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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
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(MARK ONE)
[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 ____________
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COMMISSION FILE NUMBER 0-22195
AHL SERVICES, INC.
(Exact name of registrant as specified in governing instrument)
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GEORGIA 58-2277249
(State of organization) (IRS Employer Identification No.)
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3353 PEACHTREE ROAD, NE, ATLANTA, GEORGIA, 30326
(Address of Principal Executive Offices -- Zip Code)
Registrant's telephone number, including area code: (404) 267-2222
Securities registered pursuant to Section 12(b) of the Act:
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TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
Common Stock, $.01 per share Nasdaq Stock Market
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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 to this
Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of
the Registrant (based upon the closing sale price on the Nasdaq Stock Market) on
March 20, 1998 was approximately $127,410,366. As of March 20, 1998, there were
13,605,000 shares of common stock, $.01 par value, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Proxy Statement in connection with its Annual
Meeting of Shareholders to be held May 14, 1998 are incorporated by reference in
Part III.
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AHL SERVICES, INC.
TABLE OF CONTENTS
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ITEM NO. PAGE NO.
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PART I
1. Business.................................................... 1
2. Properties.................................................. 11
3. Legal Proceedings........................................... 11
4. Submission of Matters to a Vote of Security Holders......... 11
X. Executive Officers of the Registrant........................ 11
PART II
5. Market for Registrant's Common Equity and Related 14
Stockholder Matters.......................................
6. Selected Financial Data..................................... 15
7. Management's Discussion and Analysis of Financial Condition 16
and Results of Operations.................................
8. Financial Statements and Supplementary Data................. 21
9. Changes in and Disagreements with Accountants on Accounting 21
and Financial Disclosure..................................
PART III
10. Directors and Executive Officers of the Registrant.......... 22
11. Executive Compensation...................................... 22
12. Security Ownership of Certain Beneficial Owners and 22
Management................................................
13. Certain Relationships and Related Transactions.............. 22
PART IV
14. Exhibits, Financial Statements, Schedules and Reports on 23
Form 8-K..................................................
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PART I
ITEM 1. BUSINESS
This Annual Report contains certain forward-looking statements, within the
meaning of the Private Securities Litigation Reform Act of 1995, with respect to
the financial condition, results of operations and business of the Company,
including statements under the captions "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business." These
forward-looking statements involve certain risks and uncertainties. There can be
no assurance that any of such matters will be realized. Factors that may cause
actual results to differ materially from those contemplated by such
forward-looking statements include, among others, the following: (i) competitive
pressures in the contract staffing and outsourcing industries; (ii) management
and integration of the operations of acquired businesses; (iii) the Company's
business and growth strategies and (iv) general economic conditions, including
the ability to recruit staff.
AHL Services, Inc. ("AHL" or the "Company") provides contract staffing and
management of its clients' labor-intensive operational support functions on an
outsourced basis throughout the United States and Europe. The Company's core
competencies include recruiting, hiring, training, motivating and managing the
large numbers of personnel required to provide many of the support services
needed by its clients while incorporating quality systems and cost efficiency in
its operations. Founded in 1979, the Company is a leader in providing
pre-departure screening, passenger profiling and other passenger services to the
aviation industry and, increasingly, provides services to other large
corporations, including Federal Express, America OnLine, Georgia Power,
BellSouth, Nike and Motorola. Through its 83 offices in the United States and 28
offices in six European countries, AHL is able to service the multinational
outsourcing needs of its largely Fortune 1000 client base. The Company currently
has approximately 630 contracts to provide services and has established
long-term relationships with its largest clients, providing the Company with a
significant source of predictable recurring revenues. The Company intends to
take advantage of market trends toward contract staffing and become the
preferred provider of outsourced labor management solutions for its clients by
leveraging its core competencies, international scale, reputation for quality,
performance-based quality measurement systems, management depth and senior-level
relationships with its key clients. To capitalize on these market trends and to
enter new complementary business lines, the Company has completed six
acquisitions since its initial public offering in March 1997.
As of February 1, 1997, Mr. Frank A. Argenbright, Jr., Chairman and
Co-Chief Executive Officer of the Company, contributed to the Company (i) all of
the outstanding shares of Argenbright Holdings Limited, a holding company for
U.S. operations, and The ADI Group Limited (together with its predecessors,
"ADI"), a holding company for European operations, (ii) certain real estate, a
portion of which was previously rented by the Company (with the Company assuming
the related mortgage debt) and (iii) a note with a balance of $528,000 payable
by the Company to Mr. Argenbright (collectively, the "Reorganization"). As a
result of the Reorganization, Argenbright and ADI became wholly-owned
subsidiaries of the Company.
INDUSTRY OVERVIEW
Many corporations and other institutions need to recruit, hire, train,
motivate and manage large numbers of personnel to handle non-core functions in
labor environments often characterized by relatively low pay and high turnover
rates. Enterprises incur considerable expense and invest substantial amounts of
management time in managing this process. These enterprises are increasingly
contracting with specialized third party providers to better ensure long-term
labor availability for support functions. Contract staffing providers often are
able to provide higher quality services at a lower cost than these enterprises
are able to do themselves. Outsourcing these functions shifts employment costs
and risks, such as workers' compensation, recruitment and turnover costs and
changes in labor regulations, to outside vendors and allows enterprises to
reduce the administrative overhead and time necessary to properly manage
non-core functions.
The nature of the contract staffing industry is changing. As enterprises
centralize purchasing decisions and seek to reduce the number of vendors with
whom they do business, the ability of providers to offer national account
capability and national and international coverage is growing in importance.
Large enterprises are
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increasingly seeking partnering opportunities whereby the third party provider,
in addition to providing on-site management of staff, assumes responsibility for
a particular function, including designing and implementing a solution for its
client, and shares in the economic benefits derived from improved execution of
the function. These trends, as well as the increasing need for capital and
management depth for growth, are creating consolidation opportunities in the
highly fragmented contract staffing industry.
