================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT
OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO ____________
COMMISSION FILE NUMBER 1-12521
SWISHER INTERNATIONAL GROUP INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 13-3857632
- --------------------------------------------------------------------- --------------------
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer
Identification No.)
</TABLE>
20 THORNDAL CIRCLE, DARIEN, CT 06820
----------------------------------------
(Address of principal executive offices)
203-656-8000
------------------
(Telephone Number)
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
<TABLE>
<S> <C>
Name of each exchange on
Title of each class which registered
- ------------------------------------- ------------------------------
Class A Common Stock, $.01 par value New York Stock Exchange
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: NONE
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 [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment of this
Form 10-K. [ ].
The aggregate market value of Class A Common Stock (par value $.01) held by
non-affiliates at March 6, 1998 was $88,105,393.75.
The number of shares of Class A Common Stock (par value $.01) outstanding
as of March 9, 1998 was 5,850,000.
DOCUMENTS INCORPORATED BY REFERENCE.
<TABLE>
<S> <C>
Parts II and IV Annual Report to Stockholders for the year ended December 31,
1997.
Part III Proxy Statement mailed in connection with the 1998 Annual
Meeting of Stockholders.
</TABLE>
================================================================================
<PAGE>
PART I
ITEM 1. BUSINESS
Swisher International Group Inc. and its subsidiaries (collectively,
'Swisher' or the 'Company') manufactures and sells cigars and smokeless tobacco
products. Founded in 1861, Swisher is the largest manufacturer and marketer of
cigars in the world, as measured by units sold.
Through November 6, 1995, Swisher International, Inc. (the 'Predecessor')
was a wholly owned subsidiary of American Maize-Products Company ('AMPCo'). On
November 6, 1995, in connection with the acquisition of AMPCo and its
subsidiaries by Eridania Beghin-Say, S.A., the common stock of the Predecessor
was simultaneously sold to the Company, which was a wholly owned subsidiary of
Hay Island Holding Corporation ('Hay Island'). On December 18, 1996, the Company
completed an initial public offering ('Offering') of 6,000,000 shares of its
Class A Common Stock, par value of $0.01 per share ('Class A Common Stock').
PRODUCTS
Cigars
Cigar products can be divided into three principal categories: mass market
large cigars, premium cigars and little cigars. All cigars, except little cigars
which do not have a binder, generally consist of filler tobacco that is wrapped
first with a binder and then with a wrapper.
Mass Market Large Cigars. Mass market large cigars are generally
machine-made and have a retail price of one dollar or less per cigar. Mass
market large cigars are made with filler threshed into short uniform pieces
and manufactured binder tobacco. The more expensive of these cigars are
then wrapped in natural leaf wrapper tobacco while the less expensive use
wrapper made from reconstituted tobacco. In 1997, the market for mass
market large cigars in the United States consisted of an estimated 3.2
billion units, or 62% of the total cigar market. In 1997, the Company had
the leading unit market share of the domestic mass market for large cigars
at an estimated 26%. The Company's mass market large cigar brands include
Swisher Sweets, King Edward, Optimo, Sante Fe, Keep Moving, El Trelles,
Blackstone and Corral Wodiska's Cazadores.
Premium Cigars. Premium cigars are generally hand-made and have a
retail price above one dollar per cigar. Premium cigars, generally, are
made with natural leaf tobacco wrapper, binder and long filler. Higher
grades of tobacco are generally used in premium cigars with tobacco blends
varying from brand to brand depending on the desired characteristics.
Premium cigars are made by wrapping natural leaf binder tobacco around the
long filler tobacco to create a bunch which is placed into a mold to create
the shape of the cigar. Natural leaf wrapper tobacco is then hand-rolled
around the bunch creating a hand-made premium cigar. In 1997, the market
for premium cigars in the United States represented an estimated 375
million units, or 7% of the total cigar market. The Company's unit share of
the premium cigar market in 1997 was an estimated 6%. The Company's premium
brands include Bering, Siglo 21, Santiago Silk, Sabroso, Don Julio, Flor de
Jalapa, La Diligencia and La Primadora. The Company's premium brands are
manufactured in the Dominican Republic, Honduras and Nicaragua. The Company
also has exclusive rights to the United States distribution of several
premium brands including Pleiades, Casa Buena and Carlin premium brands
which are manufactured in the Dominican Republic, Canary Islands and
Nicaragua, respectively.
Little Cigars. Little cigars are mass market cigars that weigh less
than three pounds per thousand. Most little cigars consist of cut filler
tobacco, a wrapper made from reconstituted tobacco and a filter. Little
cigars are machine-made and do not use a binder. Generally, little cigars
are the lowest priced products of the mass market category of cigars. In
1997, the market for little cigars in the United States represented an
estimated 1.6 billion units, or 31% of the total cigar market. In 1997, the
Company had the leading unit market share of mass market little cigars at
an estimated 46%. The Company's little cigar brands include, Swisher
Sweets, the industry's largest selling little cigar, King Edward, and the
new Blackstone little cigar brand.
The overall cigar market has experienced rapid growth in unit volume and
dollar sales since 1993, reversing the steady decline in the market from 1973 to
1993. Led by growth in mass market large and premium cigars, the overall United
States cigar market has increased at an estimated compound annual rate of 10.7%
in unit terms, and has increased at nearly three times that rate in retail
dollar sales, from 1993 to 1997. Unit sales of mass
<PAGE>
market large and premium cigars have increased at estimated compound annual
rates of 11.8% and 35.9%, respectively, from 1993 to 1997, while retail dollar
sales of both categories have increased more rapidly due to price increases.
Little cigar unit volume grew from 1985 to 1993 at a compound annual rate of
0.6%. From 1993 to 1997, little cigar unit volume increased at an estimated
compound annual rate of 5.7%.
Smokeless Tobacco Products
Smokeless tobacco products are made from tobacco that has been cured, aged,
fermented and then dried and flavored. The smokeless tobacco market can be
divided into two distinct categories: snuff and chewing tobacco. There are two
types of snuff, moist snuff and dry snuff. Chewing tobacco is available in three
varieties: loose leaf, plug and twist. Loose leaf is the predominant product in
the chewing tobacco category, with plug and twist representing less than 10% of
the chewing tobacco volume in 1997.
Moist Snuff. Moist snuff is made from Kentucky or Tennessee dark-fired
tobacco that has been aged for at least three years and then cut, flavored
and fermented for approximately eight weeks. Following fermentation, a
second flavoring process is completed before the product is packaged in
plastic or paper cans. Moist snuff, with estimated industry retail sales in
1977 of $2.0 billion (57.7 million pounds), is the largest category of
smokeless tobacco in terms of retail sales. The Company's moist snuff
brands include Silver Creek, Redwood, Cooper and Gold River. In addition,
the Company manufactures and markets private label products, such as Bowie
and Starr. The Company's branded moist snuff comes in various flavors, such
as natural, wintergreen, cherry and spearmint, and in both fine and long
cut varieties.
Loose Leaf Chewing Tobacco. Loose leaf chewing tobacco is made from
air cured tobacco grown primarily in Wisconsin and Pennsylvania that has
been aged for at least two years and then threshed to remove stems and
blended. The blended tobacco is flavored and packaged in foil pouches.
Retail sales of all chewing tobacco in 1997, of which over 90% is loose
leaf, were an estimated $477 million (50.3 million pounds). The Company's
products include, Mail Pouch (a brand in existence for over 100 years),
Lancaster Limited-Reserve Chewing-Tobacco, Chattanooga Chew and Earl
Caulfield's. The Company also produces private label loose leaf tobacco
products for certain marketing groups and wholesalers.
Dry Snuff. Dry snuff is made from Kentucky, Tennessee and Virginia
dark-fired tobacco that has been aged for at least three years and then
fermented for approximately thirty days. After fermentation is completed,
the tobacco is dried and cut into a fine tobacco flour that is flavored
prior to packaging. Aggregate retail sales of all dry snuff in 1997 were an
estimated $76 million (4.4 million pounds). The Company sells dry snuff
under numerous brands including Tops, Navy, Railroad Mills, Superior,
Buttercup, Square, Society and Honey Bee.
Although total unit consumption of smokeless tobacco products has remained
relatively stable since the late 1980s, retail dollar sales have increased at an
estimated compound annual rate of 7.9% from $1.0 billion in 1985 to an estimated
$2.6 billion in 1997, primarily due to the growth of the moist snuff category.
Consumption of moist snuff, which represents over one-half of the pounds sold in
the smokeless tobacco market and an estimated 78% of the retail sales, has
increased in terms of retail dollar sales at an estimated compound annual rate
of 10.9% from 1985 to 1997. Loose leaf chewing tobacco sales, in terms of
pounds, declined from 1985 to 1997 at an estimated compound annual rate of 2.9%.
However, industry retail dollar sales of all chewing tobacco (of which over 90%
is loose leaf) increased from $381.8 million to an estimated $477.0 million over
the same period as a result of the industry's ability to increase product
prices. Although the mature dry snuff market has been declining in terms of
pounds sold from 1985 to 1997 at an estimated 6.2% compound annual rate, dry
snuff has continued to provide a significant source of cash flow as a result of
the industry's ability to offset such declines with price increases.
SALES AND MARKETING
The Company uses targeted, regionally focused market segmentation
strategies in combination with significant market research, computerized
information systems and a large sales force to achieve its sales and marketing
objectives. The Company sells its cigar and smokeless tobacco products through a
national sales force covering all 50 states in the United States and is believed
by the Company to be the largest in the cigar industry. The Company employs
approximately 250 full time sales and marketing professionals. The Company's
sales
2
<PAGE>
force is divided into a mass market cigar and smokeless tobacco sales force and
a separate premium cigar sales force. The mass market sales force is organized
by territory and calls on direct buying accounts, such as tobacco distributors,
wholesale grocers and retail chains, as well as retailers who purchase from such
direct buying accounts. Direct retail account contact enables the Company to
introduce new products, and improve shelf coverage and placement of
point-of-sale materials for the Company's products. In addition, the Company
believes its effectiveness in developing relationships with retailers is a
competitive strength that is important to its continued growth. The Company's
mass market cigar and smokeless tobacco sales force also has a group which calls
on national and key accounts. To penetrate the premium cigar category
effectively, the Company has a separate premium cigar sales force to focus
primarily on outlets which sell premium cigars such as smoke shops, restaurants,
cigar bars, golf club pro shops and tobacco retailers.
Most of the Company's sales are to tobacco distributors, including McLane
Company Inc. which accounted for approximately 12%, 14% and 12% of the Company's
net sales in 1997, 1996, and 1995, respectively, and grocery wholesalers, with
the remainder principally made up of food and drug chains, such as Food Lion,
Winn Dixie, Rite Aid, CVS and Walgreens. The Company's products are ultimately
sold through grocery and drug stores, mass merchandisers, convenience stores,
smokeshops, bars and restaurants and other stores.
The Company's systems and research have enabled it to develop and implement
a highly targeted and regionalized marketing strategy. The Company's sales
managers use laptop computers to provide on-line access to customer account and
product information while in the field. Through its national account
organization, the Company has become the category manager for the 'other tobacco
products' category with several of its national and regional retail chain
accounts, allowing the Company to better market its products.
The Company is the leading exporter of American made cigars. The Company
has also licensed brands, such as King Edward, to manufacturers in The
Netherlands, England, Germany and the Canary Islands (for distribution to Spain)
for which it receives royalties. Export sales are generated through an
international network of distributors and through Swisher International,
Limited, a wholly owned duty-free sales company in the United Kingdom. The
Company estimates that its products are available in over 70 countries
worldwide. During 1997, approximately 3.5% of the Company's revenues were
derived from export sales and royalties.
The Company's advertising strategy focuses largely on selected print
advertising and point-of-sale promotions. The Company's promotional programs are
primarily geared to provide price incentives such as discounts, coupons and
rebate offers to its customers and to offer display fixtures to the retail
stores it services.
TRADEMARKS AND TRADE SECRETS
Trademarks and brand name recognition are important to the Company's
business. The Company owns most of the trademarks under which its products are
sold. The Company has registered its trademarks (or has made application for
registration) in the United States and many other countries and will continue to
do so as new trademarks are developed or acquired. The Company owns or has
applications pending for numerous trademarks, including the following: Mass
Market Cigar Trademarks: Swisher Sweets, King Edward, Optimo, Santa Fe, El
Trelles, Keep Moving, Corral Wodiska's Cazadores, Outlaws and Blackstone;
Premium Cigar Trademarks: Bering, Siglo 21, La Primadora, Sabroso, Flor de
Jalapa, Santiago Silk, MacBeth and La Diligencia; Moist Snuff Trademarks: Silver
Creek, Gold River, Redwood, Cooper and Bowie; Loose Leaf Chewing Tobacco
Trademarks: Mail Pouch, Chattanooga Chew, Lancaster Limited-Reserve
Chewing-Tobacco and Earl Caulfield's; Dry Snuff Trademarks: Navy, Tops, Railroad
Mills, Superior, Buttercup, Square, Society and Honey Bee.
The Company also relies upon unregistered trade secrets for the protection
of certain intellectual property rights. There can be no assurance that the
Company will be able to prevent unauthorized use or disclosure of such
information. In addition, no assurance can be given that others will not
independently develop substantially equivalent proprietary information, or
otherwise gain access to the Company's trade secrets, or that the Company can
meaningfully protect its rights to unregistered trade secrets.
3
<PAGE>
MANUFACTURING
The Company's manufacturing strategy is to strive to be the low cost
producer in the industry through continued operational improvements, to produce
high quality products and to maintain flexible manufacturing capabilities which
enable the Company to respond to changing market demands, develop new products
and extend the product line of existing brands.
The Company manufactures mass market large and little cigars at its
Jacksonville, Florida facility and smokeless tobacco products at its Wheeling,
West Virginia facility. The Company also packages its cigar products and
manufactures most of its cigar boxes and its reconstituted tobacco wrapper and
substantially all of its reconstituted binder tobacco in the Jacksonville
facility.
The Company believes that its Jacksonville facility, which manufactures
over five million cigars daily, is the most automated cigar manufacturing
facility in the United States. As a result of the Company's emphasis on
increased automation, fewer machines are required to perform the same
manufacturing processes than were required in prior years and, at the same time,
throughput has increased. Additionally, because the Company manufactures large
quantities of certain cigar sizes, it is able to use high volume, efficient
equipment to manufacture these cigars in large production runs, thereby
achieving economies of scale.
The Company seeks to continue to reduce production costs and secure
additional production capacity by increasing its in-house production
capabilities. Historically, the Company purchased its little cigars from outside
manufacturers; now it manufactures those products itself at the Jacksonville
facility and has even brought on additional equipment to increase in-house
production. The Company believes that these changes, which were completed in
1997, will reduce its cost of producing little cigars. The Company also
continues to pursue manufacturing efficiencies with an active 'total resource
management' program including a program in which cross-departmental teams of
employees are organized to trouble shoot manufacturing problems and with a 'Big
Idea' program that awards incentive bonuses to employees for introducing and
implementing cost-saving ideas.
During 1997, the Company acquired interests in two joint ventures in the
Dominican Republic, each of which will supply the Company with a portion of its
premium cigars. The Company also constructed a new facility in Honduras which
will produce its Bering and La Primadora cigars and other Company brands.
Certain of the Company's premium cigar brands are manufactured under contract
with third party manufacturers according to the Company's specifications and
under the Company's supervision. One of these manufactures the Company's cigars
in the new Honduras facility; the other manufactures cigars in Nicaragua. The
Company has strong, long-standing relationships with both manufacturers. In
keeping with past practice, the Company and each of such manufacturers enter
into an understanding based on a written budget and price list prior to the
beginning of each year with respect to the quantity, price and delivery terms.
Although such understandings are not in writing except for the budgets and price
lists, such manufacturers have historically performed in substantial accordance
with their terms.
At December 31, 1997, the Company had backorders for cigars of less than
$3,000,000, all of which it expects to fill in 1998. At December 31, 1996, the
Company's cigar backorders amounted to approximately $10,000,000. At December
31, 1997 and 1996, backorders for the Company's smokeless tobacco products were
not material. The Company believes that its manufacturing capacity is adequate
for its current production needs for mass market large and little cigars and for
smokeless tobacco products. The Company believes that its new facility in
Honduras, its two joint ventures in the Dominican Republic, and its long
standing relationships with third party manufacturers is adequate for its
current production needs of premium cigars.
Tobacco is the Company's primary raw material. The Company buys tobacco for
its mass market cigars from leaf dealers that obtain the tobacco from a large
number of suppliers located in the United States, Latin America, Europe and
parts of Asia. The Company buys the tobacco for its smokeless tobacco products
from leaf dealers and farmers in the United States. The Company does not believe
that it is dependent on any single source for tobacco for any of such products.
The Company's third party manufacturers and its joint venture manufacturers
provide most of the tobacco necessary to produce the Company's premium cigars
which they make. Generally, these third party and joint venture manufacturers
grow a large portion of their tobacco requirements and acquire (either directly
or through the Company) the balance from leaf dealers and other growers
throughout the world.
4
<PAGE>
Although to date, incidences of political instability in the Caribbean
basin have not had a material adverse effect on the Company's business, there
can be no assurance that future instability in the region, if any, will not have
a material adverse effect on the Company's business.
COMPETITION
Founded in 1861, the Company is the world's largest manufacturer and
marketer of cigars, as measured by units sold. The other three significant
competitors in the cigar market are Consolidated Cigar, Inc., General Cigar
Company Inc. and Havatampa, Inc. In addition, Tobacco Exporters International
(USA) Ltd. (a subsidiary of Rothmans International) is a significant competitor
in the little cigar market. The Company's major competitors in the smokeless
tobacco products market are United States Tobacco Company, Swedish Match North
America Inc., Conwood Company, L.P., Brown & Williamson Tobacco Corporation, and
National Tobacco Company. Certain competitors of the Company are better
capitalized than the Company and may have greater financial and other resources
than those available to the Company. The Company attributes its strong position
in the cigar category to its well-known brand names, broad range of product
offerings, commitment to and reputation for manufacturing quality cigars,
marketing expertise and customer service and efficient manufacturing operations.
The Company attributes its improving position in smokeless tobacco to its strong
sales and marketing organization, its well known brand names, a broad range of
product offerings and efficient manufacturing operations.
EMPLOYEES
As of December 31, 1997, the Company had approximately 1,340 full-time
employees. The Company believes its relations with its union and non-union
employees are and will continue to be good. The Retail, Wholesale & Department
Store Union and the International Association of Machinists and Aerospace
Workers Union represent the hourly employees at the Jacksonville facility. Both
labor agreements at this location were renewed for three years during 1997.
There has not been a work stoppage in Jacksonville in over 20 years. The Bakery,
Confectionery and Tobacco Workers' International Union and the International
Association of Machinists and Aerospace Workers Union represent the hourly
employees at the Wheeling facility. Both labor agreements at this location were
renewed for three years during 1996. To the Company's knowledge, there has never
been a work stoppage at this facility.
REGULATION
The tobacco industry has been under public scrutiny for over thirty years.
Industry critics include special interest groups, the Surgeon General and many
legislators at the state and federal levels. Much of the focus has been directed
at the cigarette industry because it is substantially larger than the cigar and
smokeless tobacco businesses. Nevertheless, cigar and smokeless tobacco
companies have also been affected by this scrutiny.
Cigar and smokeless tobacco manufacturers, like other producers of tobacco
products, are subject to regulation in the United States at federal, state and
local levels. Together with changing public attitudes towards smoking, a
constant expansion of tobacco regulations since the early 1970s has been a major
cause of the overall decline in consumption of tobacco products. Moreover,
regulations directed at the tobacco industry continue to increase.
In order to receive full funding for federal substance abuse block grants,
federal law now requires states to establish and enforce 18 as the minimum age
of purchase for tobacco products. In recent years, draft legislation relating to
tobacco issues has been introduced in the Congress of the United States,
including bills seeking to (i) prohibit the advertising and promotion of tobacco
products; (ii) enhance labeling requirements; (iii) modify federal preemption of
state laws to allow state courts to hold tobacco manufacturers liable under
common law or state statutes; (iv) shift regulatory control of tobacco products
and advertisements from the Federal Trade Commission ('FTC') to the United
States Food and Drug Administration ('FDA'); and (v) require tobacco companies
to pay for health care costs incurred by the federal government in connection
with tobacco related illnesses.
To date, none of these bills has become law. However, in the wake of the
Proposed Settlement (see 'ITEM 3. LEGAL PROCEEDINGS') announced in 1997 by the
five largest tobacco companies, there have
5
<PAGE>
been several new bills introduced in Congress that go even further. Under one or
more of these bills, (a) the FDA would be given full authority over
manufacturers of cigarettes and smokeless tobacco products (and in some cases
over manufacturers of cigars), requiring those companies to follow burdensome
and restrictive new manufacturing practices, to accept more complex and more
prominent labeling and reporting requirements, and to develop heretofore
unavailable testing procedures; and (b) the way in which tobacco products are
marketed would be dramatically altered not only by drastic new limitations on
advertising and promotion but also by a denial of access to tobacco products for
inspection by adult shoppers and by new structural requirements for the stores
of small retailers that will effectively discourage them from carrying a full
line of tobacco products. Following the lead of the Proposed Settlement, some of
these proposed laws seek to increase the price of all tobacco products by
imposing a combination of penalties, taxes and fees upon manufacturers and
forcing them to pass the burden of them along to consumers. Although none of
this legislation has been adopted, the combination of higher sales prices,
severely limited marketing ability and restricted access, if enacted into
legislation, could have a materially adverse effect on the Company's business,
particularly in combination with the impact of potentially burdensome new
regulation by the FDA.
In 1996, before announcement of the Proposed Settlement, the FDA for the
first time asserted jurisdiction over nicotine in tobacco as a 'drug' and issued
regulations purporting to regulate cigarettes and smokeless tobacco products as
'medical devices.' These regulations prohibited the sale of smokeless tobacco
products to minors and severely restricted advertising, marketing and promotion
of smokeless tobacco products. The regulations also required the Company and
other manufacturers to comply with a wide range of labeling, reporting and other
requirements. The regulations went so far as to prohibit self-service displays
except in facilities where it was assured that no one under 18 years of age
would be permitted to enter, and to limit advertising, for the most part, to a
black-and-white, text-only format. In April 1997, ruling in a case filed by the
Company and other smokeless tobacco manufacturers to challenge the FDA's
authority, a federal court held that the FDA as a matter of law was not
precluded from regulating smokeless tobacco products as 'medical devices' or
from implementing certain labeling and access restrictions. At the same time,
however, the court took the position that the FDA had no authority to restrict
advertising or promotion of smokeless tobacco products and stayed the
effectiveness of any of the restrictions related to labeling, access,
advertising and promotion due to take effect in 1997 and 1998 pending further
order of the court. The court's decision is now on appeal before the U.S. Court
of Appeals for the Fourth Circuit. The Company is unable to predict the outcome
of the appeal or its impact on those portions of the regulation that have not
been given effect. Any further provisions of these regulations that become
effective could have a material adverse effect on the Company's business.
Although federal law has required health warnings on cigarettes since 1965
and on smokeless tobacco products since 1986, there is no federal law requiring
that cigars carry such warnings. However, in 1988, the Company and other cigar
manufacturers entered into a settlement of legal proceedings filed against them
pursuant to California Proposition 65 (which requires 'clear and reasonable'
warnings to consumers who are exposed to chemicals determined by the state to
cause cancer or reproductive toxicity, including tobacco smoke and several of
its constituent chemicals) under which they agreed to label retail packages of
cigars manufactured or imported for sale in California with a specified warning
label. Because of distribution requirements, this resulted in placing the
California health warning on the vast majority of all cigars distributed in the
United States except for a few premium cigar brands. Similar legislation has
been introduced but to date, not adopted, in other states. There can be no
assurance that similar legislation will not be enacted in other states in the
future.
Massachusetts recently enacted legislation requiring manufacturers of
cigarettes, chewing tobacco and snuff to disclose the identity and relative
weight of ingredients added to tobacco during the manufacturing process, by
brand, and to report the nicotine yield ratings of each brand they produce.
Although the United States Court of Appeals has enjoined the effectiveness of
the ingredient disclosure requirement (see 'ITEM 3. LEGAL PROCEEDINGS'), the
Company is complying with the nicotine reporting requirement.
On February 9, 1998, the Company, along with the four other largest cigar
manufacturers, was notified by the FTC of the adoption by the FTC of an Order to
File a Special Report on the Company's advertising and marketing expenditures
with regard to its cigar products for 1997 and 1996. This information is similar
to information which the Company has been required to file with the FTC for many
years with respect to its smokeless tobacco products.
6
<PAGE>
In addition, most states restrict or prohibit smoking of cigarettes and
cigars in certain public places and the sale of tobacco products to minors. A
number of local legislative and regulatory bodies have also moved to curtail
smoking further by prohibiting smoking of cigars in certain buildings or areas
or by requiring designated 'smoking' areas. In a few states, legislation has
been introduced, but has not yet passed, which would require all little cigars
sold in those states to be 'fire safe' (i.e., little cigars which extinguish
themselves if not continuously smoked). Passage of such legislation would have a
material adverse effect on the Company's little cigar sales because of the
technological difficulties in complying with such legislation.
In manufacturing tobacco products, the Company uses, handles and disposes
of hazardous chemicals, including petroleum products and denatured alcohol, at a
number of its facilities, and as a result is subject to environmental
regulations relating to such use, handling and disposal. Management believes the
Company is currently in substantial compliance with all material environmental
regulations; however, the Company has been subject and may continue to be
subject to liability for the cleanup of contamination and other environmental
remedial actions. The Company does not expect that such liability, or any effort
to comply with present and future environmental regulation, will have a material
adverse effect on the Company's business.
EXCISE TAXES
Cigars and smokeless tobacco products have long been subject to federal,
state and local excise taxes, and such taxes have frequently been increased or
proposed to be increased, in some cases significantly, to fund various
legislative initiatives.
From 1977 until 1990, cigars were subject to a federal excise tax of 8.5%
of wholesale list price, capped at $20.00 per thousand cigars. In 1991, the
federal excise tax rate on large cigars increased to 10.625%, capped at $25.00
per thousand, and, in 1993, increased again to 12.75%, capped at $30.00 per
thousand. The base on which the federal excise tax is calculated was lowered in
1991 to the manufacturer's selling price, net of the federal excise tax and
certain other exclusions. The federal excise tax on little cigars increased from
$0.75 per thousand cigars to $0.9375 per thousand in 1991 and then to $1.125 per
thousand in 1993. Neither the 1991 nor the 1993 increase had a material adverse
effect on the Company's sales.
Since 1986, smokeless tobacco products have been subject to Federal excise
tax as well. Unlike the excise tax on large cigars, which are ad valorem, the
federal tax on smokeless tobacco is calculated on the basis of weight. From 1986
through 1990, the federal excise tax on snuff was $0.24 per pound; in 1991 it
increased to $0.30 per pound, and again to $0.36 per pound in 1993. From 1986
through 1990, the excise tax on chewing tobacco was $0.08 per pound; in 1991 it
increased to $0.10 per pound, and in 1993, to $0.12 per pound. Neither the
imposition of the federal excise tax in 1986, nor the increases in 1991 and
1993, have had a material adverse effect on the Company's product sales.
In the past, there have been various proposals by the federal government to
fund legislative initiatives through increases in federal excise taxes on
tobacco products. The Clinton Administration's 1998/1999 budget assumes
significant new revenues from the tobacco industry as sources of funding for new
and expanded federal programs. The Company is unable to predict the likelihood
of the passage of legislation providing such additional revenues. In addition,
the Balanced Budget Act adopted by Congress in 1997 provides for further
increases in federal excise taxes on all tobacco products in two stages,
beginning in 2000. Management does not believe that these increases will have a
material adverse effect on the Company's operations; however, enactment of new
or significant further increases in federal excise taxes, or legislation
requiring the Company to pay additional fees or penalties with respect to its
products could have a material adverse effect on the Company's business.
Tobacco products are also subject to certain state and local taxes. Deficit
concerns at the state level continue to exert pressure to increase tobacco
excise taxes. State excise taxes on cigars and smokeless tobacco products
generally range from 2% to 75% of the wholesale purchase price. Forty-two states
impose excise taxes on cigars and smokeless tobacco products. Several states
impose excise taxes on little cigars at the same rates as cigarettes.
State cigar and smokeless tobacco excise taxes are not subject to caps
similar to the federal cigar excise tax. From time to time, the imposition of
state and local taxes has had some impact on the Company's sales regionally. The
enactment of new state excise taxes and the increase in existing state excise
taxes could have an adverse effect on regional sales of cigars and smokeless
tobacco products.
7
<PAGE>
OTHER
Certain statements contained in this Form 10-K which are not historical
facts contain forward-looking statements based on current expectations,
estimates and projections about the industry in which the Company operates,
management's beliefs and assumptions made by management. Words such as
'expects,' 'believes,' 'estimates,' variations of such words and similar
expressions are intended to identify such forward-looking statements. These
statements are not guarantees of future performance and involve certain risks,
uncertainties and assumptions which are difficult to predict. Therefore, actual
outcomes and results may differ materially from what is expressed or forecast in
such forward-looking statements. The Company undertakes no obligation to update
publicly any forward-looking statements, whether as a result of new information,
future events or otherwise.
ITEM 2. PROPERTIES
As of December 31, 1997, in addition to a suite used as its principal
executive offices (approximately 7,500 square feet) which it leases in Darien,
Connecticut, the Company owned or leased the following properties for use in its
business:
<TABLE>
<CAPTION>
OWNED APPROXIMATE
LOCATION PRINCIPAL USE OR LEASED FLOOR SPACE
- ------------------------------------------ ---------------------------------- --------- -----------
<S> <C> <C> <C>
Jacksonville, Florida..................... Cigar Manufacturing Owned 456,400
Wheeling, West Virginia................... Smokeless Tobacco Manufacturing Owned(1) 415,800
Edgerton, Wisconsin....................... Warehouse-Smokeless Tobacco Aging Owned 166,100
Hopkinsville, Kentucky.................... Warehouse-Smokeless Tobacco Aging Leased 100,800
El Paraiso, Honduras...................... Cigar Manufacturing Owned 87,000
Brookneal, Virginia....................... Warehouse-Smokeless Tobacco Aging Owned 54,000
Helmetta, New Jersey...................... For Sale Owned 385,000
Hopkinsville, Kentucky.................... For Sale Owned 47,500
Lancaster, Pennsylvania................... For Sale Owned 44,200
</TABLE>
- ------------------
(1) The Company beneficially owns the property subject to a lease purchase
agreement with Ohio County, West Virginia, which permits the Company to
receive certain property and sales tax benefits.
The Company believes that its properties are well maintained and in
substantial compliance with environmental laws and regulations.
ITEM 3. LEGAL PROCEEDINGS
The major tobacco companies are defendants in a variety of lawsuits
including individual tobacco and health actions, class actions and actions
brought by various states to recover Medicare/Medicaid costs attributed to
illnesses allegedly related to tobacco. These actions allege that a broad range
of injuries resulted from the use of tobacco products or from exposure to
tobacco smoke and seek remedies including compensatory and sometimes punitive
damages together with certain types of equitable relief such as restitution and
establishment of medical monitoring funds.
In 1997, The Liggett Group ('Liggett'), the fifth largest United States
cigarette manufacturer, entered into a settlement agreement with the Attorneys
General of 22 states pursuant to which Liggett agreed, inter alia, (a) to make
certain statements regarding the effects of cigarette smoking, (b) to put an
'addiction warning label' on its cigarette packages, (c) to comply with recently
adopted FDA rules, (d) to turn over certain privileged documents to the
Attorneys General, and (e) to contribute 25% of its pre-tax profits to health
funds for a term of 25 years. In June 1997, the other large cigarette
manufacturers and United States Tobacco Company, a manufacturer of smokeless
tobacco products, announced an agreement with trial lawyers and the Attorneys
General of states suing for Medicare/Medicaid reimbursement (the 'Proposed
Settlement') to settle all outside class actions and suits brought by such
Attorneys General. Subsequently, the major tobacco companies entered into widely
reported settlements of Medicare/Medicaid cases in Mississippi, Florida and
Texas.
In addition to the settlement of outstanding lawsuits, the Proposed
Settlement called for adoption of federal legislation which would, among other
things, (i) require the payment of substantial penalties by tobacco
8
<PAGE>
companies, (ii) subject tobacco companies to regulation by the FDA, and (iii)
impose strict new marketing regimes on tobacco products. The Proposed Settlement
also required the affected tobacco companies to enter into a consent decree
relating to future litigation and marketing practices.
To date, several pieces of legislation have been introduced in the Congress
in the wake of the Proposed Settlement. Many of these appear to cover all
tobacco products, although press reports indicate that their particular focus is
on cigarettes and smokeless tobacco. Nevertheless, none of the new legislation
has been adopted and no consent decree has been entered into pursuant to the
Proposed Settlement.
The Company was not a participant in the negotiations leading to the
Proposed Settlement and is not a party to any of the class actions or
Medicare/Medicaid suits which it was designed to settle. Accordingly, the
Company believes that it should not be required to make any payments under
legislation resulting from the Proposed Settlement and intends to defend itself
vigorously against being subjected to those obligations. The Company also
believes that much of the regulation and marketing restrictions included in the
Proposed Settlement would impose an unreasonable burden on the sale of its
products. It therefore intends to make every reasonable effort to prevent the
adoption of legislation that would impose a disproportionate burden on its cigar
and smokeless tobacco products. There can be no assurance that the terms of the
Proposed Settlement or the legislation which it has spawned will become
effective or whether any of them will survive in their present form. Therefore,
the Company cannot anticipate the impact of the Proposed Settlement or of any
such legislation on its business.
The Company is a defendant in two health related lawsuits. It is named
along with other tobacco manufacturers, wholesaler/retailers and other
defendants, in Sontag v. United States Tobacco, et. al., 14th Judicial District
Court, Parish of Calcasieu, Louisiana, State Docket No. 95-6434. Plaintiff, an
individual, alleges fraud and misrepresentation in the marketing and sale of
tobacco products, breach of warranty, negligence and other claims and seeks
unspecified damages, attorneys fees and costs. In addition, on December 22,
1997, the Company was served with a complaint in Thompson v. Brown & Williamson
Tobacco Corporation, et. al. which was filed in the 105th Judicial District
Court, Nueces County, Texas, Cause No. 97-2981-D, naming the Company along with
other tobacco manufacturers, certain asbestos companies, wholesaler/retailers
and others as defendants. As in Sontag, the plaintiff in Thompson alleges fraud
and misrepresentation in the marketing and sale of tobacco products, breach of
warranty, negligence and other claims and seeks unspecified damages, attorneys'
fees and costs. The Company believes that it has meritorious defenses and is
vigorously defending these lawsuits.
Although claims have been made against manufacturers of smokeless tobacco
products and cigars, the Company is not aware of any adverse decision or
judgment having been rendered against any smokeless tobacco or cigar
manufacturer. There can be no assurance, however, that the Company will not be
named as a defendant in future suits. There can also be no assurance that any
litigation to which the Company is now or may become subject will not result in
an adverse judgment against the Company which could have a material adverse
effect on the Company's business, future results of operations and cash flows.
The Company does not carry insurance to protect against health related product
liability because the cost of obtaining such insurance is commercially
prohibitive. Additionally, a judgment against the Company with respect to one of
its products and any related products, could prohibit or restrict the further
sale of such products, which could materially adversely affect the Company's
business.
In 1996, the Company along with other smokeless tobacco manufacturers
commenced an action, United States Tobacco, et. al. v. Harshbarger, et. al., in
the United States District Court for the District of Massachusetts alleging that
Massachusetts was preempted by the federal Comprehensive Smokeless Tobacco
Health Education Act of 1986 ('CSTHEA') from enforcing a Massachusetts statute
requiring manufacturers to disclose the identity and relative quantities of
ingredients added to tobacco in the manufacturing process on a brand specific
basis. Early in 1997, the Court denied the plaintiffs' motion for summary
judgment and that denial was upheld by the United States Court of Appeals for
the First Circuit. In September 1997, plaintiffs moved for a preliminary
injunction in the District Court on the grounds that enforcement of the statute
would constitute an unconstitutional taking of plaintiffs' proprietary
information. The Court granted the injunction on December 10, 1997. Cross
motions for summary judgment on the constitutional issue were subsequently filed
and are scheduled for argument in April 1998.
The Company is also a plaintiff along with other manufacturers of tobacco
products, certain organizations representing the advertising industry and
representatives of the retailing community in United States Tobacco, et.
9
<PAGE>
al. v. United States Food and Drug Administration, et. al., an action filed in
the United States District Court for the Middle District of North Carolina in
1995. Plaintiffs are challenging the FDA's authority to enforce regulations
promulgated in 1996 with respect to the marketing of and public access to
certain tobacco products. Late in 1996, plaintiffs moved for summary judgment in
the suit arguing that the FDA's enforcement of certain of the regulations
pertaining to advertising and promotion of plaintiffs' products was preempted by
CSTHEA and, further, that FDA lacked jurisdiction to regulate plaintiffs. In
April 1997, the Court granted the plaintiffs' motion with respect to the
advertising and promotion issue but denied the motion with respect to the FDA's
jurisdiction. The Company and the other plaintiffs filed an interlocutory appeal
from the decision in the United States Court of Appeals for the Fourth Circuit.
The appeal is still pending.
The Company believes that the cost, if any, of resolving the specific cases
discussed above which are presently pending should not have a material impact on
the Company's financial condition; however, the cost of resolving such
litigation, if any, could have a significant effect on the Company's future
results of operations and cash flows. There can be no assurance that there will
not be an increase in health-related litigation in the future. With respect to
litigation other than such cases the cost to the Company of defending or
prosecuting any prolonged litigation or the cost of a judgment against the
Company could have a material adverse effect on the Company's business.
The Company is party to various other proceedings in respect to
environmental and commercial matters. The Company believes that the outcome of
such pending proceedings will not in the aggregate, have a material adverse
effect on the Company's financial condition. The Company carries general
liability insurance but has no health hazard policy, which, to the best of the
Company's knowledge, is consistent with industry practice. There can be no
assurance, however, that the Company will not experience material health-related
litigation in the future.
ITEM 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS
Not applicable.
10
<PAGE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
This information is incorporated by reference to the Company's 1997 Annual
Report.
