemplated by this agreement or any course of conduct, dealing, statements
(whether oral or written) or actions of either of them. Neither the Bank nor the
Company shall seek to consolidate, by counterclaim or otherwise, any such action
in which a jury trial has been waived with any other action in which a jury
trial cannot be or has not been waived. These provisions shall not be deemed to
have been modified in any respect or relinquished by either the Bank or the
Company except by a written instrument executed by both of them.
12. Governing Law. This agreement shall be governed by and construed
in accordance with the laws of the State of Michigan applicable to contracts
made and to be performed entirely within such State and without giving effect to
choice of law principles of such State.
13. Binding Effect. All representations, warranties, covenants and
agreements herein contained shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto whether or not so
expressed.
Should the foregoing be agreeable to you, as it is to us, please
indicate your agreement and acceptance by executing and returning the enclosed
copy of this letter, whereupon this agreement shall be effective as of the date
of this letter.
Very truly yours,
BANK ONE, MICHIGAN
By: /s/ Thomas A. Gamm
----------------------------
Its: Vice President
------------------------
Agreed and accepted:
TRIANON INDUSTRIES CORP.
By: /s/ Francis Barge
-----------------------
Its: Chief Executive Officer
-----------------------------
<PAGE> 8
DEMAND NOTE
$41,300,000 May 17, 1999
Detroit, Michigan
ON DEMAND, or, if earlier, the Automatic Termination Date, for value
received, TRIANON INDUSTRIES CORP., f/k/a MS ACQUISITION CORP., a Delaware
corporation (the "Company"), hereby unconditionally promises to pay to the order
of BANK ONE, MICHIGAN, f/k/a NBD Bank, a Michigan banking corporation (the
"Bank"), at the principal office of the Bank, in lawful money of the United
States of America and in immediately available funds, the principal sum of
Forty-One Million Three Hundred Thousand Dollars ($41,300,000), or such lesser
amount as is recorded on the schedule attached hereto, or in the books and
records of the Bank; and, unless sooner demand is made, to pay interest on the
unpaid principal balance hereof from time to time outstanding, in like money and
funds, at the rates and at the time set forth in the Letter Agreement referred
to below.
This Demand Note evidences one or more loans made under a letter
agreement of even date herewith (as amended or modified from time to time, the
"Letter Agreement"), by and between the Company and the Bank, to which reference
is hereby made for a statement of the circumstances under which this Demand Note
shall be immediately due and payable without notice or demand, the collateral
security for this Demand Note and other terms relating hereto. Terms used but
not defined herein shall have the respective meanings ascribed thereto in the
Letter Agreement.
The Bank is hereby authorized by the Company to record on the schedule
attached to this Demand Note, or on its books and records, the date, amount and
type of each loan, the applicable interest rate (including any changes therein),
the amount of each payment of principal thereon and the other information
provided for on such schedule, which schedule or such books and records, as the
case may be, shall constitute prima facie evidence of the information so
recorded, provided, however, that any failure by the Bank to record any such
information shall not relieve the Company of its obligation to repay the
outstanding principal amount of such loans, all accrued interest thereon and any
amount payable with respect thereto in accordance with the terms of this Demand
Note and the Letter Agreement.
The Company and each endorser or guarantor hereof waives demand,
presentment, protest, diligence, notice of dishonor and any other formality in
connection with this Demand Note. The Company further agrees to pay, in addition
to the principal, interest and other sums due and payable hereon, all costs of
collecting this Demand Note, as set forth in the Letter Agreement.
This Demand Note is made under, and shall be governed by and construed
in accordance with, the laws of the State of Michigan applicable to contracts
made and to be performed entirely within such State and without giving effect to
choice of law principles of such State.
THIS DEMAND NOTE IS A DEMAND NOTE SUBJECT TO BEING CALLED AT ANY TIME WITHOUT
REASON UPON ACTUAL DEMAND BY THE BANK. THE INCLUSION OF PERIODIC INTEREST
PAYMENTS IS MERELY TO PROVIDE TERMS FOR THE PAYMENT OF INTEREST IN THE ABSENCE
OF ACTUAL DEMAND, AND THE INCLUSION OF THE AUTOMATIC TERMINATION DATE MAKES THIS
DEMAND NOTE PAYABLE WITHOUT AN ACTUAL DEMAND UPON THE OCCURRENCE THEREOF, AND
NEITHER OF THE FOREGOING AFFECTS OR IMPAIRS THE BANK'S ABSOLUTE RIGHT TO DEMAND
PAYMENT OF THIS DEMAND NOTE AT ANY TIME WITHOUT REASON, AND THE COMPANY
SPECIFICALLY ACKNOWLEDGES THAT THE BANK MAY AT ANY TIME DEMAND PAYMENT OF THIS
DEMAND NOTE FOR ANY REASON, WHETHER RELATED TO THE COMPANY OR UNRELATED TO THE
COMPANY, OR FOR NO REASON, ALL IN THE BANK'S SOLE DISCRETION.
TRIANON INDUSTRIES CORP.
By:
----------------------------
Its:
------------------------
<PAGE> 9
Schedule to Demand Note, dated
May 17, 1999, issued by Trianon Industries Corp. to Bank One, Michigan
<TABLE>
<CAPTION>
Transaction Principal Interest Principal Principal Balance Notation
Date Amount of Loan Rate Amount Paid Outstanding Made by
- ----------- -------------- -------- ----------- ----------------- --------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 1
EXHIBIT 10.4
CREDIT AGREEMENT
This Agreement, dated as of July 13, 1999 is among 20 20 Corp. 70, a
Michigan corporation, the Lenders and Bank One, Michigan, as Agent. The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any Person or division thereof, whether
through purchase of assets, merger or otherwise or (ii) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority a majority (by percentage or voting power) of
the outstanding Capital Stock of any Person.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the same
date of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Revolving Credit Loans of the same Type and, in the case
of Eurodollar Loans, for the same Interest Period.
"Aetna Holdings" means Aetna Holdings, Inc., a Delaware corporation.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means Bank One, Michigan in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders from time to time.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4 and
subject to Section 9.8.
"Alternate Prime Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
<PAGE> 2
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which commitment fees are accruing per Section 2.5 at such time as set forth
in the Pricing Schedule.
"Applicable Margin" means, with respect to Loans and Facility LCs at any
time, the percentage rate per annum which is applicable at such time with
respect thereto as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware corporation,
and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
Asset Sale means the sale, transfer or other disposition by the Borrower
or any Subsidiary of any asset of any kind to any Person.
"Authorized Officer" means any of the chief executive officer, the
president, any vice presidentor secretary of the Borrower, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, Michigan, a Michigan banking corporation.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
"Beneficially Owns" and "Beneficially Owned" shall have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the
corporation;
(2) with respect to a partnership, the Board of Directors of the
general partner of the partnership; and
(3) with respect to any other Person, the board or committee of such
Person serving a similar function.
"Borrower" means 20 20 Corp. 70, a Michigan corporation, and its
successors and assigns, including pursuant to its merger with Zenith Industrial
Corporation.
"Borrowing Date" means a date on which an Advance or Swing Loan is made
hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Detroit and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Detroit for the conduct of substantially all of their
commercial lending activities.
<PAGE> 3
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Accounting Principles.
"Capital Stock" means (i) in the case of any corporation, all capital
stock and any securities exchangeable for or convertible into capital stock and
any warrants, rights or other options to purchase or otherwise acquire capital
stock or such securities or any other form of equity securities, (ii) in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distribution of assets of, the issuing
Person, including without limitation trust beneficiary interests.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means:
(1) cash;
(2) securities issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged in
support thereof);
(3) time deposits and certificates of deposit of any Lender or any
domestic commercial bank of recognized standing having capital and surplus in
excess of $250,000,000;
(4) commercial paper issued by others rated at least A-1 or the
equivalent thereof by Standard & Poor's Corporation or at least P-1 or the
equivalent thereof by Moody's Investors Service, Inc;
(5) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (1) above entered into
with any bank meeting the qualifications specified in clause (3) above;
(6) any money market deposit accounts issued or offered by a domestic
commercial bank having capital and surplus in excess of $250,000,000;
(7) investments in money market funds which invest substantially all
their assets in securities of the type described in clauses (1), (2) (3) and (4)
above and in the case of (1), (2) and (3) maturing within one year after the
date of acquisition.
"Change of Control" means the occurrence of any of the following:
(1) The direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets
of the Borrower and its Subsidiaries or of Trianon and its Subsidiaries taken as
a whole to any "person" (as that term is used in Section 13(d)(3) of the
Exchange Act);
<PAGE> 4
(2) The adoption of a plan relating to the liquidation or dissolution
of the Borrower or of Trianon;
(3) The consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals and their Related
Parties, becomes the Beneficial Owner, directly or indirectly, of more than 20%
of the Voting Stock of Trianon, measured by voting power rather than number of
shares;
(4) The first day on which a majority of the members of the Board of
Directors of the Borrower or of Trianon are not Continuing Directors;
(5) Trianon consolidates with, or merges into, any Person, or any
Person consolidates with, or merges with or into, Trianon, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of
Trianon or such other Person is converted into or exchanged for cash, securities
or other property, other than any such transaction where the Voting Stock of
Trianon outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately after giving
effect to such issuance); or
(6) Trianon shall fail to own, free and clear of all Liens, 100%
of the Capital Stock of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means (i) all present and future Property of the Borrower
and of the Subsidiary Guarantors, including without limitation any funds held in
escrow pursuant to the Zenith Acquisition Documents, (ii) 64% of the Capital
Stock of SOFEDIT and (iii) 100% of the Capital Stock of Aetna Holdings, Aetna
Industries, Inc. and the Borrower.
"Collateral Documents" means, collectively, the Security Agreements, the
Mortgages and all other agreements granting a Lien in favor of the Agent
securing the Secured Obligations, as any of the foregoing may be amended or
modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans, and to participate in Facility LCs issued upon the application of,
and Swing Loans made at the request of, the Borrower in an aggregate amount not
exceeding the amount set forth opposite its signature below or as set forth in
any Notice of Assignment relating to any assignment that has become effective
pursuant to Section 12.3.2, as such amount may be modified from time to time
pursuant to the terms hereof.
"Consolidated" or "consolidated" means, when used with reference to any
financial term in this Agreement, the aggregate for two or more Persons of the
amounts signified by such term for all such Persons determined on a consolidated
basis in accordance with Agreement Accounting Principles.
"Consolidated Adjusted EBITDA" means Consolidated Net Income plus, to
the extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for income taxes paid or accrued,
(iii) depreciation, (iv) amortization, and (v) with respect to the amounts
determined for any fiscal quarter in the fiscal year of the Borrower ended
December 31, 1998, such expenses as separately scheduled by the Borrower and
acceptable to the Agent, all calculated for the Borrower and its Subsidiaries on
a consolidated basis.
"Consolidated Capital Expenditures" means, with reference to any period,
the Capital Expenditures of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
<PAGE> 5
"Consolidated Interest Expense" means, for any period, total net
interest and related expense owed to Persons other than the Borrower and its
Wholly Owned Subsidiaries (including, without limitation or duplication, that
portion of any Capitalized Lease Obligation attributable to interest expense in
conformity with Agreement Accounting Principles, amortization of debt discount,
all capitalized interest, the interest portion of any deferred payment
obligations, all commissions, discounts and other fees and charges owed with
respect to letter of credit and bankers acceptance financing, the net costs and
net payments under any interest rate hedging, cap or similar agreement or
arrangement, agency fees and capitalized transaction costs allocated to interest
expense) paid, payable or accrued during such period, without duplication for
any other period or otherwise, with respect to all outstanding Indebtedness of
the Borrower and its Subsidiaries, all as determined for the Borrower and its
Subsidiaries on a consolidated basis for such period in accordance with
Agreement Accounting Principles.
"Consolidated Net Income" means, for any period, the net income (or
loss) of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period, determined in accordance with
Agreement Accounting Principles; provided that in determining Consolidated Net
Income there shall be excluded, without duplication: (a) the income of any
Person (other than a Subsidiary of the Borrower) in which any Person other than
the Borrower or any of its Subsidiaries has a joint interest or partnership
interest, except to the extent of the amount of dividends or other distributions
actually paid in cash to the Borrower or any of its Subsidiaries by such Person
during such period, (b) the income of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries or that Person's assets are acquired by the
Borrower or any of its Subsidiaries, (c) gains and losses from the sale,
exchange, transfer or other disposition of property or assets not in the
ordinary course of business of the Borrower and its Subsidiaries, and related
tax effects in accordance with Agreement Accounting Principles, (d) any
extraordinary or non-recurring gains, and related tax effects in accordance with
Agreement Accounting Principles, (e) any other income not from the continuing
operations of the Borrower or its Subsidiaries, and related tax effects in
accordance with Agreement Accounting Principles, (f) the income of any
Subsidiary of the Borrower that is not a Guarantor to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of that income is not at the date of determination permitted by operation of the
terms of its charter or of any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary, or its
owners, and (g) any non-cash items added to income, excluding any such non-cash
items to the extent it represents the reversal of an accrual or reserve for
potential cash items in any prior period.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Rentals" means, with reference to any period, the Rentals
of the Borrower and its Subsidiaries calculated on a consolidated basis for such
period.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
maximum stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made (or, if less, the maximum amount of
such primary obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder), as determined by such
Person in good faith and acceptable to the Agent.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of Trianon or of the Borrower, as the case may
be, who:
<PAGE> 6
(1) was a member of such Board of Directors on the date of this
Agreement; or
(2) was nominated for election to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board at the time of such nomination or election.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Credit Extension" means the making of an Advance, the making of a Swing
Loan or the issuance of a Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or Swing
Loan or the issuance date for a Facility LC or any conversion or continuation
thereof.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that (i) on any Borrowing Date
fails to make available to the Agent such Lender's Loans required to be made to
the Borrower on such Borrowing Date, (ii) shall not have made a payment to the
Agent required under this Agreement, (iii) shall not have made a payment to the
LC Issuer required under this Agreement, or (iv) is subject to receivership,
conservatorship or other insolvency proceeding. Once a Lender becomes a
Defaulting Lender, such Lender shall continue as a Defaulting Lender until such
time as such Defaulting Lender makes available to the Agent, the amount of such
Defaulting Lender's Loans and to the LC Issuer, such payments requested by the
LC Issuer together with all other amounts required to be paid to the Agent
and/or the LC Issuer pursuant to this Agreement.
"Disqualified Capital Stock" means (a) with respect to a Person, except
as to any Subsidiary of such Person, any Capital Stock of such Person that, by
its terms or by the terms of any security into which it is convertible,
exercisable or exchangeable, is, or upon the happening of an event or the
passage of time would be, required to be redeemed or repurchased (including at
the option of the holder thereof) by such Person or any of its Subsidiaries, in
whole or in part, on or prior to the Facility Termination Date and (b) with
respect to any Subsidiary of such Person (including with respect to any
Subsidiary of the Borrower), any Capital Stock other than any common equity with
no preference, privileges, or redemption or repayment provisions.
"Environmental Certificate" means an appropriately completed
environmental certificate, substantially in the form approved by the Agent,
delivered by each of the Borrower and the Subsidiary Guarantors, certified as
true and correct as of such date by an Authorized Officer of the Borrower and
each Subsidiary Guarantor.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
<PAGE> 7
"Escrow Account" means the Escrow Account established pursuant to the
Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement dated the date hereof and
executed pursuant to the Zenith Acquisition between the Borrower and the sellers
party to the Zenith Acquisition Documents.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the rate determined by the Agent to be the rate at
which Bank One offers or would offer to place deposits in U.S. dollars with
first-class banks in the London interbank market at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
in the approximate amount of Bank One's relevant Eurodollar Loan and having a
maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Exchange Act" means the securities Exchange Act of 1934, as amended
from time to time, and the rules, regulations and interpretations thereunder.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or any political
subdivision thereof and (ii) the jurisdiction in which the Agent's or such
Lender's principal executive office and such Lender's applicable Lending
Installation is located or any political subdivision thereof.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility LC" is defined in Section 2.19.1.
"Facility LC Application" is defined in Section 2.19.3.
"Facility LC Collateral Account" is defined in Section 2.19.11.
"Facility Termination Date" means the earliest to occur of (a) July 13,
2004, (b) the date upon which a Public Offering of Capital Stock of Trianon is
made, or (c) the date upon which Trianon incurs, extends or refinances any
Indebtedness in excess of $10,000,000, other than extensions of existing
Indebtedness of Trianon with the same lender and the incurrence of Indebtedness
of Trianon pursuant to the Subordinated Debt Documents.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
<PAGE> 8
Business Day, the average of the quotations at approximately 10:00 a.m. (Detroit
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any agreements, devices or
arrangements providing for payments related to fluctuations of interest rates,
exchange rates, forward rates or commodity prices, including, but not limited
to, interest rate swap or exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Prime Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Prime Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the Floating Rate.
"Governmental Authority" means any nation or government, any state, or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, whether foreign or domestic.
"Guarantor" means Trianon, Aetna Holdings, and all present and future
Subsidiaries of the Borrower.
"Guaranty" means that certain guaranty dated as of the date hereof
executed by the Guarantors in favor of the Agent, for the ratable benefit of the
Lenders, and any other guaranty executed in connection with this Agreement or
otherwise guaranteeing the Secured Obligations at any time, as each may be
amended or modified and in effect from time to time.
"Indebtedness" of a Person means, without duplication, such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from Property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) obligations of such Person to purchase
securities or other Property arising out of or in connection with the sale of
the same or substantially similar securities or Property, (vi) Capitalized Lease
Obligations, and (vii) any other obligation for borrowed money or other
financial accommodation or similar obligation which in accordance with Agreement
Accounting Principles would be shown as a liability on the consolidated balance
sheet of such Person, (viii) any Off Balance Sheet Liability, (ix) the undrawn
amount of any Letter of Credit issued for the account of such person and all
amounts drawn under any such Letters of Credit which have not been reimbursed by
such Person, (x) in the case of the Borrower, the amount of all Zenith
Acquisition Obligations, and (xi) any Contingent Obligations of any such Person,
other than any permissible Rate Hedging Obligations.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement; provided, however, notwithstanding anything
in this Agreement to the contrary and only at the Agent's sole option, for the
period from the date of this Agreement to the earlier of (i) the date that is 90
days after the date hereof and (ii) the date upon which the Arranger confirms
that the loan syndication process has been complete (the "Syndication Period"),
"Interest Period" means, with respect to a Eurodollar Loan, a period of seven
(7) days , provided that during such period all Interest Periods shall end on
the same day. Other than during the Syndication Period, such Interest Period
shall end on the day which corresponds
<PAGE> 9
numerically to such date one, two, three or six months thereafter, provided,
however, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership
interests, notes, debentures or other securities owned by such Person; any
deposit accounts and certificate of deposit owned by such Person; and structured
notes, derivative financial instruments and other similar instruments or
contracts owned by such Person.