While the aviation industry has historically outsourced certain functions,
such as food service, fueling and pre-departure screening, aviation companies
are increasingly outsourcing operational support functions not directly related
to flight operations. Functions which are increasingly being outsourced include
passenger profiling, baggage claim and check, sky cap, cargo and baggage
handling, aircraft clean and search, frequent flyer lounge operations, ramp
services, wheelchair assistance, shuttle bus, inter-gate cart, ticketing and
check-in services. Opportunities for outsourcing of security-related
labor-intensive operational support functions within the aviation industry have
increased in recent years and are expected to continue to increase if the FAA
approves more stringent security measures. Measures under consideration or
recently recommended by the FAA and the White House Commission on Aviation
Safety and Security (the "Gore Commission") in the United States include
certification of service providers, X-raying and matching all checked baggage,
implementation of a passenger profiling system and under-the-wing security
guards for parked aircraft.
Growth in demand for contract staffing and outsourcing services, including
fulfillment services, in the United States and Europe is expected to continue.
Companies in numerous industries are seeking to reduce costs and focus on their
core competencies and, as a result, are increasingly outsourcing support
functions which have traditionally been performed in-house. The trend toward
outsourcing labor management in Europe is not as developed as it is in the
United States, due in part to historically more restrictive labor regulations
which are beginning to be liberalized. Two trends are expected to increase
demand for aviation-related contract staffing services in Europe: (i) the
privatization of major airlines, which should increase their focus on improving
operating performance, and (ii) the liberalization of airport authority
licensing, which currently restricts the number of vendors that may provide
aviation services at a particular airport. The European Union has mandated that
European airports be opened to increased competition to provide various ground
services beginning in January 1999.
ACQUISITION HISTORY
Since 1992, the Company has completed nine acquisitions. The Company
intends to continue to seek acquisitions that will build density in the
Company's existing markets, add geographic coverage to the Company's existing
businesses, broaden the Company's service offerings and expand the Company's
client base. Through acquisitions of smaller operations providing the same type
of services already provided by the Company, AHL believes it can leverage its
existing management and systems infrastructure and increase its market share in
locations at which the Company already has an established presence. In most
instances, these operations can be integrated into the Company's existing
operations, resulting in elimination of duplicative overhead and operating
costs. The Company will seek to efficiently integrate these acquired companies
while retaining the existing management of those companies.
In March 1992, the Company formed ADI to acquire a portion of the aviation
security operation of British Airways at Heathrow Airport. The Company has used
ADI as a platform to expand its operations in Europe. In August 1993, ADI
acquired Express Baggage Reclaim Services Limited, a provider of lost baggage
delivery and replacement services in the United Kingdom. In July 1996, the
Company acquired Intersec, a provider of commercial and governmental security
services in the Baltimore/Washington metropolitan area (the "Intersec
Acquisition"). The Intersec Acquisition added density in a region where the
Company had an existing well-developed infrastructure.
The following acquisitions have been completed in 1997 and through March 1,
1998:
Aviation Services
EAS. To strengthen its outsourcing relationship with British Airways, in
May 1997 ADI entered into a joint venture with British Airways to acquire
Executive Aircraft Services ("EAS"), a division of British
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Airways. EAS provides ground handling (including arranging fueling, runway and
gate access, baggage handling and transport), passenger handling and concierge
services for large, private executive aircraft at Heathrow Airport. Heathrow
Airport licensing rules prevented an outright purchase of the business by ADI,
so the parties entered into a joint venture and agency agreement under which ADI
retained an option to purchase all of the business when regulatory authorities
permit. ADI receives all of the revenues and profits from the business performed
by EAS. ADI paid approximately $2.8 million to British Airways and British
Airways contributed the license to operate the executive aircraft services
business at Heathrow Airport to the joint venture. In addition, ADI has
committed to pay British Airways up to $550,000 for each of three years if EAS
achieves certain operating results. EAS had revenues for the twelve months prior
to the acquisition of approximately $2.4 million.
Access Control/Facilities Management
USA Security. To increase its operational density in the northeastern
region of the United States, in May 1997 AHL acquired the access control
business of USA Security Services, Inc. ("USA Security"), located in New Jersey,
for approximately $2.6 million in cash (the "USA Security Acquisition"). USA
Security had revenues for the twelve months prior to the acquisition of
approximately $8.6 million. Since completion of the USA Security Acquisition,
AHL has realized cost efficiencies by integrating USA Security into its existing
New York and New Jersey operations.
Light Industrial/Warehouse "Pick and Pack"
Lloyd. To begin providing staffing for warehouse "pick and pack" and light
industrial functions, in September 1997 AHL acquired Lloyd Creative Temporaries,
Inc. ("Lloyd") for approximately $5.0 million in cash plus contingent
consideration based on future operating results (the "Lloyd Acquisition").
Lloyd, a provider of staffing for warehouse "pick and pack" and light industrial
(such as product assembly) functions to companies in the Chicago area, had
revenues for the twelve months prior to the acquisition of approximately $14.0
million. The Lloyd Acquisition has served as a platform from which the Company
intends to begin adding branch offices and increasing the number of "vendor on
premises" locations.
Midwest Staffing. In December 1997, the Company acquired Midwest Staffing
Systems, Inc. ("Midwest Staffing"), a Chicago-based company that provides
staffing for warehouse "pick and pack" and light industrial functions, for $5.0
million in cash. Midwest Staffing had revenues for the twelve months preceding
the acquisition of approximately $8.4 million. This acquisition, combined with
the Lloyd Acquisition, provides the Company with ten offices in the Chicago
market, consistent with the Company's strategy of building geographic density in
key markets.
SES. In February 1998, the Company acquired SES Staffing Solutions, Inc.
("SES"), a Baltimore-based company that provides warehouse "pick and pack" and
light industrial staffing for commercial entities for $12.6 million in cash.
SES, with revenues for the twelve months preceding the acquisition of
approximately $16.0 million, operates in five offices in the Baltimore area.
Order Fulfillment
RightSide Up. To expand its services to include order fulfillment, whereby
it would provide warehousing services, fill orders and ship consignment
inventory and other materials to customers, in October 1997 the Company acquired
RightSide Up, Inc. ("RightSide Up"), a California company, for $6.0 million in
cash plus contingent consideration based on future operating results (the
"RightSide Up Acquisition"). RightSide Up had revenues of approximately $6.4
million for the twelve months ended August 31, 1997. RightSide Up provides
operators that take inbound customer orders and fulfills these orders by
"picking and packing" and shipping the items from the company's warehouse.