ITEM 6. SELECTED FINANCIAL DATA
This information is incorporated by reference to the Company's 1997 Annual
Report.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
This information is incorporated by reference to the Company's 1997 Annual
Report.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
This information is incorporated by reference to the Company's 1997 Annual
Report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
In September 1996, Coopers & Lybrand L.L.P. replaced Grant Thornton LLP as
the Company's independent accountants. Coopers & Lybrand L.L.P. had previously
been the independent accountants for AMPCo and were engaged in July 1995 by
AMPCo and Hay Island to audit stand alone consolidated financial statements of
the Company for the years ended December 31, 1992, 1993 and 1994 and a
consolidated special purpose balance sheet as of November 6, 1995. The decision
to engage Coopers & Lybrand L.L.P. was made with the approval of the Company's
Audit Committee.
Grant Thornton LLP was engaged to audit the Company's consolidated
financial statements as of December 31, 1995, and for the period from November
7, 1995 to December 31, 1995. In connection with the Offering, Coopers & Lybrand
L.L.P. was subsequently appointed to replace Grant Thornton LLP as the Company's
independent accountants as of December 31, 1995, and for the periods January 1,
1995 to November 6, 1995 and November 7, 1995 to December 31, 1995.
The Company believes, and it has been advised by Grant Thornton LLP that it
concurs in such belief, that, during the period November 7, 1995 to December 31,
1995, the Company and Grant Thornton LLP did not have any disagreement on any
matter of accounting principles or practices, financial statement disclosure or
auditing scope or procedure, which disagreement, if not resolved to the
satisfaction of Grant Thornton LLP, would have caused it to make reference in
connection with its report on the Company's financial statements to the subject
matter of the disagreement.
The report of Grant Thornton LLP on the Company's previously issued
consolidated financial statements (not appearing herein) as of December 31,
1995, and for the period from November 7, 1995 to December 31, 1995, did not
contain an adverse opinion or a disclaimer of opinion, nor was it qualified or
modified as to uncertainty, audit scope or accounting principles. During that
period, there were no 'reportable events' within the meaning of Item
304(a)(1)(v) of Regulation S-K promulgated under the Securities Act of 1933 as
amended.
11
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
The following table sets forth certain information concerning the directors
and executive officers of the Company.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ------------------------------------------------ --- ------------------------------------------------
<S> <C> <C>
William Ziegler, III*........................... 69 Chairman of the Board, Chief Executive Officer
and Director
William T. Ziegler*............................. 42 Chairman of the Executive Committee, Chief
Operating Officer and Director
Timothy Mann.................................... 55 President and Director
Robert A. Britton............................... 51 Executive Vice President, Chief Financial
Officer and Director
Nicholas J. Cevera, Jr.......................... 60 Executive Vice President--Operations and
Director
J. Thomas Ryan, III............................. 50 Executive Vice President--Sales & Marketing and
Director
Justo S. Amato.................................. 63 Senior Vice President--Finance
Paul M. Arvia................................... 60 Senior Vice President--Sales
Barry L. Drugg.................................. 51 Senior Vice President--Human Resources
John E. Fraleigh................................ 59 Senior Vice President--Tobacco Procurement
Peter J. Ghiloni................................ 46 Senior Vice President--Marketing
Karl H. Ziegler*................................ 28 Secretary
Cynthia Z. Brighton*............................ 38 Vice President--Financial Services, Treasurer
and Director
C. Keith Hartley................................ 55 Director
Alfred F. La Banca.............................. 66 Director
Donald E. McNicol............................... 76 Director
Charles H. Mullen............................... 70 Director
John R. Tweedy.................................. 68 Director
</TABLE>
- ------------------
* William Ziegler, III is the father of William T. Ziegler, Karl H. Ziegler and
Cynthia Z. Brighton.
William Ziegler, III has been a Director, Chief Executive Officer and
Chairman of the Board since November 1995. From 1958 to 1995, Mr. Ziegler served
as a Director of AMPCo, from 1964 to 1995 as Chairman of the Board of AMPCo and
as Chief Executive Officer from 1976 to 1993. Mr. Ziegler is President of the E.
Matilda Ziegler Foundation for the Blind (a private foundation) and also has
served as Trustee of Connecticut College and as a member of the Board of
Directors of the Maritime Aquarium at Norwalk, Connecticut. Mr. Ziegler is a
member of the Executive Committee.
William T. Ziegler has been a Director and Chief Operating Officer of the
Company since November 1995. From 1991 to 1994, Mr. Ziegler served as Director
of Corporate Development for Helme Tobacco Company, a former subsidiary which
was merged into the Company in 1994 ('Helme'). William T. Ziegler is Chairman of
the Executive Committee.
Timothy Mann has been a Director since November 1995 and President of the
Company since 1986. Mr. Mann is Vice President of the Cigar Association of
America, and serves on its board of directors. He is also a director of the
Tobacco Merchants' Association and a member of the National Association of
Wholesale Marketers by whom he was named a Dean of the Industry. Mr. Mann is a
member of the Executive Committee.
Robert A. Britton was named Executive Vice President, Chief Financial
Officer and Director in October 1996. He was Vice President and Chief Financial
Officer of the Company from November 1995 to October 1996. From 1990 to 1995,
Mr. Britton served as Vice President and Treasurer of AMPCo. Mr. Britton is a
member of the Pension Committee.
12
<PAGE>
Nicholas J. Cevera, Jr. has been the Executive Vice President-Operations of
the Company since July 1986 and a Director since November 1995. Mr. Cevera
joined the Company as Vice President of Manufacturing in April 1980. Mr. Cevera
is a director of the First Coast Manufacturers Association and the Cigar
Association of America.
J. Thomas Ryan, III has been a Director of the Company since November 1995
and Executive Vice President since April 1995. From 1985 to 1995, Mr. Ryan was
President of Helme and from 1983 to 1985 he was Senior Vice President of Helme.
Mr. Ryan serves on the boards of directors of the Cigar Association of America,
the Smokeless Tobacco Council, the Smokeless Tobacco Research Council, and the
Tobacco Institute.
Justo S. Amato was named Senior Vice President-Finance of the Company in
September, 1996 after being Vice President-Finance since 1978.
Paul M. Arvia has been Senior Vice President-Sales of the Company since
September 1996, after being Vice President-Sales since 1983.
Barry L. Drugg has been Senior Vice President-Human Resources of the
Company since September 1996. From April 1981 to September 1996, Mr. Drugg
served as Vice President-Personnel and Administration of the Company, after ten
years in the personnel department of an AMPCo affiliate. Mr. Drugg is a long
time member of the board of directors and the past President of the Northeast
Florida Safety Council.
John E. Fraleigh has been Senior Vice President-Tobacco Procurement for the
Company since October 1996. After joining the Company in 1964, he became Vice
President-Tobacco Procurement in 1976. Since 1982, Mr. Fraleigh has been
responsible for quality control and product development.
Peter J. Ghiloni has been Senior Vice President-Marketing since September
1996. From April 1994 to September 1996, Mr. Ghiloni served as Vice
President-Marketing for the Company. From October 1991 to April 1994, he served
as Senior Vice President-Marketing and Sales for Helme.
Karl H. Ziegler has been Secretary of the Company since November 1995.
Cynthia Z. Brighton has been Treasurer, Vice President-Financial Services
and Director of the Company since November 1995. From 1986 to 1993, she also
served as a director and corporate secretary of American Fructose Corporation,
an AMPCo affiliate, and as the corporate secretary of AMPCo from 1992 to 1994.
Ms. Brighton is a member of the Pension Committee.
C. Keith Hartley has been a Director of the Company since November 1995.
Since August 1995, he has been the Managing Partner-Corporate Finance at Forum
Capital Markets LLC, an investment banking firm, and a co-manager of the
Offering. From May 1991 to August 1995, Mr. Hartley was an independent financial
consultant. From February 1990 to May 1991, Mr. Hartley served as Managing
Director of Peers & Co., a merchant banking firm. Mr. Hartley also serves as a
director of Comdisco, Inc., a high technology services company, and as a
director and Co-Chairman of the Board of U.S. Diagnostics, Inc., an operator of
diagnostic imaging centers. Mr. Hartley is Chairman of the Audit Committee and a
member of the Executive, Pension and Compensation Committees.
Alfred F. La Banca has been a Director of the Company since November 1995.
He is also Chairman of the board of directors of the Mailex Corporation in
Stamford, Connecticut and of Action Letter, Inc. in New York City, which he
founded in 1961. Both Mailex Corporation and Action Letter, Inc. specialize in
the production of direct mail data processing and outsource management for
client firms. Mr. La Banca is Chairman of the Compensation Committee and a
member of the Audit Committee.
Donald E. McNicol has been a Director of the Company since November 1995.
He is presently of counsel to the law firm of Schnader Harrison Segal & Lewis
LLP. Mr. McNicol was a partner of the law firm of Hall, McNicol, Hamilton &
Clark from 1956 to 1992 and of counsel to its successor firm, Keck, Mahin &
Cate, from 1992 to 1996. Mr. McNicol served as a Director and General Counsel of
AMPCo from 1964 to 1991. Mr. McNicol is Chairman of the Pension Committee and a
member of the Executive, Compensation and Audit Committees.
Charles H. Mullen has been a director of the Company since February 1997.
Mr. Mullen retired in 1992 as Chairman and Chief Executive Officer of The
American Tobacco Company, which was a subsidiary of American
13
<PAGE>
Brands, Inc. He was also Vice President-Tobacco and a member of the Board of
Directors of American Brands, Inc. Prior thereto he was Chairman of American
Cigar, a former subsidiary of American Brands, Inc. In addition, Mr. Mullen
serves as a director of Standard Commercial Corporation. Mr. Mullen is a member
of the Audit and Compensation Committees.
John R. Tweedy has been a Director of the Company since November 1995. Mr.
Tweedy served in various management positions at AMPCo and its affiliates from
1972 until he retired as Senior Vice President of AMPCo in 1993. Mr. Tweedy is a
member of the Audit and Compensation Committees.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE.
On September 30, 1997, Mr. Britton was granted stock options under the
Company's 1996 Stock Option Plan; and, accordingly was required to file a Form 4
under Rule 16a-3 by October 10, 1997. Mr. Britton filed such Form 4 on November
5, 1997.
ITEM 11. EXECUTIVE COMPENSATION
This information is incorporated by reference to the Company's Proxy
Statement mailed in connection with the 1998 Annual Meeting of Stockholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
This information is incorporated by reference to the Company's Proxy
Statement mailed in connection with the 1998 Annual Meeting of Stockholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
This information is incorporated by reference to the Company's Proxy
Statement mailed in connection with the 1998 Annual Meeting of Stockholders.
14
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
<TABLE>
<CAPTION>
ANNUAL REPORT
TO STOCKHOLDERS FORM 10-K
PAGE NUMBER PAGE NUMBER
--------------- -----------
<S> <C> <C>
(A) 1. CONSOLIDATED FINANCIAL STATEMENTS OF SWISHER INTERNATIONAL GROUP INC. AND
SUBSIDIARIES
Consolidated balance sheets............................................ 32
Consolidated statements of income...................................... 33
Consolidated statements of stockholders' equity........................ 34
Consolidated statements of cash flows.................................. 35
Notes to consolidated financial statements............................. 36-50
Report of Independent Accountants...................................... 51
(A) 2. FINANCIAL STATEMENT SCHEDULES
Report of Independent Accountants...................................... S-1
Financial statement schedule
II--Valuation and qualifying accounts............................. S-2
</TABLE>
15
<PAGE>
(A) 3. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------------------------------------------------------------------------------------------------------
<C> <C> <S>
3.1 -- Amended and Restated Certificate of Incorporation of the Registrant.(4)
3.2 -- Amended and Restated Bylaws of the Registrant.(4)
4.1 -- Specimen stock certificate.(3)
10.1 -- Registration Rights Agreement dated December 17, 1996 among the Registrant and Hay Island.(4)
10.2 -- Management Services Agreement dated as of January 1, 1997 among the Registrant and Hay Island.(4)
10.3 -- Employment Agreement dated October 23, 1996 between the Registrant and Timothy Mann.(1)
10.4 -- Employment Agreement dated October 23, 1996 between the Registrant and J. Thomas Ryan, III.(1)
10.5 -- Employment Agreement dated October 23, 1996 between the Registrant and Nicholas J. Cevera, Jr.(1)
10.6 -- Employment Agreement dated October 23, 1996 between the Registrant and Robert A. Britton.(1)
10.7 -- Second Amended and Restated Credit Agreement, dated as of October 18, 1996, among the Registrant,
Swisher International, Inc. and the Bank of Boston, Connecticut, as Administrative Agent, and the
group of financial institutions parties thereto.(2)
10.7.1 -- First Amendment Agreement, dated as of December 16, 1996, among the Registrant, Swisher
International, Inc. and the Bank of Boston, Connecticut, as Administrative Agent, and the group of
financial institutions parties thereto.(4)
10.7.2 -- Credit Agreement, dated as of November 20, 1997, among the Registrant, Swisher International, Inc.
and BankBoston, N.A., as Administrative Agent, and the group of financial institutional parties
thereto.
10.8 -- Management Incentive Plan.(1)
10.9 -- 1996 Stock Option Plan.(4)
10.10 -- Supplemental Pension Program.(1)
10.11 -- Tax Sharing Agreement, dated December 17, 1996, among the Registrant and its subsidiaries and Hay
Island.(4)
13.1 -- The Registrant's Annual Report to Stockholders for the year ended December 31, 1997. Such Annual
Report, except for those portions which are expressly incorporated by reference, is furnished for the
information of the Securities and Exchange Commission and is not to be deemed 'filed' or incorporated
by reference as part of this Form 10-K.
16.1 -- Letter regarding change in certifying accountant.(1)
21.1 -- List of Subsidiaries.
27.1 -- Financial Data Schedule.
</TABLE>
- ------------------
(1) Incorporated by reference from Amendment No. 1 of the Registrant's
Registration Statement on Form S-1 (Registration No. 333-14975).
(2) Incorporated by reference from Amendment No. 2 of the Registrant's
Registration Statement on Form S-1 (Registration No. 333-14975).
(3) Incorporated by reference from Amendment No. 3 of the Registrant's
Registration Statement on Form S-1 (Registration No. 333-14975).
(4) Incorporated by reference to Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996.
(B) REPORTS ON FORM 8-K
There were no reports on Form 8-K filed during the year ended December 31,
1997.
16
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized, in the Town of Darien,
State of Connecticut, on the 27th day of March, 1998.
SWISHER INTERNATIONAL GROUP INC.
By: /s/ ROBERT A. BRITTON
-------------------------------
Robert A. Britton
Executive Vice President
and Chief Financial Officer
17
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<C> <S> <C>
/s/ WILLIAM ZIEGLER, III Chairman of the Board, Chief March 27, 1998
- ------------------------------------------ Executive Officer and Director
William Ziegler, III (principal executive officer)
/s/ WILLIAM T. ZIEGLER Chairman of the Executive March 27, 1998
- ------------------------------------------ Committee, Chief Operating
William T. Ziegler Officer and Director
/s/ ROBERT A. BRITTON Executive Vice President, Chief March 27, 1998
- ------------------------------------------ Financial Officer and Director
Robert A. Britton (principal financial and
accounting officer)
/s/ TIMOTHY MANN President and Director March 27, 1998
- ------------------------------------------
Timothy Mann
/s/ J. THOMAS RYAN, III Executive Vice President-Sales March 27, 1998
- ------------------------------------------ & Marketing and Director
J. Thomas Ryan, III
/s/ NICHOLAS J. CEVERA, JR. Executive Vice President- March 27, 1998
- ------------------------------------------ Operations and Director
Nicholas J. Cevera, Jr.
/s/ CYNTHIA Z. BRIGHTON Vice President-Financial March 27, 1998
- ------------------------------------------ Services, Treasurer, and Director
Cynthia Z. Brighton
/s/ C. KEITH HARTLEY Director March 27, 1998
- ------------------------------------------
C. Keith Hartley
/s/ ALFRED F. LA BANCA Director March 27, 1998
- ------------------------------------------
Alfred F. La Banca
/s/ DONALD E. McNICOL Director March 27, 1998
- ------------------------------------------
Donald E. McNicol
/s/ CHARLES H. MULLEN Director March 27, 1998
- ------------------------------------------
Charles H. Mullen
/s/ JOHN R. TWEEDY Director March 27, 1998
- ------------------------------------------
John R. Tweedy
</TABLE>
18
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Stockholders of Swisher International Group Inc.
Our report on the consolidated financial statements of Swisher
International Group Inc. and subsidiaries as of December 31, 1997 and 1996, and
the related consolidated statements of income, stockholders' equity and cash
flows for the years ended December 31, 1997 and 1996 and the period from
November 7, 1995 to December 31, 1995, and the consolidated statements of
operations, stockholders' equity and cash flows of Swisher International, Inc.
and subsidiaries for the period from January 1, 1995 to November 6, 1995 has
been incorporated by reference in this Form 10-K from Page 51 of the 1997 Annual
Report to Stockholders of Swisher International Group Inc. In connection with
our audits of such financial statements, we have also audited the related
financial statement schedule for each of the periods in the three-year period
ended December 31, 1997, as listed in the Index under Item 14(a)2 of this Form
10-K.
In our opinion, the financial statement schedule for each of the periods in
the three-year period ended December 31, 1997 referred to above, when considered
in relation to the basic financial statements taken as a whole, presents fairly,
in all material respects, the information required to be included therein.
/s/ Coopers & Lybrand L.L.P.
New York, New York
February 5, 1998.
S-1
<PAGE>
SCHEDULE II
SWISHER INTERNATIONAL GROUP INC. AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COL. C
------------------------
COL. B ADDITIONS COL. E
------------ ------------------------ ----------
COL. A BALANCE AT CHARGED TO CHARGED TO COL. D BALANCE AT
- -------------------------------------------------- BEGINNING OF COST AND OTHER ---------- END OF
DESCRIPTION PERIOD EXPENSES ACCOUNTS DEDUCTIONS PERIOD
- -------------------------------------------------- ------------ ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Allowance for Doubtful Accounts:
For the period from January 1, 1995 to November
6, 1995...................................... $2,599 $ (290) -- $ (5) $2,304
For the period from November 7, 1995 to December
31, 1995..................................... 2,304 81 -- (20) 2,365
For the year ended December 31, 1996............ 2,365 (49) -- (533) 1,783
For the year ended December 31, 1997............ 1,783 128 -- (268) 1,643
</TABLE>
S-2
EXHIBIT 10.7.2
Credit Agreement, dated as of November 20, 1997, among the Registrant, Swisher
International, Inc. and BankBoston N.A., as Administrative Agent, and the group
of financial institutional parties thereto.
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
among
SWISHER INTERNATIONAL, INC.,
SWISHER INTERNATIONAL GROUP INC.
The Several Lenders
from Time to Time Parties Hereto,
BANKBOSTON, N.A.,
as Administrative Agent
and
SOCIETE GENERALE,
as Documentation Agent
Dated as of November 20, 1997
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................1
1.1 Defined Terms......................................................1
1.2 Other Definitional Provisions.....................................16
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................16
2.1 Revolving Credit Commitments......................................17
2.2 Procedure for Revolving Credit Borrowing..........................17
2.3 Fees..............................................................17
2.4 Termination or Reduction of Revolving Credit Commitments..........18
2.5 Swing Line Commitment.............................................19
2.6 Repayment of Loans, Evidence of Debt..............................20
2.7 Optional Prepayments..............................................21
2.8 Mandatory Prepayments.............................................22
2.9 Conversion and Continuation Options...............................23
2.10 Minimum Amounts and Maximum Number of Tranches....................23
2.11 Interest Rates and Payment Dates..................................24
2.12 Computation of Interest and Fees..................................24
2.13 Inability to Determine Interest Rate..............................25
2.14 Pro Rata Treatment and Payments...................................25
2.15 Illegality........................................................26
2.16 Requirements of Law...............................................27
2.17 Taxes.............................................................28
2.18 Indemnity.........................................................30
2.19 Fees..............................................................30
2.20 Letters of Credit.................................................30
2.21 Competitive Bid Loans.............................................32
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................37
3.1 Financial Condition...............................................38
3.2 No Change.........................................................38
3.3 Corporate Existence; Compliance with Law..........................38
3.4 Corporate Power; Authorization; Enforceable Obligations...........38
3.5 No Legal Bar......................................................39
3.6 No Material Litigation............................................39
3.7 No Default........................................................39
3.8 Ownership of Property; Liens......................................39
3.9 Intellectual Property.............................................40
3.10 No Burdensome Restrictions........................................40
<PAGE>
3.11 Taxes.............................................................40
3.12 Federal Regulations...............................................40
3.13 ERISA.............................................................41
3.14 Investment Company Act; Other Regulations.........................41
3.15 Subsidiaries......................................................41
3.16 Purpose of Loans..................................................41
3.17 Environmental Matters.............................................41
3.18 Solvency..........................................................42
3.19 Accuracy of Information...........................................43
SECTION 4. CONDITIONS PRECEDENT..............................................43
4.1 Conditions to Initial Loans.......................................43
4.2 Conditions to Each Loan or Letters of Credit......................45
SECTION 5. AFFIRMATIVE COVENANTS.............................................45
5.1 Financial Statements..............................................46
5.2 Certificates; Other Information...................................46
5.3 Payment of Obligations............................................46
5.4 Maintenance of Existence..........................................47
5.5 Maintenance of Property; Insurance................................47
5.6 Inspection of Property; Books and Records; Discussions............47
5.7 Notices...........................................................48
5.8 Environmental Laws................................................48
5.9 Additional Subsidiaries...........................................49
SECTION 6. NEGATIVE COVENANTS................................................49
6.1 Financial Condition Covenants.....................................49
6.2 Limitation on Indebtedness........................................50
6.3 Limitation on Liens...............................................50
6.4 Limitation on Guarantee Obligations...............................51
6.5 Limitation on Fundamental Changes.................................51
6.6 Limitation on Sale of Assets......................................52
6.7 Limitation on Dividends...........................................52
6.8 Limitation on Investments, Loans and Advances.....................52
6.9 Limitation on Optional Payments and Modifications
of Debt Instruments............................................53
6.10 Limitation on Transactions with Affiliates........................53
6.11 Limitation on Sales and Leasebacks................................53
6.12 Limitation on Changes in Fiscal Year..............................54
6.13 Limitation on Negative Pledge Clauses.............................54
6.14 Limitation on Lines of Business...................................54
6.15 Limitation on Acquisitions........................................54
-ii-
<PAGE>
SECTION 7. EVENTS OF DEFAULT.................................................54
SECTION 8. GUARANTEE.........................................................57
8.1 Guarantee.........................................................57
8.2 Obligations Unconditional.........................................58
8.3 Reinstatement.....................................................59
8.4 Remedies..........................................................60
8.5 Continuing Guarantee..............................................60
8.6 No Subrogation....................................................60
SECTION 9. ADMINISTRATIVE AGENT AND DOCUMENTATION AGENT......................60
9.1 Appointment.......................................................60
9.2 Delegation of Duties..............................................61
9.3 Exculpatory Provisions............................................61
9.4 Reliance by Administrative Agent..................................61
9.5 Notice of Default.................................................62
9.6 Non-Reliance on Administrative Agent, and Other Lenders...........62
9.7 Indemnification...................................................63
9.8 Administrative Agent in Its Individual Capacity...................63
9.9 Successor Administrative Agent....................................63
9.10 The Documentation Agent...........................................64
SECTION 10. MISCELLANEOUS.....................................................64
10.1 Amendments and Waivers............................................64
10.2 Notices...........................................................65
10.3 No Waiver; Cumulative Remedies....................................66
10.4 Survival of Representations and Warranties........................66
10.5 Payment of Expenses and Taxes.....................................66
10.6 Successors and Assigns; Participation and Assignments.............67
10.7 Adjustments; Set-off..............................................69
10.8 Counterparts......................................................70
10.9 Severability......................................................70
10.10 Integration.......................................................70
10.11 GOVERNING LAW.....................................................70
10.12 Submission To Jurisdiction; Waivers...............................71
10.13 Acknowledgments...................................................71
10.14 WAIVERS OF JURY TRIAL.............................................72
10.15 Confidentiality...................................................72
-iii-
<PAGE>
SCHEDULES
- ----------------------------------------------------------------------------
Schedule I Lenders' Commitments and Addresses for Notices
Schedule 3.1(a) and 6.4(a) List of Guarantees and Underlying Leases
Schedule 3.6 Material Litigation
Schedule 3.8 Real Property
Schedule 3.13 ERISA Reportable Events
-iv-
<PAGE>
EXHIBITS
- ------------------------------------------------------------------------------
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Swing Line Note
Exhibit A-3 Form of Competitive Bid Note
Exhibit B Form of Subsidiaries Guarantee
Exhibit C Form of Borrowing Certificate
Exhibit D Form of Legal Opinion of Schnader, Harrison, Segal & Lewis
Exhibit E Form of Swing Line Loan Participation Certificate
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Solvency Certificate
Exhibit H Form of Competitive Bid Quote Request
Exhibit I Form of Invitation for Competitive Bid Quotes
Exhibit J Form of Competitive Bid Quote
Exhibit K Form of Notice of Competitive Bid Borrowing
Exhibit L Form of Notice of Competitive Bid Loans
-v-
<PAGE>
CREDIT AGREEMENT, dated as of November 20, 1997, among (i) SWISHER
INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), (ii) SWISHER
INTERNATIONAL GROUP INC., formerly known as Royal American Holding Corporation,
a Delaware corporation and the direct parent of the Borrower (the "Parent"),
(iii) the several banks and other financial institutions from time to time
parties to this Agreement (the "Lenders"), (iv) SOCIETE GENERALE, as
Documentation Agent, and (v) BANKBOSTON, N.A., a national banking association,
as administrative agent for the Lenders hereunder (in such capacity, as more
fully defined in Section 1.1, the "Administrative Agent").
Recitals
A. The Borrower, the Parent, the Lenders, the Administrative Agent
and the Documentation Agent have agreed to enter into this Credit Agreement to
provide for the extension of certain credit facilities from Lenders to
Borrower.B. The Administrative Agent has arranged a syndicate of lenders to make
the Loans. The Lenders are willing to make the Loans described below based on
the terms and conditions set forth in this Credit Agreement.
Agreement
In consideration of the premises and the covenants herein set forth,
the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Absolute Rate "an interest rate (rounded to the nearest one
one-hundredth of one percent (0.01%)) expressed as a decimal specified by a
Lender in a Competitive Bid Quote.
"Acquisition": means any transaction pursuant to which the Borrower
or any of its Subsidiaries (a) acquires equity securities (or warrants, options
or other rights to acquire such securities) of any Person other than the
Borrower or any Person which is not then a Subsidiary of the Borrower, pursuant
to a solicitation of tenders therefor, or in one or more negotiated block,
market or other transactions not involving a tender offer, or a combination of
any of the foregoing, or (b) makes any Person a Subsidiary of the Borrower, or
causes any such Person to be merged into the Borrower or any of its
Subsidiaries, in any case pursuant to a merger, purchase of assets or any
reorganization providing for the delivery or issuance to the holders of such
Person's then outstanding securities, in exchange for such securities, of cash
or securities of the Borrower or any of its Subsidiaries, or a
<PAGE>
2
combination thereof, or (c) purchases all or substantially all of the business
or assets of any Person.
"Administrative Agent": BankBoston, together with its affiliates, as
the agent for the Lenders under this Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (a)
vote 20% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Margin": for each Base Rate Loan, an amount equal to
zero basis points (0%) and, for each Eurodollar Loan, the rate per annum set
forth under the relevant column heading below:
Ratio of Indebtedness to EBITDA Eurodollar Loans
- ---------------------------------- ----------------
Greater than or equal to 2.00 to 1 1.25%
Greater than or equal to 1.25 to 1
and less than 2.00 to 1 1.00%
Less than 1.25 to 1 0.75%
For purposes of the foregoing, any change in the Applicable Margin based on a
change in the ratio of Indebtedness to EBITDA shall be effective one Business
Day after the date of delivery to the Administrative Agent of the certificate
required under Section 5.2(b)(ii) hereof and shall apply to all Eurodollar Loans
made after delivery of the Certificate required under Section 5.2(b)(ii) and
before the effective date of the next such change in the ratio of Indebtedness
to EBITDA.
"Application": an application by the Borrower, in a form and
containing terms and provisions acceptable to the Issuing Lender, for the
issuance by the Issuing Lender of a Letter of Credit.
"Asset Sale": any sale, sale-leaseback, or other disposition by the
Parent, the Borrower or any Subsidiary thereof of any of its property or assets,
including the stock of any Subsidiary of Parent, other than to any Subsidiary.
<PAGE>
3
"Assignee": as defined in Section 10.6(c).
"Auction Fee": as defined in Section 2.3(c).
"Available Commitment": as to any Lender at any time, an amount
equal to the excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment over (b) the sum of (i) the aggregate principal amount of all
Revolving Credit Loans made by such Lender then outstanding, (ii) such Lender's
Commitment Percentage of the aggregate unpaid principal amount at such time of
all Swing Line Loans, and (iii) such Lender's Commitment Percentage of Letter of
Credit Obligations (except that for purposes of calculating the Revolving Credit
Commitment Fee under Section 2.3(a) hereof, the foregoing clause (ii) shall be
deemed deleted and clause (iii) shall be renumbered accordingly).
"BankBoston": BankBoston, N.A., a national banking association.
"Base Rate": for any day, a rate per annum equal to the Prime Rate
in effect on such day. "Base Rate Loans": Loans the rate of interest applicable
to which is based upon the Base Rate.
"Borrower": as defined in the introductory paragraph hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
Section 2.2 or 2.5(a) as a date on which the Borrower requests the Lenders to
make Loans hereunder.
"Business": as defined in Section 3.17(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or Stamford, Connecticut, are authorized
or required by law to close.
"Capital Stock": any and all shares, interests, participation or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit and
Eurodollar time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase obligations
of any Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than
<PAGE>
4
30 days with respect to securities issued or fully guaranteed or insured by the
United States Government, (d) commercial paper of a domestic issuer rated at
least A-2 by Standard and Poor's Rating Group ("S&P") or P-2 by Moody's
Investors Service, Inc. ("Moody's"), (e) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody's (or the equivalent rating by either such
rating agency for such type of securities), (f) securities with maturities of
one year or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the requirements
of clause (b) of this definition or (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition.
"Cash Flow": with respect to the Parent and its Subsidiaries, for
any period, EBITDA for such period minus the sum of (i) the aggregate amount
paid in cash for income taxes and (ii) the aggregate amount paid in cash during
such period on account of capital expenditures, in each case, determined on a
consolidated basis in accordance with GAAP.
"Change of Control": the occurrence of any of the following events:
(a) any "Person" (as such term is defined in Sections 13(d) and 14(d) of the
Exchange Act), other than one or more Permitted Holders, who controls, directly
or indirectly, more than 15% of the total voting power of the Voting Stock of
the Parent; (b) the Permitted Holders "beneficially own" (as such term has the
meaning within the context of Rules 13d-3 and 13d-5), directly or indirectly, in
the aggregate less than 50.1% total voting power of the Voting Stock of the
Parent; or (c) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the Parent
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Parent was approved by
vote of 66-2/3% of the directors of the Parent then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Parent then in office.
"Closing Date": the date of this Agreement, provided that the
conditions precedent set forth in Section 4.1 with respect to the making of the
Revolving Credit Loans shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Lender, such Lender's Swing Line Commitment
(if any) and Revolving Credit Commitment, collectively.
<PAGE>
5
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Revolving Credit Commitment then constitutes of
the aggregate Revolving Credit Commitments or, at any time after such Revolving
Credit Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender's Revolving Credit Loans (including
such Lender's Commitment Percentage of the aggregate unpaid principal amount at
such time of all Swing Line Loans and such Lender's Commitment Percentage of
Letter of Credit Obligations) then outstanding constitutes of the aggregate
principal amount of the Revolving Credit Loans (and Swing Line Loans and Letter
of Credit Obligations) then outstanding.
"Commitment Period": the period from and including the date hereof
to but not including the Termination Date or such earlier date on which the
Revolving Credit Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Competitive Bid Auction": a solicitation by the Administrative
Agent of Competitive Bid Quotes pursuant to Section 2.21.
"Competitive Bid Borrowing": a borrowing of Competitive Bid Loans
pursuant to Section 2.21.
"Competitive Bid Loans": any Loans bearing interest at a rate
determined with reference to the Competitive Bid Rate, which Loans shall be made
solely at the discretion of each Lender pursuant to a Competitive Bid Auction,
as set forth in Section 2.21.
"Competitive Bid Loan Maturity Date": as defined in Section 2.21(b).
"Competitive Bid Note": as defined in Section 2.6(e).
"Competitive Bid Quote": an offer by a Lender to make a Competitive
Bid Loan in accordance with Section 2.21.
"Competitive Bid Rate": the rate of interest quoted by a Lender, at
such Lender's sole discretion, in any Competitive Bid Quote.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
<PAGE>
6
"Default": any of the events specified in Section 7, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Documentation Agent": Societe Generale, in its capacity as
Documentation Agent.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"EBITDA": for any period, Net Income for such period, plus the sum
of (i) Interest Expense for such period deducted from earnings in determining
Net Income and (ii) the amount of income tax expense deducted from earnings in
determining Net Income, and (iii) depreciation expense and amortization expense
deducted from earnings in determining Net Income.
"Environmental Laws": any and all foreign, federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as may have previously been, now are or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate of interest determined
on the basis of the rate for deposits in dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate Service as of 11:00 a.m., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate Service (or otherwise on such
service), the "Eurodollar Base Rate" shall be determined by reference to such
other publicly available service for displaying Eurodollar rates as may be
agreed upon by the
<PAGE>
7
Administrative Agent and the Borrower or, in the absence of such agreement, the
"Eurodollar Base Rate" shall instead be the rate per annum equal to the rate at
which the Administrative Agent is offered dollar deposits at or about 10:00
a.m., New York City time, two (2) Business Days prior to the beginning of such
Interest Period in the interbank Eurodollar market where the Eurodollar and
foreign currency and exchange operations in respect of its Eurodollar Loans are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of its Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/l00th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
that have Interest Periods which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made on the
same day) one, two, three or six months thereafter, as the case may be.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreement": the Second Amended and Restated Credit
Agreement dated as of October 28, 1996 among the Borrower, the Parent, the
lenders parties thereto, Societe Generale, as Documentation Agent, and Bank of
Boston Connecticut, as Administrative Agent, as amended, modified or
supplemented from time to time.
"Existing Indebtedness": all Indebtedness outstanding under the
Existing Credit Agreement on the Closing Date which will be refinanced pursuant
to the terms and conditions of this Agreement.
"Federal Funds Effective Rate": for any day, a floating rate equal
to the weighted average of the rates on overnight Federal funds transactions
among members of the Federal Reserve System, as determined by the Administrative
Agent.
<PAGE>
8
"Fee Property": as defined in Section 3.8.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charges": for any period, the sum of:
(a) Interest Expense;
(b) required amortization of Indebtedness for the period
involved and discount or premium relating to any such Indebtedness
for any period involved, whether expensed or capitalized; and
(c) all Restricted Payments made by the Parent or any
Subsidiary during such period,
in each case of the Parent and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Fronting Fee": an amount equal to one-eighth of one percent
(0.125%) of the stated amount of each Letter of Credit.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time, except that in connection with
any calculation of any amount referenced, directly or indirectly, in Section
6.1, "GAAP" shall mean generally accepted accounting principles in the United
States of America on the date hereof consistent with those utilized in preparing
the audited financial statements referred to in Section 3.1.
"Governmental Authority": 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.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counter indemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to
<PAGE>
9
maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guaranteed Obligations": as defined in Section 8.1.
"Guarantees": the collective reference to the Parent Guarantee and
the Subsidiaries Guarantee.
"Guarantor": any Person delivering or making a Guarantee
pursuant to this Agreement.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of acceptances or letters of
credit issued or created for the account of such Person and (e) all liabilities
secured by any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
<PAGE>
10
"Interest Expense": for any period, the amount of interest expense
of Parent and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP for such period.
"Interest Payment Date": (a) as to any Base Rate Loan or Competitive
Bid Loan, the last day of each March, June, September and December, (b) as to
any Eurodollar Loan having an Interest Period of three months or less, the last
day of such Interest Period, and (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three months or a
whole multiple thereof after the first day of such Interest Period and the last
day of such Interest Period.
"Interest Period": With respect to any Eurodollar Loan, the period
commencing on the date selected by the Borrower and ending one, two, three or
six months thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the first day of
the Interest Period with respect thereto;
provided that, the foregoing provision relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Invitation for Competitive Bids": as defined in Section 2.21(c).
"IPO" the initial public offering of equity securities by the Parent
pursuant to a Registration Statement on Form S-1 which was filed with the
Securities and Exchange Commission and declared effective on December 17, 1996.
"Issuing Lender": BankBoston or any other Lender (with the prior
consent and agreement of such Lender), each in its capacity as issuer of the
Letters of Credit.
<PAGE>
11
"Joint Venture": shall mean, depending on the jurisdiction of its
formation, a general partnership or joint venture in which the Borrower is a
general partner or a joint venturer, as the case may be.
"L/C Draft": a draft drawn on the Issuing Lender pursuant to a
Letter of Credit.
"Leased Property": as defined in Section 3.8.
"Lenders": as defined in the introductory paragraph hereto.
"Letter of Credit": any letter of credit issued by the Issuing
Lender, in its discretion but subject to the terms of this Agreement, on the
Application of the Borrower.
"Letter of Credit Fee": the amount equal to, from time to time, the
Applicable Margin per annum for Eurodollar Loans constituting Revolving Credit
Loans.
"Letter of Credit Obligations": as to the Borrower, at any time of
determination, an amount equal to the aggregate of undrawn amounts of all
Letters of Credit plus the aggregate of all unpaid obligations of the Borrower
to reimburse the Issuing Lender for amounts drawn under all Letters of Credit.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loan": any Revolving Credit Loan, Competitive Bid Loan or Swing
Line Loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Notes, the Guarantees, the
Applications and any other agreement or document executed or delivered in
connection with the Letters of Credit.
"Loan Party": the Borrower, the Parent and each Subsidiary of the
Borrower which is a party to a Loan Document.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
<PAGE>
12
"Material Environmental Amount": an amount payable by the Parent
and/or its Subsidiaries in excess of $5,000,000 for remedial costs, compliance
costs, compensatory damages, punitive damages, fines, penalties or any
combination thereof.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under, or which could otherwise give rise to any liability under, any
Environmental Law, including, without limitation, asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Multiemployer Plan": a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Income": for any period, net income of the Parent and its
Subsidiaries (or the Borrower only with respect to Section 6.7 hereof),
determined on a consolidated basis in accordance with GAAP (but in any case not
including payments received by the Borrower or any Subsidiary in respect of the
Wheeling Bonds).