"LC Fee" is defined in Section 2.19.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.19.5.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent listed on
the signature pages hereof or on a Schedule or otherwise selected by such Lender
or the Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as of any date of calculation, the ratio of (i)
Total Debt outstanding on such date to (ii) Consolidated Adjusted EBITDA for the
Borrower's then most-recently ended four fiscal quarters.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means any Revolving Credit Loan or any Swing Loan.
"Loan Documents" means this Agreement, the Facility LC Applications, any
Notes issued pursuant to Section 2.13, the Collateral Documents, the Guaranties
and all other agreements and documents executed or delivered in connection with
any of the foregoing at any time, as each may be amended or modified from time
to time.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
<PAGE> 10
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole or of Trianon
and its Subsidiaries taken as a whole, (ii) the ability of the Borrower or any
Guarantor to perform its obligations under the Loan Documents to which it is a
party, or (iii) the validity or enforceability of any of the Loan Documents or
the rights or remedies of the Agent, the LC Issuer or the Lenders thereunder.
"Material Obligation" is defined in Section 7.5.
"Modify" and "Modification" are defined in Section 2.19.1.
"Moody's" means Moody's Investors Service, Inc.
"Mortgages" means each mortgage, deed of trust or similar agreement
entered into by the Borrower or any Guarantor for the benefit of the Agent to
secure the Secured Obligations pursuant to this Agreement and in form and
substance satisfactory to the Agent, as amended or modified from time to time.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Cash Proceeds" means, without duplication (a) in connection with
any sale or other disposition of any asset or any settlement by, or receipt of
payment in respect of, any property insurance claim or condemnation award, the
cash proceeds (including any cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such sale,
settlement or payment, net of reasonable and documented attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset which is the subject of such sale, insurance claim or condemnation
award (other than any Lien in favor of the Agent to secure the Secured
Obligations) and other customary fees and expenses actually incurred in
connection therewith, taxes paid or reasonably estimated to be payable as a
result thereof, and any cash reserves required to be maintained for liabilities
associated with the sale (provided that such cash reserves shall become Net Cash
Proceeds when no longer required to be held as reserves), and (b) in connection
with any issuance or sale of any equity securities or debt securities or
instruments or the incurrence of loans, the cash proceeds received from such
issuance or incurrence, net of investment banking fees, reasonable and
documented attorneys' fees, accountants' fees, underwriting discounts and
commissions and other reasonable and customary fees and expenses actually
incurred in connection therewith.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.13 in the form of Exhibit E.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, the Agent, the LC Issuer or any
indemnified party arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction
<PAGE> 11
which is not a Capitalized Lease, (iii) any liability under any so-called
"synthetic lease" or "tax ownership operating lease" transaction entered into by
such Person, or (iv) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the balance sheets of
such Person, but excluding from this clause (iv) Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Operating Lease Obligations" means, as at any date of determination,
the amount obtained by aggregating the present values, determined in the case of
each particular Operating Lease by applying a discount rate (which discount rate
shall equal the discount rate which would be applied under Agreement Accounting
Principles if such Operating Lease were a Capitalized Lease) from the date on
which each fixed lease payment is due under such Operating Lease to such date of
determination, of all fixed lease payments due under all Operating Leases of the
Borrower and its Subsidiaries.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Revolving Credit Loans
outstanding at such time, plus (ii) an amount equal to its Pro Rata Share of the
LC Obligations at such time, plus (iii) an amount equal to its pro Rata Share of
the Swing Loans at such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last Business Day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" shall mean the per annum rate announced by the Agent from
time to time as its "prime rate" (it being acknowledged that such announced rate
may not necessarily be the lowest rate charged by the Agent to any of its
customers); which Prime Rate shall change simultaneously with any change in such
announced rate.
"Principals" means Francis Barge, Felix Domenech and Jean-Rene
Hergoualc'h.
"Pro Forma Financial Statements and Projections" mean the pro forma
financial statements giving effect to the Zenith Acquisition and projections of
the financial results of the Borrower furnished by the Borrower to the Agent
prior to the date of this Agreement.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment (or, if the
Commitments have expired or been terminated, the amount thereof immediately
prior to
<PAGE> 12
such expiration or termination) and the denominator of which is the Aggregate
Commitment (or, if the Aggregate Commitment has expired or been terminated, the
amount thereof immediately prior to such expiration or termination).
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Public Offering" means the sale of Capital Stock of Trianon pursuant to
(a) a registration statement under the Securities Act that has been declared
effective by the SEC or (b) a public offering outside the United States and
which results, in either case, in an active trading market for such shares. An
active trading marketing shall be deemed to exist if such shares are listed on
the New York Stock Exchange, the American Stock Exchange, the Nasdaq Small Cap
Market, the Nasdaq National Market system or any other major (as determined by
the Agent) domestic or international trading market.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Hedging Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.19 to reimburse the
LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Related Party" means:
(i) any 80% (or more) owned Subsidiary or immediate family member (in
the case of an individual) of any Principal, or
(ii) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of any one or more Principals
and/or such other Persons referred to the in the immediately preceding clause
(i).
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
<PAGE> 13
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders in the aggregate having at least 51% of
the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 51% of the Aggregate Outstanding
Credit Exposure.
"Requirement of Law" means, as to any Person, any law (statutory or
common), order, writ, injunction, decree, award, treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its Property or to which the
Person or any of its Property is subject.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Revolving Credit Block Amount" means (i) zero if no amount has been
funded at any time under the Subordinated Debt Documents and (ii) at any time on
or after any amount is funded under the Subordinated Debt Documents, an amount
equal to the excess, if any, of (a) the Zenith Acquisition Obligations less an
amount deducted therefrom as approved by the Agent, provided that the amount
determined under this clause (a) shall not be less than the Zenith Acquisition
Obligations payable over the one year period following such time of
determination, over (b) the amount that is available to be drawn, but is
undrawn, by the Borrower under the Subordinated Debt Documents with Trianon.
"Revolving Credit Loan" means any loan made by any Lender under Section
2.1 (or any conversion or continuation thereof).
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"SEC" means the Securities and Exchange Commission and any successor
thereto.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
all Rate Hedging Obligations of the Borrower or any of its Subsidiaries owing to
one or more Lenders or their Affiliates.
"Security Agreement" means each security agreement, pledge agreement,
pledge and security agreement or similar agreement entered into by the Borrower
or any Guarantor for the benefit of the Agent to secure the Secured Obligations
pursuant to this Agreement, in form and substance acceptable to the Agent, as
amended or modified from time to time.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and the rules, regulations and interpretations thereunder.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
<PAGE> 14
"SOFEDIT" means Societe Financiere d' etudes de Developpement Industriel
et Technologique, a French societe anonyme.
"Subordinated Debt Documents" means the Subordinated Debt Agreements and
all agreements, instruments and documents executed in connection therewith at
any time, in each case in form and substance satisfactory to the Agent and as
amended or modified from time to time as permitted hereunder.
"Subordinated Debt Agreements" means, collectively, all present and
future agreements between Trianon and First Chicago Capital Corp. and the other
lenders party thereto with respect to the funding of Subordinated Indebtedness
or, if acceptable to the Agent, Indebtedness by such lenders to Trianon and the
agreements between Trianon and the Borrower with respect to the funding of
Subordinated Indebtedness by Trianon to the Borrower, in each case in form and
substance satisfactory to the Agent and as amended or modified from time to time
as permitted hereunder.
"Subsidiary Guarantors" means each Guarantor which is a Subsidiary of
the Borrower.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Secured
Obligations to the written satisfaction of the Agent.
"Subsidiary" of a Person means any other Person more than 50% of the
outstanding Capital Stock having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of such Person
and its Subsidiaries, Property which (a) represents more than 10% of the
consolidated assets of such Person and its Subsidiaries as would be shown in the
consolidated financial statements of such Person and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made, (b) is responsible for more than 10% of the consolidated
net sales or of the consolidated net income of such Person and its Subsidiaries
as reflected in the financial statements referred to in clause (a) above, (c)
represents more than 25% of the consolidated assets of such Person and its
Subsidiaries as would be shown in the consolidated financial statements of such
Person and its Subsidiaries as of the date of this Agreement or (d) is
responsible for more than 25% of the consolidated net sales or of the
consolidated net income of such Person and its Subsidiaries as reflected in the
financial statements referred to in clause (c) above.
"Swing Loans" is defined in Section 2.20.1.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Total Debt" means at any time the Indebtedness of the Borrower and its
Subsidiaries less cash and Cash Equivalent Investments of the Borrower and its
Subsidiaries (including any cash or Cash Equivalent Investments on deposit in
the Escrow), calculated on a consolidated basis as of such time.
"Transferee" is defined in Section 12.4.
"Trianon" means Trianon Industries Corp., formerly known as MS
Acquisition Corp., a Delaware corporation.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance or a Eurodollar Advance.
<PAGE> 15
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice under this Agreement, or both, would constitute a Default.
"Voting Stock" of any Person as of any date means the Capital Stock of
such person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
affects the business, operations and financial condition of the Borrower and its
Subsidiaries and of the Borrower's and its Subsidiaries' material customers,
suppliers and vendors.
"Year 2000 Program" is defined in Section 5.19.
"Zenith" means Zenith Industrial Corporation, a Michigan corporation.
"Zenith Acquisition" means the Acquisition to be completed pursuant to
the Zenith Acquisition Documents.
"Zenith Acquisition Documents" means the Stock Purchase Agreement dated
May 6, 1999 between Trianon (and assigned to the Borrower) and the sellers
listed therein for the Acquisition of all of the Capital Stock of Zenith,
together with all agreements, documents and instruments executed in connection
therewith or otherwise pursuant thereto.
"Zenith Acquisition Obligations" means, at any time, the amounts payable
(exclusive of amounts previously paid) pursuant to the Zenith Acquisition
Documents, including without limitation all earn outs, commissions, interest
compensation payments and other payments payable thereunder, as estimated from
time to time by the Borrower pursuant to the most recent certificate of the
Borrower delivered pursuant to Section 6.1(iv) (or pursuant to a certificate of
the Borrower delivered on the date hereof prior to the delivery of the first
certificate under Section 6.1(iv)), provided that such estimate and the amount
thereof shall be acceptable to the Agent.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of this Agreement and
prior to the Facility Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to (i) make Revolving Credit
Loans to the Borrower and (ii) participate in Facility LCs issued upon the
request of the Borrower and Swing Loans made by the Agent upon the request of
the Borrower, provided that, after giving effect to the making of each such
Revolving Credit
<PAGE> 16
Loan and Swing Loan and the issuance of each such Facility LC, (a) such Lenders
Outstanding Credit Exposure shall not exceed its Commitment and (b) the
Aggregate Outstanding Credit Exposure shall not exceed the difference of the
Aggregate Commitments minus the Revolving Credit Blocked Amount. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow at any time
prior to the Facility Termination Date. The Commitments to extend credit
hereunder shall expire on the Facility Termination Date. The LC Issuer will
issue Facility LCs hereunder on the terms and conditions set forth in Section
2.19. The Agent may make Swing Loans hereunder on the terms and conditions set
forth in Section 2.20.
2.2. Required Payments; Termination. (i) The Aggregate Outstanding
Credit Exposure and all other unpaid Obligations shall be paid in full by the
Borrower on the Facility Termination Date.
(ii) If at any time the Aggregate Outstanding
Credit Exposure exceeds the difference of the Aggregate Commitments minus the
Revolving Credit Blocked Amount, the Borrower shall promptly prepay the Credit
Extensions in an amount equal to such excess.
(iii) In addition to all other payments of the Credit
Extensions required hereunder, the Borrower shall prepay the Credit Extensions
and reduce the Aggregate Commitments by an amount equal to 100% of all of the
Net Cash Proceeds, payable upon receipt of such Net Cash Proceeds, from any sale
or other disposition of any assets (exclusive of the sale of inventory in the
ordinary course of business upon customary credit terms), in excess of
$1,000,000 in aggregate amount in any fiscal year, provided that the Borrower
shall not be required to prepay the Credit Extensions from the Net Cash Proceeds
from the sale or any disposition of assets if such Net Cash Proceeds will be
used within 360 days of their receipt to purchase similar assets of comparable
value. The Borrower shall provide a certificate to the Agent within 20 days
after each sale of assets, which, but for the above proviso, would cause a
prepayment under this Section 2.2(iii), which certificate shall describe such
sale of assets and estimate when such Net Cash Proceeds will be used to purchase
similar assets of comparable value; and if such Net Cash Proceeds are not used
within 360 days after such sale or such earlier date when the Borrower has
determined not to purchase similar assets of comparable value with such Net Cash
Proceeds the Borrower will then prepay the Credit Extensions with, and reduce
the Aggregate Commitments by the amount of, such Net Cash Proceeds.
2.3. Ratable Loans. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably according to their Pro Rata Shares.
2.4. Types of Advances. The Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9.
2.5. Commitment Fee; Reductions in Aggregate Commitment. The Borrower
agrees to pay to the Agent for the account of each Lender according to its Pro
Rata Share a commitment fee at a per annum rate equal to the Applicable Fee Rate
on the average daily amount of the difference between the Aggregate Commitment
minus the aggregate principal amount of the Revolving Credit Loans and the
Aggregate LC Obligations from the date hereof to and including the Facility
Termination Date, payable on each Payment Date hereafter and on the Facility
Termination Date. The Borrower may permanently reduce the Aggregate Commitment
in whole, or in part ratably among the Lenders in integral multiples of
$5,000,000, upon at least five Business Days' written notice to the Agent, which
notice shall specify the amount of any such reduction, provided, however, that
the amount of the Aggregate Commitment may not be reduced below the sum of the
Aggregate Outstanding Credit Exposure plus the Revolving Credit Blocked Amount.
All reductions of the Commitments, whether optional or mandatory, shall reduce
the Commitments for all time periods stated for the Commitments. All accrued
commitment fees shall be payable on the effective date of any termination of the
obligations of the Lenders to make Credit Extensions hereunder.
2.6. Minimum Amount of Each Advance. Each Eurodollar Advance shall be
in the minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum
<PAGE> 17
amount of $1,000,000 (and in multiples of $500,000 if in excess thereof),
provided, however, that any Floating Rate Advance may be in the amount of the
Available Aggregate Commitment.
2.7. Optional Principal Payments. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances, or, in
a minimum aggregate amount of $1,000,000 or any integral multiple of $500,000 in
excess thereof, any portion of the outstanding Floating Rate Advances upon two
Business Days' prior notice to the Agent. The Borrower may from time to time
pay, subject to the payment of any funding indemnification amounts required by
Section 3.4 but without penalty or premium, all outstanding Eurodollar Advances,
or, in a minimum aggregate amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Eurodollar Advances
upon three Business Days' prior notice to the Agent.
2.8. Method of Selecting Types and Interest Periods for New Advances.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time.
The Borrower shall give the Agent irrevocable notice (a "Borrowing Notice") not
later than 10:00 a.m. (Detroit time) at least one Business Day before the
Borrowing Date of each Floating Rate Advance and three Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
Not later than noon (Detroit time) on each Borrowing Date, each Lender shall
make available its Loan or Loans in funds immediately available in Detroit to
the Agent at its address specified pursuant to Article XIII. The Agent will make
the funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
2.9. Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurodollar Advances pursuant to this
Section 2.9 or are repaid in accordance with Section 2.7. Each Eurodollar
Advance shall continue as a Eurodollar Advance until the end of the then
applicable Interest Period therefor, at which time such Eurodollar Advance shall
be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.7 or (y) the
Borrower shall have given the Agent a Conversion/Continuation Notice (as defined
below) requesting that, at the end of such Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance for the same or another Interest
Period. Subject to the terms of Section 2.6, the Borrower may elect from time to
time to convert all or any part of a Floating Rate Advance into a Eurodollar
Advance. The Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Floating Rate Advance
into a Eurodollar Advance or continuation of a Eurodollar Advance not later than
10:00 a.m. (Detroit time) at least three Business Days prior to the date of the
requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
<PAGE> 18
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9, to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Advance will take effect simultaneously with each change in
the Alternate Prime Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined by the Agent as applicable to
such Eurodollar Advance based upon the Borrower's selections under Sections 2.8
and 2.9 and otherwise in accordance with the terms hereof. No Interest Period
may end after the Facility Termination Date.
2.11. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. During the continuance of a
Default the Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each Eurodollar Advance
shall bear interest for the remainder of the applicable Interest Period at the
rate otherwise applicable to such Interest Period plus 2% per annum, (ii) each
Floating Rate Advance and Swing Loan shall bear interest at a rate per annum
equal to the Floating Rate in effect from time to time plus 2% per annum and
(iii) the LC Fee shall be increased by 2% per annum, provided that, during the
continuance of a Default under Section 7.6 or 7.7, the interest rates set forth
in clauses (i) and (ii) above and the increase in the LC Fee set forth in clause
(iii) above shall be applicable to all Credit Extensions without any election or
action on the part of the Agent or any Lender.
2.12. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (Detroit time) on the date when
due and shall (except in the case of Reimbursement Obligations for which the LC
Issuer has not been fully indemnified by the Lenders, or as otherwise
specifically required hereunder) be applied ratably by the Agent among the
Lenders. Each payment delivered to the Agent for the account of any Lender shall
be delivered promptly by the Agent to such Lender in the same type of funds that
the Agent received at its address specified pursuant to Article XIII or at any
Lending Installation specified in a notice received by the Agent from such
Lender. The Agent is hereby authorized to charge the account of the Borrower
maintained with Bank One or any of its Affiliates for each payment of principal,
interest, Reimbursement Obligations and fees as it becomes due hereunder. Each
reference to the Agent in this Section 2.12 shall also be deemed to refer, and
shall apply equally, to the LC Issuer, in the case of payments required to be
made by the Borrower to the LC Issuer pursuant to Section 2.19.6.