RightSide Up's clients are predominantly in the entertainment industry.
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SERVICES PROVIDED
The following table presents information with respect to the percentage of
the Company's revenues by major service category for the periods shown:
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FISCAL YEARS ENDED
DECEMBER 31, PRO FORMA
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SERVICES PROVIDED 1995 1996 1997 DECEMBER 31, 1997(1)
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Aviation services(2)......................... 58% 55% 54% 47%
Access control/facilities management(3)...... 36 41 39 35
Light industrial/warehouse "pick and
pack"(4)................................... 6 4 7 16
Order fulfillment(5)......................... -- -- * 2
--- --- --- ---
Total.............................. 100% 100% 100% 100%
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* Less than 1%.
(1) Includes revenues of all acquisitions, including SES, as if the acquisitions
had occurred on January 1, 1997.
(2) Includes revenues of EAS from the date of acquisition in May 1997.
(3) Includes revenues of Intersec and USA Security, providers of access control
services, from the dates of acquisition in July 1996 and May 1997,
respectively.
(4) Includes cargo handling. Includes revenues of Lloyd and Midwest Staffing
from the dates of acquisition in September 1997 and December 1997,
respectively.
(5) Includes revenues of RightSide Up from its date of acquisition in October
1997.
Aviation Services
Management believes, based on its knowledge of the industry, that the
Company is one of the largest providers of pre-departure screening and passenger
profiling services in the United States and Europe combined, with approximately
5,000 employees currently providing services at 32 airports in the United States
and 27 airports in Europe. Pre-departure screening is a security approach
maintained at all commercial airports in the United States and the United
Kingdom under mandates of the Federal Aviation Administration (the "FAA") and
the United Kingdom's Department of Transportation (the "U.K. DOT") and at many
other airports throughout the world under similar mandates of other regulatory
authorities. At pre-departure screening checkpoints, all passengers and other
airport patrons must physically pass through a device called a magnetometer,
designed to reveal the presence of metal objects and all carry-on baggage and
other items carried into the concourse or gate area must pass through an X-ray
device to determine whether certain suspicious materials are present. Major
airports at which the Company provides pre-departure screening services include
Los Angeles International, New York -- Kennedy and LaGuardia,
Washington -- National and Dulles, Denver International, Chicago -- O'Hare, San
Francisco, Orlando, Boston and Memphis in the United States.
In Europe, the Company provides a passenger profiling procedure which has
been used by certain major European airlines for several years at high-risk
international airports in Europe and was mandated in 1994 by the FAA for U.S.
airlines' international flights from those airports. Passenger profiling seeks
to identify a potential threat before it materializes by means of interviewing,
document verification and behavioral analysis. This procedure results in the
classification of the vast majority of passengers as low risk, thereby enabling
more scrutiny to be focused on higher risk passengers. The Company has been
providing profiling services in Europe since 1992, currently has over 233
employees providing these services and believes that if the FAA were to mandate
profiling in the United States, the Company would be well-positioned to quickly
implement profiling procedures for its U.S. clients. See "-- Government
Regulation." Major airports at which the Company provides passenger profiling
services include London Heathrow and Gatwick, Paris -- Charles de Gaulle,
Frankfurt, Berlin and Dublin.
Historically, airlines have utilized their own employees to provide most
passenger services but are increasingly seeking to outsource support functions.
The Company provides a variety of other passenger
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services to its airline clients, including baggage claim and check in 22
airports in the United States and Europe, aircraft clean and search in two
European airports and lost baggage delivery or replacement services in 12
European airports. At 19 airports in the United States and Europe, the Company
provides an assortment of services including skycap, wheelchair assistance,
escorting of unaccompanied minors, inter-gate cart services and frequent flyer
lounge operations.
Access Control/Facilities Management
The Company provides business and facility access control, special event
security and uniformed security officer services to a broad range of commercial
and governmental clients. The Company's access control staff are used at office
and government buildings, airports, hospitals, distribution centers, sports
arenas, museums and other facilities. For aviation clients, the Company provides
guarding and control of airport entrances, checking of employee identification
cards and baggage, guarding and control of employee parking lots and
under-the-wing guarding of parked aircraft in Europe.
Depending on the needs of the client, security officers are on premises,
often around-the-clock, to provide facility security, access control, personnel
security checks and traffic and parking control and to guard against fire,
theft, sabotage and safety hazards. The Company's security officers are trained
to respond appropriately to emergency situations and report fires, intrusions,
natural disasters, work accidents and medical crises to appropriate authorities.
The Company provides dedicated, fixed route shuttle bus services in 10
locations within the United States and two locations in the United Kingdom
through its fleet of approximately 350 shuttle bus vehicles, which generally
seat between 15 and 50 passengers. Under all of its shuttle bus contracts, the
Company provides the shuttle bus and the driver. During fiscal 1997, AHL
vehicles traveled more than seven million miles and operated for more than
700,000 hours. AHL currently provides (i) campus shuttle services at The Georgia
Institute of Technology, Emory University and The American School in London,
(ii) corporate shuttle services between various facilities of The Coca-Cola
Company and Delta Air Lines, (iii) public parking shuttle services for the
Memphis/Shelby County Airport Authority and the Nashville Airport Authority,
(iv) aviation employee transportation services from employee parking lots for
Delta Air Lines and Federal Express and (v) airside crew and passenger transport
at Heathrow Airport.
Light Industrial/Warehouse "Pick and Pack"
The Company provides staffing for light industrial and warehouse "pick and
pack" functions, which includes providing staffing for warehousing functions and
inventory distribution. The Company began providing staffing for light
industrial and warehouse "pick and pack" markets with the completion of the
Lloyd Acquisition and further expanded its operations in this area through the
acquisitions of Midwest Staffing and SES.