"Net Proceeds": the aggregate cash proceeds received by the Borrower
or any Subsidiary thereof in respect of:
(a) any Asset Sale; or
(b) any cash payments received in respect of promissory notes
delivered to the Borrower or such Subsidiary in respect of an Asset Sale;
in each case net of (without duplication) (A) the reasonable expenses (including
legal fees and brokers' and underwriters' commissions, lenders fees or credit
enhancement fees, in any case, paid to third parties or, to the extent permitted
hereby, Affiliates) incurred in effecting such issuance or sale and (B) any
taxes reasonably attributable to such sale and reasonably estimated by the
Parent, the Borrower or such Subsidiary to be actually payable.
"Net Worth": as of the date of determination, all items which in
conformity with GAAP would be included under shareholders' equity on a
consolidated balance sheet of the Parent at such date.
"Non-Excluded Taxes": as defined in Section 2.17(a).
"Notes": the collective reference to the Swing Line Note, the
Revolving Credit Notes and the Competitive Bid Notes.
"Notice of Competitive Bid Borrowing" as defined in Section 2.21(f).
"Original Closing Date": October 28, 1996.
<PAGE>
13
"Parent": as defined in the introductory paragraph hereto.
"Parent Guarantee": the guarantee of the Guaranteed Obligations by
the Parent pursuant to Section 8.
"Participant": as defined in Section 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" as defined in Section 6.15.
"Permitted Holders": William Ziegler, III, the Trust under the Will
of Helen M. Rivoire for the benefit of William Ziegler, III and the Trust under
the Will of William Ziegler, Jr. for the benefit of William Ziegler, III, and
the respective heirs, administrators, personal representatives, successors and
assigns of each of them.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by BankBoston as its base rate in effect at its
principal office in Boston (the Prime Rate not being intended to be the lowest
rate of interest charged by BankBoston in connection with extensions of credit
to debtors). Any change in the Base Rate due to a change in the Prime Rate shall
be effective as of the opening of business of BankBoston on the effective day of
such change in the Prime Rate.
"Properties": as defined in Section 3.17(a).
"Refunded Swing Line Loans": as defined in Section 2.5(b).
"Register": as defined in Section 10.6(d).
"Regulation G": Regulation G of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors of
the Federal Reserve System as in effect from time to time.
<PAGE>
14
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the thirty (30) day notice period
is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss.
2615.
"Required Lenders": at any time, Lenders the Commitment Percentages
of which aggregate more than 51%.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": any of the chief executive officer, chief
operating officer, president or chief financial officer of the Parent or the
Borrower.
"Restricted Payments": as defined in Section 6.7.
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender to make Revolving Credit Loans to the Borrower hereunder in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule I, as such amount may be
reduced from time to time in accordance with the provisions of this Agreement.
"Revolving Credit Commitment Fee": a rate per annum of one-quarter
of one percent (0.250%).
"Revolving Credit Loans": as defined in Section 2.1(a).
"Revolving Credit Note": as defined in Section 2.6(e).
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvency Certificate": the Solvency Certificate substantially in
the form of Exhibit G.
"Solvent": with respect to any Person on a particular date, the
condition that on such date, (a) the fair value of the property of such Person
is greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that
<PAGE>
15
will be required to pay the probable liability of such Person on its debts as
they become absolute and mature, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature, and (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute an unreasonably
small amount of capital.
"Subsidiaries Guarantee": the Guarantee to be executed and delivered
by each Subsidiary, substantially in the form of Exhibit B, as the same may be
amended, supplemented or otherwise modified from time to time.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of Parent, whether directly or indirectly owned by the Parent.
"Swing Line Commitment": the Swing Line Lender's obligation to make
Swing Line Loans pursuant to Section 2.5.
"Swing Line Lender": BankBoston, in its capacity as lender of the
Swing Line Loans.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit E.
"Swing Line Loans": as defined in Section 2.5(a).
"Swing Line Note": as defined in Section 2.6(e).
"Termination Date": November 15, 2001.
"Transferee": as defined in Section 10.6(f).
"Type": as to any Revolving Credit Loan, its nature as a Base Rate
Loan or a Eurodollar Loan.
"Voting Stock": of a corporation means all classes of Capital Stock
of such corporation then outstanding and normally entitled to vote in the
election of directors.
<PAGE>
16
"Wheeling Bonds": collectively, the Series 1992A and Series 1992B
Industrial Development Revenue Bonds (Helme Tobacco Company Project) issued by
Ohio County, West Virginia, acting by and through The County Commission of Ohio
County, West Virginia, which bonds are owned by Swisher International Finance
Company.
"Ziegler Trusts": the trusts created under the Wills of Helen M.
Rivoire and William Ziegler, Jr.
1.2. Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in any Notes or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in Section 1.1 and accounting
terms partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural form of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.
2.1. Revolving Credit Commitments.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans ("Revolving Credit Loans") to
the Borrower from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed the amount of such
Lender's Revolving Credit Commitment less the product of (x) such Lender's
Commitment Percentage and (y) the sum of the Letter of Credit Obligations, the
Competitive Bid Loans and the Swing Line Loans then outstanding. Notwithstanding
the above, in no event shall any Revolving Credit Loans be made if the aggregate
amount of the Revolving Credit Loans to be made would, after giving effect to
the use of proceeds thereof, exceed the aggregate Available Commitments. During
the Commitment Period, the Borrower may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
<PAGE>
17
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) Base Rate Loans, or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.9, provided that no Revolving Credit Loan
shall be made as a Eurodollar Loan after the day that is one month prior to the
Termination Date.
2.2. Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 11:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be Eurodollar Loans, or (b) one Business Day prior to the requested
Borrowing Date, otherwise), specifying (i) the amount to be borrowed, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, Base Rate Loans or a combination thereof and (iv) if the borrowing is to
be entirely or partly of Eurodollar Loans, the respective amounts of each such
Type of Loan and the respective lengths of the Interest Periods therefor. Each
borrowing under the Revolving Credit Commitments shall be in an amount equal to
(x) in the case of Base Rate Loans, $500,000 or a whole multiple of $100,000 in
excess thereof (or the full amount of the then Available Commitments) and (y) in
the case of Eurodollar Loans, $1,000,000 or a whole multiple of $100,000 in
excess thereof, subject to the provisions of Section 2.10, except that any
borrowing under the Revolving Credit Commitments to be used solely to pay a like
amount of Swing Line Loans may be in the aggregate principal amount of such
Swing Line Loans. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Each Lender will
make the amount of its Commitment Percentage of each borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 10.2 prior to 1:00 P.M., New York City
time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.3. Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender the Revolving Credit Commitment Fee for the
period from and including the first day of the Commitment Period to the day
prior to the Termination Date, computed on the average daily amount of the
Available Commitment of such Lender during the period for which payment is made,
payable quarterly in arrears on the last day of each March, June, September and
December and on the Termination Date or such earlier date as the Revolving
Credit Commitments shall terminate as provided herein, commencing on the first
of such dates to occur after the date hereof.
<PAGE>
18
(b) (i) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender, the Letter of Credit Fee computed on
the average outstanding undrawn amount of Letters of Credit, payable
in arrears (A) for the preceding fiscal quarter on the first day of
each fiscal quarter commencing January 1, 1998, and (B) on the
Termination Date. The Letter of Credit Fee shall be increased by 2%
upon the occurrence of an Event of Default.
(ii) The Borrower agrees to pay the Administrative Agent
for the account of the Issuing Lender the Fronting Fee
simultaneously with the issuance of each Letter of Credit by the
Issuing Lender.
(c) Simultaneously with each request under Section 2.21(a),
the Borrower shall pay to the Administrative Agent, for its own account, an
amount equal to $2,000 (the "Auction Fee"), regardless of whether (i) the
Administrative Agent receives Competitive Bid Quotes from Lenders or (ii) the
Borrower accepts Competitive Bid Quotes, if any, on the later of (x) the Reply
Date and (y) the date of the Competitive Bid Borrowing.
2.4. Termination or Reduction of Revolving Credit Commitments.
(a) The Borrower acknowledges that the Revolving Credit
Commitments shall be reduced by an amount equal to $15,000,000 on each
anniversary of the Closing Date and the Borrower agrees, without the necessity
of demand or notice, to take all steps necessary to ensure that on or before
each anniversary, it shall pay immediately to the Administrative Agent, for the
account of the Lenders, the amount by which the aggregate outstanding Revolving
Credit Loans, Swing Line Loans, Letter of Credit Obligations and Competitive Bid
Loans exceed the Revolving Credit Commitments (as reduced from time to time).
(b) The Borrower shall have the right, upon not less than five
Business Days notice to the Administrative Agent, to terminate the Revolving
Credit Commitments or, from time to time, to reduce the amount of the Revolving
Credit Commitments, which reductions, if any, shall be in addition to, and not
exclusive of, the reductions under subsection (a) above. Any such reduction
shall be in an amount equal to $1,000,000 or a whole multiple thereof and shall
reduce permanently the Revolving Credit Commitments then in effect.
(c) Any reduction of the Revolving Credit Commitments provided
for in this Section 2.4 shall be accompanied by prepayment of first, Swing Line
Loans, second, Competitive Bid Loans, to the extent, if any, that the sum of the
aggregate outstanding principal amount of Swing Line Loans, Revolving Credit
Loans, Competitive Bid Loans and Letter of Credit Obligations exceeds the amount
of the aggregate Revolving
<PAGE>
19
Credit Commitments as so reduced, and third Revolving Credit Loans to the
extent, if any, that the sum of the aggregate outstanding principal amount of
Swing Line Loans, Revolving Credit Loans, Competitive Bid Loans and Letter of
Credit Obligations exceeds the amount of the aggregate Revolving Credit
Commitments as so reduced.
2.5. Swing Line Commitment.
(a) Subject to the terms and conditions hereof, the Swing Line
Lender agrees to make swing line loans ("Swing Line Loans") to the Borrower from
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding not to exceed $5,000,000, provided that in no event
shall any Swing Line Loans be made if the aggregate amount of the Swing Line
Loans to be made would, after giving effect to the use of proceeds thereof (and
subject to the proviso in the second sentence of Section 2.21(a)), exceed the
aggregate Available Commitments. Amounts borrowed by the Borrower under this
Section 2.5 may be repaid and, through but excluding the Termination Date,
reborrowed. All Swing Line Loans shall be made as Base Rate Loans and shall not
be entitled to be converted into Eurodollar Loans. The Borrower shall give the
Swing Line Lender irrevocable notice (which notice must be received by the Swing
Line Lender prior to 3:00 p.m., New York City time) on the requested Borrowing
Date specifying the amount of each requested Swing Line Loan, which shall be in
an aggregate minimum amount of $500,000 or a whole multiple of $100,000 in
excess thereof. The proceeds of each Swing Line Loan will be made available by
the Swing Line Lender to the Borrower by crediting the account of the Borrower
at the office of the Swing Line Lender with such proceeds. The proceeds of Swing
Line Loans may be used solely for the purposes referred to in Section 3.16.
(b) The Swing Line Lender at any time in its sole and absolute
discretion may request each Lender, including the Swing Line Lender, to make a
Revolving Credit Loan in an amount equal to such Lender's Commitment Percentage
of the amount of the Swing Line Loans (the "Refunded Swing Line Loans")
outstanding on the date such notice is given. Unless any of the events described
in clause (f) of Section 7 shall have occurred (in which event the procedures of
Section 2.5(c) shall apply) each Lender shall make the proceeds of its Revolving
Credit Loan available to the Swing Line Lender for the account of the Swing Line
Lender at the office of the Swing Line Lender prior to 12:00 noon (New York City
time) in funds immediately available on the Business Day next succeeding the
date such notice is given. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Refunded Swing Line Loans.
(c) If prior to the making of a Revolving Credit Loan pursuant
to Section 2.5(b) one of the events described in clause (f) of Section 7 shall
have occurred, each Lender will, on the date such Loan was to have been made,
purchase an undivided participating interest in the Refunded Swing Line Loan in
an amount equal to its Commitment Percentage of such Refunded Swing Line Loan.
Each Lender will immediately
<PAGE>
20
transfer to the Swing Line Lender in immediately available funds, the amount of
its participation and upon receipt thereof the Swing Line Lender will deliver to
such Lender a Swing Line Loan Participation Certificate dated the date of
receipt of such funds and in such amount.
(d) Whenever, at any time after the Swing Line Lender has
received from any Lender such Lender's participating interest in a Refunded
Swing Line Loan, the Swing Line Lender receives any payment on account thereof,
the Swing Line Lender will distribute to such Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded) in like funds as received; provided, however, that in
the event that such payment received by the Swing Line Lender is required to be
returned, such Lender will return to the Swing Line Lender any portion thereof
previously distributed by the Swing Line Lender to it in like funds as such
payment is required to be returned by the Swing Line Lender.
(e) Each Lender's obligation to purchase participating
interests pursuant to Section 2.5(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which such Lender
may have against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the occurrence or continuance of an Event of Default,
(iii) any adverse change in the condition (financial or otherwise) of the
Borrower, (iv) any breach of this Agreement by the Borrower or any other Lender,
or (v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided, however, that the Lenders shall not
be obligated to purchase participating interests pursuant to Section 2.5(c) if
the Swing Line Lender engaged in gross negligence or willful misconduct in the
extension of such Swing Line Loan.
2.6. Repayment of Loans, Evidence of Debt.
(a) The Borrower hereby unconditionally agrees to pay to the
Administrative Agent (i) in the case of Revolving Credit Loans, for the account
of each Lender, the then unpaid principal amount of each Revolving Credit Loan
of such Lender on the Termination Date, (ii) in the case of a Competitive Bid
Loan, to the appropriate Lender, the then unpaid principal amount of each
Competitive Bid Loan upon the Competitive Bid Maturity Date of each Competitive
Bid Loan, and (iii) in the case of the Swing Line Lender, the then unpaid
principal amount of each Swing Line Loan on the Termination Date; (or, in the
case of clause (i), (ii), and (iii) the then unpaid principal amount of such
Loan, on the date that such Loan becomes due and payable pursuant to Section 7).
<PAGE>
21
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 2.11.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to Section 10.6(d), and a subaccount therein for each Lender, in which
Register and/or subaccounts shall be recorded (i) the amount of each Revolving
Credit Loan made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) both
the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.6(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded absent manifest error; provided,
however, that the failure of any Lender or the Administrative Agent to maintain
the Register or any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Loans made to such Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Borrower acknowledges that the Borrower has executed
and delivered to each Lender (i) a promissory note of the Borrower evidencing
the Revolving Credit Loans of such Lender, substantially in the form of Exhibit
A-1 with appropriate insertions as to date and principal amount (as amended,
supplemented or otherwise modified from time to time, a "Revolving Credit
Note"), (ii) in the case of the Swing Line Lender, a promissory note of the
Borrower evidencing the Swing Line Loans of the Swing Line Lender, substantially
in the form of Exhibit A-2 with appropriate insertions as to date and principal
amount (as amended, supplemented or otherwise modified from time to time, the
"Swing Line Note") and (iii) a promissory note of the Borrower evidencing
Competitive Bid Loans of such Lender, substantially in the form of Exhibit A-3
with appropriate insertions as to date and principal amount (as amended,
supplemented or otherwise modified from time to time, a "Competitive Bid Note").
2.7. Optional Prepayments. The Borrower may, on the last day of any
Interest Period with respect thereto, in the case of Eurodollar Loans, or the
Competitive Bid Maturity Date in the case of Competitive Bid Loans, or at any
time and from time to
<PAGE>
22
time, in the case of Base Rate Loans, prepay the Loans, in whole or in part,
without premium or penalty, upon at least three Business Days, irrevocable
notice to the Administrative Agent with respect to Eurodollar Loans and
Competitive Bid Loans, or, in the case solely of Swing Line Loans, upon notice
by 12:00 noon, New York City time on the same Business Day to the Swing Line
Lender, specifying the date and amount of prepayment and whether the prepayment
is of Eurodollar Loans, Base Rate Loans, Competitive Bid Loans, Swing Line
Loans, or a combination thereof, and if a combination, the amount allocable to
each and whether of Revolving Credit Loans (and Swing Line Loans, if any) and
Competitive Bid Loans. Upon receipt of any such notice the Administrative Agent
shall promptly notify each Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein, together with any amounts payable pursuant to Sections 2.18 and 2.19.
Prepayments of Revolving Credit Loans and Swing Line Loans shall be applied
first, to all outstanding Swing Line Loans and second, to Revolving Credit
Loans. Prepayments of Competitive Bid Loans shall be applied to all outstanding
Competitive Bid Loans. Partial prepayments of Revolving Credit Loans under this
Section 2.7 shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof; partial prepayments of Swing Line Loans shall be in an
aggregate principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof; partial prepayments of Competitive Bid Loans shall not be permitted.
2.8. Mandatory Prepayments.
(a) If the Parent or any Subsidiary shall issue and sell any
Capital Stock, 100% of the Net Proceeds thereof shall be promptly applied toward
the prepayment of the Loans and reduction of the Commitment as set forth in
Section 2.8(d).
(b) If, subsequent to the Closing Date, the Borrower or any of
its Subsidiaries shall receive Net Proceeds from any Asset Sale (other than in
accordance with Section 6.6(b)), 100% of such Net Proceeds shall be promptly
applied toward the prepayment of the Loans and reduction of the Commitments as
set forth in Section 2.8(d); provided that up to $5,000,000 of Net Proceeds from
all such Asset Sales in each fiscal year need not be applied to the prepayment
of the Loans and the reduction of the Commitments.
(c) The Borrower will take all steps necessary to ensure
compliance with Section 2.4(a).
(d) Prepayments made pursuant to this Section 2.8 shall be
applied by the Borrower, subject to the next succeeding sentence, to reduce
permanently the Revolving Credit Commitments (pro rata according to the amounts
of the Revolving Credit Commitments of the respective Lenders). Any such
reduction of the Revolving Credit Commitments shall be accompanied by prepayment
of first, Swing Line Loans, second, Revolving Credit Loans to the extent, if
any, that the sum of the aggregate outstanding principal amount of Revolving
Credit Loans, Swing Line Loans and Letter of
<PAGE>
23
Credit Obligations exceeds the amount of the aggregate Revolving Credit
Commitments as so reduced and third, Competitive Bid Loans.
(e) The Borrower shall give the Administrative Agent (which
shall promptly notify each Lender) at least one Business Day's notice of each
prepayment or mandatory reduction pursuant to this Section 2.8 setting forth the
date and amount thereof. Any prepayment of Revolving Credit Loans pursuant to
this Section 2.8 shall be applied, first, to any such Base Rate Loans then
outstanding and the balance of such prepayment, if any, to any such Eurodollar
Loans then outstanding; provided that prepayments of Eurodollar Loans, if not on
the last day of the Interest Period with respect thereto, shall, at the
Borrower's option, be prepaid subject to the provisions of Sections 2.18 and
2.19 or the amount of such prepayment (after application to any Base Rate Loans)
shall be deposited with the Administrative Agent as cash collateral for the
Loans on terms reasonably satisfactory to the Administrative Agent and
thereafter shall be applied in the order of the Interest Periods next ending
most closely to the date such prepayment is required to be made and on the last
day of each such Interest Period. After such application, unless an Event of
Default shall have occurred and be continuing, any remaining interest earned on
such cash collateral shall be paid to the Borrower.
2.9. Conversion and Continuation Options. The Borrower may elect
from time to time to convert Eurodollar Loans to Base Rate Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans or to
continue Eurodollar Loans as Eurodollar Loans by giving the Administrative Agent
at least three Business Days' prior irrevocable written notice of such election,
provided that any continuation of a Eurodollar Loan may only be made on the last
day of the Interest Period with respect thereto. Any such notice of conversion
to or continuation of Eurodollar Loans shall specify the length of the Interest
Period or Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. All or any part
of outstanding Eurodollar Loans and Base Rate Loans (other than Swing Line
Loans) may be converted as provided herein, provided that (i) no Loan may be
converted into or continued as a Eurodollar Loan when any Event of Default has
occurred and is continuing and (ii) no Loan may be converted into or continued
as a Eurodollar Loan after the date that is one month prior to the Termination
Date provided, further, that if the Borrower shall fail to give such notice or
if such conversion or continuation is not permitted, such Loans shall be
automatically converted to Base Rate Loans on the last day of such then expiring
Interest Period.
2.10. Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Revolving Credit Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to
<PAGE>
24
such elections so that, after giving effect thereto, the aggregate principal
amount of the Revolving Credit Loans comprising each Eurodollar Tranche shall be
equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no
event shall there be more than nine Eurodollar Tranches outstanding at any time.
2.11. Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section 2.11
plus 2% or (y) in the case of any such overdue interest, the Revolving Credit
Commitment Fee, or any other fee or other amount, the rate described in Section
2.11(b) plus 2%, in each case from the date of such non-payment until such
overdue principal, interest, commitment fee or other amount is paid in full (as
well after as before judgment).
(d) Interest on Revolving Credit Loans shall be payable in
arrears on each Interest Payment Date, provided that interest accruing pursuant
to Section 2.11(c) shall be payable from time to time on demand.
2.12. Computation of Interest and Fees.
(a) The Revolving Credit Commitment Fee and, whenever it is
calculated on the basis of the Base Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest shall be calculated on the basis of a 360-day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
<PAGE>
25
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section
2.11(a).
2.13. Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining
their affected Revolving Credit Loans during such period, the Administrative
Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, (y) any Revolving Credit Loans that were to
have been continued or converted on the first day of such Interest Period to
Eurodollar Loans shall be converted to or continued as Base Rate Loans and (z)
any outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, and the Borrower shall not have the right to convert Loans to Eurodollar
Loans.
2.14. Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder
(other than Swing Line Loans and Competitive Bid Loans), each payment by the
Borrower on account of the Revolving Credit Commitment Fee and any reduction of
the Commitments of the Lenders shall be made pro rata according to the
respective Commitment Percentages of the Lenders. Each optional or mandatory
prepayment by the Borrower of the Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of the Revolving
Credit Loans then held by the respective Lenders. Each payment by or on behalf
of the Borrower on account of principal of or interest on the Revolving Credit
Loans shall be made pro rata according to the respective amounts of such
principal or interest then due and owing. All payments (including
<PAGE>
26
prepayments) to be made by the Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in Section 10.2, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into another
calendar month in which event the day for payment hereunder shall end on the
immediately preceding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent shall assume
that such Lender is making such amount available to the Administrative Agent,
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error. If such Lender's
Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to Base Rate Loans
hereunder, on demand, from the Borrower.
2.15. Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be cancelled and (b)
such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Sections 2.18 and 2.19.
<PAGE>
27
2.16. Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, or any
Eurodollar Loan made by it or the issuance of a Letter of Credit by
the Issuing Lender, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes
covered by Section 2.17 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is
not otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or of issuing and maintaining Letters
of Credit or to reduce any amount receivable hereunder in respect thereof, then,
in any such case, the Borrower shall promptly pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduced amount receivable.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
<PAGE>
28
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.17. Taxes.
(a) All payments made by the Borrower under this Agreement and
any Notes shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any Note). If any such non-excluded taxes,
levies, imposts, duties, charges, fees deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder or under any Note, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the United States
of America or a state thereof if such Lender fails to comply with the
requirements of Section 2.17(b). Whenever any Non-Excluded Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
<PAGE>
29
(b) Each Lender that is not incorporated or organized under
the laws of the United States of America, any state thereof or the District of
Columbia shall:
(i) deliver to the Borrower and the Administrative Agent
on or before the date on which it becomes a Lender either (A) two
properly completed and duly executed copies of United States
Internal Revenue Service Form 1001 or 4224 (or successor applicable
form, as the case may be) claiming complete exemption from United
States withholding tax with respect to payments by the Borrower
under this Agreement or (B) in the case of a Lender claiming
exemption from United States withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest"
by the Borrowers under this Agreement, a properly completed and duly
executed United States Internal Revenue Service Form W-8 (or
successor applicable form, as the case may be) and an annual
certificate representing that such Lender is not a bank for purposes
of Section 881(c) of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has not been
treated as a bank for purposes of any tax, securities law or other
filing or submission made to any Governmental Authority, any
application made to a rating agency or qualification for any
exemption from tax, securities law or other legal requirements, is
not a 10% shareholder of the Borrower within the meaning of Section
881(c)(3)(B) of the Code and is not a controlled foreign corporation
receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code;
(ii) deliver to the Borrower and the Administrative
Agent two further copies of any such form or certification on or
before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested
by the Borrower or the Administrative Agent;
provided, however, that such Lender shall not be required to perform the
obligations under this Section 2.17(b) if an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent.
<PAGE>
30
2.18. Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement, or (c) the making of a prepayment or payment of Eurodollar Loans on a
day which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Bank on such amount by placing such amount on deposit
for a comparable period with leading banks in the interbank Eurodollar market.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.19. Fees. The Borrower hereby agrees to pay to the Administrative
Agent such fees on such dates as may from time to time be specified by such
parties in writing.
2.20. Letters of Credit.
(a) The Issuing Lender will, from time to time until the
Termination Date, upon receipt of duly executed Applications and such other
documents, instruments and/or agreements as the Issuing Lender may require,
issue or amend Letters of Credit on such terms as are satisfactory to the
Issuing Lender, provided, however that the Issuing Lender shall not issue any
Letter of Credit (A) at any time if, after giving effect to such Letter of
Credit, the Letter of Credit Obligations would exceed the lesser of (i)
$5,000,000 or (ii) the aggregate amount of Revolving Credit Commitments minus
the sum of (w) the Letter of Credit Obligations, (x) the outstanding principal
balance of the Revolving Credit Loans, (y) the outstanding principal balance of
the Swing Line Loans, and (z) the outstanding principal balance of the
Competitive Bid Loans, and (B) with an expiry date (i) more than one year from
its issuance or (ii) subsequent to a date 30 days prior to the Termination Date.
(b) The Borrower agrees to reimburse the Administrative Agent
for the account of the Issuing Lender, on demand, for each such payment made by
the Issuing Lender under or pursuant to any Letter of Credit or L/C Draft. The
Borrower
<PAGE>
31
further agrees to pay to the Administrative Agent for the account of the Issuing
Lender, on demand, interest at the rate set forth in Section 2.11 applicable to
Base Rate Loans on any amount paid by the Issuing Lender under or pursuant to
any Letter of Credit or L/C Draft from the date of payment until the date of
reimbursement to the Issuing Lender.
(c) The Borrower's obligation to reimburse the Administrative
Agent for the account of the Issuing Lender for payments and disbursements made
by the Issuing Lender under any Letter of Credit 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 Issuing Lender (or any other Lender), including, without limitation,
any defense based on the failure of the demand for payment under such Letter of
Credit to conform to the terms of such Letter of Credit, the legality, validity,
regularity or enforceability of such Letter of Credit, or the identity of the
transferee of such Letter of Credit or the sufficiency of any transfer if such
Letter of Credit is transferable; provided however, that the Borrower shall not
be obligated to reimburse the Administrative Agent for the account of the
Issuing Lender for any wrongful payment or disbursement made under any Letter of
Credit as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuing Lender or any of its officers, employees
or agents.
(d) Notwithstanding anything to the contrary herein or in any
Application, upon the occurrence of an Event of Default, an amount equal to the
aggregate amount of the outstanding Letter of Credit Obligations shall, at the
Issuing Lender's option and without demand upon or further notice to the
Borrower, be deemed (as between the Issuing Lender and the Borrower) to have
been paid or disbursed by the Issuing Lender under the Letters of Credit issued
and L/C Drafts accepted by the Issuing Lender (notwithstanding that such amounts
may not in fact have been so paid or disbursed), and a Revolving Credit Loan,
which shall be a Base Rate Loan, to Borrower in the amount of such Letter of
Credit Obligations to have been made and accepted by the Borrower, which Loan
shall be immediately due and payable.
(e) With respect to each Letter of Credit, each Lender (other
than the Issuing Lender) hereby irrevocably and unconditionally agrees that it
shall be deemed to have purchased and received from the Issuing Lender, without
recourse or warranty an undivided interest in such Letter of Credit, effective
simultaneously with the issuance thereof, in an amount equal to such Lender's
Commitment Percentage of such Letter of Credit. For the purposes of this
Agreement, the proportionate interest which the Issuing Lender retains in each
Letter of Credit shall be referred to as its "participation" in such Letter of
Credit.
(f) If the Issuing Lender shall fail to be reimbursed pursuant
to subsections (b) or (d) above by the Borrower for any payment or disbursement
under a Letter of Credit or L/C Draft, each other Lender shall, promptly upon
request of the Issuing
<PAGE>
32
Lender, make a Revolving Credit Loan, which shall be a Base Rate Loan in an
amount equal to such Lender's Commitment Percentage of such payment or
disbursement. If the Administrative Agent or the Issuing Lender subsequently
receives from the Borrower any reimbursement of such payment or disbursement,
the Administrative Agent or the Issuing Lender, as the case may be, shall
promptly remit to each Lender its Commitment Percentage of such reimbursement.
All interest payments received by the Issuing Lender or the Administrative Agent
on account of reimbursements under this Agreement shall be promptly distributed
by the Issuing Lender or the Administrative Agent, as the case may be, to the
other Lenders pro rata according to their respective Commitment Percentages
(except to the extent that the Issuing Lender was not promptly reimbursed by any
such Lender).
(g) The obligation of each Lender to provide the
Administrative Agent with such Lender's pro rata share of the amount of any
payment or disbursement made by the Issuing Lender under any outstanding Letter
of Credit or L/C Draft shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which such Lender may have or have had against the Issuing Lender (or any other
Lender), including, without limitation, any defense based on the failure of the
demand for payment under such Letter of Credit to conform to the terms of such
Letter of Credit, the legality, validity, regularity or enforceability of such
Letter of Credit, or the identity of the transferee of such Letter of Credit or
the sufficiency of any transfer if such Letter of Credit is transferable;
provided, however, that the Lenders shall not be obligated to reimburse the
Issuing Lender for any wrongful payment or disbursement made under any Letter of
Credit as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuing Lender or any of its officers, employees
or agents.
(h) In determining whether to make any payment under or
pursuant to any Letter of Credit or any related L/C Draft, the Issuing Lender
shall have no obligation to the Borrower, any Lender or any other Person other
than to confirm that any documents required to be delivered have been delivered
and that such documents comply on their face with the requirements of such
Letter of Credit. No action taken or omitted by the Issuing Lender under or in
connection with any Letter of Credit or L/C Draft, if taken or omitted in the
absence of gross negligence or willful misconduct, shall put the Issuing Lender
under any resulting liability to the Borrower or any Lender.
2.21. Competitive Bid Loans.
(a) Competitive Bid Loan Option. In addition to Revolving
Credit Loans and Swing Line Loans, the Borrower may, commencing on January 2,
1998, and continuing through the date which is the third Business Day preceding
the date which is seven days prior to the Termination Date, pursuant to the
terms of this Section 2.21, cause the Administrative Agent to request that the
Lenders submit offers to make Competitive Bid
<PAGE>
33
Loans to the Borrower from time to time prior to the Termination Date. The
Lenders may, but shall have no obligation to, make such offers and the Borrower
may, but shall have no obligation to, accept such offers in the manner set forth
in this Section 2.21; provided that after giving effect to any Competitive Bid
Borrowing, the aggregate outstanding principal amount of Competitive Bid Loans
when combined with the aggregate outstanding principal amount of all Revolving
Credit Loans and Swing Line Loans then outstanding and the aggregate Letter of
Credit Obligations at such time shall not exceed the aggregate Available
Commitments. Within the foregoing limits, and subject to the conditions set out
in this Section 2.21, Competitive Bid Loans may be repaid and reborrowed in
accordance with the provisions hereof.
(b) Competitive Bid Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.21, it shall
transmit to the Administrative Agent by facsimile a bid request substantially in
the form of Exhibit H hereto to be received no later than 11:00 a.m., New York
City time, at least one Business Day prior to the date of such proposed
Competitive Bid Borrowing, specifying (i) the date such Competitive Bid Loan is
requested to be made (which must be a Business Day), (ii) the amount of such
Competitive Bid Loan, which must be a minimum of $1,000,000 or an integral
multiple thereof, and a maximum of $50,000,000, (iii) the maturity date (the
"Competitive Bid Loan Maturity Date") for repayment of each Competitive Bid Loan
to be made as part of such Competitive Bid Borrowing (which maturity date may be
between seven and 180 days, inclusive, after the date of such Competitive Bid
Borrowing, provided that in no event shall the maturity date of any Competitive
Bid Borrowing be later than the third day preceding the Termination Date), (iv)
the interest payment date or dates relating thereto, and (v) any other terms to
be applicable to such Competitive Bid Borrowing.
(c) Invitation for Competitive Bids. Not later than 3:00 p.m.,
New York City time, on the Business Day on which the Administrative Agent
receives a bid request from the Borrower in compliance with Section 2.21(b), the
Administrative Agent shall send to the Lenders by facsimile an invitation for
Competitive Bid Quotes, substantially in the form of Exhibit I hereto, which
shall constitute an invitation by the Borrower to each Lender to submit bids
offering to make Competitive Bid Loans in accordance with this Section 2.21
(each an "Invitation for Competitive Bids"). If, after receipt by the
Administrative Agent of a bid request from the Borrower in accordance with
subsection (b) of this Section 2.21, the Administrative Agent or any Lender
shall be unable to complete any procedure of the auction process described in
subsections (c) through (f) (inclusive) of this Section 2.21 due to the
inability of such Person to transmit or receive communications through the means
specified therein, such Person may rely on telephonic notice for the
transmission or receipt of such communications. In any case where such Person
shall rely on telephone transmission or receipt, any communication made by
telephone shall, as soon as possible thereafter, be followed by written
confirmation thereof.
(d) Submission and Contents of Competitive Bids.
<PAGE>
34
(i) In response to any Invitation for Competitive Bids,
each Lender may (but shall not be required to) submit to the
Administrative Agent a Competitive Bid Quote containing an offer or
offers to make Competitive Bid Loans. Each Competitive Bid Quote
must comply with the requirements of this Section 2.21(d) and must
be submitted to the Administrative Agent by facsimile not later than
10:00 a.m., New York City time, on the date (the "Reply Date") which
is the date of such proposed Competitive Bid Borrowing, provided
that Competitive Bid Quotes submitted by the Administrative Agent
(or any Affiliate of the Administrative Agent) in its capacity as a
Lender may be submitted, and may only be submitted, if the
Administrative Agent or such Affiliate notifies the Borrower of the
offer or offers contained therein not later than 9:45 a.m., New York
City time, on the Reply Date. Any Competitive Bid Quote so made
shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower. Any
Lender not giving the Administrative Agent the offer specified above
shall not be obligated to, and shall not, make any, Competitive Bid
Loan as part of such Competitive Bid Borrowing.
(ii) Each Competitive Bid Quote shall be substantially
in the form of Exhibit J hereto and shall in any case specify:
(A) the proposed effective date of the proposed
Competitive Bid Loan;
(B) the principal amount of the proposed
Competitive Bid Loan for which each offer is made, which principal
amount (x) may be greater than the quoting Lender's Commitment at
the time (subject to the proviso to the second sentence of Section
2.21(a)), (y) must be $1,000,000 or an integral multiple of
$1,000,000 and (z) may not exceed the principal amount of the
Competitive Bid Loan for which offers were requested;
(C) the Absolute Rate;
(D) the proposed Competitive Bid Loan Maturity
Date for the proposed Competitive Bid Loan (provided that in no
event shall the Competitive Bid Loan Maturity Date be later than the
third Business Day preceding the Termination Date); and
(E) the identity of the quoting Lender.
(iii) Any Competitive Bid Quote shall be
disregarded if it:
<PAGE>
35
(A) is not substantially in the form of Exhibit J
hereto or does not specify all of the information required by
Section 2.21(d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms (including, without limitation,
a Competitive Bid Loan Maturity Date) other than or in addition to
those set forth in the applicable Invitation for Competitive Bids;
or
(D) arrives after the time set forth in Section
2.21(d)(i).
(e) Notice to Borrower. Not later than 10:30 a.m., New York
City time, (x) on the Reply Date, the Administrative Agent shall notify the
Borrower of the terms of each Competitive Bid Quote submitted by a Lender that
is in accordance with Section 2.21(d). The Administrative Agent's notice to the
Borrower shall specify (i) the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Competitive Bid Loan
specified in the related Competitive Bid Request and (ii) the respective
principal amounts and Competitive Bid Rates, as the case may be, so offered.
(f) Acceptance and Notice By Borrower. Not later than 11:00
a.m., New York City time, on the Reply Date, the Borrower shall notify, by
telephone, confirmed by facsimile substantially in the form of Exhibit K hereto,
the Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to Section 2.21(e). In the case of an acceptance, such
notice (a "Notice of Competitive Bid Borrowing") shall specify the aggregate
principal amount of offers for each period for which such Loan shall be
outstanding that are accepted. The Borrower may accept any Competitive Bid Quote
in whole or in part, provided that:
(i) the aggregate principal amount of each borrowing may
not exceed the applicable amount set forth in the related
Competitive Bid Request;
(ii) subject to the provisions of Section 2.21(h)
hereof, the principal amount of each Loan must be $1,000,000 or an
integral multiple of $1,000,000;
(iii) offers quoting lower Competitive Bid Rates must be
accepted prior to offers quoting higher Competitive Bid Rates; and
<PAGE>
36
(iv) the Borrower shall not accept any offer that is
described in Section 2.21(d)(iii) or that otherwise fails to comply
with the requirements of this Agreement.
(g) Notice by the Administrative Agent to the Lenders. Not
later than 1:00 p.m., New York City time, on the date of the requested
borrowing, the Administrative Agent shall notify, by telephone, confirmed by
facsimile substantially in the form of Exhibit L hereto, such Lenders that made
such Competitive Bid Quotes of the Borrower's acceptance or non-acceptance of
such Competitive Bid Quotes.