2.13. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will record
(a) the amount of each Loan made hereunder, the Type thereof and the Interest
Period with respect thereto, (b) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder,
(c) the original stated amount of each Facility LC and the amount of LC
Obligations outstanding at any time, and (d) the amount of any sum received by
the Agent hereunder from the Borrower and each Lender's share thereof.
<PAGE> 19
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Agent or any Lender to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Obligations
in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a
promissory note (a "Note"). In such event, the Borrower shall prepare, execute
and deliver to such Lender a Note payable to the order of such Lender in a form
supplied by the Agent. Thereafter, the Loans evidenced by such Note and interest
thereon shall at all times (including after any assignment pursuant to Section
12.3) be represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 12.3, except to the extent
that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described
in paragraphs (i) and (ii) above.
2.14. Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be acting on
behalf of the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion. Interest
accrued on each Eurodollar Advance shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurodollar Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest, commitment fees and LC Fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be payable
for the day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to noon (local time) at the place of payment.
If any payment of principal of or interest on an Advance shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. Promptly after notice from the LC Issuer, the Agent will notify
each Lender of the contents of each request for issuance of a Facility LC
hereunder. The Agent will notify each Lender of the interest rate applicable to
each Eurodollar Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Prime Rate.
2.17. Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and Swing Loans, the Agent may book the
Swing Loans and the LC Issuer may book the Facility LCs at any Lending
Installation selected by such Lender, the Agent or the LC Issuer, as the case
may be, and may change its Lending Installation from time to time. All terms of
this Agreement shall apply to any such Lending Installation and the Loans,
Facility LCs, participations in LC Obligations and Swing Loans and any Notes
issued hereunder shall be deemed held by each Lender or the LC Issuer, as the
case may be, for the benefit of any such Lending Installation. Each Lender and
the LC
<PAGE> 20
Issuer may, by written notice to the Agent and the Borrower in accordance
with Article XIII, designate replacement or additional Lending Installations
through which Loans will be made by it or Facility LCs will be issued by it and
for whose account Loan payments or payments with respect to Facility LCs and
Swing Loans are to be made.
2.18. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.19. Facility LCs.
2.19.1. Issuance. The LC Issuer hereby agrees, on the terms and
conditions set forth in this Agreement, to issue standby and commercial
letters of credit (each, a "Facility LC") and to renew, extend,
increase, decrease or otherwise modify each Facility LC ("Modify," and
each such action a "Modification"), from time to time from and including
the date of this Agreement and prior to the Facility Termination Date
upon the request of the Borrower; provided that immediately after each
such Facility LC is issued or Modified, (i) the aggregate amount of the
outstanding LC Obligations shall not exceed $5,000,000 and (ii) the
Aggregate Outstanding Credit Exposure shall not exceed the Aggregate
Commitment. No Facility LC shall have an expiry date later than the
earlier of (x) the date one month prior to the then known Facility
Termination Date and (y) one year after its issuance.
2.19.2. Participations. Upon the issuance or Modification by the
LC Issuer of a Facility LC in accordance with this Section 2.19, the LC
Issuer shall be deemed, without further action by any party hereto, to
have absolutely, automatically, unconditionally and irrevocably sold to
each Lender, and each Lender shall be deemed, without further action by
any party hereto, to have absolutely, automatically, unconditionally and
irrevocably purchased from the LC Issuer, a participation in such
Facility LC (and each Modification thereof) and the related LC
Obligations in proportion to its Pro Rata Share.
2.19.3. Notice. Subject to Section 2.19.1, the Borrower shall
give the LC Issuer notice prior to 10:00 a.m. (Detroit time) at least
five Business Days (or such lesser period as agreed to by the LC Issuer)
prior to the proposed date of issuance or Modification of each Facility
LC, specifying the beneficiary, the proposed date of issuance (or
Modification) and the expiry date of such Facility LC, and describing
the proposed terms of such Facility LC and the nature of the
transactions proposed to be supported thereby. Upon receipt of such
notice, the LC Issuer shall promptly notify the Agent, and the Agent
shall promptly notify each Lender, of the contents thereof and of the
amount of such Lender's participation in such proposed Facility LC. The
issuance or Modification by the LC Issuer of any Facility LC shall, in
addition to the conditions precedent set forth in Article IV (the
satisfaction of which the LC Issuer shall have no duty to ascertain), be
subject to the conditions precedent that such Facility LC shall be
satisfactory to the LC Issuer and that the Borrower shall have executed
and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as the LC Issuer shall have
reasonably requested (each, a "Facility LC Application"). In the event
of any conflict between the terms of this Agreement and the terms of any
Facility LC Application, the terms of this Agreement shall control.
<PAGE> 21
2.19.4. LC Fees. The Borrower shall pay to the Agent, for the
account of the Lenders ratably in accordance with their respective Pro
Rata Shares, with respect to each Facility LC, a letter of credit fee at
a per annum rate equal to the Applicable Margin for Eurodollar Loans in
effect from time to time on the average daily undrawn stated amount
under such standby Facility LC, such fee to be payable in arrears on
each Payment Date, (each such fee described in this sentence an "LC
Fee"). The Borrower shall also pay to the LC Issuer for its own account
(x) at the time of issuance of each Facility LC, a fronting fee in an
amount equal to 0.25% per annum on the average daily undrawn stated
amount under each Facility LC, and (y) documentary and processing
charges in connection with the issuance or Modification of and draws
under Facility LCs in accordance with the LC Issuer's standard schedule
for such charges as in effect from time to time.
2.19.5. Administration; Reimbursement by Lenders. Upon receipt
from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the LC Issuer shall notify the Agent and the Agent
shall promptly notify the Borrower and each other Lender as to the
amount to be paid by the LC Issuer as a result of such demand and the
proposed payment date (the "LC Payment Date"). The responsibility of the
LC Issuer to the Borrower and each Lender shall be only to determine
that the documents (including each demand for payment) delivered under
each Facility LC in connection with such presentment shall be in
conformity in all material respects with such Facility LC. The LC Issuer
shall endeavor to exercise the same care in the issuance and
administration of the Facility LCs as it does with respect to letters of
credit in which no participations are granted, it being understood that
in the absence of any gross negligence or willful misconduct by the LC
Issuer, each Lender shall be absolutely, unconditionally and irrevocably
liable (and such obligation shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender has or may have
against the LC Issuer, the Agent or the Borrower or any if its
Subsidiaries or anyone else for any reason whatsoever; (B) the
occurrence or continuance of an Unmatured Default or a Default; (C) any
adverse change in the condition (financial or otherwise) of the Borrower
or any of its Subsidiaries or any other Guarantor; (D) any breach of
this Agreement or any other Loan Document by any other Lender, the
Borrower or any Guarantor; or (E) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing
,including without limitation the Borrower's failure to satisfy any
conditions contained in Article IV or any other provision of this
Agreement) to reimburse the LC Issuer on demand for (i) such Lender's
Pro Rata Share of the amount of each payment made by the LC Issuer under
each Facility LC to the extent such amount is not reimbursed by the
Borrower pursuant to Section 2.19.6 below, plus (ii) interest on the
foregoing amount to be reimbursed by such Lender, for each day from the
date of the LC Issuer's demand for such reimbursement (or, if such
demand is made after 11:00 a.m. (Detroit time) on such date, from the
next succeeding Business Day) to the date on which such Lender pays the
amount to be reimbursed by it, at a rate of interest per annum equal to
the Federal Funds Effective Rate for the first three days and,
thereafter, at a rate of interest equal to the rate applicable to
Floating Rate Advances.
2.19.6. Reimbursement by Borrower. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the LC Issuer on
or before the later of (x) the applicable LC Payment Date and (y) the
date on which the Borrower shall have received the related notice from
the Agent under Section 2.19.5 for any amounts to be paid by the LC
Issuer upon any drawing under any Facility LC, without presentment,
demand, protest or other formalities of any kind; provided that neither
the Borrower nor any Lender shall hereby be precluded from asserting any
claim for direct (but not consequential) damages suffered by the
Borrower or such Lender to the extent, but only to the extent, caused by
(i) the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC issued by
it complied with the terms of such Facility LC or (ii) the LC Issuer's
failure to pay under any Facility LC issued by it after the presentation
to it of a request strictly complying with the terms and conditions of
such Facility LC. All such amounts paid by the LC Issuer and remaining
unpaid by the Borrower shall bear interest, payable on demand, for each
day from the later of (x) the applicable LC Payment Date and (y) the
date on which the Borrower shall have received the related notice from
the Agent under Section 2.19.5 until paid at a rate per annum equal to
(x) the rate applicable to Floating Rate Advances for such day if such
day falls on or before the applicable LC Payment Date and (y) the sum of
2% plus the rate applicable to Floating
<PAGE> 22
Rate Advances for such day if such day falls after such LC Payment Date.
The LC Issuer will pay to each Lender ratably in accordance with its Pro
Rata Share all amounts received by it from the Borrower for application
in payment, in whole or in part, of the Reimbursement Obligation in
respect of any Facility LC issued by the LC Issuer, but only to the
extent such Lender has made payment to the LC Issuer in respect of such
Facility LC pursuant to Section 2.19.5. Subject to the terms and
conditions of this Agreement (including without limitation the
submission of a Borrowing Notice in compliance with Section 2.8 and the
satisfaction of the applicable conditions precedent set forth in Article
IV), the Borrower may request an Advance hereunder for the purpose of
satisfying any Reimbursement Obligation.
2.19.7. Obligations Absolute. The Borrower's obligations under
this Section 2.19 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against the LC Issuer,
any Lender or any beneficiary of a Facility LC. The Borrower further
agrees with the LC Issuer and the Lenders that the LC Issuer and the
Lenders shall not be responsible for, and the Borrower's Reimbursement
Obligation in respect of any Facility LC shall not be affected by, among
other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, any of its Affiliates, the beneficiary of
any Facility LC or any financing institution or other party to whom any
Facility LC may be transferred or any claims or defenses whatsoever of
the Borrower or of any of its Affiliates against the beneficiary of any
Facility LC or any such transferee. The LC Issuer shall not be liable
for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection
with any Facility LC. The Borrower agrees that any action taken or
omitted by the LC Issuer or any Lender under or in connection with each
Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower and
shall not put the LC Issuer or any Lender under any liability to the
Borrower. Nothing in this Section 2.19.7 is intended to limit the right
of the Borrower to make a claim against the LC Issuer for damages as
contemplated by the proviso to the first sentence of Section 2.19.6.
2.19.8. Actions of LC Issuer. The LC Issuer shall be entitled to
rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the LC Issuer. The LC Issuer
shall be fully justified in failing or refusing to take any action under
this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate
or it shall first be indemnified to its reasonable satisfaction by the
Lenders against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section 2.19, the LC Issuer
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the
Required Lenders, and such request and any action taken or failure to
act pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility LC.
2.19.9. Indemnification. The Borrower hereby agrees to indemnify
and hold harmless each Lender, the LC Issuer and the Agent, and their
respective directors, officers, agents and employees from and against
any and all claims and damages, losses, liabilities, costs or expenses
which such Lender, the LC Issuer or the Agent may incur (or which may be
claimed against such Lender, the LC Issuer or the Agent by any Person
whatsoever) by reason of or in connection with the issuance, execution
and delivery or transfer of or payment or failure to pay under any
Facility LC or any actual or proposed use of any Facility LC, including,
without limitation, any claims, damages, losses, liabilities, costs or
expenses which the LC Issuer may incur by reason of or in connection
with (i) the failure of any other Lender to fulfill or comply with its
obligations to the LC Issuer hereunder (but nothing herein contained
shall affect any rights the Borrower may have against any Defaulting
Lender) or (ii) by reason of or on account of the LC Issuer issuing any
Facility LC which specifies that the term "Beneficiary" included therein
<PAGE> 23
includes any successor by operation of law of the named Beneficiary, but
which Facility LC does not require that any drawing by any such
successor Beneficiary be accompanied by a copy of a legal document,
reasonably satisfactory to the LC Issuer, evidencing the appointment of
such successor Beneficiary; provided that the Borrower shall not be
required to indemnify any Lender, the LC Issuer or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by (x) the willful misconduct or gross
negligence of the LC Issuer in determining whether a request presented
under any Facility LC complied with the terms of such Facility LC or (y)
the LC Issuer's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and
conditions of such Facility LC. Nothing in this Section 2.19.9 is
intended to limit the obligations of the Borrower under any other
provision of this Agreement or of any Lender against another Lender.
2.19.10. Lenders' Indemnification. Each Lender shall, ratably in
accordance with its Pro Rata Share, indemnify the LC Issuer, its
affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any
cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from
such indemnitees' gross negligence or willful misconduct or the LC
Issuer's failure to pay under any Facility LC after the presentation to
it of a request strictly complying with the terms and conditions of the
Facility LC) that such indemnitees may suffer or incur in connection
with this Section 2.19 or any action taken or omitted by such
indemnitees hereunder.
2.19.11. Facility LC Collateral Account. The Borrower agrees
that it will, upon the request of the Agent or the Required Lenders and
until the final expiration date of any Facility LC and thereafter as
long as any amount is payable to the LC Issuer or the Lenders in respect
of any Facility LC, maintain a special collateral account pursuant to
arrangements satisfactory to the Agent (the "Facility LC Collateral
Account") at the Agent's office at the address specified pursuant to
Article XIII, in the name of such Borrower but under the sole dominion
and control of the Agent, for the benefit of the Lenders and in which
such Borrower shall have no interest other than as set forth in Section
8.1. The Borrower hereby pledges, assigns and grants to the Agent, on
behalf of and for the ratable benefit of the Lenders and the LC Issuer,
a security interest in all of the Borrower's right, title and interest
in and to all funds which may from time to time be on deposit in the
Facility LC Collateral Account to secure the prompt and complete payment
and performance of the Obligations. The Agent will invest any funds on
deposit from time to time in the Facility LC Collateral Account in
certificates of deposit of Bank One having a maturity not exceeding 30
days. Nothing in this Section 2.19.11 shall either obligate the Agent to
require the Borrower until after a Default to deposit any funds in the
Facility LC Collateral Account or limit the right of the Agent to
release any funds held in the Facility LC Collateral Account in each
case other than as required by Section 8.1.
2.19.12. Rights as a Lender. In its capacity as a Lender, the LC
Issuer shall have the same rights and obligations as any other Lender.
2.20 Swing Loans.
2.20.1. MAKING OF SWING LOANS. THE AGENT MAY ELECT IN ITS SOLE
DISCRETION TO MAKE LOANS (THE "SWING LOANS") TO THE BORROWER FROM TIME
TO TIME PRIOR TO THE FACILITY TERMINATION DATE; PROVIDED THAT
IMMEDIATELY AFTER EACH SUCH SWING LOAN IS MADE (I) THE AGGREGATE AMOUNT
OF ALL OUTSTANDING SWING LOANS SHALL NOT EXCEED $5,000,000 AND (II) THE
AGGREGATE OUTSTANDING CREDIT EXPOSURE SHALL NOT EXCEED THE AGGREGATE
COMMITMENT. SWING LOANS SHALL BE IN A MINIMUM AMOUNT OF $100,000.
INTEREST ON EACH SWING LOAN SHALL BE AT THE FLOATING RATE, SHALL BE
SECURED AS PART OF THE SECURED OBLIGATIONS BY THE COLLATERAL AND SHALL
OTHERWISE BE SUBJECT TO ALL THE TERMS AND CONDITIONS APPLICABLE TO
LOANS, EXCEPT THAT ALL INTEREST THEREON SHALL BE PAYABLE TO THE AGENT
SOLELY FOR ITS OWN ACCOUNT.
2.20.2. SWING LOAN BORROWING REQUESTS. THE AGENT MAY MAKE SWING
LOANS, PROVIDED THAT THE AGENT HAS RECEIVED A REQUEST IN WRITING OR VIA
TELEPHONE FROM AN AUTHORIZED OFFICER FOR FUNDING OF A SWING LOAN NO
LATER THAN NOON, DETROIT TIME, ON THE BUSINESS DAY ON WHICH SUCH SWING
LOAN IS REQUESTED TO BE MADE. THE BORROWER AGREES TO DELIVER PROMPTLY TO
THE AGENT A WRITTEN CONFIRMATION OF EACH TELEPHONIC NOTICE FOR SWING
<PAGE> 24
LOANS SIGNED BY AN AUTHORIZED OFFICER. IF THE WRITTEN CONFIRMATION
DIFFERS IN ANY MATERIAL RESPECT FROM THE ACTION TAKEN BY THE AGENT, THE
RECORDS OF THE AGENT SHALL GOVERN, ABSENT MANIFEST ERROR.
2.20.3. REPAYMENT OF SWING LOANS; PARTICIPATION BY LENDERS. (I)
THE AGENT MAY AT ANY TIME IN ITS SOLE AND ABSOLUTE DISCRETION REQUIRE
THAT ANY SWING LOAN BE REFUNDED BY A REVOLVING CREDIT LOAN WHICH IS A
FLOATING RATE BORROWING FROM THE LENDERS, AND UPON WRITTEN NOTICE
THEREOF BY THE AGENT TO THE LENDERS AND THE BORROWER, THE BORROWER SHALL
BE DEEMED TO HAVE REQUESTED A REVOLVING CREDIT LOAN WHICH IS A FLOATING
RATE ADVANCE IN AN AMOUNT EQUAL TO THE AMOUNT OF SUCH SWING LOAN, AND
SUCH FLOATING RATE ADVANCE SHALL BE MADE TO REFUND SUCH SWING LOAN. EACH
LENDER SHALL BE ABSOLUTELY, IRREVOCABLY AND UNCONDITIONALLY OBLIGATED TO
FUND ITS PRO RATA SHARE OF SUCH FLOATING RATE ADVANCE OR, IF APPLICABLE,
PURCHASE A PARTICIPATING INTEREST IN THE SWING LOANS PURSUANT TO SECTION
2.20.3(II), AND SUCH OBLIGATION SHALL NOT BE AFFECTED BY ANY
CIRCUMSTANCE, INCLUDING, WITHOUT LIMITATION, (A) ANY SET-OFF,
COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER RIGHT WHICH SUCH LENDER HAS
OR MAY HAVE AGAINST THE AGENT OR THE BORROWER OR ANY IF ITS SUBSIDIARIES
OR ANYONE ELSE FOR ANY REASON WHATSOEVER; (B) THE OCCURRENCE OR
CONTINUANCE OF AN UNMATURED DEFAULT OR A DEFAULT, SUBJECT TO SECTION
2.20.3(II); (C) ANY ADVERSE CHANGE IN THE CONDITION (FINANCIAL OR
OTHERWISE) OF THE BORROWER OR ANY OF ITS SUBSIDIARIES OR ANY OTHER
GUARANTOR; (D) ANY BREACH OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
BY ANY OTHER LENDER, THE BORROWER OR ANY GUARANTOR; OR (E) ANY OTHER
CIRCUMSTANCE, HAPPENING OR EVENT WHATSOEVER, WHETHER OR NOT SIMILAR TO
ANY OF THE FOREGOING (INCLUDING WITHOUT LIMITATION THE BORROWER'S
FAILURE TO SATISFY ANY CONDITIONS CONTAINED IN ARTICLE IV OR ANY OTHER
PROVISION OF THIS AGREEMENT).