The Company also prepares cargo and mail for flight by sorting, packaging
and transporting the cargo and mail to and from airplanes in certain markets. In
certain other markets, the Company provides the actual staffing of customer
counters and data input into the airline's cargo computer system, in addition to
handling the cargo. Cargo services are provided in these other markets pursuant
to outsourcing arrangements, under which the Company manages the entire process
for its clients. The Company processes air cargo for several of its major
aviation clients, including Delta Air Lines, United Airlines, Alaska Airlines,
America Trans Air and Royal Airlines. The Company also provides cargo services
to Air China, SwissAir, and Cathay Pacific and Vanguard pursuant to subcontracts
from Delta Air Lines. In addition to cargo handling, the Company provides U.S.
Postal Service mail handling for Delta Air Lines in selected locations.
Order Fulfillment
The Company provides order fulfillment services principally for clients in
the entertainment industry including Disney, Fox and Mattel among others. The
Company processes the inbound calls and fulfills these orders by "picking and
packing" and shipping the items from the Company's warehouse. The Company's
clients own the actual inventory.
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CONTRACT TERMS
Substantially all of the Company's aviation, transportation and access
control services are provided under contracts, typically having terms of one to
five years, which provides the Company with a significant source of predictable
recurring revenues. Although the terms of the Company's contracts vary
significantly, clients generally agree that the Company will provide a stated
service level and agree to pay the Company an hourly rate for services provided.
Certain of the Company's clients, especially in the cargo services area, are
billed a fixed dollar amount per month for services performed. Under some
contracts, the Company is entitled to rate increases when there are increases in
the Federal minimum wage, although most of the Company's employees are paid at
rates in excess of the Federal minimum wage. Most contracts have multi-year
terms and are generally terminable by either party upon 30 to 90 days written
notice. Most of the contracts entered into by the Company have been renewed or
extended upon the expiration of their original terms. The Company has
experienced an average annual retention rate of approximately 93% of contract
billable hours over the last three fiscal years (excluding operations the
Company has elected to terminate). The Company's access control services are
generally provided under contracts in which AHL assumes responsibility to
employ, schedule and pay all personnel and provide uniforms, equipment,
training, supervision, fringe benefits, bonding and workers' compensation
insurance. The Company's contracts typically provide that the Company will
indemnify the client from and against any claims for personal injury or death to
any person (other than an employee of the client) and for damage to any property
arising out of the acts or omissions of the Company unless the claim results
from any negligent act of the client.
CLIENTS
AHL's ten largest clients in fiscal 1997, which accounted for an aggregate
of 61.8% of the Company's revenues, were United Airlines, Delta Air Lines,
British Airways, Federal Express, the United States government, American
Airlines, Northwest Airlines, Georgia Power, America OnLine, USAir and BGS.
During fiscal 1997, United Airlines, Delta Air Lines, British Airways, and
Federal Express accounted for 18.8%, 17.2%, 12.7% and 3.9% of the Company's
revenues, respectively, through an aggregate of 86 contracts and, together,
represented 52.6% of the Company's revenues. AHL is increasingly providing
services to other large corporations, including Mattel, BellSouth, Nike and
Motorola. The Company has 24 contracts in the United States and eight contracts
in Europe that provide annual revenues in excess of $2 million each.
SALES AND MARKETING
Building and maintaining relationships with personnel at various levels of
its clients' organizations, including relationships with both senior executives
and local operating personnel has been, and will continue to be, an important
operating philosophy for the Company. The Company uses these relationships to
market its services to potential clients through individuals having senior
management and local operating responsibilities. AHL targets large corporations
and institutions that have significant contract staffing needs for
labor-intensive, task-repetitive functions. The Company has a local sales force
in the United States of 18 representatives located in AHL's regional offices in
New York, Atlanta, Florida, Dallas, Memphis, Washington, D.C., Denver and Los
Angeles and two sales representatives in Europe. The Company's eight regional
vice presidents in the United States are each responsible for two to four
districts. Regional and district managers also have sales responsibilities and a
portion of their incentive compensation is dependent on meeting sales goals.
The Company is developing a national sales and marketing strategy, under
which the Company focuses on improving the consistency of its sales approach.
The Company conducts in-house sale seminars, at which regional, district and
national account managers, along with the Company's local sales personnel, focus
on how to sell services to larger accounts. Furthermore, the Company has
designated certain senior managers as responsible for specific national account
relationships with specific large clients and added a national accounts sales
representative during 1997.
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WORKFORCE MANAGEMENT
The Company's core competencies include recruiting, hiring, training,
motivating and managing the large numbers of personnel required to provide many
of the support services needed by its clients. The Company's district managers
and their human resources staff have ongoing responsibility for hiring,
recruiting and training the Company's local workforce.
Recruiting. The Company has developed innovative recruiting methods that
have been particularly effective in reaching targeted pools of prospective
employees, in addition to utilizing traditional recruiting methods such as job
fairs, trade journals, local advertising, and interviewing at vocational
schools. After analyzing the demographics of each market, the Company seeks to
establish relationships with community groups and leaders. For example, in a
number of markets, the Company has found that senior citizens are an excellent
source of potential employees for its pre-departure screening services and
recruiters frequently visit senior citizen centers. The Company leverages these
community relationships to provide a feeder into the Company's employment pool
and believes that current Company employees serve as effective recruiters for
the Company. The Company believes these methods are more cost-effective than
more traditional recruiting methods.
Hiring. In 1997, the Company recruited, hired and trained over 17,000
full-time employees to provide services for its clients. Within the United
States, every employee must complete a written application and provide proof of
citizenship or resident alien status and every employee is subject to a ten-year
employment and criminal background check, which is conducted internally by the
Company. Unlike many of its competitors, the Company requires mandatory
pre-employment drug testing for all aviation and commercial-security services
employees.
In Europe, the Company screens potential applicants through a telephone
interview, and each potential employee must complete a written application and
undergo an interview that includes vision, hearing and psychological testing. An
initial one-year background check is required for every new employee. Each
European employee is hired subject to a three month probationary period and
continuity of employment is subject to a 20-year background check. Where legally
permitted, employees in certain European countries are also subject to random
drug testing.