(h) Allocation by Administrative Agent. If Competitive Bid
Quotes are made by two or more Lenders with the same Competitive Bid Rate for a
greater aggregate principal amount than the amount in respect of which offers
are accepted by the Borrower, the principal amount of Competitive Bid Loans in
respect of which such offers are accepted by the Borrower shall be allocated by
the Administrative Agent among such Lenders as nearly as possible (in such
multiples, not smaller than $500,000, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amount of such offers,
except that the Borrower shall be permitted to accept the offer of a single
Lender if such Lender (and no other Lender) shall have offered to make the
entire proposed Competitive Bid Loan requested by the Borrower under subsection
(b) above. If any such Lender has indicated a minimum acceptable Competitive Bid
Loan in its Competitive Bid Quote, and under the procedures of this subsection
(h), the Administrative Agent would have allocated to it an amount less than
such minimum, such Competitive Bid Quote will instead be deemed to have been
withdrawn. Determinations by the Administrative Agent of the amounts of
Competitive Bid Loans to be made by each Lender shall be conclusive in the
absence of manifest error.
(i) Interest on Competitive Bid Loans. Each Competitive Bid
Loan shall bear interest on the outstanding principal amount thereof, for the
period applicable thereto, at a rate per annum equal to the Competitive Bid Rate
quoted by the Lender making such Loan in its Competitive Bid Quote. Such
interest shall be payable on the sooner to occur of (x) the Competitive Bid Loan
Maturity Date (or sooner upon the acceleration of such Competitive Bid Loan) and
(y) on each applicable Interest Payment Date.
(j) Competitive Bid Notes. The Competitive Bid Loans shall be
evidenced by separate promissory notes substantially in the form of Exhibit A-3
attached hereto, payable to the order of each Lender in a principal amount equal
to such Lender's Commitment. Each such Note shall be dated on or before the date
of the first Loans and shall have the blanks therein appropriately completed.
Each Lender shall, and is hereby irrevocably authorized by the Borrower to,
enter on the schedule forming a part of such Lender's Competitive Bid Note or
otherwise in its records appropriate notations evidencing the date and the
amount of each Competitive Bid Loan made by such Lender, the interest
<PAGE>
37
rate applicable thereto and the date and amount of each payment of principal
made by the Borrower with respect thereto; and such notations shall constitute
prima facie evidence thereof. Each Lender is hereby irrevocably authorized by
the Borrower to attach to and make a part of such Lender's Competitive Bid Note
a continuation of any such schedule as and when required. No failure on the part
of any Lender to make any notation as provided in this subsection (j) shall in
any way affect any Competitive Bid Loan or the rights or obligations of such
Lender or the Borrower with respect thereto.
(k) Payment of Competitive Bid Loans. Each Competitive Bid
Loan shall be due and payable, and the Borrower hereby absolutely and
unconditionally promises to pay such Competitive Bid Loans, on the earlier of
(i) the Competitive Bid Loan Maturity Date thereof and (ii) the Termination
Date. All payments of principal and interest and other amounts payable in
respect of a Competitive Bid Loan shall be made by the Borrower to the
Administrative Agent for the account of the Lender or Lenders making such
Competitive Bid Loan in immediately available funds, on or before 11:00 a.m.,
New York City time, on the due date thereof, free and clear of, and without any
deduction or withholding for, any taxes or other payments.
(l) Maximum Competitive Bid Loans; Funding Losses. If after
acceptance of any Competitive Bid Quote pursuant to Section 2.21, the Borrower
fails to borrow any Competitive Bid Loan so accepted on the date specified
therefor, the Borrower shall indemnify the Lender funding such Loan against any
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or maintain such
unborrowed Loans.
(m) Funding of Competitive Bid Loans. Subject to the terms and
conditions hereof, each Lender which is making a Competitive Bid Loan pursuant
to Section 2.21 hereof shall make available to Administrative Agent, in
immediately available funds, no later than 1:45 p.m., New York City time, on the
date on which such Competitive Bid Loan is to be made, the principal amount
thereof (or so much thereof as shall have been allocated to such Lender pursuant
to Section 2.21(h) hereof). Upon receipt of such funds, the Administrative Agent
shall make such Competitive Bid Loan available to the Borrower on the effective
date specified therefor by crediting the amount of such Competitive Bid Loan to
the Borrower's demand deposit account with the Administrative Agent or as
otherwise specified by the Borrower in writing. In no event shall the
Administrative Agent (in its capacity as Administrative Agent) have any
obligation to fund any Competitive Bid Loan unless it shall have received funds
therefor from the Lender or Lenders making such Loan.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, and to induce the Issuing Lender to issue
Letters of
<PAGE>
38
Credit, and the Borrower hereby represents and warrants to the Administrative
Agent, the Issuing Lender and each Lender that:
3.1. Financial Condition.
The consolidated balance sheet of the Parent and its
consolidated Subsidiaries at December 31, 1996 and the related consolidated
statements of income and of cash flows of the Parent and its consolidated
Subsidiaries for the 12 months ending December 31, 1996, reported on by Coopers
& Lybrand LLP, copies of which have heretofore been furnished to each Lender,
are complete and correct and present fairly the consolidated financial condition
of the Parent and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash flows for
the fiscal year then ended. The unaudited consolidated statement of income of
the Parent and its consolidated Subsidiaries as at June 30, 1997, certified by
the chief financial officer of the Parent, a copy of which has heretofore been
furnished to each Lender, is complete and correct and presents fairly the
consolidated results of operations of the Parent and its consolidated
Subsidiaries as at such date (subject to normal year-end audit adjustments). All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or chief financial
officer, as the case may be, and as disclosed therein). Except as set forth on
Schedule 3.1, neither the Parent nor any of its consolidated Subsidiaries had,
at the date of the most recent balance sheet referred to above, any material
Guarantee Obligation, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto.
3.2. No Change. Since December 31, 1996, there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
3.3. Corporate Existence; Compliance with Law. Each Loan Party (a)
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification and (d) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3.4. Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and
<PAGE>
39
perform the Loan Documents to which it is a party and to borrow hereunder and
has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and any Notes and to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents. This Agreement
has been, and each other Loan Document to which it is a party will be, duly
executed and delivered on behalf of each Loan Party that is a party hereto or
thereto. This Agreement constitutes, and each other Loan Document to which it is
a party when executed and delivered will constitute, a legal, valid and binding
obligation of each Loan Party that is a party hereto or thereto enforceable
against such Loan Party in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
3.5. No Legal Bar. The execution, delivery and performance of the
Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of any Loan
Party or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of its or their respective properties
or revenues pursuant to any such Requirement of Law or Contractual Obligation.
3.6. No Material Litigation. Except as set forth on Schedule 3.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Loan Parties,
threatened by or against any Loan Party or any of its Subsidiaries or against
any of its or their respective properties or revenues (a) with respect to any of
the Loan Documents or any of the transactions contemplated hereby or thereby, or
(b) which could reasonably be expected to have a Material Adverse Effect.
3.7. No Default. No Loan Party or any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
3.8. Ownership of Property; Liens. Each of the Loan Parties and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property is
subject to any Lien except as permitted by Section 6.3. With respect to real
property or interests in real property, as of the Closing Date, the Borrower has
(i) fee title to all of the real property listed on Schedule 3.8 under the
heading
<PAGE>
40
"Fee Properties" (each, a "Fee Property"), and (ii) good and valid title to the
leasehold estates in all of the real property leased by it and listed on
Schedule 3.8 under the heading "Leased Properties" (each, a "Leased Property"),
in each case free and clear of all mortgages, liens, security interests,
easements, covenants, rights-of-way and other similar restrictions of any nature
whatsoever, except (A) Liens permitted pursuant to Section 6.3, (B) as to Leased
Property, the terms and provisions of the respective lease therefor and any
matters affecting the fee title and any estate superior to the leasehold estate
related thereto, and (C) title defects, or leases or subleases granted to
others, which are not material to the Fee Properties or the Leased Properties,
as the case may be, taken as a whole. The Fee Properties and the Leased
Properties constitute, as of the Closing Date, all of the real property owned in
fee or leased by the Borrower and its Subsidiaries.
3.9. Intellectual Property. Each Loan Party and each of its
Subsidiaries owns, or is licensed to use or otherwise has the right to use, all
trademarks, tradenames, copyrights, patents, trade secrets and other proprietary
information that it uses in the conduct of its business as currently conducted
except for those the failure to own or license which could not reasonably be
expected to have a Material Adverse Effect (the "Intellectual Property"). To the
knowledge of each Loan Party, 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 enforceability of any such Intellectual Property, nor does any
Loan Party know of any valid basis for any such claim. The use of such
Intellectual Property by each Loan Party and its Subsidiaries does not infringe
on the rights of any Person, except for such claims and infringements that, in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
3.10. No Burdensome Restrictions. No Contractual Obligation of any
Loan Party or any of its Subsidiaries could reasonably be expected to have a
Material Adverse Effect.
3.11. Taxes. Each Loan Party and each of its Subsidiaries has filed
or caused to be filed all material tax returns which, to the knowledge of the
Loan Parties, are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any amount or the validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of such Loan Party or its Subsidiaries, as the case may be); no tax Lien
has been filed, and, to the knowledge of the Loan Parties, no claim is being
asserted, with respect to any such tax, fee or other charge.
3.12. Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board of Governors of
<PAGE>
41
the Federal Reserve System as now and from time to time hereafter in effect. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-1 or FR Form U-1 referred to in
said Regulation G or Regulation U, as the case may be.
3.13. ERISA. Except as set forth in Schedule 3.13, neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by more than $3 million.
Neither the Borrower nor any Commonly Controlled Entity has any liability in
respect of any Multiemployer Plan.
3.14. Investment Company Act; Other Regulations. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any federal or state statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
3.15. Subsidiaries. (a) The only Subsidiary of the Parent is the
Borrower; and (b) the only Subsidiaries of the Borrower are Martin Brothers
International Inc., King Edward Technology, Inc., Swisher International, Ltd. (a
Subsidiary of Martin Brothers International, Inc.), Swisher International
Finance Company and Swisher Santiago Enterprises, Inc.
3.16. Purpose of Loans. The proceeds of the Loans have been and
shall be used by the Borrower to refinance a portion of the Existing
Indebtedness and for working capital and general corporate purposes.
3.17. Environmental Matters. Except to the extent that all of the
following, taken together, could not reasonably be expected to result in a
Material Adverse Effect or to result in the payment of Material Environmental
Amount:
(a) The facilities and properties owned, leased or operated by
each Loan Party or any of its Subsidiaries (the "Properties") do not contain,
and have not previously contained, any Materials of Environmental Concern in
amounts or concentrations
<PAGE>
42
which (i) constitute or constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by any Loan Party or any of
its Subsidiaries (the "Business") which could materially interfere with the
continued operation of the Properties or materially impair the fair salable
value thereof.
(c) Neither any Loan Party nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does any Loan Party have knowledge or reason to believe that any such notice
will be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location which could reasonably be expected to give rise to liability
under, any Environmental Law, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any of the
Properties or elsewhere in violation of, or in a manner that could reasonably be
expected to give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Loan Parties, threatened, under
any Environmental Law to which any Loan Party or any Subsidiary thereof is or
will be named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or the
Business.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or arising from or
related to the operations of any Loan Party or any Subsidiary thereof in
connection with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could reasonably give rise to
liability under Environmental Laws.
3.18. Solvency. Each Loan Party is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith, will be and will continue to be, Solvent.
<PAGE>
43
3.19. Accuracy of Information. No statement or information contained
in this Agreement, any other Loan Document or any other document, certificate or
statement furnished in writing to the Administrative Agent, the Arranger or the
Lenders or any of them, by or on behalf of any Loan Party for use in connection
with the transactions contemplated by this Agreement or the other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished any untrue statement of any fact material to the
interests of the Administrative Agent or any Lender, or omitted to state a fact
necessary in order to make the statements contained herein or therein not
misleading in any respect material to the interests of the Administrative Agent
or any Lender. There is no fact known to any Loan Party that could reasonably be
expected to have a Material Adverse Effect that has not been expressly disclosed
herein, in the other Loan Documents or in such other documents, certificates and
statements furnished to the Administrative Agent, the Arranger and the Lenders
for use in connection with the transactions contemplated hereby and by the other
Loan Documents.
SECTION 4. CONDITIONS PRECEDENT
4.1. Conditions to Initial Loans. The agreement of each Lender to
make the Loans requested to be made by it, and for the Issuing Lender to issue
any Letter of Credit, is subject to the satisfaction, immediately prior to or
concurrently with the making of such Loans or the issuance of such Letters of
Credit on the Closing Date, of the conditions precedent set forth below:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of each of the Parent and the Borrower, with a counterpart for each Lender, (ii)
the Notes drawn to the order of the appropriate Lender and (iii) the
Subsidiaries Guarantee, executed and delivered by a duly authorized officer of
each party thereto, with a counterpart or a conformed copy for each Lender.
(b) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of such other documents or instruments as may be
reasonably requested by the Administrative Agent, including, without limitation,
a copy of any debt instrument, security agreement or other material contract to
which any Loan Party may be a party.
(c) Borrowing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of the Borrower, dated the
Closing Date, substantially in the form of Exhibit C with appropriate insertions
and attachments, satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of the Borrower.
<PAGE>
44
(d) Borrower Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a Certificate of the
Borrower, dated the Closing Date, as to the incumbency and signature of the
officers of the Borrower executing any Loan Document satisfactory in form and
substance to the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Borrower.
(e) Parent Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of the
Parent, dated the Closing Date, as to the incumbency and signature of the
officers of the Parent executing any Loan Document satisfactory in form and
substance to the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Parent.
(f) Subsidiary Incumbency Certificates. The Administrative
Agent shall have received, with a counterpart for each Lender, a certificate of
each Subsidiary of the Borrower which is a Loan Party, dated the Closing Date,
as to the incumbency and signature of the officers of such Subsidiaries
executing any Loan Document, satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of each such Subsidiary.
(g) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the Secretary or
an Assistant Secretary of each Loan Party, certified as of the Closing Date,
certifying that there have been no changes to the certificate of incorporation
and by-laws of such Loan Party delivered to the Lenders on the Original Closing
Date other than changes to the Parent's certificate of incorporation and by-laws
related to the recapitalization of the Parent and the IPO.
(h) Fees. The Administrative Agent and the Lenders shall have
received all invoiced fees and expenses required to be paid on the Closing Date
in connection with this Agreement and the Administrative Agent shall have
received all accrued fees, expenses and interest under the Existing Credit
Agreement as of the Closing Date for the account of the lenders thereunder.
(i) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal opinion of
Schnader, Harrison, Segal & Lewis, counsel to the Borrower and the other Loan
Parties, substantially in the form of Exhibit D, each such legal opinion to
cover such other matters incident to the transactions contemplated by this
Agreement as the Administrative Agent may reasonably require.
<PAGE>
45
(j) Third-Party Consents. All governmental and third party
approvals (including landlords' and other consents) necessary or advisable in
connection with the making of the initial Loans and the continuing operations of
the Borrower and its Subsidiaries shall have been obtained and be in full force
and effect, and all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority which would
restrain, prevent or otherwise impose materially adverse conditions on the
making of the initial Loans.
(k) Solvency Certificate. The Administrative Agent shall have
received the executed Solvency Certificate, with a counterpart for each Lender.
(l) Termination of Existing Credit Agreement. The Borrower
shall have terminated its right to receive "Loans" or request the issuance of
"Letters of Credit" for its account under the Existing Credit Agreement.
4.2. Conditions to Each Loan or Letters of Credit. The agreement of
each Lender to make any Loan requested to be made by it on any date (including,
without limitation, its initial Loan), or the agreement of the Issuing Lender to
issue a Letter of Credit, is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by each Loan Party in or pursuant to the
Loan Documents shall be true and correct in all material respects on and as of
such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of the transactions contemplated hereby
or thereby as it shall reasonably request.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Each of the Parent and the Borrower hereby agrees that, so long as
the Commitments remain in effect or any amount is owing to any Lender or the
Administrative
<PAGE>
46
Agent hereunder or under any other Loan Document, it shall and (except in the
case of delivery of financial information, reports and notices) shall cause each
of its Subsidiaries to:
5.1. Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Parent, copies of the consolidated and
consolidating balance sheets of the Parent and its consolidated Subsidiaries as
at the end of such year and the related consolidated and consolidating
statements of income and retained earnings and of cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by Coopers & Lybrand LLP
or other independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each fiscal
year of the Parent, the unaudited consolidated and consolidating balance sheets
of the Parent and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated and consolidating statements of income
and retained earnings and of cash flows of the Parent and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the figures for
the previous year, certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal year-end audit adjustments).
5.2. Certificates; Other Information. Furnish to each Lender
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event
of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Section 5.1(a) and 5.1(b), a certificate of a Responsible Officer
(i) stating that, to the best of such officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to be observed, performed or satisfied by it, and that such
officer has obtained no knowledge of any Default or Event of Default except as
specified in such certificate; and (ii) in the case of financial statements
referred to in Section 5.1(a) and 5.1(b), including calculations and information
demonstrating in reasonable detail compliance with the requirements of Section
6.1;
<PAGE>
47
(c) not later than 30 days following the end of each fiscal
year of the Parent, a copy of the projections by the Parent of the operating
budget and cash flow budget of the Parent and its Subsidiaries for the
succeeding fiscal year, such projections to be accompanied by a certificate of a
Responsible Officer to the effect that such projections have been prepared on
the basis of sound financial planning practice and that such officer has no
reason to believe they are incorrect or misleading in any material respect;
(d) promptly after the same are available, copies of all proxy
statements, financial statements and reports as the Parent shall send to its
stockholders or as the Parent may file with the Securities and Exchange
Commission or any governmental authority at any time having jurisdiction over
the Parent or its Subsidiaries; and
(e) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
5.3. Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower or its Subsidiaries, as the case may be.
5.4. Maintenance of Existence. Preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business except as otherwise permitted pursuant to Section
6.5; comply with all Contractual Obligations and Requirements of Law except to
the extent that failure to comply therewith could not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
5.5. Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender, upon written request,
full information as to the insurance carried.
5.6. Inspection of Property; Books and Records: Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and, upon prior
written notice, permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be
<PAGE>
48
desired and to discuss the business, operations, properties and financial and
other condition of the Parent and its Subsidiaries with officers and employees
of the Parent and its Subsidiaries and with its independent certified public
accountants.
5.7. Notices. Promptly give notice to the Administrative
Agent (who shall promptly notify each Lender) of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Parent or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Parent or
any of its Subsidiaries and any Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding (including without limitation
any notice of violation, alleged violation, liability or potential liability
under any Environmental Law) affecting the Parent or any of its Subsidiaries in
which the amount involved is $500,000 or more and not covered by insurance or in
which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after any Loan Party knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan;
and
(e) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
5.8. Environmental Laws.
(a) Comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in
<PAGE>
49
all respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all respects with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws, except to the extent that any failures could not, in the
aggregate, be expected to have a Material Adverse Effect or to result in the
payment of Material Environmental Amount.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
5.9. Additional Subsidiaries. (a) With respect to any Subsidiary of
the Borrower created or acquired after the Closing Date by the Borrower,
promptly (i) cause such Subsidiary to execute and deliver a guarantee or a
supplement to the Subsidiaries Guarantee (which guarantee shall be senior to all
other Indebtedness of such guarantor), in form and substance satisfactory to the
Administrative Agent, in respect to all obligations of the Borrower hereunder
and under the other Loan Documents, (ii) execute and deliver such amendments to
this Agreement requested by the Administrative Agent to reflect the existence of
such Subsidiary, including, without limitation, amendments to Sections 3, 5, 6
and 7 to include such Subsidiary in the covenants, representations and
warranties and agreements contained therein and (iii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in the preceding clause (i) which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
SECTION 6. NEGATIVE COVENANTS
Each of the Parent and the Borrower hereby agrees that, so long as
the Commitments remain in effect or any amount is owing to any Lender, the
Issuing Lender, or the Administrative Agent or under any other Loan Document, it
shall not, and (except with respect to Section 6.1) shall not permit any of its
Subsidiaries to, directly or indirectly:
6.1. Financial Condition Covenants.
(a) Maintenance of Net Worth. Permit Net Worth at the last day
of any fiscal quarter to be less than (i) $60,000,000 plus (ii) 75% of Net
Income reported each fiscal quarter commencing with the fiscal quarter ending
March 31, 1998.
(b) Fixed Charge Coverage. Permit for any period of four
consecutive fiscal quarters the ratio of (i) Cash Flow for such period to (ii)
Fixed Charges for such period to be less than 1.25 to 1.
<PAGE>
50
(c) Maintenance of Indebtedness to EBITDA Ratio. Permit the
ratio of (i) Indebtedness of the Parent and its Subsidiaries at the last day of
each fiscal quarter to (ii) EBITDA of the Parent and its Subsidiaries for the
four fiscal quarters most recently ended, to be greater than 2.50 to 1.
6.2. Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this
Agreement;
(b) Indebtedness of the Borrower to any Subsidiary of the
Borrower and of any Subsidiary to the Borrower or any other Subsidiary of the
Borrower; and
(c) (i) additional Indebtedness of the Borrower (which
Indebtedness shall be unsecured) on a pari passu basis with the Indebtedness
under this Agreement not exceeding $10,000,000 in aggregate principal amount at
any one time outstanding and (ii) additional Indebtedness of the Borrower (which
Indebtedness shall be secured) incurred to finance the acquisition of fixed or
capital assets (whether pursuant to a loan, a Financing Lease or otherwise) not
exceeding $5,000,000 in aggregate principal amount at any one time outstanding.
6.3. Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of such Person in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted accounting
principles in effect from time to time in their respective jurisdictions of
incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers,
compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
<PAGE>
51
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of such Person; and
(f) Liens securing Indebtedness of the Borrower permitted by
Section 6.2(d) incurred to finance the acquisition of fixed or capital assets
(whether pursuant to a loan, a Financing Lease or otherwise), provided that (i)
such Liens shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness, (iii) the amount
of Indebtedness secured thereby is not increased and (iv) the principal amount
of Indebtedness secured by any such Lien shall at no time exceed the original
purchase price of such property at the time it was acquired.
6.4. Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and
listed on Schedule 6.4(a);
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $1,000,000 at any one time outstanding;
(c) guarantees made in the ordinary course of its business by
the Borrower of obligations of any of its Subsidiaries, which obligations are
otherwise permitted under this Agreement; and
(d) the Guarantees.
6.5. Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more wholly
owned Subsidiaries of the Borrower (provided that a wholly owned Subsidiary or
Subsidiaries shall be the continuing or surviving corporation); and
<PAGE>
52
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any other wholly owned Subsidiary of the Borrower.
6.6. Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Parent or any wholly-owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business; provided that the Net Proceeds of
each such transaction are applied to the prepayment of the Loans as provided in
Section 2.8(b);
(b) the sale of inventory in the ordinary course of business;
(c) as permitted by Section 6.5(b); and
(d) the sale or other disposition of any other property for
consideration not in excess of $5,000,000
6.7. Limitation on Dividends. Declare or pay any dividends on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Parent or any
Subsidiary or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Parent or any Subsidiary thereof (each such declaration,
payment, setting apart, purchase, redemption, defeasance, retirement,
acquisition and distribution being herein called a "Restricted Payment"), except
that (i) unless a Default or Event of Default shall have occurred and be
continuing before or after giving effect to any such Restricted Payment,
subsequent to the Closing Date, the Borrower may declare and pay dividends to
the Parent in an annual amount not greater than the sum of (x) $10,000,000 and
(y) twenty-five percent (25%) of Net Income (exclusive of losses) of the
Borrower for the four fiscal quarters most recently ended prior to the date of
the Restricted Payment, and (ii) any Subsidiary may pay dividends to the
Borrower.
6.8. Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
<PAGE>
53
(b) investments in Cash Equivalents;
(c) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the ordinary
course of business in an aggregate amount for the Borrower and its Subsidiaries
not to exceed $500,000 at any one time outstanding;
(d) investments by the Borrower or its Subsidiaries in (i) any
Subsidiary of the Borrower which has complied with the conditions set forth in
Section 5.9 (to the extent applicable) or (ii) any joint venture, provided that
the aggregate amount of all such advances, loans, investments, transfers or
guarantees outstanding at any time shall not exceed $20,000,000; and
(e) investments by the Borrower in Joint Ventures in the
aggregate principal amount of up to $25,000,000 provided that such Joint Venture
will be engaged predominately in the Borrower's existing lines of business or
businesses reasonably related thereto and provided further that prior to such
investment, (i) no Event of Default has occurred and is continuing, and (ii) the
Borrower delivers to the Administrative Agent a copy of the Joint Venture
Agreement or other agreement with respect to such Joint Venture (and delivers to
the Administrative Agent all subsequent amendments and modifications of such
Agreements).
6.9. Limitation on Optional Payments and Modifications of Debt
Instruments. (a) Make any optional payment or prepayment on or redemption or
purchase of any Indebtedness (other than the Loans) or (b) amend, modify or
change, or consent or agree to any amendment, modification or change to any of
the terms of any Indebtedness (excluding the Loans) (other than any such
amendment, modification or change which would extend the maturity or reduce the
amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon).
6.10. Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
6.11. Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the
<PAGE>
54
Borrower or such Subsidiary in excess of the aggregate of $5,000,000 outstanding
from time to time.
6.12. Limitation on Changes in Fiscal Year. Permit the fiscal year
of the Parent to end on a day other than December 31.
6.13. Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than (a) this Agreement and (b) any industrial
revenue bonds, purchase money mortgages or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed thereby), which prohibits or limits the ability of
the Parent or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired.
6.14. Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for the manufacture and sale
of tobacco, tobacco products and materials for the packaging and marketing of
tobacco, or, in the case of the Parent, enter into any business other than
holding the Capital Stock of the Borrower, respectively, or, in the case of
Swisher International Finance Company, enter into any business other than
holding the Wheeling Bonds or other assets of the Parent or its Subsidiaries.
6.15. Limitation on Acquisitions. Make any Acquisition other than a
non-hostile Acquisition (a "Permitted Acquisition"); provided, however, that in
the case of each such Permitted Acquisition, (i) the Borrower is the surviving
entity, (ii) the business to be acquired is predominantly in the Borrower's
existing lines of business or businesses reasonably related thereto and located
predominantly in the United States or the Borrower has the consent of the
Required Lenders if such line of business is unrelated to Borrower's line of
business, (iii) the cash portion of any Permitted Acquisition may not exceed
$25,000,000 without the consent of the Required Lenders, (iv) the business to be
acquired has achieved operating income of not less than One Dollar ($1.00) for
the immediately preceding fiscal year, (v) at the time of and after giving
effect to any Permitted Acquisition, (x) no Default or Event of Default has
occurred and is continuing and (y) the Parent and its consolidated Subsidiaries
shall be in compliance with all of the financial covenants contained in Section
6 of this Agreement and the Borrower shall provide evidence of such compliance
on a pro forma basis in the case of a Permitted Acquisition having a purchase
price (including the deferred or contingent portion of such purchase price)
greater than $5,000,000, and (vi) each new Subsidiary of the Borrower acquired
through a Permitted Acquisition shall become a Guarantor under this Agreement.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
<PAGE>
55
(a) The Borrower shall fail to pay any principal of or interest on
any Loan when due in accordance with the terms hereof; or the Borrower shall
fail to pay any other amount payable hereunder or under any Loan Document within
five days after any such other amount becomes due in accordance with the terms
hereof or thereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or which
is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any requirement contained in Section 5.1, 5.2, 5.4
or 5.5 or Section 6 hereof (including to the extent incorporated by reference
pursuant to Section 6 of the Subsidiaries Guarantee); or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in subsections (a) through (c)
of this Section) and such default shall continue unremedied for a period of 30
days; or
(e) The Parent or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the Loans)
or in the payment of any Guarantee Obligation, beyond the period of grace (not
to exceed 30 days), if any, provided in the instrument or agreement under which
such Indebtedness or Guarantee Obligation was created, if the aggregate amount
of the Indebtedness and/or Guarantee Obligations in respect of which such
default or defaults shall have occurred is at least $1,000,000; or (ii) default
in the observance or performance of any other agreement or condition relating to
any such Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or such Guarantee Obligation to become payable; or
(f) (i) The Parent or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
<PAGE>
56
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Parent or
any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Parent or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Parent or any of its Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Parent or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Parent or any of its Subsidiaries involving in the aggregate a liability (not
paid or fully covered by insurance) of $500,000 or more, and all such judgments
or decrees shall not
<PAGE>
57
have been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or
(i) Any Guarantee shall cease, for any reason, to be in full force
and effect or any Guarantor shall so assert, directly or indirectly;
(j) Any Event shall have occurred which results in a Material
Adverse Effect to the Parent or any of its Subsidiaries; or
(k) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable and the Loans shall
be repaid in accordance with the order set forth in the second sentence of
Section 2.8(d). Except as expressly provided above in this Section 7,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 8. GUARANTEE
8.1. Guarantee. The Parent unconditionally and irrevocably guarantees to
the Administrative Agent, each Lender and their successors, endorsees,
transferees and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent and the Lenders (including, without limitation, interest
accruing at the then applicable rate provided in this Agreement after the
maturity of the Loans and interest accruing at the then applicable rate provided
in this Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement or any other Loan Document
or any other document made, delivered or given in connection herewith or
<PAGE>
58
therewith, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative Agent
and the Lenders that are required to be paid by the Borrower or the Parent
pursuant to the terms of this Agreement or any other Loan Document) (such
obligations being herein collectively called the "Guaranteed Obligations"). The
Parent hereby further agrees to pay any and all expenses (including, without
limitation, all reasonable fees and disbursements of counsel) which may be paid
or incurred by the Administrative Agent or any Lender in enforcing, or obtaining
advice of counsel in respect of, any rights with respect to, or collecting, any
or all of the Guaranteed Obligations and/or enforcing any rights with respect
to, or collecting against the Parent under this Agreement. The Parent's
guarantee is a guaranty of payment of the Guaranteed Obligations, not a guaranty
of collection.
8.2. Obligations Unconditional. The obligations of the Parent under
Section 8.1 are continuing, absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
the Borrower under this Agreement or any other agreement or instrument referred
to herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations or any other
collateral security therefor or guaranty or right of offset with respect thereto
at any time or from time to time held by Administrative Agent or the Lenders,
and, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever (with or without notice to or knowledge of the
Borrower or the Parent) that might otherwise constitute, or might be construed
to constitute, a legal or equitable discharge or defense, set-off or
counterclaim of the Borrower for the Guaranteed Obligations, or the Parent
hereunder, in bankruptcy or in any other instance, it being the intent of this
Section 8.2 that the obligations of the Parent hereunder shall be absolute and
unconditional under any and all circumstances. Without limiting the generality
of the foregoing, it is agreed that the occurrence of any one or more of the
following shall not alter or impair the liability of the Parent hereunder which
shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the Parent,
the time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be
waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein or
therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
<PAGE>
59
or any other Loan Document or agreement or instrument referred to herein
or therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Parent waives any and all notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance
by any Lender upon the Parent Guarantee or acceptance of the Parent Guarantee;
the Guaranteed Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the Parent Guarantee; and all dealings between the
Borrower or the Parent on the one hand, and the Administrative Agent and the
Lenders, on the other, shall likewise be conclusively presumed to have been had
or consummated in reliance upon the Parent Guarantee. The Parent hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against the Borrower under
this Agreement or any other Loan Document or agreement or instrument referred to
herein or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations. When pursuing its rights and
remedies hereunder against the Parent, the Administrative Agent and each Lender
may, but shall be under no obligation to, pursue such rights and remedies as it
may have against the Borrower, the Parent or any other Person or against any
collateral security or guarantee for the Guaranteed Obligations or any right of
offset with respect thereto, and any failure by the Administrative Agent or any
Lender to pursue such other rights or remedies or to collect any payments from
the Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of setoff, or any release of
the Borrower or any such other Person or of any such collateral security,
guarantee or right of setoff, shall not relieve the Parent of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent
and the Lenders against the Parent.
8.3. Reinstatement. The obligations of the Parent under this Section 8
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Borrower in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by the Administrative Agent or any
Lender, whether as a result of any proceedings in bankruptcy or reorganization
or otherwise and the Parent agrees that it will indemnify the Administrative
Agent and any such Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration,
<PAGE>
60
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
8.4. Remedies. The Parent agrees that, as between the Parent, on the one
hand, and the Administrative Agent and the Lenders, on the other hand, the
obligations of the Borrower under this Agreement may be declared to be forthwith
due and payable as provided in Section 7 hereof (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Section 7 for purposes of Section 8.1) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Parent for purposes of
Section 8.1.
8.5. Continuing Guarantee. The Parent Guarantee is a continuing guarantee
and shall apply to all Guaranteed Obligations whenever arising.
8.6. No Subrogation. Notwithstanding any payment or payments made by the
Parent hereunder or any set-off or application of funds of the Parent by any
Lender, the Parent shall not be entitled to be subrogated to any of the rights
of the Administrative Agent or any Lender against the Borrower or any other
guarantor or any collateral security or guarantee or right of set-off held by
the Administrative Agent or any Lender for the payment of the Obligations, nor
shall the Parent seek or be entitled to seek any contribution or reimbursement
from the Borrower or any other guarantor in respect of payments made by the
Parent hereunder, until all amounts owing to the Administrative Agent and the
Lenders by the Borrower on account of the Guaranteed Obligations are paid in
full and the Commitments are terminated. If any amount shall be paid to the
Parent on account of such subrogation rights at any time when all of the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held by such Loan Party in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Loan Party, and shall, forthwith upon
receipt by such Loan Party, be turned over to the Administrative Agent in the
exact form received by such Loan Party (duly endorsed by such Loan Party to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine.
SECTION 9. ADMINISTRATIVE AGENT AND DOCUMENTATION AGENT
9.1. Appointment. Each Lender hereby irrevocably designates and appoints
the Administrative Agent as the agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this
<PAGE>
61
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2. Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
9.3. Exculpatory Provisions. Neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
9.4. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
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
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document
<PAGE>
62
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its 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. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents 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 all the Lenders and all
future holders of the Loans.
9.5. Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
9.6. Non-Reliance on Administrative Agent, and Other Lenders. Each Lender
expressly acknowledges that the Administrative Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent or the Documentation Agent hereinafter taken, including any review of the
affairs of the Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property,
<PAGE>
63
condition (financial or otherwise), prospects or creditworthiness of the
Borrower which may come into the possession of the Administrative Agent or any
of its respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
9.7. Indemnification. The Lenders agree to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with their Commitment Percentages immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Loans and all other amounts payable
hereunder.
9.8. Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Administrative
Agent were not the Administrative Agent hereunder and under the other Loan
Documents. With respect to the Loans made by it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9. Successor Administrative Agent. The Administrative Agent may resign
as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower, whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to
<PAGE>
64
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
9.10 The Documentation Agent. The Documentation Agent, in its capacity as
such, shall have no duties or responsibilities hereunder or under any Loan
Document nor any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Documentation Agent
in its capacity as such.
SECTION 10. MISCELLANEOUS
10.1. Amendments and Waivers. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled date of
maturity of any Loan or of any installment thereof, or reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender affected
thereby, or (ii) without the consent of all Lenders, (A) amend, modify or waive
any provision of this Section 10.1, (B) reduce the percentage specified in the
definition of Required Lenders, or (C) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents, or (iii) without the consent of all Lenders, release any
lien, security interest or other encumbrance encumbering any asset of any Loan
Party if, subsequent to the date hereof, the Administrative Agent or any Lender
is the beneficiary of a lien, security interest or other encumbrance in or
against any assets of any Loan Party, which lien, security interest or other
encumbrance shall be deemed to be for the benefit of all Lenders, or (iv)
release any Guarantee, or amend, modify or waive any provision of Section 2.8 or
Section 6.3, in each case without the written consent of all the Lenders, or (v)
amend, modify or waive any provision of Section 9 without the written consent of
the then Administrative Agent, or (vi) amend, modify or waive any provision of
this Agreement which would directly and adversely affect the Swing Line Lender
or the Issuing Lender, without the
<PAGE>
65
written consent of the then Swing Line Lender and the Issuing Lender, as the
case may be, or (v) change the terms of any Competitive Bid Loan without the
consent of the Lender(s) affected thereby. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Borrower, the Parent, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be restored
to their former positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
10.2. Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mails, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as follows in
the case of the Borrower, the Parent and the Administrative Agent, and as set
forth in Schedule I in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto:
The Borrower: Swisher International, Inc.
20 Thorndal Circle
Darien, CT 06820
Attention: Chief Financial Officer
Fax: 203.656.3151
The Parent: Swisher International Group, Inc.
c/o Swisher International, Inc.
20 Thorndal Circle
Darien, CT 06820
Attention: Chief Financial Officer
Fax: 203.656.3151
The Administrative
Agent: BankBoston, N.A.
One Landmark Square
Suite 2002
Stamford, CT 06901
Attention: Swisher Relationship Manager
Fax: 203.967.8169
<PAGE>
66
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.2, 2.4, 2.7, 2.9 or 2.14 shall not be
effective until received.
10.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.4. Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder until all obligations hereunder and under the other Loan
Documents have been paid in full and the Commitments hereunder have been
terminated.
10.5. Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation,
syndication and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of counsel to each Lender and of counsel to the Administrative Agent, (c) to
pay, indemnify, and hold each Lender and the Administrative Agent harmless from,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay, indemnify, and hold each
Lender and the Administrative Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the violation
<PAGE>
67
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Borrower, any of its Subsidiaries or any of the Properties
(all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided, that the Borrower shall have no obligation hereunder to
the Administrative Agent or any Lender with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of the Administrative
Agent or any such Lender. The agreements in this subsection shall survive
repayment of the Loans and all other amounts payable hereunder.
10.6. Successors and Assigns; Participation and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Administrative Agent and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender
hereunder. The Borrower also agrees that each Participant shall be entitled to
the benefits of Sections 2.16, 2.17, 2.18 and 2.19 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of Section 2.17, such Participant
shall have complied with the requirements of said Section and provided, further,
that no Participant shall be entitled to receive any greater amount pursuant to
any such subsection than the transferor Lender would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
<PAGE>
68
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any affiliate thereof or to an additional bank or
financial institution (an "Assignee"), in the case of any assignment relating to
Loans to such an additional bank or financial institution with the consent of
the Borrower and the Administrative Agent (which consents in each case shall not
be unreasonably withheld and provided that the consent of the Borrower shall not
be required during the occurrence and continuance of an Event of Default), all
or any part of its rights and obligations under this Agreement and the other
Loan Documents pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit F, executed by such Assignee, such assigning Lender (and, to the
extent required, by the Borrower and the Administrative Agent) and delivered to
the Administrative Agent for its acceptance and recording in the Register,
provided that, each such assignment shall be in a minimum amount of $10,000,000
(or if such Lender's Commitment is less than $10,000,000, then in such lesser
amount), and provided further that, in the case of any such assignment to an
additional bank or financial institution, the sum of the aggregate principal
amount of the Loans and the aggregate amount of the Available Commitment being
assigned and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Loans and the aggregate amount of the Available Commitment remaining with
the assigning Lender are each not less than $5,000,000. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment as set
forth therein, and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this subsection and subsection (e) below, the
consent of the Borrower shall not be required, and, unless requested by the
Assignee and/or the assigning Lender, new Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in of Section 7(f) shall have occurred and
be continuing.