(ii) If, due to any Default (including without limitation
as a RESULT OF THE OCCURRENCE OF AN EVENT OF DEFAULT WITH RESPECT TO THE
BORROWER OR ANY OF ITS SUBSIDIARIES PURSUANT TO SECTIONS 7.6 OR 7.7)
FLOATING RATE LOANS MAY NOT BE MADE BY THE LENDERS AS DESCRIBED IN
SECTION 2.1(E)(II), THEN (A) THE BORROWER AGREES THAT EACH SWING LOAN
NOT PAID PURSUANT TO SECTION 2.20.3(I) SHALL BEAR INTEREST, PAYABLE ON
DEMAND BY THE AGENT, AT THE FLOATING RATE PLUS 2%, AND (B) EFFECTIVE ON
THE DATE EACH SUCH FLOATING RATE LOAN WOULD OTHERWISE HAVE BEEN MADE,
EACH LENDER SEVERALLY AGREES THAT IT SHALL ABSOLUTELY, AUTOMATICALLY,
IRREVOCABLY AND UNCONDITIONALLY, WITHOUT REGARD TO THE OCCURRENCE OF ANY
UNMATURED DEFAULT OR DEFAULT OR ANY OTHER CIRCUMSTANCES AS DESCRIBED IN
SECTION 2.20.3(I)(A) (E) ABOVE AND WITHOUT FURTHER ACTION BY ANY PARTY
HERETO, IN LIEU OF DEEMED DISBURSEMENT OF REVOLVING CREDIT LOANS, TO THE
EXTENT OF SUCH LENDER'S PRO RATA SHARE, PURCHASE A PARTICIPATING
INTEREST IN THE SWING LOANS BY PAYING ITS PRO RATA SHARE THEREOF. EACH
LENDER WILL IMMEDIATELY TRANSFER TO THE AGENT, IN IMMEDIATELY AVAILABLE
FUNDS, THE AMOUNT OF ITS PARTICIPATION. AFTER SUCH PAYMENT TO THE AGENT,
EACH LENDER SHALL SHARE ON A PRO RATA BASIS (CALCULATED BY REFERENCE TO
ITS PRO RATA SHARE) IN ANY INTEREST WHICH ACCRUES THEREON AND IN ALL
REPAYMENTS THEREOF. IF AND TO THE EXTENT THAT ANY LENDER SHALL NOT HAVE
SO MADE THE AMOUNT OF SUCH PARTICIPATING INTEREST AVAILABLE TO THE
AGENT, SUCH LENDER AND THE BORROWER SEVERALLY AGREE TO PAY TO THE AGENT
FORTHWITH ON DEMAND SUCH AMOUNT TOGETHER WITH INTEREST THEREON, FOR EACH
DAY FROM THE DATE OF DEMAND (OR, IF SUCH DEMAND IS MADE AFTER 11:00 A.M.
(DETROIT TIME) ON SUCH DATE, FROM THE NEXT SUCCEEDING BUSINESS DAY) BY
THE AGENT UNTIL THE DATE SUCH AMOUNT IS PAID TO THE AGENT, AT (X) IN THE
CASE OF THE BORROWER, THE INTEREST RATE SPECIFIED ABOVE AND (Y) IN THE
CASE OF SUCH LENDER, THE FEDERAL FUNDS EFFECTIVE RATE FOR THE FIRST
THREE DAYS AFTER THE DATE OF DEMAND BY THE AGENT AND THEREAFTER AT THE
INTEREST RATE SPECIFIED ABOVE.
2.21. Replacement of Lender. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender when it is
not required to make such payments to all Lenders, or if any Lender's obligation
to make or continue, or to convert Floating Rate Advances into, Eurodollar
Advances shall be suspended pursuant to Section 3.3 when not all Lenders'
obligations have been suspended or if any Lender is a Defaulting Lender (any
Lender so affected an "Affected Lender"), the Borrower may elect, if such
amounts continue to be charged or such suspension is still effective, to replace
such Affected Lender as a Lender party to this Agreement, provided that no
Default or Unmatured Default shall have occurred and be continuing at the time
of such replacement, and provided further that, concurrently with such
replacement, (i) another bank or other entity which is reasonably satisfactory
to the Borrower and the Agent shall agree, as of such date, to purchase for cash
the Advances and other Obligations due to the Affected Lender pursuant to an
assignment substantially in the form of Exhibit C and to become a Lender for all
purposes under this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the requirements of
Section 12.3 applicable to assignments, and (ii) the Borrower shall pay to such
Affected Lender in same day funds on the day of such replacement all interest,
fees and other amounts then accrued but unpaid to such Affected
<PAGE> 25
Lender by the Borrower hereunder to and including the date of termination,
including without limitation payments due to such Affected Lender under Sections
3.1, 3.2 and 3.5.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation or the
LC Issuer to any Taxes, or changes the basis of taxation of
payments (other than with respect to Excluded Taxes) to any
Lender in respect of its Eurodollar Loans Facility LCs or
participations therein, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation or
the LC Issuer (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar
Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation or the LC Issuer of making, funding or maintaining
its Eurodollar Loans, or of issuing or participating in Facility
LCs, or reduces any amount receivable by any Lender or any
applicable Lending Installation or the LC Issuer in connection
with its Eurodollar Loans, Facility LC or participations therein,
or requires any Lender or any applicable Lending Installation or
LC Issuer to make any payment calculated by reference to the
amount of Eurodollar Loans, Facility LCs or participations
therein held or interest or LC Fees received by it, by an amount
deemed material by such Lender or the LC Issuer as the case may
be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurodollar Loans, Facility LCs or participations therein, then, within 30
days of demand by such Lender or the LC Issuer, as the case may be, the Borrower
shall pay such Lender or the LC Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the LC Issuer, as the case
may be, for such increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender, the Agent
or the LC Issuer determines the amount of capital required or expected to be
maintained by such Lender, the Agent or the LC Issuer, any Lending Installation
of such Lender or LC Issuer, or any corporation controlling such Lender, the
Agent or the LC Issuer is increased as a result of a Change, then, within 30
days of demand by such Lender, the Agent or the LC Issuer, the Borrower shall
pay such Lender, the Agent or the LC Issuer the amount necessary to compensate
for any shortfall in the rate of return on the portion of such
<PAGE> 26
increased capital which such Lender, the Agent or the LC Issuer determines is
attributable to this Agreement, its Outstanding Credit Exposure or its
Commitment to make Loans and issue or participate in Facility LCs, as the case
may be, hereunder (after taking into account such Lender's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender, the Agent or the LC Issuer or any
Lending Installation or any corporation controlling any Lender, the Agent or LC
Issuer. "Risk-Based Capital Guidelines" means (i) the risk-based capital
guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then
the Agent shall suspend the availability of Eurodollar Advances and require any
affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Advance.
3.5. Taxes. (i) All payments by the Borrower to or for the account of
any Lender, the LC Issuer or the Agent hereunder or under any Note or Facility
LC Application shall be made free and clear of and without deduction for any and
all Taxes. If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender, the LC Issuer or the
Agent, (a) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 3.5) such Lender, the LC Issuer or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof within 30 days after
such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent, the LC Issuer
and each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Agent , the LC Issuer or such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within 30 days of
the date the Agent, the LC Issuer or such Lender makes demand therefor pursuant
to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, on or
<PAGE> 27
prior to the date of this Agreement or, in the case of any Transferee, on or
prior to the date of the assignment pursuant to Section 12.3 by which such
Transferee becomes a Lender, (i) deliver to each of the Borrower and the Agent
two duly completed copies of United States Internal Revenue Service Form 1001 or
4224, certifying in either case that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes, and (ii) deliver to each of the Borrower and the Agent a
duly completed United States Internal Revenue Form W-8 or W-9, as the case may
be, and certify that it is entitled to an exemption from United States backup
withholding tax. Each Non-U.S. Lender further undertakes to deliver to each of
the Borrower and the Agent (x) renewals or additional copies of such form (or
any successor form) on or before the date that such form expires or becomes
obsolete or incorrect, and (y) after the occurrence of any event requiring a
change in the most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by the Borrower or the Agent.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to clause (iv), above
(unless such failure is due to a change in treaty, law or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes imposed by the
United States; provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under clause (iv), above, the
Borrower shall take such steps as such Non-U.S. Lender shall reasonably request
to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Agent or the Borrower, as the case may be, did
not properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed, because
such Lender failed to notify the Agent or the Borrower, as the case may be, of a
change in circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the Agent or
the Borrower, as the case may be, fully for all amounts paid, directly or
indirectly, by the Agent or the Borrower, as the case may be, as tax,
withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the Agent or
the Borrower, as the case may be, under this subsection, together with all costs
and expenses related thereto (including attorneys fees and time charges of
attorneys for the Agent or the Borrower, as the case may be, which attorneys may
be employees of the Agent or the Borrower, as the case may be). The obligations
of the Lenders under this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to the
Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan shall
be calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement of any Lender shall be payable on
demand after
<PAGE> 28
receipt by the Borrower of such written statement. The obligations of the
Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Credit Extension. The Lenders shall not be required to
make the initial Credit Extension hereunder unless the Borrower has furnished to
the Agent with sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporation of the
Borrower, together with all amendments, and a certificate of
good standing, each certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the
Borrower, of its by-laws and of its Board of Directors'
resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the
Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by
name and title and bear the signatures of the Authorized
Officers and any other officers of the Borrower authorized to
sign the Loan Documents to which the Borrower is a party, upon
which certificate the Agent and the Lenders shall be entitled to
rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Credit Extension Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's and Guarantor's counsel,
addressed to the Lenders in substantially the form of Exhibit A,
and such other opinions as may be required by the Agent.
(vi) Written money transfer instructions, in substantially the form
of Exhibit D, addressed to the Agent and signed by an Authorized
Officer, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
(vii) Executed copies of all Guaranties, Collateral Documents and
other documents in connection therewith requested by the Agent,
together with all organizational documents and resolutions of
the Borrower and each Guarantor, all necessary consents and
other related documents in connection with the Loan Documents
and all UCC, judgment and other lien and encumbrance searches,
title searches and insurance, surveys and other documents
required by the Agent (other than such documents as may be
allowed to be delivered post closing by the Agent).
(viii) The insurance certificate described in Section 5.21.
(ix) Copies of all governmental and nongovernmental consents,
approvals, authorizations, declarations, registrations or
filings required on the part of the Borrower or any Guarantor in
connection with the execution, delivery and performance of the
Loan Documents, or the transactions contemplated hereby or
thereby or as a condition to the legality, validity or
enforceability of the Loan Documents, certified as true
<PAGE> 29
and correct in full force and effect as of the date of this
Agreement by a duly authorized officer of the Borrower.
(x) Payment of all fees owing by the Borrower to the Lenders and the
Agent and the Arranger as of the date of this Agreement.
(xi) An Environmental Certificate executed by the Borrower together
with all environmental audits and reports reasonably required by
the Agent.
(xii) Evidence of the completion of the Zenith Acquisition and all due
diligence with respect to the Borrower and, its Subsidiaries,
Zenith and its Subsidiaries and the Zenith Acquisition,
including but not limited to, the review of all Zenith
Acquisition Documents (including without limitation the Escrow
Agreement and documents granting the Agent a security interest
in the funds on deposit therein), all terms, conditions and
provisions of the Zenith Acquisition, all final projections, all
pro forma and prospective financial statements, audited year end
financial statements for Zenith and the Borrower, all sources
and uses statements, pro forma covenant compliance projections
and certificates, the organizational structure of the Borrower
and its Subsidiaries after the Zenith Acquisition, all
environmental matters relating to Zenith, all appraisals and
customer and supplier checkings acceptable to the Agent, and the
form and structure, including without limitation the financial,
legal, accounting, tax and all other aspects of the Zenith
Acquisition (further including, without limitation, evidence
satisfactory to the Agent that the Borrower and Zenith will be
merging immediately after the closing of the Zenith Acquisition
and making an election satisfactory to the Agent under Section
338(h)(10) of the Code), all of which shall be satisfactory to
the Agent and its counsel.
(xiii) Evidence satisfactory to the Agent that no Material Adverse
Effect with respect to Zenith or any its Subsidiaries, the
Borrower or any of its Subsidiaries or Trianon or any of its
Subsidiaries since December 31, 1998.
(xiv) Delivery of such other agreements and documents, and the
satisfaction of such other conditions as may be reasonably
required by the Agent, including without limitation a solvency
certificate of the Borrower, a reliance letter from the auditors
and accountants for the Borrower and for Zenith, such funding
instructions, sources and uses certificate and other
certificates required by the Agent and such evidence of the
perfection and priority of all liens and security interests as
required by the Agent, all of which shall be satisfactory to the
Agent and its counsel.
(xv) The execution and delivery of all Subordinated Debt Documents
and any related documents and opinions in connection therewith
required by the Agent, each in form and substance satisfactory
to the Agent.
(xvi) Such other documents and conditions as the Agent or its counsel
may have reasonably requested.
4.2. Each Credit Extension. The Lenders shall not be required to make
any Revolving Credit Loan, the Agent shall not be required to make any Swing
Loan and the LC Issuer shall not be required to issue a Facility LC unless on
the applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
true and correct as of such Credit Extension Date in all
material respects except to the extent any such representation
or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true
and correct on and as of such earlier date.
<PAGE> 30
(iii) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Agent.
(iv) In the case of any issuance of a Facility LC, a properly completed
Facility LC Application and such other documentation in connection
therewith as requested by the Agent.
Each Borrowing Notice or request for issuance of a Facility LC or making
of a Swing Loan with respect to each such Credit Extension shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce Lenders, the LC Issuer and the Agent to enter into
this Agreement and to make each Credit Extension, the Borrower represents and
warrants to each Lender, the LC Issuer and the Agent, on the date hereof and on
each Credit Extension Date, that the following statements are true, correct and
complete (it being understood and agreed that the representations and warranties
made on the date hereof are deemed to be made concurrently with, and giving
effect to, the consummation of the Zenith Acquisition and the merger of Zenith
and the Borrower, with Zenith being the surviving entity and assuming all
obligations of and becoming the Borrower as contemplated hereby):
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries is
a corporation or limited liability company duly and properly incorporated or
organized, as the case may be, validly existing and (to the extent such concept
applies to such entity) in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted except where
the failure to do so could not result in a Material Adverse Effect.
5.2. Authorization and Validity. The Borrower has the power and authority
and legal right to execute and deliver the Loan Documents to which it is a party
and to perform its obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents to which it is a party and the performance of its
obligations thereunder have been duly authorized by proper corporate
proceedings, and the Loan Documents to which the Borrower is a party constitute
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought.
5.3. No Conflict; Government Consent. Neither the execution and delivery
by the Borrower or any of its Subsidiaries of the Loan Documents to which any of
them is a party, nor the consummation of the transactions therein contemplated,
nor compliance with the provisions thereof will violate (i) any Requirement of
Law binding on the Borrower or any of its Subsidiaries or their respective
Property or (ii) the Borrower's or any Subsidiary's articles or certificate of
incorporation, articles or certificate of organization, by-laws, or operating or
other management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of the
Borrower or a Subsidiary pursuant to the terms of any such indenture, instrument
or agreement. No order, consent, adjudication, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by the Borrower or any of its
Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and
<PAGE> 31
delivery of the Loan Documents, the Credit Extensions under this Agreement, the
payment and performance by the Borrower of the Obligations or the legality,
validity, binding effect or enforceability of any of the Loan Documents.
5.4. FINANCIAL STATEMENTS. THE DECEMBER 31, 1998 AND MARCH 31, 1999
CONSOLIDATED FINANCIAL STATEMENTS OF ZENITH AND ITS SUBSIDIARIES HERETOFORE
DELIVERED TO THE LENDERS WERE PREPARED IN ACCORDANCE WITH AGREEMENT ACCOUNTING
PRINCIPLES IN EFFECT ON THE DATE SUCH STATEMENTS WERE PREPARED AND FAIRLY
PRESENT THE CONSOLIDATED FINANCIAL CONDITION AND OPERATIONS OF ZENITH AND ITS
SUBSIDIARIES AT SUCH DATE AND THE CONSOLIDATED RESULTS OF THEIR OPERATIONS FOR
THE PERIOD THEN ENDED, SUBJECT, IN THE CASE OF INTERIM STATEMENTS, TO ROUTINE
YEAR-END ADJUSTMENTS AND THE ABSENCE OF FOOTNOTES. THE PRO FORMA FINANCIAL
STATEMENTS AND PROJECTIONS FAIRLY PRESENT THE PRO FORMA CONSOLIDATED FINANCIAL
CONDITION OF THE BORROWER AND ITS SUBSIDIARIES AFTER GIVING EFFECT TO THE ZENITH
ACQUISITION IN ACCORDANCE WITH AGREEMENT ACCOUNTING PRINCIPLES, AND CONTAIN
REASONABLE ASSUMPTIONS AND GIVE APPROPRIATE EFFECT TO THOSE ASSUMPTIONS, AND ARE
BASED ON ESTIMATES AND ASSUMPTIONS CONSIDERED REASONABLE BY THE BORROWERS
MANAGEMENT AND THE BEST INFORMATION AVAILABLE TO THE BORROWERS MANAGEMENT AT THE
TIME MADE, AND USE INFORMATION CONSISTENT WITH THE PLANS OF THE BORROWER (IT
BEING RECOGNIZED BY THE LENDERS THAT SUCH PROJECTIONS AS TO FUTURE EVENTS ARE
NOT TO BE VIEWED AS FACTS AND NECESSARILY WERE BASED ON NUMEROUS ASSUMPTIONS
WITH RESPECT TO INDUSTRY PERFORMANCE, GENERAL BUSINESS, ECONOMIC AND COMPETITIVE
CONDITIONS AND UNCERTAINTIES, TAXES AND OTHER MATTERS WHICH ARE BEYOND THE
CONTROL OF THE BORROWER, SUCH THAT THERE CAN BE NO ASSURANCE THAT SUCH
PROJECTIONS WILL BE REALIZED AND ACTUAL RESULTS MAY DIFFER FROM THE PROJECTED
RESULTS).