Training. The Company provides in-house classroom and on-the-job training
programs for its hourly personnel through videos, guest lecturers and full-time
trainers who are employed at the Company's major district locations. The Company
is in the process of establishing performance measures to improve job focus and
accountability, create a quality audit process and implement "best practices and
procedures" in the Company's field operations. The Company is ISO 9002-certified
in its commercial security business in the United Kingdom. The Company is the
only organization approved by the U.K. DOT to provide aviation security training
to personnel of the U.K. DOT, the agency that regulates aviation security
matters in the United Kingdom.
Retention. The Company believes that employee retention is critical to
lowering operating costs and providing high quality service to its clients.
Accordingly, the Company places significant emphasis on programs to motivate its
employees and reduce employee turnover. Since inception, the Company has been
able to provide quality service and expand its business despite the high
employee turnover that is inherent in low wage, task-repetitive positions. The
Company's "110% Club" recognizes employees for superior attendance, attitude,
appearance and performance. Members receive quarterly bonuses and other rewards,
and are recognized throughout the Company. The Company's pre-departure screening
employees receive bonuses for detecting weapons and other illegal objects at
airport security checkpoints, including those detected during FAA-mandated
tests. The Company has also enhanced employee benefits by adding an employee
stock purchase plan, which is available to all employees with three months of
active service.
Field Management. The Company has developed a management structure under
which significant workforce decisions are made at the local level, thereby
requiring field managers to assume responsibility for recruiting, hiring and
retention. The Company's bonus system for regional and district managers is
based upon achievement of specific performance objectives, including revenue,
gross margin and net contribution, new
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business and client retention and losses and claims incurred. Regional and
district managers can earn bonuses of up to 35% of their base compensation by
achieving all of their objectives established annually by the Company. As an
added incentive, the Company established a stock option plan for key corporate
and field management in early 1997.
Employees. As of December 31, 1997, the Company had over 16,000 employees.
A total of 1,338 of the Company's employees are covered by collective bargaining
agreements including 782 of the Company's security employees working at New
York -- Kennedy and 457 working at Chicago -- O'Hare. Each of these agreements
was assumed by the Company in connection with an acquisition or an outsourcing
contract previously held by another vendor. In 1997, unions initiated one effort
to organize certain Company employees, which failed to receive sufficient
support to require a vote. The Company considers its relations with its
employees to be good.
MANAGEMENT INFORMATION SYSTEMS
The Company has invested, and intends to continue to invest, substantial
resources to develop systems that will enable it to deliver quality customer
service, centrally manage its operations and achieve substantial cost savings.
In April 1997, the Company hired a new Vice President and Chief Information
Officer. In addition, the Company's management information system integrates its
financial, general ledger, payables, receivables and payroll functions. The
system completes budgeting, forecasting and monthly profit and loss statements
on a contract-by-contract basis. The Company has networked its corporate offices
and all regional and district offices in the United States and has E-mail
capability to all U.S. offices and its London headquarters. The Company has also
made significant investments to upgrade field computers and has leased two
HP9000 systems which are run parallel to prevent downtime and give the Company
the capacity needed to handle anticipated future growth.
In 1998, the Company intends to enhance the computerized scheduling,
timekeeping and payroll system for hourly employees. This will enable AHL to
continue to develop performance measurements for its customers and to improve
scheduling to reduce the amount of non-billable overtime. In addition, the
Company will establish real-time links with the Company's European operations.
COMPETITION
The contract staffing industry is extremely competitive and highly
fragmented, with limited barriers to entry. Companies within the contract
staffing industry compete on the basis of the quality of service provided, their
ability to provide national and international services, the range of services
offered, as well as price. The Company believes its competitive advantages
include its reputation for providing high quality service and its ability to
serve large clients in the United States and Europe. Most of the Company's
competitors offer a more limited range of services and focus on a few specific
services.
The Company competes in international, national, regional and local markets
with outsourcing companies, specialized contract service providers and in-house
organizations that provide services to potential clients and third parties.
AHL's principal competitors include, in the aviation services industry, ICTS
International N.V., Globe Aviation Securities Corporation and International
Total Services, Inc. and, in the commercial security industry, Borg-Warner
Security Corporation, Guardsmark, Inc. and The Wackenhut Corporation. The
Company's warehouse "pick and pack" and light industrial services and order
fulfillment services compete primarily with numerous local and regional
companies as well as divisions of several major staffing companies. Certain of
the Company's competitors and potential competitors have significantly greater
financial resources and larger operations than the Company.
GOVERNMENT REGULATION
Current Regulations Relating to Aviation Security. Aviation security in
the United States is subject to regulations and directives issued by the FAA and
to legislation enacted by the United States Congress. Under current regulations,
responsibility for aviation security is shared between the FAA and various other
federal, state and local agencies and industry participants (which include air
carriers and airport authorities as well as
8
<PAGE> 11
independent contractors that perform services for or on behalf of these industry
participants). The FAA conducts threat and vulnerability assessments and,
through its regulatory authority, directs the aviation industry to implement
measures that address existing and anticipated threat situations. The FAA also
tests security measures at airports to assess vulnerabilities in current airport
security systems.
Under FAA regulations, each air carrier and airport authority must adopt
and carry out an FAA-approved security program that provides for the safety of
persons and property traveling in air transportation against acts of criminal
violence and aircraft piracy. Air carriers are responsible for providing
security measures for all people and items connected with their aircraft,
including passengers, baggage, and maintenance and flight crews. Airport
authorities are responsible for maintaining a secure environment on airport
grounds and for providing law enforcement support and training.
Each security program adopted by an airline must include: (i) the screening
of passengers and their carry-on baggage, and other persons having access to
controlled areas, to prevent the carriage aboard aircraft of weapons or
explosive devices, (ii) controlling access to aircraft, checked baggage and
cargo, (iii) appropriate controls on shipping of cargo in Europe and (iv)
security inspection of any aircraft left unattended.
Airlines may utilize either their own employees or third-party contractors
to carry out their security programs. Proposed FAA regulations would require
pre-departure screeners to undergo a 10-year criminal and employment background
check and a five-year employment verification, with the employer required to
maintain records of these investigations throughout the term of employment. The
comment period for the proposed regulations closed on May 19, 1997. The FAA is
analyzing the comments received and is drafting a final rule to extend
background check regulations to include screeners. Screeners operating X-ray
systems must receive initial and recurrent training in the detection of weapons
and other dangerous articles.