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at the address of the Administrative Agent referred to in Section 10.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amounts of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of a Loan
or other obligation hereunder or under any Note as the owner thereof for all
purposes of this Agreement and the other Loan Documents,
<PAGE>
69
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder or under any Note shall be effective only upon appropriate
entries with respect thereto being made in the Register. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of any assignment relating to
Revolving Credit Loans to an Assignee that is not then a Lender or an affiliate
thereof, by the Borrower and the Administrative Agent) together with payment to
the Administrative Agent by the assigning Lender or Assignee of a registration
and processing fee of $3,500 (except that no such registration and processing
fee shall be payable in the case of an Assignee which is already a Lender or is
an Affiliate of a Lender), the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of Section 10.15, any and all financial information in
such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
10.7. Adjustments; Set-off.
(a) If any Lender (a "benefitted Lender") shall at any time receive
any payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 7(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans,
or interest thereon, such benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loan, or shall provide such other Lenders with the benefits of any such
collateral,
<PAGE>
70
or the proceeds thereof, as shall be necessary to cause such benefitted Lender
to share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest unless the benefitted
Lender is required to pay interest on the amount so recovered, in which case
each Lender shall pay its pro rata share of such interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
setoff and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
10.8. Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.10. Integration. This Agreement and the other Loan Documents represent
the agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
<PAGE>
71
10.12. Submission To Jurisdiction; Waivers. The Parent and the Borrower
each hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
10.13. Acknowledgments. Each of the Parent and the Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower or the Parent arising out of
or in connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower and the Parent, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower, the Parent and the Lenders.
<PAGE>
72
10.14. WAIVERS OF JURY TRIAL. THE PARENT, THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15. Confidentiality. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this Agreement
that is designated by the Borrower in writing as confidential; provided that
nothing herein shall prevent any Lender from disclosing any such information (i)
to the Administrative Agent or any other Lender, (ii) to any Transferee which
receives such information having been made aware of the confidential nature
thereof, (iii) to its employees, directors, agents, attorneys, accountants and
other professional advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) which has been publicly disclosed other
than in breach of this Agreement, or (vii) in connection with the exercise of
any remedy hereunder.
<PAGE>
73
The parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year
first above written.
SWISHER INTERNATIONAL, INC.
By /s/ Robert A. Britton
-----------------------------------
Robert A. Britton
Title: Executive Vice President and
Chief Financial Officer
SWISHER INTERNATIONAL GROUP INC.
By /s/ Robert A. Britton
-----------------------------------
Robert A. Britton
Title: Executive Vice President and
Chief Financial Officer
BANKBOSTON, N.A., as Administrative
Agent, Lender, Issuing Lender and
Swing Line Lender
By /s/ Richard J. Klouda
-----------------------------------
Richard J. Klouda
Title: Vice President
SOCIETE GENERALE, as
Documentation Agent and Lender
By /s/ John J. Wagner
-----------------------------------
Name: John J. Wagner
Title: Vice President
<PAGE>
74
Other Lenders:
COBANK ACB
By /s/ Antony Bahr
-----------------------------------
Name: Antony Bahr
Title: Vice President
CORESTATES, N.A.
By /s/ Karen R. Leaf
-----------------------------------
Name: Karen R. Leaf
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Scott R. Chappelka
-----------------------------------
Name: Scott R. Chappelka
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Derek Bonnar
-----------------------------------
Name: Derek Bonnar
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ Todd S. Meller
-----------------------------------
Name: Todd S. Meller
Title: Senior Relationship Manager
<PAGE>
75
FLEET NATIONAL BANK
By /s/ John V. Raleigh
-----------------------------------
Name: John V. Raleigh
Title: Senior Vice President
ERSTE BANK
By /s/ John Runnion
-----------------------------------
Name: John Runnion
Title: First VP
By /s/ Robert Suehnholz
-----------------------------------
Name: Robert Suehnholz
Title: Chief Credit Officer
THE SUMITOMO BANK, LIMITED
By /s/ Ana C. Bolduc
-----------------------------------
Name: Ana C. Bolduc
Title: Vice President & Manager
By /s/ Brian M. Smith
-----------------------------------
Name: Brian M. Smith
Title: Senior Vice President &
Regional Manager (East)
<PAGE>
SCHEDULE I
TO CREDIT AGREEMENT
LENDERS' COMMITMENTS AND ADDRESSES FOR NOTICES
Revolving Credit
Name/Address Commitment
- ------------ ----------
BankBoston, N.A. $25,000,000
One Landmark Square
Suite 2002
Stamford, Connecticut 06901
Attn: Mr. Richard J. Klouda
Fax: 203.967.8169
Societe Generale $20,000,000
1221 Avenue of the Americas
New York, New York 10020
Attn: Mr. Jack Wagner
Fax: 212.278.6178
CoBank ACB $17,000,000
5500 S. Quebec Street
Englewood, CO 80111
Attn: Mr. Antony Bahr
Fax: 303.694.5830
Corestates, N.A. $12,000,000
F-C 1-8-3-16
1345 Chestnut Street
Philadelphia, PA 19102
Attn: Ms. Karen Leaf
Fax: 215.973.6745
Credit Lyonnais New York
<PAGE>
77
Branch $10,000,000
1301 Avenue of the Americas
New York, NY 10019
Attn: Mr. Rod Hurst
Fax: 212.459.3179
The Royal Bank of Scotland plc $10,000,000
88 Pine Street, 26th Floor
New York, NY 10005
Attn: Mr. Derek Bonnar
Fax: 212.480.0791
The Bank of Nova Scotia $9,000,000
One Liberty Plaza, 26th Floor
New York, NY 10006
Attn: Mr. Todd Meller
Fax: 212.225.5090
Fleet National Bank $9,000,000
One Landmark Square, 2nd Floor
Stamford, CT 06901
Attn: Mr. John Raleigh
Fax: 203.964.4850
Erste Bank $9,000,000
280 Park Avenue
West Bldg., 32nd Floor
New York, NY 10017
Attn: Mr. Dave Manheim
Fax: 212.984.5627
<PAGE>
78
The Sumitomo Bank, Limited $9,000,000
1 Biscayne Tower
2 S. Biscayne Blvd.
Suite 3300
Miami, FL 33131
Attn: Ms. Ana Bolduc
Fax: 305.530.2260
------------
TOTAL: $130,000,000
<PAGE>
79
SCHEDULE 3.1(a) and 6.4(a)
List of Guarantees and Underlying Leases
1. Guarantee, dated May 6, 1987, in respect of the lease of premises located
at 246 Main Street, Monroe, Connecticut, between David Bernard Sippin,
Mark Bernard Sippin and Gary B. Sippin, d/b/a D.M.G. Enterprises, as
Landlord, and Lloyd Home & Building Centers, Inc., as Tenant, dated March
11, 1987 (Lease expires 12/31/97).
2. Guarantee in respect of the lease of premises located at Route 22,
Pawling, Dutchess County, New York, between Philip P. Buxbaum, Jr., as
Landlord, and Dill Enterprises, Inc. ("Dill"), as Tenant, dated May 1,
1978; American Maize-Products Company ("AMPCo") as successor to Dill in
connection with the acquisition of Dill by AMPCo; JNO. H. Swisher & Son,
Inc. ("Swisher") as assignee upon assignment of the lease by AMPCo; Lloyd
Home & Building Centers, Inc. ("Lloyd"), as assignee upon assignment of
the lease by Swisher; and Fort Brewster Trading Post, Inc. as assignee
upon assignment of the lease by Lloyd (Lease expires 5/18/98).
<PAGE>
80
SCHEDULE 3.6
MATERIAL LITIGATION
Sontag v. United States Tobacco, et al. (Helme), U.S. District Court, Western
District of Louisiana, Lake Charles Division, Case No. CV96-0100
On or about December 18, 1995, an action was initiated by Arthur Sontag and his
wife against U.S. Tobacco, Pinkerton, Conwood, Helme (Swisher) and various
industry councils and distributors. The complaint's allegations are markedly
similar to the Hammer's complaint (since dismissed) and allege that nicotine is
addictive, that the manufacturers manipulate levels of nicotine and that the
manufacturers aim sales at minors The complaint alleges that Sontag used the
products of all of the defendant manufacturers.
The Company is a plaintiff along with other smokeless tobacco manufacturers, in
United States Tobacco, et al. v. Harshbarger, et al., a suit commenced on August
7, 1996 in the United States District Court for the District of Massachusetts.
In 1996, the plaintiffs in the action filed a motion for summary judgment
arguing that Massachusetts was preempted by the federal Comprehensive Smokeless
Tobacco Health Education Act of 1986 ("CSTHEA") from enforcing a statute
requiring manufacturers to disclose the identity and relative quantities of
ingredients added to tobacco in the manufacturing process on a brand specific
basis. The defendant in the action, the Massachusetts Commissioner of Public
Health, filed a cross motion on the same subject. On February 10, 1997, the
Court denied the plaintiffs' motion and granted the defendant's motion. The
United States Court of Appeals for the Fourth Circuit upheld the District Court
decision. In September, 1997, plaintiffs moved for a preliminary injunction on
the grounds that enforcement of the statue would constitute an unconstitutional
taking of plaintiffs' proprietary information.
The Company is also a plaintiff (along with other manufacturers of tobacco
products, and certain organizations representing the advertising industry and
representatives of the retailing community) in United States Tobacco, et al. v.
United States Food and Drug Administration, et al., an action filed in the
United States District Court for the Middle District of North Carolina on
September 19, 1995, pursuant to which plaintiffs are challenging the FDA's
ability to enforce regulations promulgated in 1996, with respect to the
marketing of and public access to certain tobacco products. On October 15, 1996,
plaintiffs filed a motion for summary judgment in the suit arguing that the
FDA's enforcement of certain of the regulations pertaining to advertising and
promotion of plaintiffs' products was preempted by CSTHEA and, further, that the
FDA lacked jurisdiction to regulate plaintiffs. On April 25, 1997, the Court
issued an opinion granting plaintiffs' motion with respect to the advertising
and promotion issue and denying the motion with respect to the FDA's
jurisdiction. The Company and the other tobacco
<PAGE>
81
manufacturers which were plaintiffs in the action have filed an interlocutory
appeal from the decision in the United States Court of Appeals for the Fourth
Circuit.
The Company, along with other tobacco manufacturers, wholesaler/retailers and
other defendants, was a defendant in Lonkowski v. R.J. Reynolds, et al., a
wrongful death action filed by decedent's surviving spouse and children which
alleged fraud, misrepresentation, breach of warranty and negligence among other
things, and which sought unspecified damages. The suit was filed in the 14th
Judicial District in Lake Charles, Louisiana in 1996 and was later removed to
the United States District Court for the Western District of Louisiana. On
October 27, 1997, by order of the U.S. District Court, the suit was dismissed
with prejudice.
<PAGE>
82
SCHEDULE 3.8
REAL PROPERTY
A. Fee Properties
1. 27 Little Bay Harbor Road, Ponte Verde, Florida
2. 459 East 16th Street, Jacksonville, Florida
3. 2100 Walnut Street, Jacksonville, Florida
4. 4 Maple Street, Helmetta, New Jersey (For sale)
5. 401 West Fulton Street, Edgerton, Wisconsin
6. 201-205 West Main Street, Edgerton, Wisconsin
7. 20 Burdicks Street, Edgerton, Wisconsin
8. 423 North Prince Street, Lancaster, Pennsylvania
9. Route 40, West, Brookneal, Virginia
10. El Parasio, Honduras
B. Leased Properties
1. 20 Thorndal Circle, Darien, Connecticut
2. 1405 East Ashley, Jacksonville, Florida
3. 560 Hecksher Drive, Jacksonville, Florida
4. 4115 Pembroke Road, Hopkinsville, Kentucky
5. 417-419 North Prince Street, Lancaster, Pennsylvania
6. 4000 Water Street, Wheeling, West Virginia
<PAGE>
83
Schedule 3.13
ERISA Reportable Events
None
<PAGE>
EXHIBIT A-1
TO THE CREDIT AGREEMENT
FORM OF
REVOLVING CREDIT NOTE
$________________ November 20, 1997
Stamford, Connecticut
FOR VALUE RECEIVED, the undersigned, SWISHER INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of ________________________________ (the "Lender") at the office of
BANKBOSTON, N.A., located at One Landmark Square, Suite 2002, Stamford,
Connecticut 06901, in lawful money of the United States of America and in
immediately available funds, on the Termination Date the principal amount of (a)
_____________ DOLLARS ($_______________), or, if less, (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Lender to the
Borrower pursuant to Section 2.1 of the Credit Agreement, as hereinafter
defined. The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in Sections 2.11 and 2.12 of such Credit
Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each
Revolving Credit Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Revolving
Credit Loans.
This Note (a) is one of the Revolving Credit Notes referred to in the
Credit Agreement, dated as of November 20, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among (i) the
Borrower, (ii) Swisher International Group, Inc., a Delaware corporation, (iii)
the several banks and other financial institutions from time to time parties to
this Agreement (the "Lenders"), (iv) Societe Generale, as Documentation Agent
and (v) BankBoston, N.A., a national banking association, as Administrative
Agent for the Lenders thereunder, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to
<PAGE>
optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF
THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER
MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE CREDIT
AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SWISHER INTERNATIONAL, INC.
By
------------------------------
Name:
Title:
<PAGE>
Schedule A
to Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Amount Amount of Base Rate Unpaid Principal
Amount of Base Converted to Amount of Principal of Loans Converted to Balance of
Date Rate Loans Base Rate Loans Base Rate Loans Repaid Eurodollar Loans Base Rate Loans Notation Made By
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule B
to Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Amount of Amount Converted Interest Period and Amount of Principal Amount of Eurodollar Unpaid Principal
Eurodollar To Eurodollar Eurodollar Rate with of Eurodollar Loans Converted to Balance of Notation
Date Loans Loans Respect Thereto Loans Repaid Base Rate Loans Eurodollar Loans Made By
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT A-2
TO THE CREDIT AGREEMENT
FORM OF
SWING LINE NOTE
$5,000,000 November 20, 1997
Stamford, Connecticut
FOR VALUE RECEIVED, the undersigned, SWISHER INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of BANKBOSTON, N.A. (the "Swing Line Lender"), at its office located
at One Landmark Square, Suite 2002, Stamford, Connecticut 06901, on the
Termination Date, in lawful money of the United States of America and in
immediately available funds, on the Termination Date the principal amount of the
lesser of (a) FIVE MILLION DOLLARS ($5,000,000) and (b) the aggregate unpaid
principal amount of all Swing Line Loans made by the Swing Line Lender to the
undersigned pursuant to Section 2.5 of the Credit Agreement defined below. The
Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in Sections 2.5, 2.11 and 2.12 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date and amount of each Swing Line
Loan made pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information endorsed. The
failure to make any such endorsement shall not affect the obligations of the
Borrower in respect of such Swing Line Loan.
This Swing Line Note (a) is referred to in the Credit Agreement, dated as
of November 20, 1997 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among (i) the Borrower, (ii) Swisher
International Group, Inc., a Delaware corporation, (iii) the several banks and
other financial institutions from time to
<PAGE>
time parties thereto (the "Lenders"), (iv) Societe Generale, as Documentation
Agent and (v) BankBoston, N.A., a national banking association, as
Administrative Agent for the Lenders thereunder, (b) is subject to the
provisions of the Credit Agreement, and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF
THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER
MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE CREDIT
AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
SWISHER INTERNATIONAL, INC.
By
--------------------------------
Name:
Title:
<PAGE>
Schedule A
to Swing Line Loan Note
LOANS AND REPAYMENT OF BASE RATE LOANS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Unpaid Principal Balance of Base
Date Amount of Loans Amount of Principal Repaid Rate Loans Notation Made By
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT A-3
TO THE CREDIT AGREEMENT
FORM OF
COMPETITIVE BID NOTE
$50,000,000 November 20, 1997
Stamford, Connecticut
FOR VALUE RECEIVED, the undersigned, SWISHER INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of (the "Lender"), at the office of BANKBOSTON, N.A. (the
"Administrative Agent"), One Landmark Square, Stamford, Connecticut 06901 in
lawful money of the United States of America and in immediately available funds,
the principal amount of (a) FIFTY MILLION DOLLARS ($50,000,000), or, if less,
(b) the aggregate unpaid principal amount of all Competitive Bid Loans (as
defined in the Credit Agreement) made by the Lender to the Borrower pursuant to
Section 2.21(a) of the Credit Agreement (as defined below). The Borrower further
agrees to pay interest on the unpaid principal balance hereof from time to time
outstanding, at said office and in like money and funds, for the period
commencing on the date hereof until paid in full, at the rates per annum and on
the dates provided in Section 2.21(i) of the Credit Agreement. All principal
remaining unpaid and any accrued but unpaid interest shall in any event be due
and payable on the Termination Date (as defined in the Credit Agreement).
This Note is issued pursuant to the Credit Agreement dated as of the date
hereof among (i) the Borrower, (ii) Swisher International Group, Inc., a
Delaware corporation, (iii) the several banks and other financial institutions
from time to time parties to this Agreement (the "Lenders"), (iv) Societe
Generale, as Documentation Agent and (v) BankBoston, N.A. a national banking
association, as Administrative Agent for the Lenders thereunder (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
but neither this reference to the Credit Agreement nor any provision thereof
shall affect or impair the absolute and unconditional obligation of the Borrower
to pay the principal of, and interest on, this Note as herein provided.
If an Event of Default shall occur, the aggregate unpaid principal of, and
accrued on, this Note, shall become due and payable in the manner and with the
effect provided in the Credit Agreement.
The Borrower waives presentment, demand, notice of dishonor, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, and enforcement of this Note. Unless otherwise defined below, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
<PAGE>
This Note shall have the effect of an instrument under seal and shall be
governed by, and construed in accordance with, the laws of the State of New York
(without giving effect to any conflicts of laws provisions contained therein).
SWISHER INTERNATIONAL, INC.
By
--------------------------------
Name:
Title:
<PAGE>
SCHEDULE I TO COMPETITIVE BID NOTE
DATE AMOUNT TYPE OF LOAN INTEREST INTEREST AMOUNT NOTATION
OF LOAN RATE PERIOD(S) PAID MADE BY
- ---- ------- ------------ ---- --------- ---- -------
<PAGE>
EXHIBIT B
TO THE CREDIT AGREEMENT
SUBSIDIARIES GUARANTEE
SUBSIDIARIES GUARANTEE, dated as of November 20, 1997, made by each of the
corporations that are signatories hereto (the "Guarantors"), in favor of
BANKBOSTON, N.A., as administrative agent (in such capacity, the "Administrative
Agent") for the lenders parties to the Credit Agreement dated as of November 20,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among (i) SWISHER INTERNATIONAL, INC., a Delaware
corporation (the "Borrower"), (ii) SWISHER INTERNATIONAL GROUP INC., a Delaware
corporation (the "Parent"), (iii) the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"), (iv)
Societe Generale, as Documentation Agent and (v) the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Loans to the Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Borrower owns directly or indirectly all of the issued and
outstanding stock of each Guarantor;
WHEREAS, the proceeds of the Loans will be used in part to enable the
Borrower to fund working capital and other needs of the Guarantors in connection
with the operation of their respective businesses;
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the Loans; and
<PAGE>
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective Loans to the Borrower under the Credit Agreement that the
Guarantors shall have executed and delivered this Guarantee to the
Administrative Agent for the ratable benefit of the Lenders.
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective loans to the Borrower under the
Credit Agreement, the Guarantors hereby agree with the Administrative Agent, for
the ratable benefit of the Lenders, as follows:
1. Defined Terms.
a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
b) As used herein, "Guarantee" means this Subsidiaries
Guarantee, as the same may be amended, supplemented or otherwise modified from
time to time.
c) As used herein, "Obligations" means, collectively, the
unpaid principal of and interest on the Loans and all other obligations and
liabilities of the Borrower to the Administrative Agent, the Documentation Agent
or the Lenders (including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of the Loans
and interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding), whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which may arise under, out of,
or in connection with, the Credit Agreement, the Notes, the other Loan Documents
or any other document made, delivered or given in connection therewith, whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders that are
required to be paid by the Borrower or the Guarantor pursuant to the terms of
the Credit Agreement or this Guarantee or any other Loan Document).
d) The words "hereof,'" "therein" and "thereunder" and words
of similar import when used in this Guarantee shall refer to this Guarantee as a
whole
<PAGE>
and not to any particular provision of this Guarantee, and section and paragraph
references are to this Guarantee unless otherwise specified.
e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee.
a) Subject to the provisions of paragraph 2(b), each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit of the Lenders
and their respective successors, endorses, transferees and assigns, the prompt
and complete payment and performance by the Borrower when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations. This
Guarantee is a guaranty of payment by each Guarantor, not a guaranty of
collection.
b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors.
c) Each Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by the Administrative Agent or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, such Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations are paid
in full and the Commitments are terminated, notwithstanding that from time to
time prior thereto the Borrower may be free from any Obligations.
d) Each Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing this Guarantee or affecting the rights and remedies
of the Administrative Agent or any Lender hereunder.
e) No payment or payments made by the Borrower, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Administrative Agent or any Lender from the Borrower, any of the Guarantors,
any other guarantor or any other Person by virtue of any action or proceeding or
any setoff or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment or payments
<PAGE>
other than payments made by such Guarantor in respect of the Obligations or
payments received or collected from such Guarantor in respect of the
Obligations, remain liable for the Obligations up to the maximum liability of
such Guarantor hereunder until the Obligations are paid in full and the
Commitments are terminated.
f) Each Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any
Lender on account of its liability hereunder, it will notify the Administrative
Agent in writing that such payment is made under this Guarantee for such
purpose.
3. Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 5 hereof. The provisions
of this Section shall in no respect limit the obligations and liabilities of any
Guarantor to the Administrative Agent and the Lenders, and each Guarantor shall
remain liable to the Administrative Agent and the Lenders for the full amount
guaranteed by such Guarantor hereunder.
4. Right of Setoff. Each Guarantor hereby irrevocably authorizes
each Lender at any time and from time to time without notice to such Guarantor
or any other Guarantor, any such notice being expressly waived by each
Guarantor, to setoff and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender to or for the credit or the account of such Guarantor, or
any part thereof in such amounts as such Lender may elect, against and on
account of the obligations and liabilities of such Guarantor to such Lender
hereunder and claims of every nature and description of such Lender against such
Guarantor, in any currency, whether arising hereunder, under the Credit
Agreement, any Note, any Loan Documents or otherwise, as such Lender may elect,
whether or not the Administrative Agent or any Lender has made any demand for
payment and although such obligations, liabilities and claims may be contingent
or unmatured. The Administrative Agent and each Lender shall notify such
Guarantor promptly of any such setoff and the application made by the
Administrative Agent or such Lender, provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of the Administrative Agent and each Lender under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
setoff) which the Administrative Agent or such Lender may have.
<PAGE>
5. No Subrogation. Notwithstanding any payment or payments made by
any of the Guarantors hereunder or any setoff or application of funds of any of
the Guarantors by any Lender, no Guarantor shall be entitled to be subrogated to
any of the rights of the Administrative Agent, the Documentation Agent or any
Lender against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent, the Documentation
Agent or any Lender for the payment of the Obligations, nor shall any Guarantor
seek or be entitled to seek any contribution or reimbursement from the Borrower
or any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Administrative Agent, the Documentation Agent and
the Lenders by the Borrower on account of the Obligations are paid in full and
the Commitments are terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Obligations shall
not have been paid in full, such amount shall be held by such Guarantor in trust
for the Administrative Agent, the Documentation Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly endorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine.
6. Amendments, etc. with respect to the Obligations; Waiver of
Rights. Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by
such party and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and the Credit Agreement, the Notes and the other Loan
Documents and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in part, as
the Administrative Agent (or the Required Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or for this Guarantee or any property subject
thereto. When making any demand hereunder against any of the Guarantors, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Borrower or any other Guarantor or guarantor, and
any failure by the Administrative Agent or any Lender to make any such demand or
to collect any payments
<PAGE>
from the Borrower or any such other Guarantor or guarantor or any release of the
Borrower or such other Guarantor or guarantor shall not relieve any of the
Guarantors in respect of which a demand or collection is not made or any of the
Guarantors not so released of their several obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of the Administrative Agent or any Lender
against any of the Guarantors. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
7. Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Guarantee or acceptance of this Guarantee, the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Guarantee; and all dealings between the Borrower and any of the Guarantors, on
the one hand, and the Administrative Agent and the Lenders, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Guarantee. Each Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Borrower or any of the Guarantors with respect to the Obligations. Each
Guarantor understands and agrees that this Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity, regularity or enforceability of the Credit Agreement, any Note
or any other Loan Document, any of the Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by the Administrative Agent or any Lender (b) any
defense, setoff or counterclaim (other than a defense of payment or performance)
which may at any time be available to or be asserted by the Borrower against the
Administrative Agent or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower or such Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Obligations, or of such Guarantor under this
Guarantee, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against any Guarantor, the Administrative Agent and any
Lender may, but shall be under no obligation to, pursue such rights and remedies
as it may have against the Borrower or any other Person or against any
collateral security or guarantee for the Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any Lender to
pursue such other rights or remedies or to collect any payments from the
Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
the Borrower or any such other Person or any such collateral security, guarantee
or right of offset, shall not relieve such Guarantor of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of the Administrative Agent and the Lenders
against such Guarantor. This Guarantee shall remain in full force and effect and
be binding in accordance
<PAGE>
with and to the extent of its terms upon each Guarantor and the successors and
assigns thereof, and shall inure to the benefit of the Administrative Agent and
the Lenders, and their respective successors, endorses, transferees and assigns,
until all the Obligations and the obligations of each Guarantor under this
Guarantee shall have been satisfied by payment in full and the Commitments shall
be terminated, notwithstanding that from time to time during the term of the
Credit Agreement the Borrower may be free from any Obligations.
8. Reinstatement. This Guarantee shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
9. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without setoff or
counterclaim in U.S. Dollars and in immediately available funds at the office of
the Administrative Agent located at One Landmark Square, Suite 2002, Stamford,
Connecticut 06901.
10. Representations and Warranties. Each Guarantor hereby makes all
representations and warranties made by the Borrower in Section 3 of the Credit
Agreement to the extent they pertain to such Guarantor and agrees that such
representations and warranties shall be deemed to have been made by such
Guarantor on the date of each borrowing by the Borrower under the Credit
Agreement on and as of such date of borrowing as though made hereunder on and as
of such date.
11. Covenants.
a) Each Guarantor hereby covenants and agrees with the
Administrative Agent and each Lender that, from and after the date of this
Guarantee until the Obligations are paid in full and the Commitments are
terminated, it shall, and shall cause each of its Subsidiaries to, take all of
the actions specified in the provisions of Section 5 of the Credit Agreement
applying to it and its Subsidiaries.
b) Each Guarantor hereby covenants and agrees with the
Administrative Agent and each Lender that, from and after the date of this
Guarantee until the Obligations are paid in full and the Commitments are
terminated, it shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, take any of the actions specified in the provisions of
Section 6 of the Credit Agreement applying to it and its Subsidiaries.
<PAGE>
12. Authority of Administrative Agent. Each Guarantor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Guarantee with respect to any action taken by the Administrative Agent or the
exercise or nonexercise by the Administrative Agent of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Guarantee shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and such Guarantor, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and no Guarantor shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
13. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender or any Guarantor to be effective shall be in
the manner provided in Section 10.2 of the Credit Agreement, addressed as
follows:
a) if to the Administrative Agent or any Lender, at its
address or transmission number for notices provided in subsection 10.2 of the
Credit Agreement; and
b) if to any Guarantor, at its address or transmission number
for notices set forth under its signature below.
The Administrative Agent, each Lender and each Guarantor may change
its address and transmission numbers for notices by notice in the manner
provided in this Section.
14. Counterparts. This Guarantee may be executed by one or more of
the Guarantors on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Guarantee signed by all the
Guarantors shall be lodged with the Administrative Agent.
15. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Integration. This Guarantee represents the agreement of each
Guarantor with respect to the subject matter hereof and there are no promises
<PAGE>
or representations by the Administrative Agent or any Lender relative to the
subject matter hereof not reflected herein.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
a) None of the terms or provisions of this Guarantee may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by each Guarantor and the Administrative Agent (on behalf of
the Lenders or the Required Lenders, as the case may be), provided that any
provision of this Guarantee may be waived by the Administrative Agent (on behalf
of the Lenders or the Required Lenders, as the case may be) in a letter or
agreement executed by the Administrative Agent or by telex or facsimile
transmission from the Administrative Agent.
b) Neither the Administrative Agent nor any Lender shall by
any act (except by a written instrument pursuant to paragraph 17(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Administrative Agent or any
Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or such
Lender would otherwise have on any future occasion.
c) The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. Section Headings. The section headings used in this Guarantee
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns. No
Guarantor shall transfer or assign any of its rights or obligations under this
Guarantee.
20. Governing Law. This Guarantee shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
<PAGE>
21. Submission To Jurisdiction; Waivers. Each Guarantor hereby
irrevocably and unconditionally:
a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the nonexclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 10.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential damages.
22. WAIVERS OF JURY TRIAL. THE GUARANTORS AND, BY ACCEPTANCE HEREOF,
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to
be duly executed and delivered by its duly authorized officer as of the day and
year first above written.
MARTIN BROTHERS SWISHER INTERNATIONAL
INTERNATIONAL, INC. FINANCE COMPANY
By By
-------------------------------- --------------------------------
Robert A. Britton Robert A. Britton
Title: Vice President Title: Vice President
Address for Notices: Address for Notices:
c/o Swisher International, Inc. c/o Swisher International, Inc.
20 Thorndal Circle, First Floor 20 Thorndal Circle, First Floor
Darien, CT 06820 Darien, CT 06820
Tele: 203.656.4255 Tele: 203.656.4255
Fax: 203.656.3151 Fax: 203.656.3151
KING EDWARD TECHNOLOGY, INC. SWISHER SANTIAGO
ENTERPRISES, INC.
By By
-------------------------------- --------------------------------
Robert A. Britton Robert A. Britton
Title: Vice President Title: Vice President
Address for Notices: Address for Notices:
c/o Swisher International, Inc. c/o Swisher International, Inc.
20 Thorndal Circle, First Floor 20 Thorndal Circle, First Floor
Darien, CT 06820 Darien, CT 06820
Tele: 203.656.4255 Tele: 203.656.4255
Fax: 203.656.3151 Fax: 203.656.3151
SWISHER INTERNATIONAL, LTD
By
--------------------------------
Robert A. Britton
Title: Vice President
Address for Notices:
c/o Swisher International, Inc.
20 Thorndal Circle, First Floor
Darien, CT 06820
Tele: 203.656.4255
Fax: 203.656.3151
<PAGE>
Accepted and Agreed:
BANKBOSTON, N.A., as Administrative Agent
By
--------------------------------
Richard J. Klouda
Title: Vice President
<PAGE>
EXHIBIT C
TO THE CREDIT AGREEMENT
FORM OF
BORROWING CERTIFICATE
Reference is made to the Credit Agreement, dated as of November 20, 1997
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among (i) SWISHER INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), (ii) SWISHER INTERNATIONAL GROUP, INC., a Delaware corporation,
(iii) the several banks and other financial institutions from time to time
parties thereto (the "Lenders"), (iv) Societe Generale, as Documentation Agent
and (v) BankBoston, N.A., a national banking association, as Administrative
Agent for the Lenders thereunder. Unless otherwise defined herein, terms defined
in the Credit Agreement shall have the meanings given to them therein. Pursuant
to Section 4.1(c), (d) and (e) of the Credit Agreement, the undersigned of the
Borrower hereby certifies as follows:
1. The representations and warranties of each Loan Party made on the
Closing Date and set forth in each of the Loan Documents to which it is a party
or which are contained in any certificate, document or financial or other
statement furnished by or on behalf of each Loan Party pursuant to or in
connection with any Loan Document are true and correct in all material respects
on and as of the date hereof with the same effect as if made on the date hereof
except for representations and warranties stated to relate to a specific earlier
date, in which case such representations and warranties were true and correct in
all material respects as of such earlier date;
2. Attached hereto as Exhibit I are true and correct copies of all
consents, authorizations and filings, if any, required in connection with the
execution, delivery and performance by each Loan Party and the validity and
enforceability against each Loan Party of the Loan Documents to which it is a
party and such consents, authorizations and filings are in full force and
effect, except such consents, authorizations and filings the failure to obtain
which would not have a Material Adverse Effect;
3. No Default or Event of Default has occurred and is continuing as
of the date hereof or after giving effect to the extensions of credit to be made
on the date hereof;
<PAGE>
4. ______________________ is and at all times since ____________ ,
199__, has been, the duly elected and qualified [Secretary] of the Borrower and
the signature set forth on the signature line for such officer below is such
officer's true and genuine signature;
and the undersigned [Secretary] of the Borrower hereby certifies as follows:
5. There are no liquidation or dissolution proceedings pending or to
my knowledge threatened against any Loan Party nor has any other event occurred
affecting or threatening the corporate existence of any Loan Party;
6. Each Loan Party is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware;
7. Attached hereto as Exhibit II is a true and complete copy of
resolutions duly adopted by the written consent of the Board of Directors of the
Borrower on ___________, 199__; such resolutions have not in any way been
amended, modified, revoked or rescinded and have been in full force and effect
since their adoption to and including the date hereof and are now in full force
and effect; such resolutions are the only corporate proceedings of the Borrower
now in force relating to or affecting the matters referred to therein;
8. Attached hereto as Exhibit III is a true and complete copy of the
By-Laws of the Borrower as in effect at all times since ___________, 199_ to and
including the date hereof;
9. Attached hereto as Exhibit IV is a true and complete copy of the
Certificate of Incorporation of the Borrower, as amended, as in effect at all
times since ____________, 199__, to and including the date hereof; and
10. The following persons are now duly elected and qualified
officers of the Borrower holding the offices indicated next to their respective
names below, and such officers have held such offices with the Borrower at all
times since __________, 199__, to and including the date hereof, and the
signatures appearing opposite their respective names below are the true and
genuine signatures of such officers, and each of such officers is duly
authorized to execute and deliver on behalf of the Borrower the Loan Documents
<PAGE>
and any certificate or other document to be delivered by the Borrower pursuant
to the Loan Documents:
Name Office Signature
- ---- ------ ---------
- --------------------------- -------------------- --------------------
- --------------------------- [Secretary] --------------------
- --------------------------- -------------------- --------------------
IN WITNESS WHEREOF, the undersigned have hereunto set our
names.
- ------------------------------ ----------------------------
Name: Name:
Title: Title: [Secretary]
------------------------
Date:
<PAGE>
EXHIBIT E
TO THE CREDIT AGREEMENT
FORM OF
SWING LINE LOAN PARTICIPATION CERTIFICATE
[Date]
[Name of Lender]
Ladies and Gentlemen:
Pursuant to Section 2.5(c) of the Credit Agreement, dated as of November
20, 1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among (i) Swisher International, Inc., a Delaware
corporation (the "Borrower"), (ii) Swisher International Group, Inc., a Delaware
corporation, (iii) the several banks and other financial institutions from time
to time parties thereto (the "Lenders"), (iv) Societe Generale, as Documentation
Agent and (v) BankBoston, N.A., a national banking association, as
Administrative Agent for the Lenders thereunder, the undersigned hereby
acknowledges receipt from you of $_________ as payment for a participating
interest in the following Swing Line Loan:
Date of Swing Line Loan:________________________________________________________
Principal Amount of Swing Line Loan:____________________________________________
BANKBOSTON, N.A.
as Swing Line Lender
By
---------------------------
Name:
Title:
<PAGE>
EXHIBIT F
TO THE CREDIT AGREEMENT
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of November 20, 1997
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among (i) SWISHER INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), (ii) SWISHER INTERNATIONAL GROUP INC., a Delaware corporation,
(iii) the several banks and other financial institutions from time to time
parties thereto (the "Lenders"), (iv) Societe Generale, as Documentation Agent
and (iv) BankBoston, N.A., a national banking association, as administrative
agent for the Lenders thereunder (in such capacity, as more fully defined in
Section 1.1 of the Credit Agreement, the "Administrative Agent"). Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement and the other Loan Documents with respect to those credit
facilities contained in the Credit Agreement as are set forth on Schedule 1
hereto (individually, an "Assigned Facility"; collectively, the "Assigned
Facilities"), in a principal amount for each Assigned Facility as set forth on
Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim created by it;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Subsidiaries or
any other obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument
furnished pursuant hereto or thereto; and (c) attaches any Notes held by it
evidencing the Assigned Facilities and (i) requests that the
<PAGE>
Administrative Agent, upon request by the Assignee, exchange the attached Notes
for a new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in the Assigned Facility, requests that the Administrative
Agent exchange the attached Notes for a new Note or Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have become effective on
the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 3.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto); (d) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to Section
2.17(b) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves and the Assignor
<PAGE>
agrees that it will look solely to the Assignee (and will hold the
Administrative Agent harmless) for the payment of any such amounts.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
<PAGE>
Schedule 1
to Assignment and Acceptance
Name of Assignor:_______________________________________________________________
Name of Assignee:_______________________________________________________________
Effective Date of Assignment:___________________________________________________
Credit Principal Commitment
Facility Assigned Amount Assigned Percentage Assigned*
- ----------------- --------------- --------------------
$---------- ---.--------%
[Name of Assignee] [Name of Assignor]
By By
------------------------------- -------------------------------
Name: Name:
Title: Title:
Accepted [and consented to]: [Consented To:]
BANKBOSTON, N.A. SWISHER INTERNATIONAL, INC.
as Administrative Agent
By By
------------------------------- -------------------------------
Name: Name:
Title: Title:
- ----------
* Calculate the Commitment Percentage that is assigned to at least 15
decimal places and show as a percentage of the aggregate commitments of
all Lenders.