5.5. Material Adverse Change. Since December 31, 1998 there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries or if Trianon and
its Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles
and as to which no Lien exists. The United States income tax returns of the
Borrower and its Subsidiaries have been audited by the Internal Revenue Service
through the fiscal year ended December 31, 1994. No tax liens have been filed
and no claims are being asserted with respect to any such taxes. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of any taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Except as set forth on
Schedule 5.7, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of any Credit Extension or the Zenith
Acquisition. Other than any liability incident to any litigation, arbitration or
proceeding which could not reasonably be expected to have a Material Adverse
Effect, the Borrower has no material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $100,000. Neither the Borrower nor any other member of
the Controlled Group contributes to or is a sponsor of a Multiemployer Plans.
Each Plan complies in all material respects with all applicable requirements of
law and regulations. No Reportable Event has occurred with respect to any Plan
which could have a Material Adverse Effect. Neither the Borrower nor any other
member of the Controlled Group has withdrawn from any Plan or initiated steps to
do so, and no steps have been taken to reorganize or terminate any Plan, which
could have a Material Adverse Effect.
5.10. Accuracy of Information. To the Borrower's knowledge, no
information, exhibit or report furnished by or on behalf of the Borrower or any
of its Subsidiaries to the Agent or to any Lender in connection with the
negotiation of, or compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact (known to
the Borrower in the case of any document not furnished by the Borrower)
necessary to make the statements contained therein not misleading.
<PAGE> 32
5.11. Regulation U. Margin Stock constitutes less than 25% of the value
of those assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge, or other restriction hereunder or under any
agreement or instrument between the Borrower or any of its Subsidiaries and any
Lender or Affiliate of any Lender relating the Indebtedness within the scope of
Section 7.5.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property or other Requirements
of Law except for any failure to comply with any of the foregoing which could
not reasonably be expected to have a Material Adverse Effect.
5.14. Ownership of Properties; Liens. On the date of this Agreement, the
Borrower and its Subsidiaries will have good title, free of all Liens other than
those permitted by Section 6.15, to all of the Property and assets reflected in
the Borrower's most recent consolidated financial statements provided to the
Agent as owned by the Borrower and its Subsidiaries. The Collateral Documents
grant to the Agent, securing the Secured Obligations, a first priority,
enforceable and perfected lien and security interest in all Collateral, subject
only to such Liens permitted by Section 6.15 and such Liens and priorities
permitted by and described in the relevant Collateral Documents for the pledge
of the Capital Stock of SOFEDIT, Aetna Industries, Inc., Aetna Holdings, Inc.
and the Borrower.
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. 2510.3-101
of an employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan (within the meaning of Section 4975 of
the Code), and neither the execution of this Agreement nor the making of Credit
Extensions hereunder gives rise to a prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business, the
Borrower considers the effect of Environmental Laws on the business of the
Borrower and its Subsidiaries, in the course of which they identify and evaluate
potential risks and liabilities accruing to the Borrower due to Environmental
Laws. On the basis of this consideration, except as set forth in Schedule 5.16,
the Borrower has concluded that Environmental Laws cannot reasonably be expected
to have a Material Adverse Effect. Except as set forth in Schedule 5.16, neither
the Borrower nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
<PAGE> 33
5.19. Year 2000. The Borrower has made a full and complete assessment of
the Year 2000 Issues and has a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program the Borrower does not reasonably
anticipate that Year 2000 Issues will have a Material Adverse Effect.
5.20. SUBORDINATED INDEBTEDNESS. ALL REPRESENTATIONS AND WARRANTIES OF
THE BORROWER AND OF TRIANON CONTAINED IN ANY SUBORDINATED DEBT DOCUMENT ARE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS. ALL SUBORDINATED DEBT DOCUMENTS ARE
DESCRIBED ON SCHEDULE 5.20 HERETO. ALL SECURED OBLIGATIONS AND CONTINGENT
OBLIGATIONS OF TRIANON WITH RESPECT TO THE SECURED OBLIGATIONS ARE SENIOR DEBT
AND ARE ENTITLED TO THE BENEFITS OF THE SUBORDINATION PROVISIONS OF THE
SUBORDINATED DEBT DOCUMENTS. THERE IS NO EVENT OF DEFAULT OR EVENT OR CONDITION
WHICH COULD BECOME AN EVENT OF DEFAULT WITH NOTICE OR LAPSE OF TIME OR BOTH,
UNDER THE SUBORDINATED DEBT DOCUMENTS AND EACH OF THE SUBORDINATED DEBT
DOCUMENTS IS IN FULL FORCE AND EFFECT. THE LENDERS UNDER THE SUBORDINATED DEBT
DOCUMENTS HAVE A COMMITMENT SATISFACTORY TO THE AGENT TO LEND UP TO $75,000,000
TO TRIANON AND TRIANON HAS A COMMITMENT SATISFACTORY TO THE AGENT TO LEND UP TO
$75,000,000 TO THE BORROWER UNDER THE SUBORDINATED DEBT DOCUMENTS, WHICH
COMMITMENTS ARE IN FULL FORCE AND EFFECT.
5.21. Insurance. The certificate signed by the President or Chief
Financial Officer of the Borrower, that attests to the existence and adequacy
of, and summarizes, the property and casualty insurance program carried by the
Borrower with respect to itself and its Subsidiaries and that has been furnished
by the Borrower to the Agent and the Lenders, is complete and accurate. This
summary includes the insurer's or insurers' name(s), policy number(s),
expiration date(s), amount(s) of coverage, type(s) of coverage, exclusion(s),
and deductibles. This summary also includes similar information, and describes
any reserves, relating to any self-insurance program that is in effect.
5.22. Solvency. (i) Immediately after the consummation of the
transactions to occur on the date hereof and immediately following the making of
the Credit Extensions on the date hereof and after giving effect to the
application of the proceeds of such Credit Extensions, (a) the fair value of the
assets of the Borrower and its Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities, subordinated, contingent or
otherwise, of the Borrower and its Subsidiaries on a consolidated basis; (b) the
present fair saleable value of the Property of the Borrower and its Subsidiaries
on a consolidated basis will be greater than the amount that will be required to
pay the probable liability of the Borrower and its Subsidiaries on a
consolidated basis on their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and
matured; (c) the Borrower and its Subsidiaries on a consolidated basis will be
able to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (d) the Borrower
and its Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries will,
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.
5.23. ZENITH ACQUISITION. SIMULTANEOUSLY WITH THE DISBURSEMENT OF THE
INITIAL CREDIT EXTENSION HEREUNDER, THE BORROWER WILL COMPLETE THE ZENITH
ACQUISITION IN ACCORDANCE WITH THE ZENITH ACQUISITION DOCUMENTS AND IN
ACCORDANCE WITH ALL LAWS AND REGULATIONS AND ALL OTHER REQUIREMENTS OF LAW, AND
WILL ACQUIRE, FREE AND CLEAR OF ALL LIENS, GOOD AND MARKETABLE TITLE TO ALL
CAPITAL STOCK OF ZENITH. COMPLETE AND CORRECT COPIES OF ALL ZENITH ACQUISITION
DOCUMENTS HAVE BEEN DELIVERED TO THE AGENT ON OR BEFORE THE ZENITH ACQUISITION
DATE, AND THE BORROWER HAS SATISFIED ALL CONDITIONS PRECEDENT REQUIRED AS OF
CLOSING UNDER THE ZENITH ACQUISITION TO COMPLETE THE ZENITH ACQUISITION. THE
TOTAL CONSIDERATION PAID AT OR ABOUT CLOSING FOR THE ZENITH ACQUISITION WILL NOT
EXCEED $101,000,000. ON OR WITHIN ONE BUSINESS DAY OF THE CLOSING OF THE ZENITH
ACQUISITION, THE BORROWER AND ZENITH WILL MERGE, AND ZENITH SHALL BE THE
SURVIVING CORPORATION AND WILL BE THE BORROWER AND ASSUME ALL SECURED
OBLIGATIONS AND ALL OTHER OBLIGATIONS AND LIABILITIES OF THE BORROWER UNDER THE
LOAN DOCUMENTS.
5.24. INTELLECTUAL PROPERTY. SET FORTH ON SCHEDULE 5.24 IS A COMPLETE
AND ACCURATE LIST OF ALL PATENTS, TRADEMARKS, TRADE NAMES, SERVICE MARKS AND
COPYRIGHTS, AND ALL APPLICATIONS THEREFOR AND LICENSES THEREOF, OF THE BORROWER
AND EACH OF ITS SUBSIDIARIES SHOWING THE JURISDICTION IN WHICH REGISTERED, THE
REGISTRATION NUMBER AND THE DATE OF REGISTRATION. THE BORROWER AND EACH OF ITS
SUBSIDIARIES OWNS, OR IS LICENSED TO USE, ALL TRADEMARKS, TRADENAMES, SERVICE
MARKS, COPYRIGHTS, TECHNOLOGY, KNOW-HOW AND PROCESSES NECESSARY FOR THE CONDUCT
OF ITS BUSINESS AS CURRENTLY CONDUCTED (THE "INTELLECTUAL PROPERTY") EXCEPT FOR
THOSE THE FAILURE TO OWN OR LICENSE WHICH COULD NOT REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT. NO CLAIM HAS BEEN ASSERTED AND IS PENDING BY ANY
PERSON CHALLENGING OR QUESTIONING THE USE OF ANY SUCH INTELLECTUAL PROPERTY OR
THE VALIDITY OR EFFECTIVENESS OF ANY SUCH INTELLECTUAL PROPERTY, NOR DOES THE
BORROWER OR ANY OF ITS SUBSIDIARIES KNOW OF ANY VALID BASIS FOR ANY SUCH CLAIM,
THE USE OF SUCH INTELLECTUAL PROPERTY BY THE BORROWER AND EACH OF ITS
SUBSIDIARIES DOES NOT INFRINGE ON THE RIGHTS OF ANY PERSON, AND, TO THE
KNOWLEDGE OF THE BORROWER, NO INTELLECTUAL PROPERTY HAS BEEN INFRINGED,
MISAPPROPRIATED OR DILUTED BY ANY OTHER PERSON EXCEPT FOR SUCH CLAIMS,
INFRINGEMENTS, MISAPPROPRIATION AND DILUTIONS THAT, IN THE AGGREGATE, COULD NOT
HAVE A MATERIAL ADVERSE EFFECT.
<PAGE> 34
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified (except for qualifications relating to changes in
accounting principles or practices reflecting changes in
generally accepted accounting principles and required or approved
by the Borrower's independent certified public accountants) audit
report certified by independent certified public accountants
acceptable to the Lenders, prepared in accordance with Agreement
Accounting Principles on a consolidated and consolidating basis
(consolidating statements need not be certified by such
accountants) for itself and its Subsidiaries, including balance
sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash
flows, accompanied by (a) any management letter prepared by said
accountants, (b) a certificate of said accountants that, in the
course of their examination necessary for their certification of
the foregoing, they have obtained no knowledge of any Default or
Unmatured Default, or if, in the opinion of such accountants, any
Default or Unmatured Default shall exist, stating the nature and
status thereof and (c) a letter from said accountants addressed
to the Lenders acknowledging that the Lenders are extending
credit in primary reliance on such financial statements and
authorizing such reliance.
(ii) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and its
Subsidiaries, consolidated and consolidating unaudited balance
sheets as at the close of each such period and consolidated and
consolidating profit and loss and reconciliation of surplus
statements and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter, all
certified by its chief financial officer.
(iii) As soon as available, but in any event within by the beginning of
each fiscal year of the Borrower, a copy of the plan and forecast
(including a projected consolidated and consolidating balance
sheet, income statement, covenant compliance and funds flow
statement) of the Borrower for such fiscal year.
(iv) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit B signed by its chief financial officer showing
the calculations necessary to determine compliance with this
Agreement, including without limitation a calculation of the
financial covenants and a calculation of the Zenith Acquisition
Obligations and the Revolving Credit Blocked Amount, and stating
that no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof.
(v) Within 270 days after the close of each fiscal year, a statement
of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled under ERISA.
(vi) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by the chief financial
officer of the Borrower, describing said Reportable Event and the
action which the Borrower proposes to take with respect thereto.
<PAGE> 35
(vii) As soon as possible and in any event within 15 days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the release by the Borrower, any of
its Subsidiaries, or any other Person of any toxic or hazardous
waste or substance into the environment, and (b) any notice
alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Borrower
or any of its Subsidiaries, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
(viii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(ix) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports which the Borrower or any of its Subsidiaries files with
the SEC.
(x) Prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development,
financial or otherwise (including, without limitation,
developments with respect to Year 2000 Issues), which could
reasonably be expected to have a Material Adverse Effect.
(xi) Within five days prior to the date each payment is due from the
Borrower pursuant to the Escrow Agreement, a compliance
certificate in substantially the form of Exhibit B signed by its
chief financial officer showing the calculations necessary to
determine compliance with this Agreement after giving effect to
such payment under the Escrow Agreement on a pro forma basis
acceptable to the Agent, and including without limitation a
calculation of financial covenants and the calculation of the
Zenith Acquisition Obligations and the Revolving Credit Block
Amount after giving effect to the payment to be made pursuant to
the Escrow Agreement, and stating that no Default or Unmatured
Default exists after giving effect to such payment under the
Escrow Agreement, or if any Default or Unmatured Default exists
or would be caused by the payment under the Escrow Agreement,
stating the nature and status thereof.
(xii) Such other information (including non-financial information and
information reasonably satisfactory to the Agent regarding the
Borrower's Year 2000 Program) as the Agent or any Lender may from
time to time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Credit Extensions for general corporate
purposes and complete the Zenith Acquisition. The Borrower will not, nor will it
permit any Subsidiary to, use any of the proceeds of the Credit Extensions to
purchase or carry any Margin Stock or to make any other Acquisition.
6.3. Collateral Documents. The Borrower will, and will cause each
Guarantor to, promptly (i) execute and deliver such Collateral Documents and
other documents, within 10 days after the date hereof, as the Agent agreed at
closing could be delivered post closing, including without limitation board
resolutions of SOFEDIT, (ii) execute and deliver additional Collateral
Documents, within 10 days after request therefor by the Agent, sufficient to
grant to the Agent liens and security interests, securing the Secured
Obligations, in any present or after acquired Collateral, and including without
limitation , and (iii) cause each Person becoming a Subsidiary of the Borrower
or any other Guarantor from time to time to execute and deliver to the Lenders
and the Agent, within 10 days after such Person becomes a Subsidiary, a Guaranty
and other Collateral Documents, together with other related documents described
in Article IV sufficient to grant to the Agent for the benefit of the Lenders
and the Agent liens and security interests in all Collateral securing the
Secured Obligations. The Borrower shall notify the Agent, within 10 days after
the occurrence thereof, of the acquisition of any Collateral that is not subject
to the existing Collateral Documents, any Person becoming a Subsidiary and any
other event or condition, other than the passage of time, that may require
additional action of any nature in order to preserve the effectiveness and
perfected status of the liens and security interests of the Agent with respect
to all Collateral pursuant to the Collateral Documents, including without
limitation delivering the originals of all promissory notes and other
instruments to the Agent and delivering the
<PAGE> 36
originals of all stock certificates or other certificates evidencing any Capital
Stock which is Collateral at any time. Additionally, without limiting the
foregoing, the Borrower agrees to deliver such environmental reports as
reasonably required by the Agent in connection with any real property acquired
the Borrower or any of its Subsidiaries after the date hereof.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Agreement Accounting Principles.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all Requirements of Law, except where the failure to
do so would not have a Material Adverse Effect.
6.8. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times, except where the
failure to do so would not have a Material Adverse Effect.
.
6.9. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, books and financial records of the
Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Agent or any Lender may designate. Without
limiting the foregoing, the Agent or any of its Agents or representatives may
conduct comprehensive field audits of the Borrowers and its Subsidiaries books,
records, properties and assets, including without limitation all Collateral at
the Borrower's expense, provided that if no Default has occurred and is
continuing not more than two such field audits (exclusive of filed audits
conducted prior to the date hereof) shall be at the expense of the Borrower in
any fiscal year.
6.10. Dividends. The Borrower will not, nor will it permit any
Subsidiary to, declare or pay any dividends or make any distributions on its
Capital Stock (other than dividends payable in its own Capital Stock) or redeem,
repurchase or otherwise acquire or retire any of its Capital Stock at any time
outstanding, except that any Subsidiary may declare and pay dividends or make
distributions to the Borrower or to a Wholly-Owned Subsidiary. The Borrower will
not issue any Disqualified Stock.
<PAGE> 37
6.11. Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Reimbursement Obligations.
(ii) Indebtedness existing on the date hereof and described in
Schedule 6.11 and any refinancing thereof which does not increase
the principal amount thereof.
(iii) Indebtedness under the Zenith Acquisition Documents, without
giving effect to any amendment or modification thereof.
(iv) Subordinated Indebtedness pursuant to the Subordinated Debt
Documents.
(v) Other Indebtedness in aggregate outstanding amount for the
Borrower and its Subsidiaries on a consolidated basis not to
exceed $5,000,000.