From time to time, the FAA issues directives requiring the implementation
of specific actions by air carriers and airport authorities. For example,
following the destruction of TWA flight 800 in July 1996, the FAA began to
require additional matching of passengers and checked baggage, additional
searching of aircraft cabins and cargo areas, additional physical searches of
carry-on-items and other enhanced security measures.
Generally, European standards for aviation security are more stringent than
those currently in effect in the United States. Passengers are subject to more
comprehensive "profiling" and review of documents; parked aircraft must be
guarded, searched and cleaned in accordance with applicable regulations,
passenger baggage is subject to match procedures as well as random X-ray and
hand searches, commercial cargo is guarded and subject to random X-ray searches;
and airline employees and other crews are subject to additional security
measures. The FAA requires that U.S. airlines utilize similar passenger
profiling programs in their European operations.
Recent Developments Relating to Aviation Security. Several initiatives by
United States governmental authorities and industry participants have resulted
in recommended changes in regulatory requirements relating to aviation security.
These initiatives have been undertaken by the United States Congress, through
provisions of the Federal Aviation Reauthorization Act of 1996 (the "1996 Act");
the White House Commission on Aviation Safety and Security (the "Gore
Commission"), which published its final report on February 12, 1997; and the
Aviation Security Advisory Committee ("ASAC"), a committee of government and
industry participants that issued its recommendations on December 12, 1996. Each
of these groups has considered issues that have ranged from the fundamental
structure of, and sharing of responsibilities relating to, aviation security to
specific near-term measures that could be implemented to improve aviation
security.
The Gore Commission, which was formed following the destruction of TWA
Flight 800 in July 1996, included the heads of various federal agencies and was
charged with making recommendations as to how the partnership between the U.S.
government and industry participants can achieve improved aviation security. The
Gore Commission issued its final report on February 12, 1997 and included among
its recommendations: (i) development of uniform performance standards for the
selection, training and certification of pre-departure screening companies; (ii)
implementation of procedures for matching of passengers and checked baggage on a
nationwide basis no later than December 31, 1997; (iii) the continued
development and implementation of an
9
<PAGE> 12
automated passenger profiling system; and (iv) utilization of U.S. Customs
Service personnel and computer systems to complement the efforts of the FAA and
other federal agencies. On February 12, 1998, Transportation Secretary Rodney
Slater presented Vice President Gore with a one year status report on the
progress of the implementation of the recommendations of the White House
Commission on Aviation Safety and Security. With regard to development of
uniform standards for the selection, training, and certification of
pre-departure screening companies, the FAA issued an Advance Notice of Proposed
Rulemaking ("ANPRM") on March 17, 1997 to solicit comments on certification of
screening companies. The comment period for this ANPRM closed on May 1, 1997,
and the FAA has reviewed the comments received. The next step in the regulatory
process is to issue a Notice of Proposed Rulemaking. The FAA has also been
working with airlines to deploy the Screener Proficiency Evaluation and
Reporting System ("SPEARS"), a system for improving the training and monitoring
skills of screeners through computer-based training aids. Regarding
implementation of bag match and automated profiling systems, the FAA has
developed an automated passenger profiling system referred to as Computer
Assisted Passenger Screening ("CAPS"). Several airlines have begun developing
CAPS systems in 1997. Both CAPS and manual passenger screening systems are being
used in the passenger bag match system, to select passengers' luggage which will
either be examined by explosives detection systems or will not be allowed to be
transported unless a passenger is on the flight. Lastly, the U.S. Customs
Service is deploying personnel to assist aviation security efforts and is
working to evaluate select and deploy high technology cargo and baggage
screening equipment.
The 1996 Act required that the FAA conduct a study and report to Congress
on whether to transfer certain responsibilities of air carriers to either
airport authorities or to the federal government or whether to provide for some
other sharing of current responsibilities. This report has not yet been issued
by the FAA. However, the Company believes that the FAA is likely to follow the
final recommendation released by the Gore Commission, as described above. The
1996 Act directed the FAA to "certify" companies that provide pre-departure
screening, continue to assist air carriers in developing computer-assisted
passenger profiling programs, assess programs for matching of passengers and
checked baggage that are currently being utilized in the industry on a test
basis, and report on changes to enhance and supplement the screening and
inspection of cargo and mail shipments.
Other Applicable Regulations. Airport authorities in many foreign
countries require that companies receive licenses in order to be able to perform
services at the airport and limit the number of licenses that are issued. The
Company is also required to maintain various licenses and permits from state and
local government authorities in order to provide commercial security, shuttle
bus and certain other services.
RISK MANAGEMENT AND SAFETY
Because the Company's business is labor intensive, workers' compensation is
a significant operating expense for the Company in the United States. In
addition, the Company is exposed to possible claims by its clients' customers or
employees, alleging discrimination or harassment by the Company's employees. The
Company is also exposed to liability for the acts or negligence of its employees
who cause personal injury or damage while on assignment, as well as claims of
misuse of client proprietary information or theft of client property. The
Company has adopted policies and procedures intended to reduce its exposure to
these risks.
The Company maintains insurance against these risks with policy limits it
considers sufficient, subject to self insurance of $250,000 per incident and an
aggregate stop-loss. In addition, the Company maintains aviation liability
insurance of $500 million per incident. The Company establishes reserves in its
financial statements for the estimated costs of pending claims as well as the
estimated costs of incurred but not yet reported claims. The reserve for these
unreported claims is based on prior experience. The Company's reserves are
periodically revised, as necessary, based on developments related to pending
claims. At December 31, 1997, the Company's reserve for workers' compensation
and automobile claims was $3.8 million.
The Company's risk management specialist, with the assistance of the
Company's regional managers, is responsible for claims management and the
establishment of appropriate reserves for the deductible portion of claims. In
the first quarter of 1997, the Company implemented a number of new risk control
strategies, which include establishing a risk allocation program that provided
local managers with financial incentives to
10
<PAGE> 13
improve safety performance by decreasing the number of workplace accidents. The
Company has also implemented quarterly safety committee meetings with its local
managers and field employees, conducted defensive driving training sessions for
its transportation employees, conducted routine safety inspections of local work
sites and instructed personnel in proper lifting techniques in an effort to
reduce the number of preventable accidents.