<PAGE>
EXHIBIT G
TO THE CREDIT AGREEMENT
FORM OF
SOLVENCY CERTIFICATE
I, Robert A. Britton, certify that I am the Executive Vice President and
Chief Financial Officer of Swisher International, Inc. (the "Borrower"), and in
such capacity am familiar with the properties, businesses and assets of the
Parent and the Borrower and am duly authorized to execute and deliver this
Certificate on behalf of the Parent and the Borrower. This Certificate is being
delivered pursuant to Section 4.1(k) of the Credit Agreement dated as of the
date hereof (as amended, supplemented or modified from time to time, the "Credit
Agreement"). Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement.
I further certify that I have carefully reviewed the Credit Agreement and
the contents of this Certificate and, in connection herewith, have made or
caused to be made such investigation and inquiry as I have deemed reasonably
necessary and prudent therefor. I further certify that the financial
information, assumptions and valuation techniques which underlie and form the
basis for the representations made in this Certificate were reasonable when made
and were made in good faith and continue to be reasonable as of the date hereof.
I understand that the Administrative Agent and the Lenders are relying on
the truth and accuracy of this Certificate in connection with the transactions
contemplated by the Credit Agreement. I further certify that:
1. As of the date hereof and upon the funding of the Loans, (a) none
of the Loan Parties is, and none will be, "insolvent" as that term is defined
under the United States Bankruptcy Code Section 101 (32), (b) no petition in
bankruptcy has been filed, whether voluntary or involuntary, with respect to any
Loan Party, and (c) there has not been an assignment for the benefit of
creditors filed under the bankruptcy or insolvency laws of the United States or
any state thereof or any other action brought under the aforesaid bankruptcy or
insolvency laws against, or with respect to, any Loan Party.
<PAGE>
2. No Loan Party contemplates filing a petition in bankruptcy
or for a reorganization under the Bankruptcy Code, and the undersigned does not
have any knowledge of any threatened bankruptcy or insolvency proceedings
against any Loan Party.
3. The transactions contemplated by the Loan Documents are not
intended to hinder, delay or defraud the present or future creditors of any Loan
Party.
4. No Loan Party intends to incur debts beyond its ability to
pay them as they mature.
5. The aggregate of the property and assets of each Loan Party
at a fair valuation is sufficient in amount to pay its debts.
6. The undersigned has examined the representations,
warranties, amendments, and covenants contained in the Loan Documents, and the
undersigned certifies that, as of the date hereof, all of the certificates,
statements, representations, warranties and covenants as to past or present
existing facts which are contained therein are true and correct in all material
respects, and that no Event of Default exists as of the date hereof.
7. The statements contained herein shall be continuing in
nature and shall be deemed to have been remade upon each borrowing by the
Borrower under the Loan Documents, unless and until the undersigned gives the
Administrative Agent prior written notice (in the manner and to the persons
required by the Loan Documents) to the contrary. The undersigned hereby
acknowledges that the Administrative Agent and the Lenders have relied upon the
warranties, representations, agreements and covenants contained herein.
8. The financial statements previously submitted to the
Administrative Agent and the Lenders are a fair presentation of the assets and
liabilities of the Loan Parties as of the date of such financial statements and
there has not been a material adverse change in the financial or other condition
of any Loan Party since such date.
9. In addition to having carefully reviewed the Credit
Agreement in connection herewith, I have also carefully considered and reviewed,
among other things, the following in connection with the statements contained
herein:
a) the most recent audited and unaudited consolidated
financial statements of the Parent and the Borrower;
<PAGE>
b) the estimated values, to my knowledge, of the real
property, equipment, inventory, accounts receivable, customer lists, supply
contracts, and other property of the Loan Parties, real and personal, tangible
and intangible;
c) the experience and management of the Loan Parties in
acquiring and disposing of their assets;
d) all indebtedness of the Loan Parties known to me;
e) the customary terms of accounts payable of the Loan
Parties;
f) the amount of credit historically extended by and to
customers of the Loan Parties;
g) the amount of credit extended and to be extended
under all other credit facilities of the Loan Parties; and
h) the level of capital customarily maintained by the
Loan Parties.
10. All statements made herein are to the best of my knowledge
after making such inquiries and analyses as I have deemed necessary or
appropriate for the statements contained herein.
11. This Certificate is made to induce the Lenders to extend
the Loans to the Borrower.
------------------------------------
ROBERT A. BRITTON
Dated: As of November 20, 1997
<PAGE>
EXHIBIT H
TO THE CREDIT AGREEMENT
FORM OF COMPETITIVE BID QUOTE REQUEST
[Date]
To: BankBoston, N. A., as Administrative Agent
From: Swisher International, Inc.
Re: Credit Agreement dated as of November 20, 1997 among (i) the undersigned,
(ii) Swisher International Group, Inc., a Delaware corporation, (iii) the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), (iv) Societe Generale, as Documentation Agent and (v)
BankBoston, N.A. a national banking association, as Administrative Agent for the
Lenders thereunder (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement").
We hereby give notice pursuant to Section 2.21 of the Credit
Agreement that we request Competitive Bid Quotes for the following proposed
Competitive Bid Borrowing:
(i) The aggregate principal amount of the proposed Competitive Bid
Borrowing is $___________./1/
(ii) The Business Day of the proposed Competitive Bid Borrowing is
___________, ______./2/
(iii) The maturity date for the Competitive Bid Loan to be made as
part of the proposed Competitive Bid Borrowing is ___________, ______./3/
(iv) The interest payment date(s) relating to the proposed
Competitive Bid Borrowing is (are) ___________, ______.
- ------------------------
/1/ Amount must be a minimum of $1,000,000 or any larger multiple of
$1,000,000, up to a maximum of $50,000,000.
/2/ A Notice of Competitive Bid Borrowing must be given at least one Business
Day prior to the proposed Competitive Bid Borrowing.
/3/ Such maturity date shall be specified in accordance with Section 2.21(b)
of the Credit Agreement and, in any event, may not be (i) earlier than 7
days after the date of the proposed Competitive Bid Borrowing given in
clause (ii) above, or (II) later than the earlier to occur of (x) 180 days
after the date of such proposed Competitive Bid Borrowing and (y) three
Business Days prior to the Termination Date.
<PAGE>
(v) Additional terms, if any, applicable to the proposed Competitive
Bid Borrowing are as follows:
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the proposed
Competitive Bid Borrowing:
(A) all representations and warranties contained in the Loan
Documents are and will be true and correct in all material respects, both before
and after giving effect to the proposed Competitive Bid Borrowing and to the
application of the proceeds thereof, as though made on such date (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be true and correct in all material respects
only as of such specified date); and
(B) no Default or Event of Default has occurred and is continuing,
nor would result from such proposed Competitive Bid Borrowing or from the
application of the proceeds thereof.
Unless otherwise defined herein, capitalized terms used herein have
the meanings ascribed to them in the Credit Agreement.
SWISHER INTERNATIONAL, INC.
By__________________________________
Name:
Title:
<PAGE>
EXHIBIT I
TO THE CREDIT AGREEMENT
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
To: [Name of Lender]
Re: Invitation for Competitive Bid Quotes to Swisher International, Inc.
Pursuant to Section 2.21 of the Credit Agreement (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement")
dated as of November 20, 1997 among (i) the Borrower, (ii) Swisher International
Group, Inc., a Delaware corporation, (iii) the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"), (iv)
Societe Generale, as Documentation Agent and (v) BankBoston, N.A. a national
banking association, as Administrative Agent for the Lenders thereunder, we are
pleased on behalf of the Borrower to invite you to submit Competitive Bid Quotes
to the Borrower for the following proposed Competitive Bid Borrowing(s):
(i) The aggregate principal amount of the proposed Competitive Bid
Borrowing is $___________.
(ii) The Business Day of the proposed Competitive Bid Borrowing is
___________, ______.
(iii) The maturity date for the Competitive Bid Loan to be made as
part of the proposed Competitive Bid Borrowing is ___________, ______.
(iv) The interest payment date(s) relating to the proposed
Competitive Bid Borrowing is (are) ___________, ______.
(v) Additional terms, if any, applicable to the proposed Competitive
Bid Borrowing are as follows:
<PAGE>
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to them in the Credit Agreement.
Please respond to this invitation by no later than 10:00 a.m. (New
York City time) on [date].
BANKBOSTON, N.A.,
as Administrative Agent
By__________________________________
Name:
Title:
<PAGE>
EXHIBIT J
TO THE CREDIT AGREEMENT
FORM OF COMPETITIVE BID QUOTE
BANKBOSTON, N.A., as Administrative Agent
One Landmark Square, Suite 2002
Stamford, CT 06901
Attention:
Re: Competitive Bid Quote to Swisher International, Inc.
In response to your invitation on behalf of the Borrower dated
_________________, 19__ , we hereby make the following Competitive Bid Quote on
the following terms:
1. Quoting Bank: ______________________________________
2. Person to contact at Quoting Bank: ______________________________
3. We hereby offer to make a Competitive Bid Loan on the following terms:
(i) The aggregate principal amount of the proposed Competitive Bid
Borrowing is $___________.
(ii) The Business Day of the proposed Competitive Bid Borrowing is
___________, ______.
(iii) The Competitive Bid Rate for the proposed Competitive Bid
Borrowing is ___%.
<PAGE>
(iv) The maturity date for the Competitive Bid Loan to be made as
part of the proposed Competitive Bid Borrowing is ___________, ______.*
(v) The interest payment date(s) relating to the proposed
Competitive Bid Borrowing is (are) ___________, ______.
(vi) Additional terms, if any, applicable to the proposed
Competitive Bid Borrowing are as follows:
We understand and agree that the offer set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of November 20, 1997 among (i) the Borrower, (ii) Swisher International
Group, Inc., a Delaware corporation, (iii) the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"), (iv)
Societe Generale, as Documentation Agent and (v) BankBoston, N.A. a national
banking association, as Administrative Agent for the Lenders thereunder (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), irrevocably obligates us to make the Competitive Bid Loan(s) for
which any offer(s) are accepted in whole or in part by the Borrower.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to them in the Credit Agreement.
[NAME OF LENDER]
Dated:________________________ By:_________________________________
Authorized Officer
- ------------------------
* Such maturity date shall be specified in accordance with Section 2.21(b) of
the Credit Agreement and, in any event, may not be earlier than 7 days after
the date of the proposed Competitive Bid Borrowing given in clause (ii)
above, or (II) later than the earlier to occur of (x) 180 days after the date
of such proposed Competitive Bid Borrowing and (y) three Business Days prior
to the Termination Date.
<PAGE>
EXHIBIT K
TO THE CREDIT AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID BORROWING
Re: Credit Agreement dated as of November 20, 1997, among (i) the
Borrower, (ii) Swisher International Group, Inc., a Delaware corporation, (iii)
the several banks and other financial institutions from time to time parties to
this Agreement (the "Lenders"), (iv) Societe Generale, as Documentation Agent
and (v) BankBoston, N.A. a national banking association, as Administrative Agent
for the Lenders thereunder (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement").
We hereby give notice pursuant to Section 2.21(f) of the Credit
Agreement of our acceptance of the following Competitive Bid Quote:
1. Lender:
2. Terms of the Competitive Bid Borrowing:
(i) The aggregate principal amount of the Competitive Bid Borrowing
is $___________.
(ii) The Business Day of the Competitive Bid Borrowing is _________,
______.
(iii) The Competitive Bid Rate for the proposed Competitive Bid
Borrowing is ___%.
(iv) The maturity date for the Competitive Bid Loan to be made as
part of the Competitive Bid Borrowing is ___________, ______.
<PAGE>
(v) The interest payment date(s) relating to the Competitive Bid
Borrowing is (are) ___________, _______.
(vi) Additional terms, if any, applicable to the Competitive Bid
Borrowing are as follows:
[Repeat for each Lender as necessary]
We hereby certify (a) that we will use the proceeds of the requested
Competitive Bid Loan in accordance with the provisions of the Credit Agreement,
(b) that each of the representations and warranties contained in the Credit
Agreement or in any document or instrument delivered pursuant to or in
connection with the Credit Agreement was true as of the date as of which it was
made and is true at and as of the date hereof (except to the extent of changes
occurring in the ordinary course of business that singly or in the aggregate are
not materially adverse, and to the extent that such representations and
warranties related expressly to an earlier date) and (c) that no Default or
Event of Default has occurred and is continuing.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to them in the Credit Agreement.
SWISHER INTERNATIONAL, INC.
Dated:________________________ By__________________________________
Name:
Title:
<PAGE>
EXHIBIT L
TO THE CREDIT AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID LOANS
_______________, 199_
To: Each of the Lenders referred to below
From: BankBoston, N.A., as Administrative Agent
Reference is hereby made to the Credit Agreement dated as of
November 20, 1997, among (i) the Borrower, (ii) Swisher International Group,
Inc., a Delaware corporation, (iii) the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"), (iv)
Societe Generale, as Documentation Agent and (v) BankBoston, N.A. a national
banking association, as Administrative Agent for the Lenders thereunder (as
amended, supplemented or otherwise modified from time to time, , the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to them in the Credit Agreement.
Under Section 2.21 of the Credit Agreement, the Borrower borrowed
[insert amount] in Competitive Bid Loans on [insert date] with a maturity date
of [insert maturity date] and interest payments date(s) on __________,
_________. The Competitive Bid Rate for the period is ____%.
A range of Competitive Bid Quotes were submitted. The bids ranged
from [insert highest bid] to [insert lowest bid].
BANKBOSTON, N.A.,
as Administrative Agent
By__________________________________
Name:
Title:
Exhibit 13.1
[COVER DEPICTS PHOTOGRAPHS OF SOME OF THE COMPANY'S CIGAR PRODUCTS]
<PAGE>
[INSIDE FRONT COVER]
CORPORATE PROFILE
Swisher International Group Inc. is the world's largest manufacturer and
marketer of cigars, as measured by units sold. The company, which was founded in
1861, also makes smokeless tobacco products, including loose-leaf chewing
tobacco, moist snuff, and dry snuff. Swisher's mass market cigar manufacturing
facility is in Jacksonville, Florida. The company makes premium cigars in the
Dominican Republic and Honduras. Swisher's smokeless tobacco products are
manufactured in Wheeling, West Virginia.
<PAGE>
FINANCIAL HIGHLIGHTS
DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS
Year Ended December 31, 1997 1996 CHANGE
---- ----
Net sales....................................... $275,644 $225,229 22.4%
Cost of sales................................... 137,708 113,764 21.0%
-------- --------
Gross profit.................................... 137,936 111,465 23.7%
Selling, general and administrative expenses.... 64,862 61,008 6.3%
-------- --------
Operating profit................................ 73,074 50,457 44.8%
Interest expense, net........................... 8,049 9,505 -15.3%
Other expense, net.............................. 340 153
-------- --------
Income before income taxes...................... 64,685 40,799 58.5%
Provision for income taxes...................... 25,390 16,006
-------- --------
Net income...................................... $ 39,295 $ 24,793 58.5%
======== ========
Earnings per share:
Basic..................................... $ 1.15 $ .73
======== ========
Diluted................................... $ 1.15 $ .73
======== ========
FINANCIAL ACHIEVEMENTS
IN MILLIONS OF DOLLARS
[Bar Charts]
Stockholders'
Net Sales Net Income Equity EBITDA
--------- ---------- ------ -------
1995................ $186.4 $21.3 $34.8 $45.8
1996................ 225.2 24.8 46.5 55.9
1997................ 275.6 39.3 85.9 78.8
<PAGE>
YEAR IN REVIEW
IN OUR FIRST FULL YEAR as a publicly traded company, Swisher turned in a strong
performance for its shareholders.
Already the world's number one cigar company, we increased our unit sales in
every category in which we participate -- mass market large and little cigars,
premium cigars, moist and dry snuff, and loose-leaf chewing tobacco. Our net
sales and profits improved from the previous year in each of the four quarters,
and, as a result, Swisher set new records for both net sales and net income. We
also put our strong balance sheet to work, dramatically expanding and upgrading
our operations, including the construction of a new distribution warehouse in
Jacksonville, Florida, premium cigar making facilities in the Dominican Republic
and Honduras, and expanded processing capacity at our smokeless tobacco
operations in Wheeling, West Virginia.
For the year, we had sales of $275.6 million, up more than 22 percent from our
1996 total of $225.2 million. Net income rose more than 58 percent, from $24.8
million in 1996 to $39.3 million. As a result, earnings per share reached $1.15,
up from $.73 in 1996.
OPPORTUNITIES
Continuing the upswing that began in 1993, United States cigar retail sales
totaled an estimated $2.2 billion in 1997. In the smokeless tobacco category,
total revenues reached an estimated $2.6 billion last year. With a combined
market of an estimated $4.8 billion and growing, both cigars and smokeless
tobacco continue to present important opportunities for Swisher.
STRENGTHS
Our strengths -- a roster of well established brands, innovative new products,
the industry's largest sales force, and enhanced manufacturing capability --
position us to take advantage of those growth opportunities. And we have, on a
number of fronts.
With a market share of 26 percent in mass market large cigars and 46 percent in
little cigars, we dominate the mass market category for both large and little
cigars, which represents an estimated 93 percent of all cigars sold in the
United States in 199 7. The Swisher Sweets brand is the cornerstone of our
business and the undisputed market leader in both categories. Measured by
dollars or units, Swisher Sweets is the world's best selling brand. In the fast
growing premium cigar category, we believe that Bering ranks among the nation's
top three brands. In moist snuff, our pioneering price/value strategy has helped
us increase sales at approximately five times the industry growth rate from 1993
through 1997.
<PAGE>
EXPANSION
Last year, we moved aggressively to extend our leadership position. We continued
to target niche markets with new products and line extensions, making great
headway in the sales of higher end, mass market large cigars. We also bolstered
our sales force, already the largest in the industry, and in 1998 we plan on
increasing the size of both our separate premium cigar sales team and our
regular sales force. Most dramatically, we spent almost $16 million on capital
projects that increased manufacturing capacity, streamlined production and
shipping processes, and lowered operating costs.
At our mass market cigar manufacturing facility in Jacksonville, we built a new
distribution center to improve our manufacturing and shipping flow. We also
finished moving our entire little cigar manufacturing operation in-house, having
previously outsourced production. In Wheeling, where we make smokeless tobacco
products, we are consolidating and improving tobacco processing with a new
fermentation center that is scheduled to be completed by the end of the first
quarter of 1998.
On the premium cigar front, where we had previously contracted the manufacture
of our cigars, we have now brought production into our own facilities, thereby
improving quality control, reducing costs, and increasing our production
capacity. In Honduras, we constructed a new facility for making hand-rolled
premium cigars, including Bering, our flagship brand. And, in the Dominican
Republic, we established COTABEX, a three-way partnership with MATASA, a
Dominican company, and CITA, from the Canary Islands, to make premium cigars in
a newly constructed facility. We also acquired a 50 percent interest in Puros de
Villa Gonzales, a major tobacco processor and manufacturer of premium cigars in
the Dominican Republic.
OUTLOOK
Our combined cigar and smokeless tobacco operations are a growth business, and
we routinely outperform our competitors thanks to our product quality, marketing
strength, and manufacturing capability. The many capital projects completed over
the last year will increase our supply of top quality tobacco products, whether
they're our established brands or new offerings. Supported by our sales force,
advertising, and promotions, our expanding product portfolio will help us
maintain our position as the world's leading cigar company.
/s/ William Ziegler, III
William Ziegler, III
Chairman of the Board & Chief Executive Officer March 5, 1998
<PAGE>
MASS MARKET LARGE CIGARS
In units sold, the mass market large cigar category is the nation's largest
cigar category. Priced under $1.00 at retail, mass market large cigars accounted
for an estimated 62 percent of unit sales and over 40 percent of retail dollar
sales in 1997. For the year, United States mass market large cigar retail sales
totaled an estimated $900 million.
Propelled by Swisher Sweets, the world's best selling cigar brand, we are
the dominant company in this category. In addition to Swisher Sweets, our mass
market large cigar brands are King Edward, Optimo, Blackstone, Cazadores, El
Trelles, Keep Moving, and Sante Fe, among others. Last year, driven by the
strength of our core brands and a range of new brands and line extensions, our
mass market large cigar unit sales increased by 13 percent.
As a company, we have been successful in developing and marketing new
products to capture niche markets. In 1997, we introduced such a product in
Cazadores. Cazadores is a high quality mass market cigar that appeals to both
the premium cigar smoker who wants to smoke a less expensive yet high quality
cigar, and the smoker of lower price, mass market cigars who occasionally wants
to smoke a higher priced cigar. And, because it's machine made, this mass market
premium cigar is more readily available than hand-made premiums. In its first
year, Cazadores, with high quality filler tobacco and a natural wrapper, was a
hit with smokers. As a result, we are expanding the line in 1998 by introducing
a new cigarillo-size version of Cazadores packaged in a hinged tin with high-end
graphics.
Our Optimo product line, also a higher priced mass market cigar made with
a natural leaf wrapper, grew substantially in 1997. Growth of this brand
exceeded expectations following a major package revision in the latter part of
1996.
The Blackstone cigar, made from an aromatic pipe tobacco blend, is a niche
product that we introduced in 1996. Last year, unit sales almost doubled thanks
to broader distri-bution and a variety of consumer promotions. The pipe tobacco
cigar category represents approximately 17 percent of the mass market large
cigar category and is growing substantially. We expect Blackstone to be a
dominant brand in this category.
<PAGE>
[PHOTOGRAPHS OF SOME OF THE COMPANY'S MASS MARKET LARGE CIGAR PRODUCTS]
<PAGE>
[TWO PAGES OF PHOTOGRAPHS OF THE COMPANY'S MASS MARKET
LARGE CIGAR PRODUCTION IN JACKSONVILLE, FLORIDA]
<PAGE>
LITTLE CIGARS
The Swisher Sweets Little Cigar is the single best selling little cigar brand in
the United States, both in dollars and unit sales. In a year in which little
cigar unit sales rose only 7 percent for the industry as a whole, our unit sales
were up 16 percent. Overall, our market share increased from 42 percent in 1996
to 46 percent in 1997.
There's no better evidence of our ability to anticipate market trends than
our little cigar line. Introduced in 1985, our little cigars now account for
nearly one out of every two cigars sold in this category, an especially
impressive statistic when you consider the fact that the Swisher Sweets Little
Cigar is more expensive than its competitors. Advertising and promotional
support have been integral to the success of our little cigars. We also attract
consumers with a range of line extensions, including regular, menthol, light,
and cherry. The unit sales of the latest addition to our line, the cherry
flavored little cigar that was introduced in 1996, rose by more than 75 percent
last year.
Our flagship little cigar brand is Swisher Sweets, but we also make King
Edward Little Cigars, which we market as a price/value product. This year, we
will be building on the success of our Blackstone brand by offering a pipe aroma
product to our little cigar line.
<PAGE>
[PHOTOGRAPHS OF SOME OF THE COMPANY'S LITTLE CIGAR PRODUCTS]
<PAGE>
[TWO PAGES OF PHOTOGRAPHS OF THE COMPANY'S LITTLE CIGAR
PRODUCTION IN JACKSONVILLE, FLORIDA]
<PAGE>
PREMIUM CIGARS
Though premium cigars represent only 7 percent of the cigars sold in the United
States, they have a high profile because of their rapid growth over the past few
years and their visibility through cigar bars and specialty magazines such as
Cigar Aficionado. Premium cigars are the fastest growing cigar category, as
evidenced by their estimated 35 percent compound annual growth rate from 1993 to
1997.
Swisher entered the premium cigar business in 1986 when we acquired
Bering, which we believe now ranks among the nation's top three premium brands.
Our premium line-up also includes Siglo 21, La Primadora, La Diligencia, Don
Julio, Flor de Jalapa, and Sabroso. In addition, we import and distribute the
Carlin, Casa Buena, and Pleiades brands, to name a few.
Over the past few years, the soaring demand for premium cigars has led to
an industry wide shortage of quality cigars. Swisher has responded with new
cigar making facilities in the Dominican Republic and Honduras. We are also
increasing the size of our premium cigar sales team and ratcheting up our
advertising and promotional budget to match our new capacity and product range.
As a result of this broad commitment, we can aggressively market our existing
lines and introduce new cigars distinguished by price, tobacco blends, and
country of origin.
Unit sales for Siglo 21, introduced in 1996, increased more than 50
percent last year, and the Pleiades brand also had an excellent year, paced by
the success of its newest entrant, the Reserve Privee. At the end of 1997, we
started shipping our new Santiago Silk from the Dominican Republic. Santiago
Silk is a beautifully packaged cigar with an Ecuadorian-Connecticut wrapper and
Dominican binder and filler that will be advertised with Siglo 21 in the food
and wine and the travel and leisure markets.
In 1998, we will roll out several new premium brands. Through a licensing
agreement with Hearst Publications, we will be making ESQ and Esquire cigars in
the Dominican Republic, then targeting smoke shops and restaurants in the
Northeast, where the magazine's sales are strongest. Bering Hallmark, the new
top-of-the-line Bering, will also be made in the Dominican Republic (the rest of
our Berings are Honduran). Bering Hallmark will be rolled out with a
golf-related marketing campaign featuring Jacksonville, Florida, native and
Senior Tour pro Bobby Duval.
<PAGE>
[PHOTOGRAPHS OF SOME OF THE COMPANY'S PREMIUM CIGAR PRODUCTS]
<PAGE>
[TWO PAGES OF PHOTOGRAPHS OF THE COMPANY'S PREMIUM CIGAR
PRODUCTION IN THE DOMINICAN REPUBLIC]
<PAGE>
SMOKELESS TOBACCO PRODUCTS
Swisher's smokeless tobacco products -- moist snuff, dry snuff, and loose-leaf
chewing tobacco -- accounted for approximately one-fourth of Swisher's net sales
in 1997. And, due to successful marketing, we grew our share in all three
categories.
Our moist snuff brands include Silver Creek, Redwood, Bowie, and Starr
Value, the latter two marketed in single cans at lower prices. In addition, we
manufacture private label brands for retail distributors.
Last year, when moist snuff unit sales were up only 2 percent for the
industry, Swisher's unit sales rose 11 percent thanks to our price/value
approach. Since we introduced the price/value concept in 1991, our total share
of the moist snuff market has grown to 5 percent, and we have over half of the
price/value market. That market was increasingly competitive last year, but,
with our range of brands and promotions, we increased our market share.
Our loose-leaf chewing tobacco brands include Mail Pouch, Lancaster, and
Chattanooga Chew. Supported by aggressive price promotions, we grew market share
in 1997, increas-ing unit sales by 7 percent in a year when the chewing tobacco
market as a whole was down an estimated 9 percent.
Navy, Railroad Mills, and Honey Bee are Swisher's main dry snuff brands.
With high margins and low marketing costs, our dry snuff products are an
important contributor to our cash flow. As was the case with chewing tobacco, we
increased our share of the dry snuff market in 1997 in a year during which the
overall market was down.
<PAGE>
[PHOTOGRAPHS OF SOME OF THE COMPANY'S SMOKELESS TOBACCO PRODUCTS]
<PAGE>
[TWO PAGES OF PHOTOGRAPHS OF THE COMPANY'S SMOKELESS TOBACCO
PRODUCTION IN WHEELING, WEST VIRGINIA]
<PAGE>
SALES BY CATEGORY
AS A PERCENT OF NET SALES
[Pie Charts]
Total
- -----
Cigars 74%
Smokeless Tobacco 26%
Cigars
- ------
Mass Market Large (Popular Price) 64%
Mass Market Large (High End) 10%
Premium 13%
Mass Market Little 13%
Smokeless Tobacco
- -----------------
Moist Snuff 46%
Dry Snuff 26%
Loose Leaf Chewing Tobacco 28%
<PAGE>
SELECTED FINANCIAL DATA
DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS
- --------------------------------------------------------------------------------
The following selected financial data was derived from the consolidated
financial statements of the Company. This data should be read in conjunction
with Management's Discussion and Analysis of Financial Condition and Results of
Operations and the Consolidated Financial Statements and the related notes
thereto. As discussed in Note 1 to the consolidated financial statements, prior
to November 6, 1995, the Predecessor was a wholly owned subsidiary of American
Maize-Products Company ("AMPCo"). On November 6, 1995, AMPCo was acquired by
Eridania Beghin-Say, S.A., which simultaneously entered into an agreement to
sell the Predecessor to the Successor. As a result of the acquisition on
November 6, 1995, the Successor's consolidated balance sheets, results of
operations and cash flows for the years ended December 31, 1997 and 1996 and for
the period from November 7, 1995 to December 31, 1995 are not comparable to
prior periods.
<TABLE>
<CAPTION>
SUCCESSOR PREDECESSOR
------------------------------------------------------ --------------------------------------
Pro Forma Period from Period from
Year Ended Year Ended Year Ended November 7 to January 1 to Year Ended Year Ended
December 31, December 31, December 31, December 31, November 6, December 31, December 31,
1997 1996 1995(a) 1995 1995 1994 1993
------------ ------------ ------------ ------------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Statement of Operations:
Net sales............................ $ 275,644 $ 225,229 $ 186,386 $ 31,266 $ 155,120 $ 163,285 $ 156,485
Cost of sales........................ 137,708 113,764 100,036 16,514 83,522 88,720 89,193
------- ------- ------- ------ ------ ------ ------
Gross profit......................... 137,936 111,465 86,350 14,752 71,598 74,565 67,292
Selling, general and
administrative expenses............ 64,862 61,008 52,306 7,207 40,331 47,208 50,366
Restructuring expenses............... -- -- -- -- -- 5,400 5,200
------- ------- ------- ------ ------ ------ ------
Operating profit..................... 73,074 50,457 34,044 7,545 31,267 21,957 11,726
Interest expense, net................ 8,049 9,505 8,445 1,670 3,437 5,503 9,081
Other expense (income), net.......... 340 153 -- 25 (2,360) (2,706) (1,995)
------- ------- ------- ------ ------ ------ ------
Income before income taxes, minority
interest and accounting changes.... 64,685 40,799 25,599 5,850 30,190 19,160 4,640
Provision for income taxes........... 25,390 16,006 10,132 2,228 11,536 7,461 1,570
------- ------- ------- ------ ------ ------ ------
Income before minority interest
and accounting changes............. 39,295 24,793 15,467 3,622 18,654 11,699 3,070
Minority interest.................... -- -- -- -- (967) (997) (1,010)
------- ------- ------- ------ ------ ------ ------
Income before accounting changes..... 39,295 24,793 15,467 3,622 17,687 10,702 2,060
Accounting changes (b)............... -- -- -- -- -- -- (6,898)
--------- --------- --------- --------- --------- --------- ---------
Net income (loss).................... $ 39,295 $ 24,793 $ 15,467 $ 3,622 $ 17,687 $ 10,702 $ (4,838)
========= ========= ========= ========= ========= ========= =========
Earnings per share:
Basic........................... $ 1.15 $ .73
Diluted......................... $ 1.15 $ .73
Weighted average shares outstanding:
Basic........................... 34,100 34,100
Diluted......................... 34,152 34,100
Other:
EBITDA (c)........................... $ 78,765 $ 55,884 $ 39,453 $ 8,337 $ 37,451 $ 29,176 $ 18,201
EBITDA margin........................ 28.6% 24.8% 21.2% 26.7% 24.1% 17.9% 11.6%
Gross margin......................... 50.0 49.5 46.3 47.2 46.2 45.7 43.0
Operating margin..................... 26.5 22.4 18.3 24.1 20.2 13.5 7.5
Balance Sheet:
Working capital...................... $ 72,911 $ 52,702 $ 31,925 $ 39,690 $ 46,794 $ 54,950
Total assets......................... 237,757 198,930 194,230 185,085 193,860 177,394
Total debt........................... 101,092 117,685 128,152 61,050 77,104 78,214
Total stockholders' equity........... 85,949 46,543 34,750 93,330 80,365 69,663
</TABLE>
- ------------
(a) Pro forma results of operations presents the results of operations as if
the Acquisition (see Note 1 to the Consolidated Financial Statements) had
taken place as of January 1, 1995 and as if the Management Services
Agreement (see Note 12 to the Consolidated Financial Statements) between
Hay Island Holding Corporation and the Company had been in effect as of
January 1, 1995.
(b) Represents cumulative effect of change in method of accounting for
postretirement benefits other than pensions and other postemployment
benefits, net of income taxes. (See Notes 7 and 8 to the Consolidated
Financial Statements.)
(c) EBITDA is defined as earnings before interest expense, net, provision for
income taxes and depreciation and amortization. The Company believes that
EBITDA is a measure commonly used by analysts and investors. Accordingly,
this information has been disclosed herein to permit a more complete
analysis of the Company's operating performance. EBITDA should not be
considered in isolation or as a substitute for net income or other
consolidated statement of operations or cash flow data prepared in
accordance with generally accepted accounting principles as a measure of
the profitability or liquidity of the Company. EBITDA does not take into
account the Company's debt service requirements and other commitments and,
accordingly, is not necessarily indicative of amounts that may be
available for discretionary uses.
(d) See Note 4 to the Consolidated Financial Statements for restrictions of
dividend payments.
<PAGE>
MD&A
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The following discussion and analysis should be read in conjunction with Swisher
International Group Inc.'s (the "Company") consolidated financial
statements and the related notes thereto.
OVERVIEW
Founded in 1861, the Company is the largest manufacturer and marketer of cigars
in the world, as measured by units sold, and a significant manufacturer and
marketer of smokeless tobacco products. The Company's net sales have increased
from $186.4 million in 1995 to $275.6 million in 1997, representing a compound
annual growth rate of 21.6%. During the same period, the Company's operating
profit increased from $34.0 million (on a pro forma basis) to $73.1 million,
representing a compound annual growth rate of 46.5%. The Company believes that
its strong operating performance has been due to: (i) the strength of the
Company's brands, especially its Swisher Sweets brand, which is the largest
selling cigar brand in the world, (ii) the resurgence in cigar smoking and the
related growth in the consumption and retail dollar sales of cigars, (iii) the
Company's significant market position in each of the major cigar product
categories in which it competes, (iv) its ability to increase prices of its
cigar and smokeless tobacco product categories in each of the last several
years, (v) the growth in the retail dollar sales of moist snuff smokeless
tobacco products, and the Company's increasing market share of this product
category, (vi) its continuous efforts to reduce manufacturing unit costs and
im-prove its manufacturing processes and (vii) the strength of the Company's
sales and marketing organization. While the Company believes it will continue
its strong operating performance, there can be no assurance that the Company
will maintain its historical growth rates.
The Company's profitability depends, to a significant extent, on the level of
utilization of its manufacturing capacity and the efficiencies of its
operations. As the Company has increased its volume, coupled with the Company's
processing improvements and pricing increases, the Company's gross margin
improved from 46.3% of net sales in the year ended December 31, 1995 to 50.0% of
net sales in the year ended December 31, 1997, and its operating profit margin
improved from 18.3% of net sales (on a pro forma basis) in the year ended
December 31, 1995 to 26.5% of net sales in the year ended December 31, 1997.
The Company believes that the gross profit margins in the cigar industry vary by
cigar product category. The Company's gross profit margins also vary. The
relative gross profit margins of its major cigar categories in descending order
are, generally, little cigars, mass market large cigars and premium cigars. In
general, the gross profit margins on smokeless tobacco products are higher than
the gross profit margins on cigar products.
The Company's raw material inventory requirements for cigar production are
relatively modest due to its long-standing relationships with major tobacco
suppliers who commit to supply tobacco as needed by the Company. The Company's
largest working capita l requirements are driven by its smokeless tobacco
operations. The tobacco for dry and moist snuff and loose-leaf chewing tobacco
requires aging of two to three years before being processed into finished
products.
22
<PAGE>
OVERVIEW -- continued
The Company maintains sufficient smokeless tobacco raw material inventories to
ensure proper aging and an adequate supply. Although the Company's business is
not seasonal, purchases of smokeless tobacco raw material inventory typically
occur from the m iddle of the fourth quarter through the end of the first
quarter of each year. Therefore, inventories at year end and at the end of the
first quarter are typically higher than during the rest of the year.
During 1997, the Company acquired interests in two joint ventures which will
supply the Company with a portion of its premium cigars. The Company also
purchases premium cigars from third-party manufacturers. Prices for each year
are generally agreed to prior to the start of the year. Typically, prices are
subject to adjustment if affiliates and third-party manufacturers can
substantiate that their costs of manufacturing have increased by a fixed
percentage over the costs assumed in setting the prices. The Company's ability
to maintain its gross margins for premium cigars in the event of price increases
by affiliates and third-party manufacturers is dependent on its ability to pass
along these cost increases in the form of price increases to its customers. Over
the last few years, the Company has been able to raise prices to recover product
price increases, however, there is no assurance it will be able to do so in the
future to the full extent needed to maintain its gross margins.
The Company sources its tobacco requirements from vendors in countries
throughout the world. In addition, approximately 3% of the Company's 1997 net
sales were to customers in foreign countries. Virtually all of the Company's
sales are denominated in U.S. dollars, as are its raw material and finished
product purchases. Thus, the Company has no material exposure to foreign
exchange gains or losses.
The Company is a holding company, which owns the outstanding capital stock of
Swisher International, Inc., through which the Company conducts its business
operations. The results of operations and financial position of the Company
reflect the consolidated results of operations and financial position of Swisher
International, Inc., and its predecessors. Before November 6, 1995, Swisher
International, Inc., was a wholly owned subsidiary of American Maize-Products
Company ("AMPCo"). On November 6, 1995, the Company acquired all of the
outstanding shares of Swisher International, Inc. (the "Acquisition").
The results of operations and financial position of the Company have been
significantly affected by adjustments resulting from the Acquisition, including
a substantial increase in debt associated with the Acquisition , the allocation
of purchase price and amortization of goodwill. As a result of these
adjustments, the results of operations and financial position of the Company
before the Acquisition are not comparable with its results of operations and
financial position thereafter. To facilitate the comparison of the predecessor
results of operations of the Company and the successor results of operations for
the years ended December 31, 1997 and 1996 with the year ended December 31,
1995, the predecessor results of operations of the Company for the period
January 1, 1995 through November 6, 1995 have been combined with the successor
results of operations of the Company from the period November 7, 1995 through
December 31, 1995 and presented after giving pro forma effect to the Acquisition
as if the Acquisition had occurred on January 1, 1995.