6.12. Merger. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that (i) a
Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary and (ii)
Zenith shall merge into the Borrower as required under this Agreement, and
Zenith shall be the surviving corporation.
6.13. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of business and surplus
equipment which is not material in amount.
(ii) Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other than
as allowed by clauses (i) and (ii) of this Section 6.13), as
permitted by this Section during the twelve-month period ending
with the month in which any such lease, sale or other disposition
occurs, do not constitute a Substantial Portion of the Property
of the Borrower and its Subsidiaries on a consolidated basis.
Notwithstanding anything in this Section 6.13 to the contrary, no such leases,
sales or other dispositions of Property may be made (other than pursuant to
clause (i) above) if any Default or Unmatured Default has occurred and is
continuing and all leases, sales and other dispositions of Property at any time
shall be for not less than the fair market value of such Property as determined
in good faith by the Borrower and at least 75% of the consideration therefor
received by the Borrower or such Subsidiary shall be in the form of cash.
6.14. Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule 6.14.
(iii) The Zenith Acquisition, subject to the terms of this Agreement.
<PAGE> 38
(iv) Capital Expenditures to the extent permitted by Section 6.16 of
this Agreement.
(v) Other Investments in aggregate amount for the Borrower and its
Subsidiaries on a consolidated basis not to exceed $1,000,000.
6.15. Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings and for which adequate
reserves in accordance with Agreement Accounting Principles shall
have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more
than 60 days past due or which are being contested in good faith
by appropriate proceedings and for which adequate reserves shall
have been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar
character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the
business of the Borrower or its Subsidiaries.
(v) Liens existing on the date hereof and described in Schedule 6.15,
but no increase in the amount secured thereby, as such amount is
reduced form time to time.
(vi) Liens in favor of the Agent, granted pursuant to any Collateral
Document.
(vii) Any Lien to secure payment of a portion of the purchase price of
any tangible fixed asset acquired by the Borrower or any
Subsidiary may be created or suffer to exist upon such fixed asset
if the outstanding principal amount of the Indebtedness is secured
by such Lien does not at any time exceed the purchase price paid
for such fixed asset, provided that such Lien does not encumber
any other asset at any time owned by the Borrower or any
Subsidiary, and provided, further, that not more than one such
Lien shall encumber such fixed asset at any one time.
6.16. Capital Expenditures. The Borrower will not, as calculated for the
Borrower and its Subsidiaries on a consolidated basis, expend, or be committed
to expend, for (i) Capital Expenditures for any fiscal year of the Borrower,
exclusive of the Capital Expenditures allowed pursuant to clause (ii) of this
Section 6.16, an amount in excess of the sum of (a) $7,500,000 plus (b) the
amount of Capital Expenditures allowed for the previous fiscal year under this
clause (i) (commencing with the fiscal year ending December 31, 2000 and without
giving effect to any increase in the amount thereof caused by this clause (b))
minus the amount of actual Capital Expenditures for the previous fiscal year or
(ii) Capital Expenditures for plant expansion (i.e., for the purchase of land,
building and equipment) for the period from and including the date hereof to and
including December 31, 2001 in excess of $35,000,000, subject to evidence
satisfactory to the Agent of new contracts and other business sufficient to
justify such plant expansion. In addition to the foregoing limitation, the
Borrower will not expend, or be committed to expend, for Capital Expenditures,
an amount in excess of the amount permitted by the Zenith Acquisition Documents.
<PAGE> 39
6.17. Year 2000. The Borrower will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to assure that Year 2000 Issues
will not have a Material Adverse Effect. At the request of the Agent, the
Borrower will provide a description of the Year 2000 Program, together with any
updates or progress reports with respect thereto.
6.18. Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.19. Subordinated Indebtedness; other Indebtedness. (i) The Borrower
will not, and will not permit any Subsidiary to, make any amendment or
modification to the indenture, note or other agreement evidencing or governing
any Subordinated Indebtedness (including without limitation the Subordinated
Debt Documents) or other Indebtedness, or directly or indirectly voluntarily
prepay, defease or in substance defease, purchase, redeem, retire or otherwise
acquire, any Subordinated Indebtedness or other Indebtedness. The Borrower will
not reduce or terminate in any way the commitments to lend pursuant to the
Subordinated Debt Documents, and will take all action to ensure that the
commitments to lend under the Subordinated Debt Documents will continue in full
force and effect. The Borrower will cause (a) all amounts to be paid in
connection with the Zenith Acquisition after the date hereof (i.e., all payments
in connection with any earn outs or other payments due after the closing of the
Zenith Acquisition) and (b) any other payments to be made by the Borrower and
its Subsidiaries, to the extent requested by the Agent and not prohibited, to be
made from the proceeds of Subordinated Indebtedness incurred pursuant to the
Subordinated Debt Documents.
(ii) If at any time any Borrower or Guarantor shall enter into
or be a party to any instrument or agreement with respect to any Indebtedness
which in the aggregate, together with any related Indebtedness, exceeds
$500,000, including all such instruments or agreements in existence as of the
date hereof and all such instruments or agreements entered into after the date
hereof, relating to or amending any terms or conditions applicable to any of
such Indebtedness which includes covenants, terms, conditions or defaults not
substantially provided for in this Agreement or more favorable to the lender or
lenders thereunder than those provided for in this Agreement, then the Borrower
shall promptly so advise the Agent and the Lenders. Thereupon, if the Agent
shall request, upon notice to the Borrower, the Agent and the Lenders shall
enter into an amendment to this Agreement or an additional agreement (as the
Agent may request), providing for substantially the same covenants, terms,
conditions and defaults as those provided for in such instrument or agreement to
the extent required and as may be selected by the Agent. In addition to the
foregoing, any covenants or defaults or similar provisions (which include
without limitation any provisions requiring any mandatory prepayments or
defeasance under the Subordinated Debt Documents) contained in any Subordinated
Debt Document not substantially provided for in this Agreement or more favorable
to the holders of Subordinated Indebtedness issued in connection therewith are
hereby incorporated by reference into this Agreement to the same extent as if
set forth fully herein, and no subsequent amendment, waiver, termination or
modification thereof shall affect any such covenants, terms, conditions or
defaults as incorporated herein.
6.20. Required Rate Hedging Agreements. The Borrower will maintain one
or more Rate Hedging Agreements with one or more financial institutions
reasonably acceptable to the Agent in its reasonable discretion in such amounts
and on such terms as mutually agreed upon between the Borrower and the Agent.
6.21. Financial Contracts. The Borrower will not, nor will it permit
any Subsidiary to, enter into or remain liable upon any Financial Contract,
except: (i) Rate Hedging Agreements required under Section 6.20 and (ii) other
Financial Contracts to hedge fluctuations in interest rates, exchange rates and
commodity prices and which are not for purposes of financial speculation.
6.22. Financial Covenants.
<PAGE> 40
6.22.1. Interest Coverage Ratio. The Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters for the then
most-recently ended four fiscal quarters, of (i) Consolidated Adjusted EBITDA to
(ii) cash Consolidated Interest Expense to be less than (a) 3.50 to 1.00 as of
the end of any fiscal quarter of the Company ending on or prior to December 31,
2001 or (b) 4.00 to 1.00 as of the end of any fiscal quarter thereafter.
6.22.2. Fixed Charge Coverage Ratio. The Borrower will not permit the
ratio, determined as of the end of each of its fiscal quarters for the then
most-recently ended four fiscal quarters, of (i) Consolidated Adjusted EBITDA
minus Consolidated Capital Expenditures to (ii) Consolidated Interest Expense,
plus Consolidated Rentals, plus current maturities of principal Indebtedness,
plus expense for taxes paid or accrued, all calculated for the Borrower and its
Subsidiaries on a consolidated basis, to be less than (a) 1.10 to 1.00 as of the
end of any fiscal quarter of the Company ending on or prior to December 31, 2001
or (b) 1.15 to 1.00 as of the end of any fiscal quarter thereafter.
6.22.3. Leverage Ratio. The Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters, of (i) Total Debt to
(ii) Consolidated Adjusted EBITDA for the then most-recently ended four fiscal
quarters to be greater than (a) 4.50 to 1.00 as of the end of any fiscal quarter
of the Company ending on or prior to December 31, 1999, (b) 4.25 to 1.00 as of
the end of any fiscal quarter of the Company ending at any time from and
including March 31, 2000 to and including December 31, 2000, (c) 4.00 to 1.0 as
of the end of any fiscal quarter of the Company and again at any time from and
including March 31, 2001 to and including December 31, 2001, (d) 3.50 to 1.0 as
of the end of any fiscal quarter of the Company ending at any time from and
including March 31, 2002 to and including December 31, 2002, (e) 3.00 to 1.0 as
of the end of any fiscal quarter of the Company ending at any time from and
including March 31, 2003 to and including December 31, 2003, or (f) 2.50 to 1.00
as of the end of any fiscal quarter thereafter. . 6.22.4. Minimum EBITDA . The
Borrower will not permit Consolidated Adjusted EBITDA, determined as of the end
of each of its fiscal quarters for the then most recently ended four fiscal
quarters, to be less than (a) $45,000,000 as of the end of any fiscal quarter of
the Company ending on or prior to March 31, 2000, (b) $48,000,000 as of the end
of any fiscal quarter of the Company ending at any time from and including June
30, 2000 to and including March 31, 2001 or (c) $50,000,000 as of the end of any
fiscal quarter thereafter.
6.22.5. Minimum Net Worth. The Borrower will at all times maintain
Consolidated Net Worth of not less than the sum of (i) the amount of the opening
Consolidated Net Worth acceptable to the Agent minus $3,000,000 plus (ii) 75% of
Consolidated net income of the Borrower and its Subsidiaries for each of the
fiscal years of the Borrower ending December 31, 1999 and December 31, 2000 and
50% of Consolidated net income of the Borrower and its Subsidiaries for each of
the fiscal years of the Borrower ending thereafter, to be added as of the end of
each such fiscal year, provided that if such net income is negative in any such
fiscal year the amount added for each such fiscal year shall be zero and it
shall not reduce the amount added for any other fiscal year, plus (iii) 100% of
the Net Cash Proceeds from the sale or other offering of Capital Stock of the
Borrower.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
<PAGE> 41
7.1. Any representation or warranty made or deemed made by or on behalf
of the Borrower or any Guarantor to the Lenders or the Agent under or in
connection with this Agreement, any Credit Extension, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
7.2. Nonpayment of principal of any Loan when due, nonpayment of any
Reimbursement Obligation within one Business Day after the same becomes due, or
nonpayment of interest upon any Loan or of any commitment fee, LC Fee or other
obligations under any of the Loan Documents within five days after the same
becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.19 or 6.22.
7.4. The Borrower or any Guarantor shall fail to observe or perform or
otherwise breach (other than a failure or breach which constitutes a Default
under another Section of this Article VII) any of the terms or provisions of
this Agreement or any other Loan Document which is not remedied within fifteen
days after written notice from the Agent or any Lender.
7.5. Failure of the Borrower or any Guarantor to pay when due any
Indebtedness, Rate Hedging Obligation or Operating Lease Obligation aggregating
in excess of $1,000,000 ("Material Obligation"); or the default by the Borrower
or any Guarantor in the performance (beyond the applicable grace period with
respect thereto, if any) of any term, provision or condition contained in any
agreement under which any such Material Obligation was created or is governed,
or any other event shall occur or condition exist, the effect of which default
or event is to cause, or to permit the holder or holders of such Material
Obligation to cause, such Material Obligation to become due prior to its stated
maturity; or any Material Obligation of the Borrower or any Guarantor shall be
declared to be due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated maturity thereof; or
the Borrower or any Guarantor shall not pay, or admit in writing its inability
to pay, its debts generally as they become due.
7.6. The Borrower or any Guarantor shall (i) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or hereafter
in effect, (ii) make an assignment for the benefit of creditors, (iii) apply
for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Borrower or
any Guarantor a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any Guarantor or any Substantial Portion
of its Property, or a proceeding described in Section 7.6(iv) shall be
instituted against the Borrower or any Guarantor and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of the Borrower or any Guarantor which, when taken together with
all other Property of the Borrower or any Guarantor so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion and would have a Material Adverse Effect.
<PAGE> 42
7.9. The Borrower or any Subsidiary Guarantor shall fail within 30 days
to pay, bond or otherwise discharge one or more (i) judgments or orders for the
payment of money in excess of $1,000,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed
in the aggregate $1,000,000 or the aggregate amount of all liabilities as a
result of any Reportable Event in connection with any Plan shall exceed in the
aggregate $1,000,000.
7.11. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $1,000,000 or requires
payments exceeding $1,000,000 per annum.
7.12. If the Borrower or any other member of the Controlled Group
contributes to or is a sponsor of a Multiemployer Plan, the Borrower or any
other member of the Controlled Group shall have been notified by the sponsor of
a Multiemployer Plan that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA, if as a result of
such reorganization or termination the aggregate annual contributions of the
Borrower and the other members of the Controlled Group (taken as a whole) to all
Multiemployer Plans which are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the respective plan years of each such Multiemployer Plan immediately
preceding the plan year in which the reorganization or termination occurs by an
amount exceeding $1,000,000.
7.13. The Borrower or any Subsidiary Guarantor shall (i) be the subject
of any proceeding or investigation pertaining to the release by the Borrower,
any Subsidiary Guarantor or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply with any
of the terms or provisions of any Guaranty to which it is a party, or any
Guarantor shall deny that it has any further liability under any Guaranty to
which it is a party, or shall give notice to such effect.
7.16. Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any Collateral purported
to be covered thereby, except as permitted by the terms hereof or of any
Collateral Document, or any Collateral Document shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Collateral Document, or the Borrower shall
fail to comply with any of the terms or provisions of any Collateral Document.
7.17. The representations and warranties set forth in Section 5.15 (Plan
Assets; Prohibited Transactions") shall at any time not be true and correct.
7.18. The commitment to lend by the lenders under the Subordinated Debt
Documents to Trianon or the commitment to lend by Trianon under the Subordinated
Debt Documents to the Borrower shall be terminated, reduced or otherwise
modified in any manner.
<PAGE> 43
7.19. (I) THE ZENITH ACQUISITION SHALL BE UNWOUND, REVERSED OR OTHERWISE
RESCINDED IN WHOLE OR IN ANY MATERIAL PART FOR ANY REASON, OR (II) THE BORROWER
SHALL AGREE TO ANY MATERIAL AMENDMENT TO, OR WAIVER OF ANY MATERIAL RIGHTS
UNDER, OR OTHERWISE CHANGE ANY MATERIAL TERMS OF, ANY OF THE ZENITH ACQUISITION
DOCUMENT, IN A MANNER ADVERSE TO THE BORROWER OR ANY OF ITS SUBSIDIARIES OR TO
LENDERS WITHOUT THE PRIOR WRITTEN CONSENT OF AGENT. 7.20. IF ANY PAYMENT BE
MADE PURSUANT TO THE ESCROW AGREEMENT WOULD CAUSE A DEFAULT OR AN UNMATURED
DEFAULT AS DETERMINED BY THE AGENT OR AS SHOWN BY THE COMPLIANCE CERTIFICATE
REQUIRED TO BE DELIVERED PURSUANT TO SECTION 6.1(XI).
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration; Facility LC Collateral Account. (i) If any Default
described in Section 7.6 or 7.7 occurs and is continuing with respect to the
Borrower, the obligations of the Lenders to make Revolving Credit Loans
hereunder, the obligation and power of the LC Issuer to issue Facility LCs and
the power of the Agent to make Swing Loans shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Agent, the LC Issuer or any Lender and the Borrower
will be and become thereby unconditionally obligated, without any further
notice, act or demand, to pay to the Agent an amount in immediately available
funds, which funds shall be held in the Facility LC Collateral Account, equal to
the difference of (x) the amount of LC Obligations at such time, less (v) the
amount on deposit in the Facility LC Collateral Accountant such time which is
free and clear of all rights and claims of third parties and has not been
applied against the Obligations (such difference, the "Collateral Shortfall
Amount"). If any other Default occurs and is continuing, the Required Lenders
(or the Agent with the consent of the Required Lenders) may (a) terminate or
suspend the obligations of the Lenders to make Revolving Credit Loans hereunder,
the obligation and power of the LC Issuer to issue Facility LCs, and the power
of the Agent to make Swing Loans, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives and (b) upon notice to the Borrower
and in addition to the continuing right to demand payment of all amounts payable
under this Agreement, make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
(iii) The Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such funds to the payment
of the Obligations and any other amounts as shall from time to time have become
due and payable by the Borrower to the Lenders or the LC Issuer under the Loan
Documents.
(iv) At any time while any Default is continuing, neither the Borrower
nor any Person claiming on behalf of or through the Borrower shall have any
right to withdraw any of the funds held in the Facility LC Collateral Account.
After all of the Obligations have been indefeasibly paid in full and the
Aggregate Commitment has been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Agent to the Borrower or paid to
whomever may be legally entitled thereto at such time.
(v) If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans and
the obligation and power of the LC Issuer to issue Facility LCs hereunder and
the power of the Agent to make Swing Loans as a result of any Default (other
than any Default as described in Section 7.6 or 7.7 with respect to the
Borrower) and before any judgment or decree for the payment of the Obligations
due shall have been
<PAGE> 44
obtained or entered, the Required Lenders (in their sole discretion) shall so
direct, the Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan, or extend the expiry date of
any Facility LC to a date after the Facility Termination Date or
forgive all or any portion of the principal amount thereof or any
Reimbursement Obligation related thereto, or reduce the rate or
extend the time of payment of interest or fees thereon or
Reimbursement Obligations related thereto.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, the mandatory payments required under
Section 2.2, or permit the Borrower to assign its rights under this
Agreement.
(iv) Amend this Section 8.2.
(v) Except as allowed in the Loan Documents, release any material
Guarantor or release all or substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent, and no amendment of any
provision relating to the LC Issuer shall be effective without the written
consent of the LC Issuer. No increase in the Commitment of any Lender shall be
permitted without the consent of such Lender. The Agent may waive payment of the
fee required under Section 12.3.2 without obtaining the consent of any other
party to this Agreement. Notwithstanding anything herein to the contrary, no
Defaulting Lender shall be entitled to vote (whether to consent or to withhold
its consent) with respect to any amendment, modification, termination or waiver
and, for purposes of the determining the Required Lenders, the Commitments and
the Outstanding Credit Exposure of each Defaulting Lender shall be disregarded
and the Agent shall have the ability, but not the obligation, to replace any
Defaulting Lender with another lender or lenders.