EQUIPMENT
As of December 31, 1997, the Company operated a fleet of approximately 350
shuttle bus vehicles, which generally seat between 15 and 50 passengers. A
majority of these vehicles are leased, with lease terms that generally match the
term of the contract for which the vehicles are provided. In the event of early
termination of a contract, certain of the Company's clients are required to
assume liability for the vehicle leases.
The Company performs its own vehicle maintenance at each major location
through a separate maintenance division. Preventive maintenance is provided at
defined mileage intervals. Each maintenance shop has experience with all
maintenance and repair requirements for the Company's fleet, including air
conditioning and component maintenance.
ITEM 2. PROPERTIES
The Company maintains 111 offices in various metropolitan areas in the
United States and Europe. The Company's executive headquarters and corporate
operations are located in Atlanta, Georgia in leased facilities consisting of
approximately 3,700 and 15,200 square feet of office space, respectively. The
initial term of the executive headquarters lease expires in November 2001. In
addition, the Company's regional offices each consist of between 150 and 6,350
square feet. The Company believes its facilities are adequate to meet its needs
for the foreseeable future.
ITEM 3. LEGAL PROCEEDINGS
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM X. EXECUTIVE OFFICERS OF THE REGISTRANT
The Company's executive officers and key employees are as follows:
<TABLE>
<CAPTION>
EXECUTIVE OFFICERS: AGE POSITION
------------------- --- --------
<S> <C> <C>
Frank A. Argenbright, Jr............. 50 Chairman and Co-Chief Executive
Officer
Edwin R. Mellett..................... 59 Vice Chairman and Co-Chief Executive
Officer
Thomas J. Marano..................... 47 President and Chief Operating
Officer -- Argenbright Holdings
Limited
Ernest Patterson..................... 50 Chief Executive -- The ADI Group
Limited
David L. Gamsey...................... 40 Chief Financial Officer
</TABLE>
<TABLE>
<CAPTION>
KEY EMPLOYEES:
--------------
<S> <C> <C>
Alan J. Cordover..................... 53 President, RightSide Up
Charlie P. Graziani.................. 55 President, Lloyd and Midwest Staffing
A. Trevor Warburton(1)............... 55 Managing Director -- The ADI Group
Limited
</TABLE>
11
<PAGE> 14
<TABLE>
<CAPTION>
KEY EMPLOYEES: AGE POSITION
-------------- --- --------
<S> <C> <C>
Daniel E. DiGiusto................... 46 Senior Vice President of Field
Operations -- Argenbright Holdings
Limited
Larry G. Parrotte.................... 38 Senior Vice President of Field
Operations -- Argenbright Holdings
Limited
Henry F. Anthony..................... 46 Vice President of Human Resources --
Argenbright Holdings Limited
L. Celeste Bottorff.................. 44 Vice President of Marketing and
Strategic Planning -- Argenbright
Holdings Limited
Barry J. Jenkins..................... 35 Vice President of
Finance -- Argenbright Holdings
Limited
Mark T. Ryall........................ 38 Vice President and Chief Information
Officer -- Argenbright Holdings
Limited
Nicholas G. Bailey................... 47 Finance Director -- The ADI Group
Limited
Nigel D.J. Cotton.................... 45 Human Resources Director -- The ADI
Group Limited
</TABLE>
- ---------------
(1) Mr. Warburton was an executive officer of the Company through June 1997.
Mr. Argenbright founded the Company in 1979 and has been its Chairman and
Chief Executive Officer since that time. Mr. Argenbright graduated from the
Owner/President Management Program at Harvard Business School in 1991.
Mr. Mellett has been Vice Chairman and Co-Chief Executive Officer of the
Company since December 1994 and served on the Company's Advisory Board during
1994. From 1993 to 1994, he was a consultant and private investor. From 1984 to
1992, Mr. Mellett was Senior Vice President of The Coca-Cola Company, serving
also as President of Coca-Cola Northern Europe from 1990 to 1992 and President
of Coca-Cola USA from 1986 to 1988. From 1972 to 1984, Mr. Mellett was President
of the Food Services Division of PepsiCo.
Mr. Marano has been President and Chief Operating Officer of Argenbright
Holdings Limited, the holding company for the Company's U.S. operations, since
July 1995. From 1990 to June 1995, Mr. Marano was Vice President and a Global
Customer Director for The Coca-Cola Company, and from 1986 to 1990, he was Vice
President of U.S. Sales, Fountain Division, of The Coca-Cola Company. From 1985
to 1986, Mr. Marano was Vice President of U.S. Sales of Apple Computer.
Mr. Patterson has been Chief Executive -- The ADI Group Limited, the
holding company for AHL's European operations, since June 1997. From 1996 to
1997, Mr. Patterson was the Group Chief Executive Officer for National Express
Group PLC. From 1990 to 1996, he was the Chief Executive Officer, Worldwide
Distribution Services for B.E.T. PLC, and from 1985 to 1990, he was the Managing
Director of a foreign subsidiary of B.E.T. PLC.
Mr. Gamsey has been Chief Financial Officer of the Company since September
1995. From 1988 to September 1995, Mr. Gamsey was a Managing Director of
Investment Banking of Price Waterhouse LLP. From 1987 to 1988, Mr. Gamsey was
Chief Financial Officer of Visiontech, Inc., and from 1979 to 1987, Mr. Gamsey
was a Senior Audit Manager for Arthur Andersen LLP. Mr. Gamsey is a Certified
Public Accountant.
Mr. Cordover has been President of RightSide Up since its acquisition by
the Company in October 1997. Mr. Cordover was President of RightSide Up, Inc.
since he purchased the division from Paramount Pictures
12
<PAGE> 15
in 1996. Prior thereto, he was Vice President of Theatrical Marketing for
Paramount Pictures and Senior Vice President for K-Tel International.
Mr. Graziani has been president of Lloyd and, upon its acquisition, Midwest
Staffing, since Lloyd was acquired by the Company in September 1997. Mr.