23
<PAGE>
RESULTS OF OPERATIONS
DOLLARS IN THOUSANDS
- --------------------------------------------------------------------------------
The following table sets forth certain of the Company's statement of operations
data for each of the periods presented:
<TABLE>
<CAPTION>
Pro Forma
Year Ended Year Ended Year Ended
December 31, December 31, December 31,
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
Statement of Operations Data:
Net sales................................... $275,644 $225,229 $186,386
Cost of sales............................... 137,708 113,764 100,036
-------- -------- --------
Gross profit................................ 137,936 111,465 86,350
Selling, general and administrative
expenses.................................. 64,862 61,008(b) 52,306
-------- -------- --------
Operating profit............................ 73,074 50,457 34,044
Interest expense, net....................... 8,049 9,505 8,445
Other expense, net.......................... 340 153 --
-------- -------- --------
Income before income taxes.................. 64,685 40,799 25,599
Provision for income taxes.................. 25,390 16,006 10,132
-------- -------- --------
Net income.................................. $ 39,295 $ 24,793 $ 15,467
======== ======== ========
Statement of Operations Data
as a Percentage of Net Sales:
Net sales................................... 100.0% 100.0% 100.0%
Cost of sales............................... 50.0% 50.5% 53.7%
Gross margin................................ 50.0% 49.5% 46.3%
Selling, general and administrative
expenses.................................. 23.5% 27.1(b) 28.0%
Operating margin............................ 26.5% 22.4(b) 18.3%
Interest expense, net....................... 2.9% 4.2% 4.5%
Other expense, net.......................... 0.1% 0.1% --%
Income before income taxes.................. 23.5% 18.1% 13.8%
Provision for income taxes.................. 9.2% 7.1% 5.4%
Net income.................................. 14.3% 11.0% 8.4%
</TABLE>
- --------------
(a) The unaudited pro forma statement of operations data gives pro forma
effect to the Acquisition (see Note 1 to the Consolidated Financial
Statements) as if it had occurred on January 1, 1995 and to the Management
Services Agreement (see Note 12 to the Consolidated Financial Statements)
as if it had been in effect as of January 1, 1995. The unaudited pro forma
data is for information purposes only and does not purport to be
representative of results of operations or financial position of the
Company had the Acquisition actually taken place as of January 1, 1995 or
had the Management Services Agreement been in effect as of January 1,
1995.
(b) Selling, general and administrative expenses for the year ended December
31, 1996 includes a payment of approximately $4.7 million for one-time,
special bonuses to management. Excluding the $4.7 million from 1996
results, selling, general and administrative expenses and operating margin
as percentages of net sales would have been 25.0% and 24.5%, respectively.
24
<PAGE>
1997 VS. 1996
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
Net Sales Net sales increased $50.4 million or 22.4% to $275.6 million for the
year ended December 31, 1997 from $225.2 million for the year ended December 31,
1996. The increase in net sales was due to higher sales of cigars and smokeless
tobacco products. Cigar sales increased principally due to unit volume growth
and, to a lesser extent, price increases in all cigar categories. Cigar sales
also increased as a result of a shift in sales mix to higher priced cigars.
Smokeless tobacco sales increased as a result of volume growth in all smokeless
tobacco categories and, to a lesser extent, price increases in all smokeless
tobacco categories.
Gross Profit Gross profit increased $26.5 million or 23.8% to $137.9 million
(50.0% of net sales) for the year ended December 31, 1997 from $111.5 million
(49.5% of net sales) for the year ended December 31, 1996. The increase in gross
profit for 1997 was due to the increase in net sales in all cigar and smokeless
tobacco product categories. As a percentage of net sales, gross profit increased
due to a shift in sales mix, offset partially by an increase in labor costs as a
result of adding a third production shift and bringing little cigar production
in-house at the Company's facility in Jacksonville, Florida.
Selling, General and Administrative ("SG&A") Expenses SG&A expenses increased
$3.9 million or 6.3% to $64.9 million (23.5% of net sales ) for the year ended
December 31, 1997 from $61.0 million (27.1% of net sales) for the year ended
December 31, 1996. The increase is principally due to an increase in marketing
expenses, offset in part by a reduction in administrative expenses, as a result
of the management services agreement between the Company and Hay Island and the
one-time special bonuses paid to management in 1996. The decrease, as a
percentage of net sales, was primarily due to SG&A expenses increasing at a
lower rate relative to the increase in net sales as a consequence of
management's monitoring of, and efforts to control, expenses. (See Note 12 to
the Consolidated Financial Statements for a discussion of the Management
Services Agreement).
Operating Profit Operating profit increased $22.6 million or 44.8% to $73.1
million (26.5% of net sales) for the year ended December 31, 1997 from $50.5
million (22.4% of net sales) for the year ended December 31, 1996. The increase,
as a percentage of net sales, was primarily due to higher gross profit margins,
and a decrease in SG&A expenses as a percentage of net sales.
Interest Expense, Net Interest expense, net decreased $1.5 million or 15.3% to
$8.0 million for the year ended December 31, 1997 from $9.5 million for the year
ended December 31, 1996. For the year ended December 31, 1997, the average debt
balance was $109.4 million, with an average effective interest rate of 7.4%. For
the year ended December 31, 1996, the average debt balance was $122.9 million,
with an average effective interest rate of 7.7%.
Income Taxes The effective income tax rate was 39.25% and 39.23% for the years
ended December 31, 1997 and 1996, respectively.
Net Income Net income increased $14.5 million or 58.5% to $39.3 million (14.3%
of net sales), for the year ended December 31, 1997 from $24.8 million (11.0% of
net sales), for the year ended December 31, 1996.
25
<PAGE>
1996 VS. 1995
YEAR ENDED DECEMBER 31, 1996 COMPARED TO PRO FORMA YEAR ENDED DECEMBER 31, 1995
Net Sales Net sales increased $38.8 million or 20.8% to $225.2 million for the
year ended December 31, 1996 from $186.4 million for the year ended December 31,
1995. The increase in net sales was primarily due to higher sales of cigars and,
to a lesser extent, higher sales of smokeless tobacco products. Cigar sales
increased principally due to growth in unit volumes of premium, mass market
large cigars and little cigars. Cigar sales also increased as a result of a
shift in sales mix to higher priced cigars and price increases in all cigar
categories. Smokeless tobacco sales increased as a result of continued volume
increases, particularly in moist snuff.
Gross Profit Gross profit increased $25.1 million or 29.1% to $111.5 million
(49.5% of net sales) for the year ended December 31, 1996 from $86.4 million
(46.3% of net sales) for the year ended December 31, 1995. The increase in gross
profit for 1996 was due to the increase in net sales in the cigar and smokeless
tobacco product categories. As a percentage of net sales, gross profit increased
due to fixed manufacturing costs being spread over increased production volumes.
In addition, the Company incurred certain tobacco raw material cost increases
which it was able to offset by higher selling prices.
SG&A Expenses SG&A expenses increased $8.7 million or 16.6% to $61.0 million
(27.1% of net sales) for the year ended December 31, 1996 from $52.3 million
(28.0% of net sales) for the year ended December 31, 1995. A substantial portion
of the increase of $8.7 million is attributable to a payment of approximately
$4.7 million for one-time special bonuses to management. The remainder of the
increase is due primarily to increases in sales personnel and marketing
programs.
The decrease, as a percentage of net sales, was primarily due to SG&A expenses
increasing at a lower rate relative to the increase in net sales as a
consequence of management monitoring and its effort to control expenses.
Excluding the payment of approximately $4.7 million for one-time, special
bonuses from 1996 results, SG&A expenses would have been 25.0% of net sales.
Operating Profit Operating profit increased $16.4 million or 48.2% to $50.5
million (22.4% of net sales) for the year ended December 31, 1996 from $34.0
million (18.3% of net sales) for the year ended December 31, 1995. The increase
was primarily due to higher gross profit margins and a decrease in SG&A expenses
as a percentage of net sales. Excluding the payment of approximately $4.7
million for one-time, special bonuses from 1996 results, operating profit would
have been $55.1 million (24.5% of net sales).
Interest Expense, Net Interest expense, net increased $1.1 million or 12.6% to
$9.5 million for the year ended December 31, 1996 from $8.4 million for the year
ended December 31, 1995. The increase resulted from lower levels of interest
income. For the year ended December 31, 1996, the average debt balance was
$122.9 million, with an average effective interest rate of 7.7%. For the year
ended December 31, 1995, the average debt balance was $129.0 million, with an
average effective interest rate of 7.6%.
Income Taxes The effective income tax rate was 39.23% and 39.58% for the years
ended December 31, 1996 and 1995, respectively.
Net Income Net income increased $9.3 million or 60.3% to $24.8 million (11.0% of
net sales), for the year ended December 31, 1996 from $15.5 million (8.4% of net
sales), for the year ended December 31, 1995.
26
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Net cash flows from operating activities were $38.3 million, $27.6 million and
$31.5 million for the years ended December 31, 1997, 1996 and 1995,
respectively. The increase of $10.7 million for the year ended December 31, 1997
compared to the year ended December 31, 1996 was primarily due to an increase in
net income offset by higher working capital requirements resulting from
increased inventory and accounts receivable levels associated with higher sales
volumes. The decrease of $3.9 million for the year ended December 31, 1996
compared to the year ended December 31, 1995 was primarily due to higher working
capital requirements resulting from increased inventory levels associated with
higher sales volumes, partially offset by a decrease in accounts receivable and
an increase in net income.
Working capital requirements can be expected to grow as the Company's business
grows. The Company's raw material inventory requirements for cigar production
are relatively modest due to its long-standing relationships with major tobacco
suppliers who commit to supply tobacco inventory as needed by the Company. The
Company's largest working capital requirements are driven by its smokeless
tobacco operations. The tobacco for dry and moist snuff and loose-leaf chewing
tobacco requires aging of two to three years before being processed into
finished products. The Company maintains sufficient smokeless tobacco raw
material inventories to ensure proper aging and an adequate supply. Although the
Company's business is not seasonal, purchases of smokeless tobacco raw material
inventory typically occur from the middle of the fourth quarter through the end
of the first quarter of each year. Therefore, inventories at year end and at the
end of the first quarter are typically higher than during the rest of the year.
The Compan y will fund its working capital requirements through operating cash
flows, and, if needed, bank borrowings.
Cash flows used in investing activities were $22.5 million, $5.7 million and
$147.4 million in 1997, 1996 and 1995, respectively. Cash flows used in 1997
were primarily $15.6 million for purchases of property, plant and equipment and
$7.4 million related to investments in joint ventures for the production of
premium cigars. Cash flows used in 1996 were for purchases of property, plant
and equipment. Cash flows used in 1995 were $141.2 million related to financing
the Acquisition and $6.4 million for purchases of property, plant and equipment.
The capital expenditures in 199 7, 1996 and 1995 primarily relate to the
expansion of the Company's production facilities and investments in
manufacturing equipment to expand the Company's manufacturing capacity in mass
market large cigars and little cigars. For 1998, the Company currently expects
that capital expenditures will be between $10 million and $15 million and will
be used to expand its smokeless tobacco production capacity in moist snuff,
expand its domestic production capacity in mass market cigars and continue its
capital improvement program. Capital expenditures are estimated to be between $5
million and $8 million for each of 1999 and 2000 and are expected to be used to
maintain existing equipment and facilities as well as increase production
capacity. The capital expenditures referred to above are expected to be funded
by cash flows from operations and, if needed, bank borrowings.
27
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES -- continued
Cash flows provided (used) in financing activities were $(16.6) million, $(23.5)
million and $127.6 million in 1997, 1996 and 1995, respectively. The 1997 use is
due principally to net payments of long-term debt. The 1996 use is due
principally to dividends paid to Hay Island and changes in short-term debt,
offset partially by the proceeds from the offering of Class A Common Stock. The
1995 amount is primarily due to increased debt to finance the Acquisition.
In November 1997, the Company modified its credit agreement with BankBoston, N.
A., as administrative agent, which consisted of a $27 million revolving credit
facility and term loans aggregating $130 million. The modified credit agreement
is a $130 million unsecured revolving credit facility ("the Agreement"),
maturing in November 2001. The facility will reduce by $15 million on each
anniversary date. At the Company's option, interest is payable based on (a)
"alternate base rate" plus an applicable margin, as defined, which was 8.50% as
of December 31, 1997, or (b) Eurodollar rate plus an applicable margin, as
defined, which was 6.70% as of December 31, 1997.
The Agreement contains various restrictive covenants including, among other
things, limitations on the ability of the Company and its subsidiaries to incur
debt, create liens, pay dividends, sell assets and make investments and
acquisitions. The Company's ability to pay dividends is limited to a pool of $10
million plus 25% of net income, as defined, for the four quarters most recently
ended prior to the dividend payment date. In addition, the Agreement requires
the Company to maintain specified financial ratios and satisfy certain tests,
including minimum net worth and indebtedness to EBITDA and maximum leverage
ratios. The Agreement also contains customary events of default.
As of December 31, 1997, borrowings under the Agreement were $101.0 million and
the Company had $28.4 million of unused availability thereunder after taking
into account approximately $0.6 million utilized to support letters of credit.
To convert floating rate debt into fixed rate debt, the Company previously
entered into two interest rate swap agreements. As of December 31, 1997, the
total notional amount covered by these existing swap agreements was $50.0
million. The notional amounts decrease to $15.0 million on November 16, 1998,
and the remaining agreement terminates on July 2, 1999. Under the terms of these
agreements, the Company receives a variable interest rate equal to three-month
LIBOR and pays a fixed rate of approximately 5.9% as of December 31, 1997. If
the Company terminated these agreements on December 31, 1997 or 1996, the
effect, as of the end of each period, would have been insignificant.
The Company believes that net cash flow generated from future operations and the
availability of borrowings under the Agreement will be sufficient to fund its
working capital requirements, capital expenditures and debt service requirements
for the foreseeable future.
INFLATION
The Company has historically been able to pass inflationary increases for raw
materials and other costs on to its customers through price increases, however,
there is no assurance it will be able to do so in the future.
28
<PAGE>
SEASONALITY
Although the Company's business is generally non-seasonal, consumption of
smokeless tobacco products increases slightly during the summer months.
Additionally, purchases of smokeless tobacco raw materials typically occur from
the middle of the fourth q uarter to the end of the first quarter.
RECENTLY ISSUED ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board ("FASB") issued SFAS No.
130, "Reporting Comprehensive Income," which requires that changes in
comprehensive income be shown in a financial statement that is displayed with
the same prominence as other financial statements. This statement is effective
for the Company's 1998 fiscal year. The Company is in the process of determining
its preferred disclosure format.
In June 1997, the FASB issued SFAS No. 131, "Disclosure About Segments of an
Enterprise and Related Information," which changes the way public companies
report information about segments. SFAS No. 131, which is based on the
management approach to segment reporting, includes requirements to report
selected segment information quarterly and entity-wide disclosures about
products and services, major customers, and the material countries in which the
entity holds assets and reports revenues. This statement is effect ive for the
Company's 1998 fiscal year. The Company is in the process of evaluating the
disclosure requirements under this standard.
In February 1998, the FASB issued SFAS No. 132, "Employers' Disclosures about
Pensions and Other Postretirement Benefits," which amends SFAS No. 87, 88, and
106, and is intended to standardize the disclosure requirements for employer
sponsored retirement plans and other retiree benefits. SFAS No. 132 will require
new information from plan sponsors, eliminate certain information that is no
longer considered useful, but will not modify recognition or measurement
requirements. The Company has not yet evaluated the effects of this standard on
the financial statements.
REGULATION
In 1996, the federal Food and Drug Administration ("FDA") for the first time
asserted jurisdiction over nicotine in tobacco as a "drug" and issued
regulations purporting to regulate smokeless tobacco products as "medical
devices." These regulations prohibit the sale of smokeless tobacco products to
minors and severely restrict advertising, marketing and promotion of smokeless
tobacco products. The regulations also require the Company and other
manufacturers to comply with a wide range of labeling, reporting and other
requirements. In April 1997, ruling in a case filed by the Company and other
smokeless tobacco manufacturers to challenge the FDA's authority, a federal
court held that the FDA as a matter of law is not precluded from regulating
smokeless tobacco products as "medical devices" or from implementing certain
labeling and access restrictions. At the same time, however, the court said that
the FDA has no authority to restrict the advertising and promotion of smokeless
tobacco products and stayed the effectiveness of any of the restrictions related
to labeling, access, advertising and promotion due to take effect in 1997 and
1998 pending further order of the court. The court's opinion is now on appeal
before the U.S. Court of Appeals for the 4th Circuit. The Company is unable to
predict the outcome of the appeal or its impact on those portions of the
regulation that have not been given effect. Any further provisions of these
regulations that become effective could have a materially adverse effect on the
Company's business.
29
<PAGE>
REGULATION -- continued
In June 1997, the five largest tobacco companies announced an agreement with
trial lawyers and the Attorneys General of several states suing to recoup
Medicare and Medicaid expenses (the "Proposed Settlement"). Although the Company
was not a party to any of the actions being settled, legislation introduced in
Congress in the wake of the Proposed Settlement seeks to raise the price of
cigarettes and other tobacco products significantly (by levying new federal
excise taxes or by imposing significant new fees and penalties) and to regulate
all tobacco products (including cigars in some cases) by imposing full FDA
regulation and adopting new and highly restrictive marketing requirements. The
Company cannot anticipate whether any of this legislation will be adopted or the
extent to which it may impact the Company's business.
On February 9, 1998, the Company was notified by the Federal Trade Commission
("FTC") of the adoption by the FTC of an Order to File a Special Report on the
Company's advertising and marketing expenditures with regard to its cigar
business for 1997 and 1996. This information is similar to information which the
Company has filed with the FTC for many years with respect to its smokeless
tobacco products.
The Company is subject to laws and regulations relating to the protection of the
environment. While it is not possible to quantify with certainty the potential
impact of future actions regarding environmental matters, in the opinion of
management, compliance with the present environmental protection laws will not
have a material adverse impact upon the Company's consolidated financial
position, results of operations or cash flows.
EXCISE TAXES
Cigars and smokeless tobacco products have long been subject to federal, state
and local excise taxes. Such taxes are frequently subject to proposed increases,
in some cases significant increases, to fund various legislative initiatives.
The Balanced Budget Act adopted by Congress in 1997, provides for increases in
federal excise taxes on all tobacco products in two stages, beginning in 2000.
Management does not believe that these increases will have a material adverse
effect on the Company's operations. However, enactment of new or significant
further increases in existing federal, state or local excise taxes could have a
material adverse effect on the Company's business.
LITIGATION
The tobacco industry continues to experience significant health-related
litigation. Plaintiffs in such cases typically seek compensation and, in some
cases, punitive damages, for various injuries allegedly sustained from the use
of tobacco products or exposure to tobacco smoke, including health care costs.
The Company is not aware of any adverse decision or judgment having been
rendered against smokeless tobacco or cigar manufacturers.
The Company is a defendant, along with other defendants in an action brought by
an individual plaintiff in Louisiana seeking damages and other relief in
connection with injuries allegedly resulting from use of the Company's and the
other defendants' products. In addition, the Company together with other
defendants has been named in a Texas action brought by another individual
seeking damages and other relief in connection with injuries allegedly caused to
plaintiff by products manufactured by the Company and the other defendants. The
Company believes that it has meritorious defenses and is vigorously defending
these lawsuits.
30
<PAGE>
LITIGATION -- continued
The Company is also subject to other litigation, claims and contractual
agreements arising in the ordinary course of business. In the opinion of
management, the cost, if any, of resolving all litigation and contingencies
should not have a significant impact on the Company's consolidated financial
position. There can be no assurance, however, that the Company may not be named
as a defendant in future suits, nor can there be any assurance that existing or
future litigation will not result in an adverse judgment against the Company
which could have a material adverse effect on the Company's business, future
results of operations or cash flows. The Company does not carry insurance to
protect against health-related product liability because the cost of obtaining
such coverage is commercially prohibitive. Additionally, a judgment against the
Company with respect to a product or any related products could preclude the
further sale of such product, which could have a material adverse effect on the
Company's business.
OTHER
For a discussion of other contingencies, see Note 13 to the Company's
consolidated financial statements.
The Company has undertaken a program to determine the work necessary to make its
computer information systems Year 2000 compliant. The program, which covers
internal information technology and external business partner issues,
encompasses various stages including assessment, strategy, development, testing
and implementation. Based on activities to date and on project plans, critical
systems are expected to be Year 2000 compliant by December 31, 1998. Resolution
of the Year 2000 issue is not expected to have a material adverse effect upon
the Company's financial position, results of operations or cash flows.
This Management's Discussion and Analysis of Financial Condition and Results of
Operations and other sections of this Annual Report contain forward-looking
statements that are based on current expectations, estimates and projections
about the industry in which the Company operates, management's beliefs and
assumptions made by management. Words such as "expects," "believes,"
"estimates," variations of such words and similar expressions are intended to
identify such forward-looking statements. These statements are not guarantees of
future performance and involve certain risks, uncertainties and assumptions
which are difficult to predict. Therefore, actual outcomes and results may
differ materially from what is expressed or forecasted in such forward-looking
statements. The Company undertakes no obligation to update publicly any
forward-looking statements, whether as a result of new information, future
events or otherwise.
31
<PAGE>
CONSOLIDATED BALANCE SHEETS
DOLLARS IN THOUSANDS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
As of December 31, 1997 1996
- ------------------ -------- --------
<S> <C> <C>
ASSETS:
Current assets:
Cash and cash equivalents................................................. $ 1,057 $ 1,744
Accounts receivable, less allowance for doubtful accounts of
$1,643 and $1,783, respectively......................................... 32,348 22,365
Inventories............................................................... 60,714 54,936
Deferred income taxes..................................................... 1,218 1,203
Prepaid income taxes...................................................... -- 323
Other current assets...................................................... 3,096 2,247
-------- --------
Total current assets................................................ 98,433 82,818
-------- --------
Property, plant and equipment:
Land................................................................ 1,299 1,319
Buildings and improvements.......................................... 10,812 10,054
Machinery and equipment............................................. 51,300 46,284
Construction in progress............................................ 11,998 2,848
-------- --------
75,409 60,505
Less, accumulated depreciation...................................... 7,155 3,642
-------- --------
68,254 56,863
-------- --------
Goodwill, net of accumulated amortization of $3,512
and $1,808, respectively................................................ 46,733 48,437
Investments in affiliates................................................. 13,315 --
Prepaid pension cost...................................................... 4,972 4,660
Other assets.............................................................. 6,050 6,152
-------- --------
Total assets........................................................ $237,757 $198,930
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current liabilities:
Current portion of long-term debt......................................... $ -- $ 17,102
Accounts payable.......................................................... 8,102 4,927
Accrued expenses.......................................................... 8,657 8,087
Due to affiliates......................................................... 5,900 --
Income taxes payable...................................................... 2,863 --
-------- --------
Total current liabilities........................................... 25,522 30,116
Long-term debt............................................................ 101,092 100,583
Deferred income taxes..................................................... 7,296 4,589
Accrued postretirement and postemployment benefits........................ 14,241 13,788
Other liabilities......................................................... 3,657 3,311
-------- --------
Total liabilities................................................... 151,808 152,387
-------- --------
Commitments and contingencies
Stockholders' equity:
Common Stock.............................................................. 341 341
Paid-in capital........................................................... 45,428 45,428
Retained earnings......................................................... 40,069 774
Cumulative translation adjustments........................................ 111 --
-------- --------
Total stockholders' equity.......................................... 85,949 46,543
-------- --------
Total liabilities and stockholders' equity.......................... $237,757 $198,930
======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
32
<PAGE>
CONSOLIDATED STATEMENTS OF INCOME
DOLLARS IN THOUSANDS EXCEPT SHARE AMOUNTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
SUCCESSOR PREDECESSOR
------------------------------------------ -----------
Period from Period from
Year Ended Year Ended November 7 January 1 to
December 31, December 31, December 31, November 6,
1997 1996 1995 1995
------------ ------------ ------------ -----------
<S> <C> <C> <C> <C>
Net sales........................................ $275,644 $225,229 $ 31,266 $155,120
Cost of sales.................................... 137,708 113,764 16,514 83,522
-------- -------- -------- --------
Gross profit............................... 137,936 111,465 14,752 71,598
Selling, general and administrative expenses..... 64,862 61,008 7,207 40,331
-------- -------- -------- --------
Operating profit................................. 73,074 50,457 7,545 31,267
Interest expense, net............................ 8,049 9,505 1,670 3,437
Other expense (income) net....................... 340 153 25 (2,360)
-------- -------- -------- --------
Income before income taxes and minority
interest....................................... 64,685 40,799 5,850 30,190
Provision for income taxes....................... 25,390 16,006 2,228 11,536
-------- -------- -------- --------
Income before minority interest.................. 39,295 24,793 3,622 18,654
Minority interest in earnings of subsidiary...... -- -- -- (967)
-------- -------- -------- --------
Net income....................................... $ 39,295 $ 24,793 $ 3,622 $ 17,687
======== ======== ======== ========
Earnings per share:
Basic...................................... $ 1.15 $ .73
======== ========
Diluted.................................... $ 1.15 $ .73
======== ========
Weighted average shares outstanding:
Basic...................................... 34,100 34,100
Diluted.................................... 34,152 34,100
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
33
<PAGE>
CONSOLIDATED STATEMENTS
OF STOCKHOLDERS' EQUITY
DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PREDECESSOR SUCCESSOR
----------- ---------
Cumulative Total
Common Common Paid-in Retained Translation Stockholders'
Stock Stock Capital Earnings Adjustments Equity
--------- ------ --------- --------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1994................. $13,000 $ 13,117 $ 54,248 $ 80,365
Dividend to AMPCo.......................... -- -- (4,722) (4,722)
Net income................................. -- -- 17,687 17,687
------- --------- -------- ---------
Balance, November 6, 1995.................. $13,000 $ 13,117 $ 67,213 $ 93,330
======= ========= ======== =========
Balance, November 7, 1995.................. $ --(a) $ 31,128 $ -- $ 31,128
Net income................................. -- -- 3,622 3,622
----- --------- -------- ---------
Balance, December 31, 1995................. --(a) 31,128 3,622 34,750
Common Stock Offering (Note 10)............ 341 94,759 -- 95,100
Dividends to Hay Island.................... -- (80,459) (27,641) (108,100)
Net income................................. -- -- 24,793 24,793
----- --------- -------- ---------
Balance, December 31, 1996................. 341(b) 45,428 774 $ -- 46,543
Net income................................. -- -- 39,295 -- 39,295
Foreign currency translation adjustments... -- -- -- 111 111
----- --------- -------- ----- ---------
Balance, December 31, 1997................. $ 341(b) $ 45,428 $ 40,069 $ 111 $ 85,949
===== ========= ======== ===== =========
</TABLE>
- -----------
(a) Prior to the Common Stock Offering, and as of December 31, 1995, the
Company had 100 shares of issued and outstanding Common Stock with a $1
par value.
(b) As of December 31, 1997 and 1996, the Company had 103,100,000 shares
authorized with 34,100,000 shares issued and outstanding at a par value of
$.01.
The accompanying notes are an integral part of the consolidated financial
statements.
34
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
DOLLARS IN THOUSANDS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
SUCCESSOR PREDECESSOR
--------------------------------------------- ------------
Period from Period from
Year Ended Year Ended November 7 to January 1 to
December 31, December 31, December 31, November 6,
1997 1996 1995 1995
------------ ------------ ------------- -----------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net income.......................................................... $39,295 $ 24,793 $ 3,622 $17,687
Adjustments to reconcile net income to net cash.....................
provided by (used in) operating activities:
Depreciation and amortization...................................... 6,031 5,580 817 3,824
Deferred income taxes.............................................. 2,691 2,612 773 (219)
Minority interest in earnings of subsidiary........................ -- -- -- 967
Loss on disposal of property, plant and equipment.................. 100 -- -- 126
Changes in assets and liabilities, net of impact of acquisition:
Accounts receivable............................................ (9,959) 1,331 (4,360) 5,296
Inventories.................................................... (5,754) (4,154) 449 5,660
Other current assets........................................... (847) (487) (46) (185)
Prepaid pension cost........................................... (312) (340) -- 145
Other assets................................................... (1,086) (1,573) -- --
Accounts payable and accrued expenses.......................... 3,764 (857) (5,317) (954)
Income taxes................................................... 3,603 (1,423) 1,455 1,990
Accrued postretirement and postemployment benefits............. 453 1,015 -- --
Other liabilities.............................................. 346 1,142 -- --
Other, net..................................................... -- (26) (11) (180)
------ ------ ------ ------
Net cash provided by (used in) operating activities.................. 38,325 27,613 (2,618) 34,157
------ ------ ------ ------
Cash flows from investing activities:
Additions to property, plant and equipment.......................... (15,647) (5,653) (842) (5,536)
Proceeds from disposal of property, plant and equipment.............. 604 -- -- 223
Investments in affiliates............................................ (7,415) -- -- --
Acquisition of business, net of cash acquired of $8,558.............. -- -- (141,215) --
------ ------ ------ ------
Net cash used in investing activities................................ (22,458) (5,653) (142,057) (5,313)
------ ------ ------ ------
Cash flows from financing activities:
Change in short-term debt............................................ -- (20,000) -- (2,005)
Long-term borrowings................................................. 82,100 316,263 114,752 --
Payments of long-term debt........................................... (98,694) (306,729) (6,600) (4,762)
Dividends paid to Hay Island......................................... -- (108,100) -- --
Proceeds from Common Stock Offering.................................. -- 95,100 -- --
Increase in intercompany receivable, net............................. -- -- -- (13,592)
Issuance of common stock............................................. -- -- 39,773 --
------ ------ ------ ------
Net cash (used in) provided by financing activities.................. (16,594) (23,466) 147,925 (20,359)
------ ------ ------ ------
Effect of foreign exchange rate changes on cash...................... 40 -- -- --
------ ------ ------ ------
Net (decrease) increase in cash and cash equivalents................. (687) (1,506) 3,250 8,485
Cash and cash equivalents, beginning of period....................... 1,744 3,250 -- 73
------- -------- -------- -------
Cash and cash equivalents, end of period............................ $ 1,057 $ 1,744 $ 3,250 $ 8,558
======= ======== ======== =======
Supplemental cash flow information:
Cash paid during the period for:
Interest (net of amount capitalized)............................... $ 8,381 $ 10,545 $ 881 $ 5,169
Income taxes....................................................... $18,970 $ 14,782 $ -- $ 9,766
</TABLE>
SUPPLEMENTAL NON-CASH DISCLOSURE:
During the period from January 1, 1995 through November 6, 1995, a Note
receivable from AMPCo of $21,000 was reclassified to the Due from AMPCo account.
Additionally, the Company recorded a dividend to AMPCo of $4,722, which was
settled by adjusting the Due from AMPCo and the Liability to the Minority
Interest.
In addition, in connection with the Acquisition, the Company issued a $20,000
subordinated note payable to the seller.
The accompanying notes are an integral part of the consolidated financial
statements.
35
<PAGE>
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
DOLLARS IN THOUSANDS EXCEPT SHARE AMOUNTS
- --------------------------------------------------------------------------------
1. GENERAL AND ACQUISITION:
General Swisher International Group Inc. and Subsidiaries (the "Company" or the
"Successor") manufactures and sells cigars and smokeless tobacco products. The
principal market for the Company's products is the United States.
Acquisition Through November 6, 1995, Swisher International, Inc. (the
"Predecessor") was a wholly owned subsidiary of American Maize-Products Company
("AMPCo"). On November 6, 1995, in connection with the acquisition of AMPCo and
its subsidiaries by Eridania Beghin-Say, S.A. ("EBS"), the common stock of the
Predecessor was simultaneously sold for $169,773 to the Company, which was a
wholly owned subsidiary of Hay Island Holding Corporation ("Hay Island") prior
to the Offering (see Note 10). This transaction is referred to as the
"Acquisition."
The aggregate purchase price was comprised of cash of $39,773, senior bank debt
of $110,000, the proceeds of which were paid to the seller, and subordinated
debt of $20,000 payable to the seller.
The Acquisition was accounted for as a purchase, which results in a new basis of
accounting for periods subsequent to the acquisition date. The fair value of
assets acquired aggregated $203,859, including goodwill of $50,245 (net), and
the fair value of liabilities aggregated $164,086. Based on Hay Island's
previous ownership interest in AMPCo, the amount of goodwill and shareholders'
equity recognized as of the acquisition date was reduced by $8,645. For income
tax purposes, the Acquisition has been treated as an asset purchase.
Accordingly, goodwill will be amortized over 15 years for income tax purposes.
As a result of the Acquisition, the Company's consolidated results of operations
for the years ended December 31, 1997 and 1996 and for the period from November
7, 1995 to December 31, 1995 are not comparable to prior periods.
The following summarizes the unaudited pro forma results of operations as if the
Acquisition had taken place as of January 1, 1995 and to the Management Services
Agreement (see Note 12) as if it had been in effect on January 1, 1995. In
addition, certain one-time special bonuses to management in connection with the
Offering have been excluded from the pro forma results of operations.
Pro Forma Year ended December 31, 1996 1995
- --------------------------------- ---- ----
Net sales........................ $225,229 $186,386
Net income....................... 29,466 15,467
Earnings per share............... .86 .45
The unaudited pro forma information is for informational purposes and does not
purport to be representative of the results of operations or financial position
of the Company had the Acquisition actually taken place as of January 1, 1995 or
the Management Services Agreement been in effect on January 1, 1995.
36
<PAGE>
2. SUMMARY OF SIGNIFICANT ACCOUNTING PRINCIPLES:
Principles of Consolidation The consolidated financial statements include the
accounts of Swisher International Group Inc. and its wholly owned subsidiaries.
All significant intercompany balances and transactions have been eliminated in
consolidation. Except as indicated to the contrary, all references to "the
Company" are to the Predecessor or to the Successor. Foreign currency
translation adjustments resulting from the translation of the financial position
and results of operations of the Company's United Kingdom subsidiary are
accumulated as a separate component of stockholders' equity. Investments in
affiliated companies with a 20% or greater ownership interest, but less than
majority control, are accounted for on an equity basis and, accordingly,
consolidated income includes the Company's share of their income.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting periods.
Actual results could differ from those estimates.
Revenue Recognition Revenue is recognized when shipments are made to customers.
Earnings Per Share In 1997, the Financial Accounting Standards Board issued SFAS
No. 128, "Earnings per Share." SFAS No. 128 replaced the calculation of primary
and fully diluted earnings per share with basic and diluted earnings per share.
Unlike primary earnings per share, basic earnings per share excludes any
dilutive effects of options, warrants and convertible securities. Diluted
earnings per share is similar to the previously required fully diluted earnings
per share. All earnings per share amounts for all periods have been presented,
and where appropriate, restated to conform to the SFAS No. 128 requirements.
Weighted average shares used in computing diluted earnings per share differ from
the weighted average shares used in computing basic earnings per share as a
result of employee stock options.
Advertising Costs Advertising costs of $4,072, $2,521, $117 and $1,946 for the
years ended December 31, 1997 and 1996, the period from November 7, 1995 to
December 31, 1995 and the period from January 1, 1995 to November 6, 1995,
respectively, were expensed as incurred.
Research and Development Costs Research and development expenditures are
expensed as incurred. Expenditures amounted to $1,142, $940, $127 and $827 for
the years ended December 31, 1997 and 1996, the period from November 7, 1995 to
December 31, 1995 and the period from January 1, 1995 to November 6, 1995,
respectively.
Minority Interest Through November 6, 1995, the Company owned 83% of the
outstanding shares of American Maize Technologies, Inc. ("AMTI"). The minority
interest through November 6, 1995, stated as a liability on the consolidated
balance sheet, was equal to the minority ownership percentage of AMTI's net
assets. The minority interest in the consolidated statements of operations was
equal to the minority ownership percent of AMTI's net income.
Cash and Cash Equivalents Cash and cash equivalents include highly liquid
investments with original maturities of three months or less when purchased. The
carrying value of cash equivalents approximates fair value.
Concentration of Credit Risk Financial instruments which potentially subject the
Company to a concentration of credit risk are cash and cash equivalents and
accounts receivable.
37
<PAGE>
2. SUMMARY OF SIGNIFICANT ACCOUNTING PRINCIPLES -- continued
The Company maintains its cash and cash equivalents with various high quality
banks. Amounts held in individual banks may periodically exceed, for brief time
periods, federally insured amounts. The Company's customers are primarily
wholesale tobacco and candy distributors, wholesale grocers and food and drug
chains, in many geographic regions. To reduce credit risk, the Company performs
ongoing credit evaluations of its customers' financial condition but does not
generally require collateral.
Inventories Inventories are stated at the lower of cost or market. The last-in,
first-out (LIFO) method is used to determine the cost of tobacco and packaging
contents in inventory. All tobacco inventory is included in current assets in
conformity with standard industry practice, notwithstanding the fact that
significant quantities of inventory are carried for several years for purposes
of the curing process. The average cost and the first-in, first-out (FIFO)
methods are used to calculate the cost of the remaining inventories.
Property, Plant and Equipment Property, plant and equipment is stated at cost
less accumulated depreciation. Expenditures for new facilities and those which
increase useful lives are capitalized. Maintenance and repairs are expensed as
incurred. When property, plant and equipment is sold or retired, the cost and
accumulated depreciation applicable to those assets are removed and any gain or
loss on the transaction is included in income.
Plant and equipment is depreciated over its estimated useful life, using the
straight-line method. Depreciation is based on the following useful lives:
buildings and improvements, 10 to 30 years; machinery and equipment, 5 to 15
years. Assets recorded under capital leases are amortized over the lease term
or, if title ultimately passes to the Company, over their estimated useful
lives. Depreciation expense approximated $3,568, $3,172, $470 and $3,088,
respectively, for the years ended December 31, 1997 and 1996, the period from
November 7, 1995 to December 31, 1995 and the period from January 1, 1995 to
November 6, 1995.
Goodwill Goodwill arising from the Acquisition in November 1995 is being
amortized over 40 years. Goodwill from acquisitions prior to November 6, 1995 of
$14,632 was also amortized over 40 years through November 6, 1995.
The Company periodically evaluates whether there has been a permanent impairment
in the carrying value of goodwill by comparing it to anticipated future
operating cash flows. Factors which management considers in performing this
assessment include curr ent operating results and trends, demand, competition
and other economic factors.
Investments in Affiliates During 1997, the Company acquired interests in two
joint ventures which will supply the Company with premium cigars, for a total
cost of $13,315. As of December 31, 1997, $5,900 of the total cost is reflected
as Due to Affiliates. The excess of the purchase price over the Company' s
equity interest in the net assets of the joint ventures is being amortized over
40 years.
Deferred Financing Costs Deferred financing costs relate to costs incurred in
connection with long-term bank financing obtained by the Company. Costs of
$6,090, which are included in other assets, are being amortized on a
straight-line basis (which approximates the interest method) over the term of
the financing agreements. Amortization expense for the years ended December 31,
1997 and 1996, and for the period from November 7, 1995 to December 31, 1995 was
$1,121, $1,074 and $144, respectively.