8.3. Preservation of Rights. No delay or omission of the Lenders, the LC
Issuer or the Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions precedent to
such Credit Extension shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent, the LC
Issuer and the Lenders until the Obligations have been paid in full. The Agent
may, and upon being directed to do so by the Required Lenders, shall, in
addition to all other remedies under the Loan Documents, exercise and enforce
any and all other rights and remedies arising under any Loan Document, under
applicable law or otherwise, in any manner deemed appropriate by the Agent,
including suit and equity, action at law or other appropriate proceedings,
whether for the specific performance (to the extent permitted by law) of any
covenant or agreement contained in any Loan Document or in the aid of the
exercise of any power granted in any Loan Document.
<PAGE> 45
8.4 Distribution of Proceeds of Collateral. All proceeds of any
realization on the Collateral pursuant to the Collateral Documents to be applied
to the Secured Obligations (subject to any priorities and other provisions in
the Collateral Documents, and it is acknowledged that the indebtedness,
obligations and liabilities secured by the Capital Stock of SOFEDIT and existing
prior to the date hereof shall be entitled to the proceeds of such Collateral
before the application thereof to the Secured Obligations) and any payments
received by the Agent or any Lender pursuant to the Guaranties subsequent to and
during the continuance of any Default, shall be allocated and distributed by the
Agent as follows:
(a) First, to the payment of all reasonable costs and expenses,
including without limitation all reasonable attorneys' fees, of the Agent in
connection with the enforcement of the Loan Documents and otherwise
administering this Agreement;
(b) Second, to the payment of all fees required to be paid under
any Loan Document including commitment fees, owing to the Lenders, the LC Issuer
and Agent pursuant to the Lender Indebtedness on a pro rata basis in accordance
with the Obligations consisting of fees owing to the Lenders and Agent under the
Obligations, for application to payment of such liabilities;
(c) Third, to the Lenders (and/or their Affiliates in connection
with any Rate Hedging Obligations which are part of the Secured Obligations),
the LC Issuer and the Agent on a pro rata basis in accordance with the Secured
Obligations consisting of principal (including without limitation any cash
collateral for any outstanding Facility Letters of Credit), interest and Rate
Hedging Obligations which are part of the Secured Obligations, for application
to payment of such Secured Obligations;
(d) Fourth, to the payment of any and all other Secured
Obligations owing to the Lenders, the LC Issuer and the Agent on a pro rata
basis in accordance with the total amount of such Obligations owing to each of
the Lenders and the Agent, for application to payment of such Secured
Obligations; and
(e) Fifth, to the Borrower, its Subsidiaries or such other Person
as may be legally entitled thereto.
Notwithstanding the foregoing, no payments of principal, interest, fees or other
amounts delivered to the Agent for the account of any Defaulting Lender shall be
delivered by the Agent to such Defaulting Lender. Instead, such payments shall,
for so long as such Defaulting Lender shall be a Defaulting Lender, be held by
the Agent, and the Agent is hereby authorized and directed by all parties hereto
to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting
Lender to the Agent or the LC Issuer, and
(ii) Second, to Credit Extensions required to be made by such Defaulting
Lender on any Borrowing Date to the extent such Defaulting Lender
fails to make such Credit Extensions.
Notwithstanding the foregoing, upon the termination of all Commitments and the
payment and performance of all of the Secured Obligations (other than those
owing to a Defaulting Lender), any funds then held in escrow by the Agent
pursuant to the preceding sentence shall be distributed to each Defaulting
Lender, pro rata in proportion to amounts that would be due to each Defaulting
Lender but for the fact that it is a Defaulting Lender.
ARTICLE IX
GENERAL PROVISIONS
<PAGE> 46
9.1. Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated, but shall only be deemed made on the date hereof
and on each Credit Extension Date.
9.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, neither the LC Issuer, the Agent nor any Lender
shall be obligated to extend credit to the Borrower in violation of any
limitation or prohibition provided by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent, the LC Issuer and the Lenders
and supersede all prior agreements and understandings among the Borrower, the
Agent, the LC Issuer and the Lenders relating to the subject matter thereof
other than the letters described in Section 10.13.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the
Agent and the Arranger for any costs, internal charges and out-of-pocket
expenses (including attorneys' fees and time charges of attorneys for the Agent,
which attorneys may be employees of the Agent) paid or incurred by the Agent or
the Arranger in connection with the preparation, negotiation, execution,
delivery, syndication, review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the Agent, the
Arranger, the LC Issuer and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys' fees and time charges of attorneys
for the Agent, the Arranger, the LC Issuer and the Lenders, which attorneys may
be employees of the Agent, the Arranger, the LC Issuer or the Lenders) paid or
incurred by the Agent, the Arranger or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being reimbursed by
the Borrower under this Section include, without limitation, the cost and
expense of obtaining an appraisal of each parcel of real property or interest in
real property described in the relevant Collateral Documents, which appraisal
shall be in conformity with the applicable requirements of any law or any
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law), or any interpretation thereof, including, without
limitation, the provisions of Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, reformed or otherwise modified
from time to time, and any rules promulgated to implement such provisions and
costs and expenses incurred in connection with the Reports described in the
following sentence. The Borrower acknowledges that from time to time Bank One
may prepare and may distribute to the Lenders (but shall have no obligation or
duty to prepare or to distribute to the Lenders) certain audit reports (the
"Reports") pertaining to the Borrower's assets for internal use by Bank One from
information furnished to it by or on behalf of the Borrower, after Bank One has
exercised its rights of inspection pursuant to this Agreement.
(ii) The Borrower hereby further agrees to indemnify the Agent, the
Arranger, the LC Issuer and each Lender, its directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Agent, the Arranger, the
<PAGE> 47
LC Issuer or any Lender is a party thereto) which any of them may pay or incur
at any time (including without limitation those arising in connection with
transactions which occur prior to the date of this Agreement) arising out of or
relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby (including without limitation the Zenith Acquisition) or the
direct or indirect application or proposed application of the proceeds of any
Credit Extension hereunder except to the extent that they are determined in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 9.6 shall
survive the termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
9.8. Accounting. (i) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in subsection
(ii) below) be prepared, in accordance with Agreement Accounting Principles
(subject, in the case of financial statements which are not fiscal year end
statements, to the absence of footnotes and year-end audit adjustments) ;
provided that, if the Borrower notifies the Agent that it wishes to amend any
covenant in Article VI to eliminate the effect of any change in Agreement
Accounting Principles (or if the Agent notifies the Borrower that the Agent or
the Required Lenders wish to amend Article VI for such purpose), then the
Borrower's compliance with such covenants shall be determined on the basis of
Agreement Accounting Principles in effect immediately before the relevant change
in Agreement Accounting Principles became effective until either such notice is
withdrawn or such covenant or any such defined term is amended in a manner
satisfactory to the Borrower and the Required Lenders. Notwithstanding anything
herein, in any financial statements of the Borrower or in Agreement Accounting
Principles to the contrary, for purposes of calculating and determining
compliance with the financial covenants in Section 6.22 and determining the
Applicable Margin and Applicable Fee Rate, including defined terms used therein,
any Acquisitions made by the Borrower or any of its Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the period for which such financial covenants and the
Applicable Margin and Applicable Fee Rate were calculated shall be deemed to
have occurred on the first day of the relevant period for which such financial
covenants and the Applicable Margin and Applicable Fee Rate were calculated on a
pro forma basis acceptable to the Agent. Notwithstanding anything in Section
6.22 or in the Pricing Schedule (or the defined terms as used therein), such
financial covenants shall be tested, and the Applicable Margin or Applicable Fee
Rate shall be adjusted, for the first time based on the results for the fiscal
quarter ending September 30, 1999.
(ii) The Borrower shall deliver to the Lenders at the same time
as the delivery of any annual financial statement under Section 5.1(i) and (ii)
(x)a description in reasonable detail of any material variation between the
application or other modification of accounting principles employed in the
preparation of such statement and the application or other modification of
accounting principles employed in the preparation of the immediately prior
annual or monthly financial statements as to which no objection has been made in
accordance with the last sentence of subsection (i) above and (y) reasonable
estimates of the difference between such statements arising as a consequence
thereof.
(iii) To enable the ready and consistent determination of
compliance with the covenants set forth in Article VI hereof, the Borrower will
not change the last day of its fiscal year from December 31 of each year, or the
last days of the first three fiscal quarters in each of its fiscal years from
March 31, June 30 and September 30 of each year, respectively.
9.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
<PAGE> 48
9.10. Nonliability of Lenders. The relationship between the Borrower on
the one hand and the Lenders, the LC Issuer and the Agent on the other hand
shall be solely that of borrower and lender. Neither the Agent, the Arranger,
the LC Issuer nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Agent, the Arranger, the LC Issuer nor any Lender
undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower's business or
operations. The Borrower agrees that neither the Agent, the Arranger, the LC
Issuer nor any Lender shall have liability to the Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by the Borrower in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. Neither the Agent, the Arranger, the LC Issuer nor any
Lender shall have any liability with respect to, and the Borrower hereby waives,
releases and agrees not to sue for, any special, indirect or consequential
damages suffered by the Borrower in connection with, arising out of, or in any
way related to the Loan Documents or the transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials to the extent required by such regulatory officials, (iv) to any
Person as requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to which such
Lender is a party, (vi) to such Lender's direct or indirect contractual
counterparties in swap agreements or to legal counsel, accountants and other
professional advisors to such counterparties, and (vii) permitted by Section
12.4.
9.12. Nonreliance. Each Lender hereby represents that it is not relying
on or looking to any Margin Stock for the repayment of the Credit Extensions
provided for herein.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. Bank One, Michigan is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Agent") hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2. Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
<PAGE> 49
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents
<PAGE> 50
or of any such other documents, provided that (i) no Lender shall be liable for
any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Agent and (ii) any
indemnification required pursuant to Section 3.5(vii) shall, notwithstanding the
provisions of this Section 10.8, be paid by the relevant Lender in accordance
with the provisions thereof. The obligations of the Lenders under this Section
10.8 shall survive payment of the Obligations and termination of this Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. Notwithstanding the previous sentence, the Agent may at any
time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
or removal of an Agent, the provisions of this Article X shall continue in
effect for the
<PAGE> 51
benefit of an Agent, the provisions of this Article X shall continue in effect
for the benefit of such Agent in respect of any actions taken or omitted to be
taken by it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Prime Rate" as used in this Agreement shall mean
the prime rate, base rate or other analogous rate of the new Agent.
10.13. Agent's Fee; Etc.. The Borrower agrees to pay to the Agent, for
its own account, the amounts agreed to by the Borrower and the Agent pursuant to
separate agreements from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.15. Execution of Collateral Documents. The Lenders hereby empower and
authorize the Agent to execute and deliver to the Borrower on their behalf the
Collateral Documents and all related financing statements and any financing
statements, agreements, documents or instruments as shall be necessary or
appropriate to effect the purposes of the Collateral Documents.
10.16. Collateral Releases. The Lenders hereby empower and authorize the
Agent to execute and deliver to the Borrower on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of Collateral which shall be permitted by the terms hereof or of any
other Loan Document or which shall otherwise have been approved by the Required
Lenders (or, if required by the terms of Section 8.2, all of the Lenders) in
writing.
10.17. Co-Agents, Documentation Agent, Syndication Agent, etc. No Lender
identified in this Agreement or otherwise as a "Documentation Agent"
"Syndication Agent" nor "Co-Agent" have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of such Lenders shall have
or be deemed to have a fiduciary relationship with any Lender. Each Lender
hereby makes the same acknowledgments with respect to such Lenders as it makes
with respect to the Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs and is continuing, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or owing by
any Lender or any Affiliate of any Lender to or for the credit or account of the
Borrower may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in
<PAGE> 52
the benefits of such collateral ratably in proportion to their respective Pro
Rata Shares of the Aggregate Outstanding Credit Exposure. In case any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made. If an amount to be setoff is to be applied to
Indebtedness of the Borrower to a Lender other than Indebtedness comprised of
the Outstanding Credit Exposure of such Lender, such amount shall be applied
ratably to such other Indebtedness and to the Indebtedness comprised of such
Outstanding Credit Exposure.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents (other than pursuant to the merger with Zenith as contemplated
hereunder and the assumption of all Secured Obligations and other obligations
under the Loan Documents by Zenith in connection therewith) and (ii) any
assignment by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) of this Section, any Lender may at any time, without
the consent of the Borrower or the Agent, assign all or any portion of its
rights under this Agreement and any Note to a Federal Reserve Bank; provided,
however, that no such assignment to a Federal Reserve Bank shall release the
transferor Lender from its obligations hereunder. The Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 12.3 in the
case of an assignment thereof or, in the case of any other transfer, a written
notice of the transfer is filed with the Agent. Any assignee or transferee of
the rights to any Loan or any Note agrees by acceptance of such transfer or
assignment to be bound by all the terms and provisions of the Loan Documents.
Any request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the owner of the rights to any
Loan (whether or not a Note has been issued in evidence thereof), shall be
conclusive and binding on any subsequent holder, transferee or assignee of the
rights to such Loan.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Outstanding Credit Exposure of such Lender, any Note held by
such Lender, any Commitment of such Lender or any other interest of such Lender
under the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of its Outstanding Credit Exposure and the
holder of any Note issued to it in evidence thereof for all purposes under the
Loan Documents, all amounts payable by the Borrower under this Agreement shall
be determined as if such Lender had not sold such participating interests, and
the Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment, modification
or waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Credit Extension or Commitment in
which such Participant has an interest which forgives principal, interest, or
any Reimbursement Obligation or reduces the interest rate or fees payable with
respect to any such Credit Extension or Commitment, extends the Facility
Termination Date, postpones any date fixed for any regularly-scheduled payment
of principal of or interest on any Loan in which such Participant has an
interest, or any regularly-scheduled payment of fees on any such Credit
Extension or
<PAGE> 53
Commitment, releases any guarantor of any such Credit Extension or
releases any collateral held in the Facility LC Collateral Account (except in
accordance with the terms hereof) or all or substantially all of any other
collateral, if any, securing any such Credit Extension.
12.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 11.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time assign
to one or more banks or other entities ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit C or in such other form as may be agreed to
by the parties thereto. The consent of the Borrower and the Agent shall be
required prior to an assignment becoming effective with respect to a Purchaser
which is not a Lender or an Affiliate thereof; provided, however, that if a
Default has occurred and is continuing or if such assignment is to another
Lender or an Affiliate of a Lender, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably withheld or delayed. Each such
assignment with respect to a Purchaser which is not a Lender or an Affiliate
thereof shall (unless each of the Borrower and the Agent otherwise consents) be
in an amount not less than the lesser of (i) $5,000,000 or (ii) the remaining
amount of the assigning Lender's Commitment (calculated as at the date of such
assignment) or outstanding Loans (if the applicable Commitment has been
terminated).
12.3.2. Effect; Effective Date. Upon (i) delivery to the Agent
of an assignment, together with any consents required by Section 12.3.1, and
(ii) payment of a $4,000 fee to the Agent for processing such assignment (unless
such fee is waived by the Agent), such assignment shall become effective on the
effective date specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Outstanding Credit Exposure
under the applicable assignment agreement constitutes "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the effective
date of such assignment, such Purchaser shall for all purposes be a Lender party
to this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Outstanding Credit Exposure assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Agent and the Borrower shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced by Notes,
make appropriate arrangements so that new Notes or, as appropriate, replacement
Notes are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments, as adjusted pursuant to such
assignment.
12.4. Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the
<PAGE> 54
Borrower and its Subsidiaries, including without limitation any information
contained in any Reports; provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth in its administrative questionnaire or (z)
in the case of any party, at such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the Agent and the
Borrower in accordance with the provisions of this Section 13.1. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided that notices to the Agent under
Article II shall not be effective until received.
13.2. Change of Address. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent, the LC Issuer and the Lenders and each party has notified the Agent by
facsimile transmission or telephone that it has taken such action.
<PAGE> 55
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF MICHIGAN.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR MICHIGAN STATE
COURT SITTING IN DETROIT, MICHIGAN IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT, THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF
THE AGENT, THE LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN DETROIT, MICHIGAN.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE LC ISSUER AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
<PAGE> 56
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Agent have executed this Agreement as of the date first above written.
2020 Corp. 70
By:
---------------------------
Title:
------------------------
Attention:
--------------------
Telephone: ( )
FAX: ( )
<PAGE> 57
<TABLE>
<CAPTION>
COMMITMENTS LENDERS
----------- -------
<S> <C>
For the period from and including the BANK ONE, MICHIGAN,
date of this Agreement to and including Individually and as Agent
June 30, 2000: $100,000,000
By:
------------------
From and including July 1, 2000 and Title:
including June 30, 2001: ------------------
$92,000,000 611 Woodward Avenue
Detroit, Michigan 48226
From and including July 1, 2001 and Attention: Michigan Corporate Banking
to and including June 30, 2002: Telephone: (313) 225-2531
$84,000,000 FAX: (313) 226-0855
From and including July 1, 2002 and
to and including June 30, 2003:
$68,000,000
From and including July 1, 2003
to but excluding the Facility Termination
Date: $52,000,000
</TABLE>
<PAGE> 58
<TABLE>
<CAPTION>
COMMITMENTS LENDERS
----------- -------
<S> <C>
For the period from and including the CREDIT SUISSE FIRST BOSTON
date of this Agreement to and including
June 30, 2000: $25,000,000
By:
From and including July 1, 2000 and Title:
including June 30, 2001:
$23,000,000
From and including July 1, 2001 and By:
to and including June 30, 2002:
$21,000,000 Title:
From and including July 1, 2002 and
to and including June 30, 2003:
$17,000,000
11 Madison Avenue
From and including July 1, 2003 New York, New York 10010
to but excluding the Facility Termination
Date: $13,000,000 Attention:
--------------------------
Telephone: (212) -
--- ----
FAX: (212) -
--- ----
</TABLE>
<PAGE> 59
PRICING SCHEDULE
<TABLE>
<CAPTION>
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
MARGIN STATUS STATUS STATUS STATUS STATUS
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Eurodollar Rate 2.00% 2.25% 2.50% 2.75% 3.00%
And LC Fees
Floating Rate 0.75% 1.00% 1.25% 1.50% 1.75%
<CAPTION>
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
MARGIN STATUS STATUS STATUS STATUS STATUS
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Commitment Fee 0.375% 0.500% 0.500% 0.500% 0.625%
</TABLE>
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to Section 6.1(i) or (ii).