38
<PAGE>
2. SUMMARY OF SIGNIFICANT ACCOUNTING PRINCIPLES -- continued
Interest Rate Swaps The Company periodically enters into interest rate swap
agreements which change the interest payable on a portion of its outstanding
long-term debt from a variable to a fixed rate basis. These agreements involve
the receipt of variable rate payments in exchange for fixed rate payments over
the life of the agreements without an exchange of the underlying principal
amount. The differential to be paid or received is accrued and recognized as an
adjustment to interest expense as interest rates change.
Income Taxes Under the liability method of accounting for income taxes, the
Company recognizes deferred tax liabilities and assets which are determined
based on the difference between the financial statement basis and tax basis of
assets and liabilities, using enacted tax rates in effect for the year in which
the differences are expected to reverse.
A valuation allowance against deferred tax assets is required if, based on
available evidence, it is more likely than not that some or all of the deferred
tax assets will not be realized. Management has determined, based on the
reversal of existing taxable temporary differences and its expectations for the
future, taxable income will more likely than not be sufficient to fully
recognize deferred tax assets.
Reclassifications Certain items in the 1996 financial statements have been
reclassified to conform with the 1997 presentation.
3. INVENTORIES:
Inventories consist of the following:
As of December 31, 1997 1996
- ------------------------------- ---- ----
Finished goods................. $16,908 $12,489
Work-in-process................ 2,871 2,809
Raw materials.................. 33,485 31,023
Stores and supplies............ 7,450 8,615
------- -------
$60,714 $54,936
======= =======
The tobacco content of inventories is stated using the LIFO method. As of
December 31, 1997 and 1996, inventories of $52,647 and $47,137, respectively,
are stated using the LIFO method of accounting. These amounts are greater (less)
than the corresponding replacement costs by $(169) and $2,216 as of December 31,
1997 and 1996, respectively.
4. DEBT:
Long-term debt consists of the following:
As of December 31, 1997 1996
- ------------------ ---- ----
Revolving credit borrowings (a).......... $101,000 $ 1,000
Term loan with interest of 7.93%......... -- 116,500
Capital lease obligations (b)............ -- --
Miscellaneous............................ 92 185
-------- --------
101,092 117,685
Less, current portion.................... -- 17,102
-------- --------
$101,092 $100,583
======== ========
- ------------
(a) In 1997, represents borrowings under $130,000 unsecured revolving credit
facility with weighted interest at 6.97%. In 1996, represents borrowings
under $27,000 revolving credit facility with interest from 7.93% to 9.50%.
(b) The Company leases land, buildings and equipment under a capital lease. As
of December 31, 1997, property, plant and equipment included $8,336 (net
of accumulated depreciation of $1,937), relating to the assets under
lease. As of November 1, 1995, the Company has extinguished its liability
under the capital lease by purchasing investments and placing such
investments in an irrevocable trust, which will be used to satisfy
principal and interest payments for the remainder of the lease.
39
<PAGE>
4. DEBT -- continued
In November 1997, the Company modified its credit agreement with BankBoston,
N.A., as administrative agent, which consisted of a $27 million revolving credit
facility and term loans aggregating $130 million. The modified credit agreement
is a $130 million unsecured revolving credit facility ("the Agreement"),
maturing in November 2001. The facility will reduce by $15 million on each
anniversary date. At the Company's option, interest is payable based on (a)
"alternate base rate" plus an applicable margin, as defined, which was 8.50% as
of December 31, 1997, or (b) Eurodollar rate plus an applicable margin, as
defined, which was 6.70% as of December 31, 1997.
The Agreement contains various restrictive covenants including, among other
things, limitations on the ability of the Company and its subsidiaries to incur
debt, create liens, pay dividends, sell assets and make investments and
acquisitions. The Company's ability to pay dividends is limited to a pool of $10
million plus 25% of net income, as defined, for the four quarters most recently
ended prior to the dividend payment date. In addition, the Agreement requires
the Company to maintain specified financial ratios and satisfy certain tests,
including minimum net worth and indebtedness to EBITDA and maximum leverage
ratios. The Agreement also contains customary events of default.
As of December 31, 1997, the Company had $28.4 million of unused availability
thereunder after taking into account approximately $0.6 million utilized to
support letters of credit. The weighted average interest rate on all outstanding
debt as of December 31, 1997 and 1996 wa s 7.36% and 7.72%, respectively.
The Company previously entered into two interest rate swap agreements which have
an aggregate notional amount of $50 million as of December 31, 1997. The
notional amounts decrease to $15 million on November 16, 1998, and the remaining
agreement terminates on July 2, 1999. Under the terms of the swap agreements,
the Company pays a fixed interest rate of 5.9% and receives a variable interest
rate equal to three month LIBOR. Such agreements effectively convert the
interest on $50 million of long-term debt from a variable rate to a fixed rate
of interest. In the event of nonperformance by the counterparties, the Company
could lose some or all of any future positive cash flows. However, the Company
does not currently anticipate nonperformance by such counterparties. The fair
value of interest rate swap agreement represents the estimated receipts or
payments that would be made to terminate the agreements. As of December 31, 1997
and 1996, the Company would have had to pay insignificant amounts to terminate
the swap agreements.
The fair value of the Company's long-term debt approximates the carrying value
as of December 31, 1997 and 1996 based on interest rates available for debt with
similar terms.
Interest costs, including related party amounts disclosed in Note 12, incurred
during the years ended December 31, 1997 and 1996, the period from November 7,
1995 to December 31, 1995, and the period from January 1, 1995 to November 6,
1995 were $8,203, $9,638, $1,721, and $5,321, respectively. Interest capitalized
in those periods approximated $345, $223, $30, and $26, respectively.
40
<PAGE>
4. DEBT -- continued
Interest income, including the related party amounts disclosed in Note 12,
approximated $154, $133, $20, and $1,858 for the years ended December 31, 1997
and 1996, the period from November 7, 1995 to December 31, 1995, and the period
from January 1, 1995 to November 6, 1995, respectively.
5. INCOME TAXES:
Prior to the Acquisition, the Company's income tax filings were the
responsibility of AMPCo. For periods subsequent to November 6, 1995, the Company
will be included in consolidated income tax filings with Hay Island. In
accordance with a tax sharing agreement with Hay Island, the Company has
computed its provision for income taxes for the years ended December 31, 1997
and 1996 and for the period from November 7, 1995 through December 31, 1995 on a
separate company basis.
The provision for income taxes consists of:
<TABLE>
<CAPTION>
SUCCESSOR PREDECESSOR
------------------------------------------- -----------
Period from Period from
Year Ended Year Ended November 7 to January 1 to
December 3, December 31, December 31, November 6,
1997 1996 1995 1995
----------- ----------- ------------- ------------
<S> <C> <C> <C> <C>
Current:
Federal........................ $ 19,779 $ 11,780 $ 1,220 $ 10,619
State and local................ 2,920 1,614 235 1,136
-------- -------- -------- --------
22,699 13,394 1,455 11,755
Deferred, principally federal.. 2,691 2,612 773 (219)
-------- -------- -------- --------
$ 25,390 $ 16,006 $ 2,228 $ 11,536
======== ======== ======== ========
</TABLE>
The difference between the actual income tax provision and the income tax
provision computed by applying the statutory federal income tax rate to income
before provision for income taxes is attributable to the following:
<TABLE>
<CAPTION>
SUCCESSOR PREDECESSOR
---------------------------------------------- ------------
Period from Period from
Year Ended Year Ended November 7 to January 1 to
December 31, December 31, December 31, November 6,
1997 1996 1995 1995
------------- ------------ ------------- ------------
<S> <C> <C> <C> <C>
Federal statutory rate........... 35.0% 35.0% 34.0% 35.0%
State and local income taxes,
net of federal income taxes.... 3.2% 3.1% 4.4% 2.4%
Goodwill amortization............ -- -- -- 0.3%
Nondeductible expenses........... 0.3% 0.4% 0.3% 0.4%
Other, net....................... 0.8% 0.7% (.6%) 0.1%
---- ---- ---- ----
39.3% 39.2% 38.1% 38.2%
==== ==== ==== ====
</TABLE>
41
<PAGE>
5. INCOME TAXES -- continued
The components of net deferred tax assets and liabilities are as follows:
As of December 31, 1997 1996
- ------------------ ---- ----
Current deferred tax assets:
Accrued expenses and reserves............................ $ 604 $ 494
Inventory capitalization................................. 1,052 1,310
LIFO reserve............................................. 58 --
------ ------
1,714 1,804
------ ------
Current deferred tax liabilities:
Accounts receivable...................................... 496 --
LIFO inventory........................................... -- 601
------ ------
496 601
------ ------
Current deferred income taxes............................ $1,218 $1,203
====== ======
Noncurrent deferred tax assets:
Postretirement and postemployment benefit accruals....... $ 703 $ 355
Other.................................................... 219 86
------ ------
922 441
------ ------
Noncurrent deferred tax liabilities:
Goodwill................................................. 1,312 962
Depreciation............................................. 5,922 3,389
Pension.................................................. 298 190
Other.................................................... 686 489
------ ------
8,218 5,030
------ ------
Noncurrent deferred income taxes......................... $7,296 $4,589
====== ======
6. PENSION PLANS:
The Company has several non-contributory defined benefit pension plans which
cover substantially all employees. Pension benefits are generally based on
either years of service and employee compensation during the last years of
employment, or years of service times a multiplier. The Company's policy is to
make annual contributions sufficient to meet the minimum funding requirements
set forth in the Employee Retirement Income Security Act of 1974 ("ERISA").
Actuarially determined pension costs are accrued currently and include amounts
for current service and prior service costs, which are amortized on a
straight-line basis over the participants' estimated remaining service period.
Pension income includes the following:
<TABLE>
<CAPTION>
SUCCESSOR PREDECESSOR
-------------------------------------------- ------------
Period from Period from
Year Ended Year Ended November 7 to January 1 to
December 31, December 31, December 31, November 6,
1997 1996 1995 1995
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
Service cost................... $ 1,367 $ 1,342 $ 182 $ 793
Interest cost.................. 3,292 3,091 495 2,445
Actual return on plan assets... (9,252) (7,387) (1,383) (3,336)
Net amortization and deferral.. 4,281 2,646 618 (75)
------- ------- ------- -------
$ (312) $ (308) $ (88) $ (173)
======= ======= ======= =======
</TABLE>
42
<PAGE>
6. PENSION PLANS -- continued
The assumptions used in the calculation of the projected benefit obligation and
the net periodic pension expense (benefit) as of and for the periods ended were
as follows:
<TABLE>
<CAPTION>
SUCCESSOR PREDECESSOR
-------------------------------------------- -----------
Period from Period from
Year Ended Year Ended November 7 to January 1 to
December 31, December 31, December 31, November 6,
1997 1996 1995 1995
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
Assumed rates of return on plan assets......... 10.0% 10.0% 10.0% 10.0%
Assumed discount rates (used to measure
year-end projected benefit obligation)....... 7.25 7.5 7.0 7.1
Assumed rates of compensation increases........ 5.0-7.0 5.0-9.7 5.0-9.7 5.0-9.7
</TABLE>
As of December 31, 1997 and 1996, the plans' assets were cash and investments in
equity and fixed income securities. The plans' funded status and amounts
recognized in the Company's consolidated balance sheets were as follows:
<TABLE>
<CAPTION>
1997 1996
----------------------- -----------------------
Over- Under- Over- Under-
funded funded funded funded
Plans Plans Plans Plans
------ ------ ------ ------
<S> <C> <C> <C> <C>
Accumulated benefit obligation:
Vested benefit obligation........... $ 22,301 $ 21,053 $ 36,965 $ 1,076
Non-vested benefit obligation....... 87 189 935 40
-------- -------- -------- --------
$ 22,388 $ 21,242 $ 37,900 $ 1,116
======== ======== ======== ========
Projected benefit obligation........ $ 27,265 $ 21,672 $ 42,686 $ 1,631
Plan assets at fair value........... 38,816 20,025 51,659 1,630
-------- -------- -------- --------
Plan assets over (under)
projected benefit obligation..... 11,551 (1,647) 8,973 (1)
Unrecognized net gain............... (5,074) (1,387) (4,607) (244)
Unrecognized prior service cost..... 484 1,045 539 --
-------- -------- -------- --------
Prepaid (accrued) pension cost...... $ 6,961 $ (1,989) $ 4,905 $ (245)
======== ======== ======== ========
</TABLE>
Supplemental Plan In addition to benefits provided under the Company's qualified
pension plans, the Company also provides pension benefits under a
non-contributory supplemental retirement plan (the "Supplemental Plan"). The
Supplemental Plan, which covers certain executives and other key employees,
provides for benefits in addition to the funded plans for limitations enacted
under ERISA and the Internal Revenue Code, and maintains pre-1989 benefit levels
for service prior to that date.
The Company recorded pension expense under the Supplemental Plan of $595, $610,
$45 and $234 for the years ended December 31, 1997 and 1996, the period from
November 7, 1995 to December 31, 1995 and the period from January 1, 1995 to
November 6, 1995, respectively.
Savings Plan The Company has a savings plan (the "Plan") under Section 401(k) of
the Internal Revenue Code, to provide its eligible employees with additional
income upon retirement. The Plan requires specified contributions and allows
discretionary contributions by the Company. Expense under the Plan was $527,
$526, $80 and $373 for the years ended December 31, 1997 and 1996, the period
from November 7, 1995 to December 31, 1995 and the period from January 1, 1995
to November 6, 1995, respectively.
43
<PAGE>
7. POSTRETIREMENT BENEFITS OTHER THAN PENSIONS:
The Company provides certain health care benefits for retired employees and
their eligible dependents. A significant number of the Company's employees may
become eligible for these benefits if they are employed until retirement age and
have fulfilled certain service requirements.
The provision for postretirement benefits included the following:
<TABLE>
<CAPTION>
SUCCESSOR PREDECESSOR
------------------------------------------- ------------
Period from Period from
Year Ended Year Ended November 7 to January 1 to
December 31, December 31, December 31, November 6,
1997 1996 1995 1995
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
Service cost........... $ 316 $ 443 $ 64 $ 249
Interest cost.......... 705 720 122 565
Amortization of gain... (228) (75) (14) (153)
------ ------- ----- ------
$ 793 $ 1,088 $ 172 $ 661
====== ======= ===== ======
</TABLE>
The amount recognized in the Company's consolidated balance sheets for
postretirement benefits other than pensions is as follows:
<TABLE>
<CAPTION>
As of December 31, 1997 1996
- ------------------ ---- ----
<S> <C> <C>
Actuarial present value of accumulated postretirement benefit obligation:
Retirees................................................................... $ 5,071 $ 4,594
Fully eligible active participants......................................... 3,110 2,055
Other active participants.................................................. 2,538 3,755
Unrecognized gain.......................................................... 2,857 2,794
-------- --------
$ 13,576 $ 13,198
======== ========
</TABLE>
The assumptions used in the calculation of the accumulated postretirement
benefit obligation are as follows:
<TABLE>
<CAPTION>
As of December 31, 1997 1996
- ------------------ ---- ----
<S> <C> <C>
Discount rates............................................................. 7.25% 7.75%
</TABLE>
The health care cost trend rate used as of December 31, 1997 is 10.0%,
decreasing gradually to 5.5% in 2001.
A one percentage point increase in the assumed health care cost trend rate in
each period would increase the accumulated postretirement benefit obligation as
of December 31, 1997 by $1,319, and the aggregate of the service cost and
interest cost by $237 for the year ended December 31, 1997.
8. POSTEMPLOYMENT BENEFITS OTHER THAN TO RETIREES:
The Company provides certain postemployment benefits to former or inactive
employees after employment but before retirement. Postretirement service cost
expense amounted to approximately $202, $207, $7 and $157 for the years ended
December 31, 1997 and 1996, the period from November 7, 1995 to December 31,
1995, and the period from January 1, 1995 to November 6, 1995, respectively.
44
<PAGE>
8. POSTEMPLOYMENT BENEFITS OTHER THAN TO RETIREES -- continued
The amount recognized on the Company's consolidated balance sheets for
postemployment benefits other than to retirees is as follows:
<TABLE>
<CAPTION>
As of December 31, 1997 1996
- ------------------ ---- ----
<S> <C> <C>
Actuarial present value of accumulated postemployment benefit obligations:
Former employees.......................................................... $ 697 $ 514
Unrecognized gain (loss).................................................. (32) 76
----- -----
$ 665 $ 590
===== =====
</TABLE>
The assumed discount rate used to determine the accumulated postemployment
benefit obligation is 7.25%, 7.5%, 7.0% and 8.25% for the years ended December
31, 1997 and 1996, the period from November 7, 1995 to December 31, 1995 and the
period from January 1, 1995 to November 6, 1995, respectively.
9. COMMITMENTS AND OTHER:
As of December 31, 1997, the Company was committed under long-term operating
leases expiring through 2003. Minimum annual rental and lease commitments were
as follows:
Transportation
Year ending December 31: Equipment Other Total
- ------------------------ -------------- ----- -----
1998..................... $1,910 $735 $2,645
1999..................... 2,006 550 2,556
2000..................... 221 444 665
2001..................... 232 329 561
2002..................... 243 190 433
Thereafter............... 255 190 445
Rent and lease expense was $2,796, $2,481, $246 and $1,450 for the years ended
December 31, 1997 and 1996, the period from November 7, 1995 to December 31,
1995 and the period from January 1, 1995 to November 6, 1995, respectively.
Commitments relating to contracts to purchase tobacco from various suppliers
approximated $5,438 as of December 31, 1997.
During the years ended December 31, 1997 and 1996, the period from November 7,
1995 to December 31, 1995 and the period from January 1, 1995 to November 6,
1995, sales to one customer aggregated approximately 12%, 14%, 17% and 11%,
respectively.
10. STOCKHOLDERS' EQUITY:
On December 18, 1996, the Company completed an initial public offering (the
"Offering") of 6,000,000 shares of Class A Common Stock at a price of $17 per
share, resulting in net proceeds (after issuance costs) of $95.1 million. The
net proceeds were paid as a dividend to Hay Island.
Prior to consummation of the Offering, the Company amended its authorized
capital stock to 75,000,000 shares of Class A Common Stock and 28,100,000 shares
of Class B Common Stock and converted each outstanding share of its current
common stock into 281,000 shares of its newly created Class B Common Stock
(totaling 28,100,000 shares of Class B Common Stock). Immediately after
consummation of the Offering and as of December 31, 1997 and 1996, the Company
had 6,000,000 shares of Class A Common Stock and 28,100,000 shares of Class B
Common Stock outstanding.
45
<PAGE>
10. STOCKHOLDERS' EQUITY -- continued
The preference and relative rights of the Class A Common Stock and the Class B
Common Stock are substantially identical in all respects except for disparity in
voting power and conversion rights. Each share of Class A Common Stock and Class
B Common Stock entitles the holder of record to one vote and ten votes,
respectively. Each share of Class B Common Stock is convertible at the option of
the holder into one share of Class A Common Stock. The Class A Common Stock has
no conversion rights.
11. STOCK OPTION PLAN:
The 1996 Stock Option Plan (the "Plan"), provides that selected employees,
consultants and directors may be granted incentive stock options, nonqualified
stock options and stock appreciation rights ("SARs") at exercise prices not less
than the fair market value per share at the date of grant. Pursuant to the Plan,
the aggregate number of shares of Class A Common Stock which may be made subject
to awards of stock options or SARs shall not exceed at any time 10% of the then
outstanding shares of common stock, in the aggregate. The maximum term of any
stock option granted under the Plan is ten years and generally will vest in
annual one-third increments. Concurrently with the consummation of the Offering,
the Company granted 1,564,000 options under the Plan at an exercise price of $17
per share. During 1997, an additional 320,580 options were granted under the
Plan at a weighted average exercise price of $17.29 per share. No SARs were
granted during 1997 and 1996. As of December 31, 1997, 521,333 options are
exercisable at a weighted average exercise price of $17 per share, and 1,525,420
shares were available for grant of options or SARs. No stock options were
exercised or forfeited during 1997 and 1996.
The Company has adopted the disclosure-only provisions of SFAS No. 123
"Accounting for Stock-Based Compensation" ("SFAS No. 123"), but applies
Accounting Principles Board Opinion No. 25 and related interpretations in
accounting for the Plan. If the Company had elected to recognize
compensation cost for the Plan consistent with the method prescribed by SFAS
No. 123, net income and earnings per share would have been reduced to the pro
forma amounts indicated below:
Year ended December 31, 1997 1996
- ----------------------- ---- ----
Net income:
As reported........................... $39,295 $24,793
Pro forma............................. 36,678 24,600
Basic earnings per share:
As reported........................... $ 1.15 $ .73
Pro forma............................. 1.08 .72
Diluted earnings per share:
As reported........................... $ 1.15 $ .73
Pro forma............................. 1.07 .72
The fair value of stock options used to compute pro forma net income and
earnings per share in accordance with SFAS No. 123 is the estimated present
value at grant using the Black-Scholes option-pricing model with the following
weighted average assumptions for 1997: dividend yield of 0%; expected volatility
of 30.3%; a risk free interest rate of 6.14% and an expected holding period of
five years; for 1996: dividend yield of 0%; expected volatility of 30.0%; a risk
free interest rate of 6.14% and an expected holding period of five years.
46
<PAGE>
12. RELATED PARTIES:
Prior to November 6, 1995, AMPCo provided the Company with certain support in
areas of finance, tax and accounting, treasury and risk management and human
resources. Charges incurred for such services, which were allocated based on
estimated costs incurred by AMPCo on behalf of the Company, for the period from
January 1, 1995 to November 6, 1995 were $1,500. In the opinion of management,
the amounts allocated were reasonable based on the level of support provided by
AMPCo and reflect all services provided by AMPCo.
AMPCo also provided the Company with financing for its short- and long-term
needs and held the bonds on a certain capital lease (see Note 4). Interest costs
for the period from January 1, 1995 to November 6, 1995 were $2,393.
Through November 6, 1995, a subsidiary of the Company held certain patents,
copyrights and tradenames used by the Company and AMPCo. Royalty income of
$2,293 was included in other expense (income), net for the period from January
1, 1995 to November 6, 1995.
Interest income recorded under a Note Receivable from AMPCo approximated $1,537
for the period from January 1, 1995 to November 6, 1995.
Certain members of the Company's Board of Directors are affiliated with entities
which provide legal, consulting and other advisory services to the Company.
Payments to such entities aggregated $646, $922, $2,500 and $101 for the years
ended December 31, 1997 and 1996, the period from November 7, 1995 to December
31, 1995 and the period from January 1, 1995 to November 6, 1995, respectively.
As of December 31, 1996, accounts receivable includes $1,405 due from Hay
Island. Such amount was repaid in full in February 1997.
In connection with the Offering, the Company and Hay Island entered into a
Management Services Agreement. The services provided by Hay Island to the
Company include, among other things, treasury and cash management, risk
management, human resource management, marketing support, long-term strategic
planning, business development and investor relations.
The Management Services Agreement has a term of five years and will
automatically renew thereafter for successive one-year terms. After the initial
five-year term, the Management Services Agreement may be terminated at any time
by either party upon six months' prior written notice. The Management Services
Agreement will also be terminable by either the Company or Hay Island upon six
months' written notice if Hay Island ceases to own shares of Common Stock
representing more than 50% of the combined voting power of the Common Stock of
the Company.
The amount payable under the Management Services Agreement for the year ended
December 31, 1997 was $925, payable in twelve monthly installments. The
Management Services Agreement provides that the amounts payable thereunder will
be reviewed on an annual basis and, based on an agreed upon allocation of Hay
Island's costs for the services performed, the amount payable thereunder will be
increased or decreased, provided that any increase in such amount will be
limited to a percentage increase based upon the change in the Consumer Price
Index for all Urban Consumers, Northeast for the preceding twelve-month period.
47
<PAGE>
12. RELATED PARTIES -- continued
Each party will agree to indemnify the other, except in certain limited
circumstances, against liabilities that the other may incur that are caused by
or arise in connection with such party's failure to fulfill its material
obligations under the Managem ent Services Agreement.
13. CONTINGENCIES:
The tobacco industry continues to experience significant health-related
litigation. Plaintiffs in such cases typically seek compensation and, in some
cases, punitive damages, for various injuries allegedly sustained from the use
of tobacco products or exposure to tobacco smoke, including health care costs.
The Company is not aware of any adverse decision or judgment having been
rendered against smokeless tobacco or cigar manufacturers.
The Company is a defendant, along with other defendants in an action brought by
an individual plaintiff in Louisiana seeking damages and other relief in
connection with injuries allegedly resulting from use of the Company's and the
other defendants' products. In addition, the Company together with other
defendants has been named in a Texas action brought by another individual
seeking damages and other relief in connection with injuries allegedly caused to
plaintiff by products manufactured by the Company and the other defendants. The
Company believes that it has meritorious defenses and is vigorously defending
these lawsuits.
The Company is also subject to other litigation, claims and contractual
agreements arising in the ordinary course of business. In the opinion of
management, the cost, if any, of resolving all litigation and contingencies
should not have a significant impact on the Company's consolidated financial
position. There can be no assurance, however, that the Company may not be named
as a defendant in future suits, nor can there be any assurance that existing or
future litigation will not result in an adverse judgment against the Company
which could have a material adverse effect on the Company's business, future
results of operations or cash flows. The Company does not carry insurance to
protect against health-related product liability because the cost of obtaining
such coverage is commercially prohibitive. Additionally, a judgment against the
Company with respect to a product or any related products could preclude the
further sale of such product, which could have a material adverse effect on the
Company's business.
In 1996, the federal Food and Drug Administration ("FDA") for the first time
asserted jurisdiction over nicotine in tobacco as a "drug" and issued
regulations purporting to regulate smokeless tobacco products as "medical
devices." These regulations prohibit the sale of smokeless tobacco products to
minors and severely restrict advertising, marketing and promotion of smokeless
tobacco products. The regulations also require the Company and other
manufacturers to comply with a wide range of labeling, reporting and other
requirements. In April 1997, ruling in a case filed by the Company and other
smokeless tobacco manufacturers to challenge the FDA's authority, a federal
court held that the FDA as a matter of law is not precluded from regulating
smokeless tobacco products as "medical devices" or from implementing certain
labeling and access restrictions. At the same time, however, the court said that
the FDA has no authority to restrict the advertising and promotion of smokeless
tobacco products and stayed the effectiveness of any of the restrictions related
to labeling, access, advertising and promotion due to take effect in 1997 and
1998 pending further order of the court. The court's opinion is now on appeal
before the U.S. Court of Appeals for the 4th Circuit. The Company is unable to
predict the outcome of the appeal or its impact on those portions of the
regulation that have not been given effect. Any further provisions of these
regulations that become effective could have a materially adverse effect on the
Company's business.
48
<PAGE>
13. CONTINGENCIES -- continued
Cigars and smokeless tobacco products have long been subject to federal, state
and local excise taxes. Such taxes are frequently subject to proposed increases,
in some cases significant increases, to fund various legislative initiatives.
The Balanced Budget Act adopted by Congress in 1997, provides for increases in
federal excise taxes on all tobacco products in two stages, beginning in 2000.
Management does not believe that these increases will have a material adverse
effect on the Company's operations, however, enactment of new or significant
further increases in existing federal, state or local excise taxes could have a
material adverse effect on the Company's business.
The Company is subject to laws and regulations relating to the protection of the
environment. While it is not possible to quantify with certainty the potential
impact of future actions regarding environmental matters, in the opinion of
management, compliance with the present environmental protection laws will not
have a material adverse impact upon the Company's consolidated financial
position, results of operations or cash flows.
In June 1997, the five largest tobacco companies announced an agreement with
trial lawyers and the Attorneys General of several states suing to recoup
Medicare and Medicaid expenses (the "Proposed Settlement"). Although the Company
was not a party to any of the actions being settled, legislation introduced in
Congress in the wake of the Proposed Settlement seeks to raise the price of
cigarettes and other tobacco products significantly (by levying new federal
excise taxes or by imposing significant new fees and penalties) and to regulate
all tobacco products (including cigars in some cases) by imposing full FDA
regulation and adopting new and highly restrictive marketing requirements. The
Company cannot anticipate whether any of this legislation will be adopted or the
extent to which it may impact the Company's business.
On February 9, 1998, the Company was notified by the Federal Trade Commission
("FTC") of the adoption by the FTC of an Order to File a Special Report on the
Company's advertising and marketing expenditures with regard to its cigar
business for 1997 and 1996. This information is similar to information which the
Company has filed with the FTC for many years with respect to its smokeless
tobacco products.
14. RECENTLY ISSUED ACCOUNTING STANDARDS:
In June 1997, the Financial Accounting Standards Board ("FASB") issued SFAS No.
130, "Reporting Comprehensive Income," which requires that changes in
comprehensive income be shown in a financial statement that is displayed with
the same prominence as other financial statements. This statement is effective
for the Company's 1998 fiscal year. The Company is in the process of determining
its preferred disclosure format.
In June 1997, the FASB issued SFAS No. 131, "Disclosure About Segments of an
Enterprise and Related Information," which changes the way public companies
report information about segments. SFAS No. 131, which is based on the
management approach to segment reporting, includes requirements to report
selected segment information quarterly and entity-wide disclosures about
products and services, major customers, and the material countries in which the
entity holds assets and reports revenues. This statement is effective for the
Company's 1998 fiscal year. The Company is in the process of evaluating the
disclosure requirements under this standard.
49
<PAGE>
14. RECENTLY ISSUED ACCOUNTING STANDARDS -- continued
In February 1998, the FASB issued SFAS No. 132, "Employers' Disclosures about
Pensions and Other Postretirement Benefits," which amends SFAS No. 8 7, 88, and
106, and is intended to standardize the disclosure requirements for employer
sponsored retirement plans and other retiree benefits. SFAS No. 132 will require
new information from plan sponsors, eliminate certain information that is no
longer considered useful, but will not modify recognition or measurement
requirements. The Company has not yet evaluated the effects of this standard on
the financial statements.
15. QUARTERLY FINANCIAL DATA (unaudited):
<TABLE>
<CAPTION>
Quarter ended: March 31 June 30 September 30 December 31
- -------------- -------- ------- ------------ -----------
<S> <C> <C> <C> <C>
1997
Net sales......................... $63,799 $70,669 $75,491 $65,685
Gross profit...................... 30,479 35,745 37,711 34,001
Operating profit.................. 14,947 19,470 20,062 18,595
Income before income taxes........ 12,833 17,346 18,068 16,438
Net income........................ 7,765 10,500 10,924 10,106
Earnings per share:
Basic........................... $ .23 $ .31 $ .32 $ .30
Diluted......................... $ .23 $ .31 $ .32 $ .30
Stock price high.................. 18 3/4 19 1/2 18 7/8 21 5/8
Stock price low................... 13 1/4 13 1/2 14 1/4 14 1/4
1996
Net sales......................... $48,628 $58,978 $61,212 $56,411
Gross profit...................... 23,677 30,078 29,180 28,530
Operating profit.................. 9,695 15,399 13,326 12,037
Income before income taxes........ 7,317 13,041 10,848 9,593
Net income........................ 4,447 7,925 6,592 5,829
Earnings per share:
Basic........................... $ .13 $ .23 $ .19 $ .17
Diluted......................... $ .13 $ .23 $ .19 $ .17
Pro forma net income(a)........... $ 5,615 $ 9,093 $ 7,760 $ 6,998
Pro forma earnings per share:(a)
Basic........................... $ .16 $ .27 $ .23 $ .21
Diluted......................... $ .16 $ .27 $ .23 $ .21
Stock price high.................. -- -- -- 17 1/2
Stock price low................... -- -- -- 15 1/2
</TABLE>
- -----------
(a) Pro forma net income and earnings per share assumes the Management Service
Agreement had been in effect on January 1, 1996 and excludes from 1996
results certain one-time special bonuses to management in connection with
the Offering.
The 1996 and first three quarters of 1997 earnings per share amounts have been
restated to comply with SFAS No. 128.
50
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
We have audited the accompanying consolidated balance sheets of Swisher
International Group Inc. and Subsidiaries (the "Successor") as of December 31,
1997 and 1996, and the related consolidated statements of operations,
stockholders' equity and cash flows for the years ended December 31, 1997 and
1996 and the period from November 7, 1995 to December 31, 1995. We have also
audited the accompanying consolidated statements of operations, stockholders'
equity and cash flows of Swisher International, Inc. and Subsidiaries (the
"Predecessor") for the period from January 1, 1995 to November 6, 1995. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Swisher
International Group Inc. and Subsidiaries as of December 31, 1997 and 1996, and
the consolidated results of their operations and their cash flows for the years
ended December 31, 1997 and 1996 and the period from November 7, 1995 to
December 31, 1995, and the consolidated results of operations and cash flows of
Swisher International, Inc. and Subsidiaries for the period from January 1, 1995
to November 6, 1995, all in conformity with generally accepted accounting
principles.
As discussed in Note 1 to the consolidated financial statements, prior to
November 6, 1995, the Predecessor was a wholly owned subsidiary of American
Maize-Products Company ("AMPCo"). On November 6, 1995, AMPCo was acquired by
Eridania Beghin-Say, S.A. ("EBS"), which simultaneously entered into an
agreement to sell the Predecessor to the Successor. As a result of the
acquisition on November 6, 1995, the Successor's consolidated results of
operations and cash flows for the years ended December 31, 1997 and 1996 and for
the period from November 7, 1995 to December 31, 1995 are not comparable to
prior periods.
/s/ COOPERS & LYBRAND L.L.P.
New York, New York
February 5, 1998.
51
<PAGE>
CORPORATE DIRECTORY
BOARD OF DIRECTORS
Cynthia Z. Brighton(4)
Vice President-Financial Services
Treasurer
Robert A. Britton(4)
Executive Vice President
Chief Financial Officer
Nicholas J. Cevera, Jr.
Executive Vice President
Operations
C. Keith Hartley(1),(2),(3),(4)
Managing Partner-Corporate Finance
Forum Capital Markets LLC
Alfred F. La Banca(2),(3)
Chairman of the Board
Mailex Corporation
Timothy Mann(1)
President
Donald E. McNicol(1),(2),(3),(4)
Counsel
Schnader Harrison Segal & Lewis LLP
Charles H. Mullen(2),(3)
Private Investor
J. Thomas Ryan, III
Executive Vice President
Sales and Marketing
John R. Tweedy(2),(3)
Private Investor
William T. Ziegler(1)
Chairman of Executive Committee
Chief Operating Officer
William Ziegler, III(1)
Chairman of the Board
Chief Executive Officer
- -------------
(1) Member of Executive Committee
(2) Member of Audit Committee
(3) Member of Compensation Committee
(4) Member of Pension Committee
EXECUTIVE OFFICERS
William Ziegler, III
Chief Executive Officer
William T. Ziegler
Chief Operating Officer
Timothy Mann
President
Robert A. Britton
Executive Vice President
Chief Financial Officer
Nicholas J. Cevera, Jr.
Executive Vice President
Operations
Blake T. Newton, III
Executive Vice President
General Counsel
J. Thomas Ryan, III
Executive Vice President
Sales and Marketing
Justo S. Amato
Senior Vice President
Finance
Paul M. Arvia
Senior Vice President
Sales
Barry L. Drugg
Senior Vice President
Human Resources
John E. Fraleigh
Senior Vice President
Tobacco Procurement
Peter J. Ghiloni
Senior Vice President
Marketing
Cynthia Z. Brighton
Vice President-Financial Services
Treasurer
Karl H. Ziegler
Secretary
52
<PAGE>
CORPORATE INFORMATION
COMMON STOCK
The Common Stock of Swisher International Group Inc. is traded on the New
York Stock Exchange under the symbol SWR. As of December 31, 1997, there
were approximately 4,250 shareholders of record.
STOCK TRANSFER AGENT & REGISTRAR
Boston EquiServe
150 Royall Street
Canton, MA 02021
CORPORATE OFFICES
20 Thorndal Circle
Darien, Connecticut 06820
203.656.8000
FORM 10-K
A copy of Form 10-K Annual Report filed with the Securities and Exchange
Commission for the year ended December 31, 1997, is available upon written
request from investor relations at Swisher's corporate offices. Requests may
also be faxed to: 203.656.3151.
ANNUAL MEETING
The Annual Meeting of Stockholders will be held at the Maritime Aquarium at
Norwalk on May 7, 1998, in Norwalk, Connecticut, at 10:00 am.
Exhibit 21.1
SWISHER INTERNATIONAL GROUP INC.
LIST OF SUBSIDIARIES
KING EDWARD TECHNOLOGY INC.
MARTIN BROTHERS INTERNATIONAL, INC.
SWISHER INTERNATIONAL EXPORT, INC.
SWISHER INTERNATIONAL FINANCE COMPANY
SWISHER INTERNATIONAL, INC.
SWISHER INTERNATIONAL, LTD.
SWISHER INTERNATIONAL SALES & MARKETING INC.
SWISHER SANTIAGO ENTERPRISES INC.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted from the Balance
Sheets as of December 31, 1997 and 1996 and Statements of Income for the years
ended December 31, 1997 and 1996 and is qualified in its entirety by reference
to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> YEAR YEAR
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1996
<PERIOD-START> JAN-01-1997 JAN-01-1996
<PERIOD-END> DEC-31-1997 DEC-31-1996
<CASH> 1,057 1,744
<SECURITIES> 0 0
<RECEIVABLES> 32,348 22,365
<ALLOWANCES> 1,643 1,783
<INVENTORY> 60,714 54,936
<CURRENT-ASSETS> 98,433 82,818
<PP&E> 75,409 60,505
<DEPRECIATION> 7,155 3,642
<TOTAL-ASSETS> 237,757 198,930
<CURRENT-LIABILITIES> 25,522 30,116
<BONDS> 0 0
0 0
0 0
<COMMON> 341 341
<OTHER-SE> 85,608 46,202
<TOTAL-LIABILITY-AND-EQUITY> 237,757 198,930
<SALES> 0 0
<TOTAL-REVENUES> 275,644 225,229
<CGS> 0 0
<TOTAL-COSTS> 137,708 113,764
<OTHER-EXPENSES> 340 153
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 8,049 9,505
<INCOME-PRETAX> 64,685 40,799
<INCOME-TAX> 25,390 16,006
<INCOME-CONTINUING> 39,295 24,793
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 39,295 24,793
<EPS-PRIMARY> 1.15 .73
<EPS-DILUTED> 1.15 .73
</TABLE>