"Level I Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, the Leverage
Ratio is less than 2.75 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status and (ii) the Leverage Ratio is
less than or equal to 3.25 to 1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status or Level II Status and (ii)
the Leverage Ratio is less than 3.75 to 1.00.
"Level IV Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status, Level II Status or Level III
Status and (ii) the Leverage Ratio is less than 4.25 to 1.00.
"Level V Status" exists at any date if the Borrower has not qualified
for Level I Status, Level II Status, Level III Status or Level IV Status.
"Status" means either Level I Status, Level II Status, Level III Status,
Level IV Status or Level V Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as reflected
in the then most recent Financials. Adjustments, if any, to the Applicable
Margin or Applicable Fee Rate shall be effective 60 days after the end of each
fiscal quarter. If the Borrower fails to deliver the Financials to the Agent at
the time required pursuant to Section 6.1 or any other Default has occurred and
is continuing, then the Applicable Margin and Applicable Fee Rate shall be the
highest Applicable Margin and Applicable Fee Rate set forth in the foregoing
table until such Default is cured or waived under the Agreement. Notwithstanding
the foregoing, the Applicable Margin for the period from the date hereof until
it shall be adjusted for the first time based on the results for the fiscal
quarter ending September 30, 1999 shall be the Applicable Margin assuming the
Borrower's Status is Level IV Status.
<PAGE> 60
EXHIBIT A
FORM OF OPINION
July 13, 1999
The Agent, the LC Issuer and the Lenders who are parties to the Credit Agreement
described below.
Gentlemen/Ladies:
We are counsel for 20 20 Corp. 70 (the "Borrower") and the Guarantors,
and have represented the Borrower in connection with its execution and delivery
of a Credit Agreement dated as of July 13, 1999 (the "Agreement") among the
Borrower, the Lenders named therein, and Bank One, Michigan, as Agent, and as LC
Issuer. All capitalized terms used in this opinion and not otherwise defined
herein shall have the meanings attributed to them in the Agreement.
We have examined the Borrower's and each Guarantor's organizational
documents and appropriate evidence of authority to enter into the transaction,
the Loan Documents and such other matters of fact and law which we deem
necessary in order to render this opinion. Based upon the foregoing, it is our
opinion that:
l. Each of the Borrower and its Subsidiaries and each other Guarantor is
a corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
2. The execution and delivery by each of the Borrower and each Guarantor
of the Loan Documents to which it is a party and the performance by each of the
Borrower and each Guarantor of its obligations thereunder have been duly
authorized by proper corporate proceedings on the part of the Borrower and each
Guarantor and will not:
(a) require any consent of the Borrower's or any Guarantor's
shareholders or members (other than any such consent as has already been given
and remains in full force and effect);
(b) violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its Subsidiaries
or (ii) the Borrower's or any Subsidiary's articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict with
or constitute a default thereunder; or
(c) result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower or a Subsidiary pursuant to the terms of
any indenture, instrument or agreement binding upon the Borrower or any of its
Subsidiaries.
3. The Loan Documents to which the Borrower and each Guarantor is a
party have been duly executed and delivered by the Borrower and each Guarantor
and constitute legal, valid and binding obligations of the Borrower and each
Guarantor enforceable against the Borrower and each Guarantor in accordance with
their terms except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and subject also to the availability of equitable remedies if
equitable remedies are sought.
<PAGE> 61
4. There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best of our knowledge after due
inquiry, threatened against the Borrower or any of its Subsidiaries which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
5. No order, consent, adjudication, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by the Borrower or any of its
Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under the Agreement, the payment and performance by
the Borrower and each Guarantor of the Obligations, or the legality, validity,
binding effect or enforceability of any of the Loan Documents.
6. All Secured Obligations are senior debt under the Subordinated Debt
Documents and are entitled to the benefits of the subordination provisions of
the Subordinated Debt Documents. The Subordinated Debt Documents to which the
Borrower is a party have been duly executed and delivered by the Borrower and
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms except to the extent the
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and subject also to the
availability of equitable remedies if equitable remedies are sought.
7. The provisions of the Collateral Documents are sufficient to create
in favor of the Lenders a security interest in all right, title and interest of
the Borrower and each Guarantor in those items and types of collateral described
in the Collateral Documents in which a security interest may be created under
Article 9 of the Uniform Commercial Code as in effect on the date hereof in
Michigan. Financing statements on Form UCC-1's have been duly executed by the
Borrower and each Guarantor and have been duly filed in each filing office
indicated in Exhibit A hereto under the Uniform Commercial Code in effect in
each state in which said filing offices are located. The description of the
collateral set forth in said financing statements is sufficient to perfect a
security interest in the items and types of collateral described therein in
which a security interest may be perfected by the filing of a financing
statement under the Uniform Commercial Code as in effect in such states. Such
filings are sufficient to perfect the security interest created by the
Collateral Documents in all right, title and interest of the Borrower and each
Guarantor in those items and types of collateral described in the Collateral
Documents in which a security interest may be perfected by the filing of a
financing statement under the Uniform Commercial Code in such states, except
that we express no opinion as to personal property affixed to real property in
such manner as to become a fixture under the laws of any state in which the
collateral may be located and we call your attention to the fact that the
Lenders' security interest in certain of such collateral may not be perfected by
filing financing statements under the Uniform Commercial Code.
8. Upon payment for the Capital Stock of Zenith pursuant to the Zenith
Acquisition Documents, the Borrower will acquire, free and clear of any Lien,
100% of the Capital Stock of Zenith. On the date hereof, the Borrower and Zenith
have merged, and Zenith is the surviving entity and has assumed all Secured
Obligations and all other obligations and liabilities of the Borrower under the
Loan Documents. The opinion in this paragraph 8 assumes that the Borrower does
not have notice of any adverse claim with respect to the Capital Stock of
Zenith.
9. The Mortgages are in proper form for the creation of the liens and
security interests contemplated thereby and for recording in the real property
records of the recording office in the County in which the Real Property is
located. The Mortgages create a valid and perfected mortgage lien and security
interest in the real and other property described in each Mortgage.
This opinion may be relied upon by the Agent, the LC Issuer the Lenders
and their participants, assignees and other transferees.
Very truly yours,
<PAGE> 62
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain Credit
Agreement dated as of July 13, 1999 (as amended, modified, renewed or extended
from time to time, the "Agreement") among 2020 Corp. 70 (the "Borrower"), the
lenders party thereto and Bank One, Michigan, as Agent for the Lenders and as LC
Issuer. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of the Borrower;
----------------------
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Agreement,
all of which data and computations are true, complete and correct.
5. Schedule II attached hereto sets forth the determination of the
interest rates to be paid for Advances, the LC Fee rates and the commitment fee
rates commencing on the date described in the Pricing Schedule.
6. Schedule III attached hereto sets forth the estimate of the Zenith
Acquisition Obligations and the Revolving Credit Blocked Amount.
7. Schedule IV attached hereto sets forth the various reports and
deliveries which are required at this time under the Credit Agreement, the
Collateral Documents and the other Loan Documents and the status of compliance.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The foregoing certifications, together with the computations set forth
in Schedule I and Schedule II hereto and the financial statements delivered with
this Certificate in support hereof, are made and delivered this day of
-- ------,
- ----
----------------------
<PAGE> 63
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of , with
--------- ----
Provisions of and of
---- ----
the Agreement
<PAGE> 64
SCHEDULE II TO COMPLIANCE CERTIFICATE
Borrower's Applicable Margin Calculation
<PAGE> 65
SCHEDULE III TO COMPLIANCE CERTIFICATE
Estimate of Zenith Acquisition Obligations and Revolving Credit Blocked Amount
<PAGE> 66
SCHEDULE IV TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
<PAGE> 67
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
--------
(the "Assignor") and (the "Assignee") is dated as of , .
---------- --------- -----
The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, such that after giving effect to such
assignment the Assignee shall have purchased pursuant to this Assignment
Agreement the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement and the other Loan
Documents relating to the facilities listed in Item 3 of Schedule 1. The
aggregate Commitment (or Outstanding Credit Exposure, if the applicable
Commitment has been terminated) purchased by the Assignee hereunder is set forth
in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after
this Assignment Agreement, together with any consents required under the Credit
Agreement, are delivered to the Agent. In no event will the Effective Date occur
if the payments required to be made by the Assignee to the Assignor on the
Effective Date are not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
Loans hereunder, the Assignee shall pay the Assignor, on the Effective Date, the
amount agreed to by the Assignor and the Assignee. On and after the Effective
Date, the Assignee shall be entitled to receive from the Agent all payments of
principal, interest Reimbursement Obligations and fees with respect to the
interest assigned hereby. The Assignee will promptly remit to the Assignor any
interest on Loans and fees received from the Agent which relate to the portion
of the Commitment or Outstanding Credit Exposure assigned to the Assignee
hereunder for periods prior to the Effective Date and not previously paid by the
Assignee to the Assignor. In the event that either party hereto receives any
payment to which the other party hereto is entitled under this Assignment
Agreement, then the party receiving such amount shall promptly remit it to the
other party hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree to pay one-half
of the recordation fee required to be paid to the Agent in connection with this
Assignment Agreement unless otherwise specified in Item 6 of Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder, (ii) such
interest is free and clear of any adverse claim created by the Assignor and
(iii) the execution and delivery of this Assignment Agreement by the Assignor is
duly authorized. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any
<PAGE> 68
guarantor, (iv) the performance of or compliance with any of the terms or
provisions of any of the Loan Documents, (v) inspecting any of the property,
books or records of the Borrower, (vi) the validity, enforceability, perfection,
priority, condition, value or sufficiency of any collateral securing or
purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement, (ii) agrees that
it will, independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information at it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms
that the execution and delivery of this Assignment Agreement by the Assignee is
duly authorized, (v) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to
be performed by it as a Lender, (vi) agrees that its payment instructions and
notice instructions are as set forth in the attachment to Schedule 1, (vii)
confirms that none of the funds, monies, assets or other consideration being
used to make the purchase and assumption hereunder are "plan assets" as defined
under ERISA and that its rights, benefits and interests in and under the Loan
Documents will not be "plan assets" under ERISA, (viii) agrees to indemnify and
hold the Assignor harmless against all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement, and
(ix) if applicable, attaches the forms prescribed by the Internal Revenue
Service of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any United
States federal income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Michigan.
9. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement may
be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart and such facsimile shall be deemed to be
an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
<PAGE> 69
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: , 19
------------
3. Amounts (As of Date of Item 2 above):
4. Assignee's Commitment (or Outstanding Credit Exposure with respect to
terminated Commitments) purchased
hereunder: $
--------------
5. Proposed Effective Date: --------------
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
------------------------- ---------------------------
Title: Title:
---------------------- -------------------------
ACCEPTED AND CONSENTED TO BY ACCEPTED AND CONSENTED TO BY
2020 Corp. 70 BANK ONE, MICHIGAN
By: By:
------------------------- ---------------------------
Title: Title:
---------------------- -------------------------
<PAGE> 70
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name: Telephone No.:
----------------------- ---------
Fax No.: Telex No.:
--------------------- -------------
Answerback:
-------------
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
-----------------------------------------------
-----------------------------------------------
Account Name & Number for Wire Transfer:
----------------------------------------
----------------------------------------
Other Instructions:
--------------------------------------------------------------
- --------------------------------------------------------------------------------
ADDRESS FOR NOTICES FOR ASSIGNOR:
----------------------------------------------
----------------------------------------------
----------------------------------------------
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name: Telephone No.:
------------------------------- ----------------------
Fax No.: Telex No.:
---------------------------- --------------------------
Answerback:
-------------------------
KEY OPERATIONS CONTACTS:
Booking Installation: Booking Installation:
--------------- ---------------
Name: Name:
------------------------------- -------------------------------
Telephone No.: Telephone No.:
---------------------- ----------------------
Fax No.: Fax No.:
---------------------------- ----------------------------
Telex No.: Telex No.:
-------------------------- --------------------------
Answerback: Answerback:
------------------------- -------------------------
<PAGE> 71
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
----------------------------------------------
----------------------------------------------
Account Name & Number for Wire Transfer:
----------------------------------------
----------------------------------------
Other Instructions:
-------------------------------------------------------------
- --------------------------------------------------------------------------------
ADDRESS FOR NOTICES FOR ASSIGNEE:
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
<PAGE> 72
BANK ONE INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
Name: Name:
------------------------ ---------------------------
Telephone No.: (313) Telephone No.: (313)
--------------------- ----------------
Fax No.: (313) Fax No.: (313)
--------------------------- ----------------
INITIAL FUNDING STANDARDS:
Libor - Fund 2 days after rates are set.
BANK ONE WIRE INSTRUCTIONS: BANK ONE, MICHIGAN, ABA #
--------------
ADDRESS FOR NOTICES FOR BANK ONE: 611 Woodward Avenue, Detroit, MI 48226
Attn:
-----------------------------------
Fax No. (313) 225- .
----
<PAGE> 73
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To Bank One, Michigan,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Credit Agreement, dated July 13, 1999 (as the same may be amended or
modified, the "Credit Agreement"), among 2020 Corp. 70 (the "Borrower"),
the Lenders named therein, the LC Issuer and the Agent. Capitalized
terms used herein and not otherwise defined herein shall have the
meanings assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Borrower,
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 13.1 of the
Credit Agreement or based on any telephonic notice made in accordance with
Section 2.14 of the Credit Agreement.
Facility Identification Number(s)
-----------------------------------------------
Customer/Account Name
----------------------------------------------------------
Transfer Funds To
--------------------------------------------------------------
--------------------------------------------------------------
For Account No.
----------------------------------------------------------------
Reference/Attention To
---------------------------------------------------------
Authorized Officer (Customer Representative) Date
--------------------
- ------------------------------------------- ------------------------
(Please Print) Signature
Bank Officer Name Date
-------------------
- ------------------------------------------- ------------------------
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
<PAGE> 74
EXHIBIT E
NOTE
[Date]
, a (the "Borrower"),
promises to pay to the order of (the
"Lender") the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to Article II of the Agreement (as hereinafter
defined), in immediately available funds at the main office of Bank One,
Michigan in Detroit, Michigan, as Agent, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Credit Agreement dated as of July 13, 1999 (which, as it may be
amended or modified and in effect from time to time, is herein called the
"Agreement"), among the Borrower, the lenders party thereto, including the
Lender, the LC Issuer and Bank One, Michigan, as Agent, to which Agreement
reference is hereby made for a statement of the terms and conditions governing
this Note, including the terms and conditions under which this Note may be
prepaid or its maturity date accelerated. This Note is secured pursuant to the
Collateral Documents and guaranteed pursuant to the Guaranty, all as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
-------------------------------------
By:
---------------------------------
Print Name:
--------------------------
Title:
------------------------------
<PAGE> 75
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ,
DATED ,
<TABLE>
<CAPTION>
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- ------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 76
SCHEDULE 5.7
LITIGATION
<PAGE> 77
SCHEDULE 5.8
SUBSIDIARIES
<TABLE>
<CAPTION>
Investment Jurisdiction of Owned Amount of Percent
In Organization By Investment Ownership
- --------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 78
SCHEDULE 5.24
DESCRIPTION OF INTELLECTUAL PROPERTY
<PAGE> 79
SCHEDULE 6.11
INDEBTEDNESS
<TABLE>
<CAPTION>
Maturity
Indebtedness Indebtedness and Amount
Incurred By Owed To of Indebtedness
- --------------------------------------------------------------------------------
<S> <C> <C>
</TABLE>
<PAGE> 80
SCHEDULE 6.14
INVESTMENTS
<TABLE>
<CAPTION>
Investment Jurisdiction of Owned Amount of Percent
In Organization By Investment Ownership
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 81
SCHEDULE 6.15
LIENS
<TABLE>
<CAPTION>
Maturity
Indebtedness Indebtedness Property and Amount
Incurred By Owed To Encumbered of Indebtedness
- --------------------------------------------------------------------
<S> <C> <C> <C>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<NAME> TRIANON
<CIK> 0001021907
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> APR-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 31,138
<SECURITIES> 0
<RECEIVABLES> 191,726
<ALLOWANCES> 0
<INVENTORY> 106,880
<CURRENT-ASSETS> 343,032
<PP&E> 187,153
<DEPRECIATION> 18,140
<TOTAL-ASSETS> 618,292
<CURRENT-LIABILITIES> 420,626
<BONDS> 158,654
0
0
<COMMON> 39
<OTHER-SE> (22,145)
<TOTAL-LIABILITY-AND-EQUITY> 618,291
<SALES> 207,652
<TOTAL-REVENUES> 207,652
<CGS> 181,047
<TOTAL-COSTS> 181,047
<OTHER-EXPENSES> 16,869
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,409
<INCOME-PRETAX> 2,327
<INCOME-TAX> 2,150
<INCOME-CONTINUING> 177
<DISCONTINUED> 385
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (407)
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<NAME> AETNA
<CIK> 0001022657
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> APR-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 75
<SECURITIES> 0
<RECEIVABLES> 61,737
<ALLOWANCES> 0
<INVENTORY> 41,268
<CURRENT-ASSETS> 4,004
<PP&E> 70,338
<DEPRECIATION> 4,837
<TOTAL-ASSETS> 206,137
<CURRENT-LIABILITIES> 122,905
<BONDS> 88,125
0
0
<COMMON> 0
<OTHER-SE> (10,391)
<TOTAL-LIABILITY-AND-EQUITY> 206,137
<SALES> 65,660
<TOTAL-REVENUES> 65,660
<CGS> 57,433
<TOTAL-COSTS> 57,433
<OTHER-EXPENSES> 5,848
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,845
<INCOME-PRETAX> (1,466)
<INCOME-TAX> (534)
<INCOME-CONTINUING> (932)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (932)
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