Graziani was President of Lloyd Creative Staffing of Chicago since he founded
the company in 1989. Prior thereto, he held marketing and sales positions with
AB Dick, IBM, Unisys and Digital Equipment Corp.
Mr. Warburton has been Managing Director -- The ADI Group Limited since
January 1993. From 1990 to 1992, Mr. Warburton was Senior Vice President of
Ground Services for Ogden Aviation Services. From 1989 to 1990, he was
Operations Director for Ogden Aviation Services at London-Gatwick. From 1987 to
1989, he was head of Ground Operations for British Airways at London-Gatwick,
and from 1961 to 1987, he held a number of senior management positions with
British Caledonian Airways.
Mr. DiGiusto has been Senior Vice President of Field
Operations -- Argenbright Holdings Limited since 1989. From 1974 to 1989, Mr.
DiGiusto was employed by Burns International Security, most recently as its
Northeast Division Vice President.
Mr. Parrotte has been Senior Vice President of Field
Operations -- Argenbright Holdings Limited since 1997. From 1992 to 1997, he was
Regional Vice President of the Company's Washington, D.C. area operations. Prior
thereto, he was a regional manager with Burns International Security.
Mr. Anthony has been Vice President of Human Resources -- Argenbright
Holdings Limited since January 1996. From 1993 to 1996, Mr. Anthony was Vice
President of Human Resources of National Linen Service. From 1989 to 1993, Mr.
Anthony was Vice President of Human Resources for BET Plant Services, Inc.
Ms. Bottorff has been Vice President of Marketing and Strategic
Planning -- Argenbright Holdings Limited since September 1996. From 1994 to
1996, Ms. Bottorff was Marketing Director of The Atlanta Journal-Constitution.
From 1990 to 1994, Ms. Bottorff was Director of Strategic Planning of Holiday
Inn Worldwide. From 1987 to 1990, she was Manager of Field Planning for The
Coca-Cola Company and, from 1983 to 1987, she was an Engagement Manager for
McKinsey Co., Inc.
Mr. Jenkins has been Vice President of Finance -- Argenbright Holdings
Limited since May 1997. From 1984 to 1997, he was employed by Price Waterhouse
LLP, most recently as a senior manager. Mr. Jenkins is a Certified Public
Accountant.
Mr. Ryall has been Vice President and Chief Information Officer
-- Argenbright Holdings Limited since April 1997. From 1990 to 1997, he was
Group Manager of Ryder Systems, Inc. From 1983 to 1990, he was a manager for
Andersen Consulting.
Mr. Bailey has been Finance Director -- The ADI Group Limited since May
1995. From January 1994 to April 1995, he worked in Kazakhstan establishing the
financial operations for Tengizchevroil, a joint venture between the Government
of Kazakhstan and Chevron Petroleum. From 1992 to 1993, Mr. Bailey was an
independent consultant to the airline industry. Prior thereto, Mr. Bailey held a
number of positions in the airline industry. Mr. Bailey is a Chartered
Accountant.
Mr. Cotton has been Human Resources Director -- The ADI Group Limited since
August 1993. From 1989 to 1993, he was Head of Human Resources -- United Kingdom
for Ericsson plc and, during 1988, he was a Personnel Manager with British
Airways. Prior thereto, he was employed by British Caledonian Airways.
13
<PAGE> 16
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company completed its initial public offering on March 27, 1997 at
$10.00 per share and, since that date, the Company's Common Stock has traded on
the Nasdaq National Market under the symbol "AHLS." The following table sets
forth the high and low closing sales prices per share for the Common Stock, for
the periods indicated, as reported by the Nasdaq National Market.
<TABLE>
<CAPTION>
HIGH LOW
------- -------
<S> <C> <C>
1997:
First Quarter (from March 27, 1997)......................... $ 10.75 $ 10.00
Second Quarter.............................................. 15.50 9.50
Third Quarter............................................... 19.50 15.125
Fourth Quarter.............................................. 24.625 15.25
</TABLE>
On March 20, 1998, the last sale price of the Common Stock as reported on
the Nasdaq National Market was $29.50 per share and there were 17 holders of
record of the Common Stock.
The Company has never paid any cash dividends on its Common Stock, and the
Board of Directors currently intends to retain all earnings for use in the
Company's business for the foreseeable future. The Company's credit facility
prohibits the payment of dividends. Any future payment of dividends will depend
upon the Company's results of operations, financial condition, cash requirements
and other factors deemed relevant by the Board of Directors.
14
<PAGE> 17
ITEM 6. SELECTED FINANCIAL DATA
The following selected financial data of the Company are qualified by
reference to and should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the Company's
Combined Financial Statements and Notes thereto included elsewhere in this
Annual Report. The selected financial data presented below as of and for each of
the fiscal years in the five year period ended December 31, 1997 have been
derived from the Company's financial statements which have been audited by
Arthur Andersen LLP, independent accountants.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31,
------------------------------------------------------------
1993 1994 1995 1996 1997
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues........................ $104,143 $123,234 $168,601 $210,153 $276,013
Operating expenses:
Cost of services.............. 78,019 91,873 124,491 155,926 204,512
Field operating............... 18,284 20,931 30,328 37,492 45,956
Corporate general and
administrative............. 6,796 8,797 10,938 11,692 14,840
-------- -------- -------- -------- --------
Operating income........... 1,044 1,633 2,844 5,043 10,705
Interest expense........... 593 904 1,309 1,726 1,159
Other income, net............... (89) (26) (820) (301) (723)
-------- -------- -------- -------- --------
Income before income taxes and
extraordinary items........ 540 755 2,355 3,618 10,269
Income tax provisions(2)........ 700 627 917 1,447 3,850
-------- -------- -------- -------- --------
Income (loss) before
extraordinary items........ (160) 128 1,438 2,171 6,419
Extraordinary items, net of
taxes(3)...................... -- -- -- -- (385)
-------- -------- -------- -------- --------
Net income (loss)..... $ (160) $ 128 $ 1,438 $ 2,171 $ 6,034
======== ======== ======== ======== ========
Net income per
share -- diluted.............. $ 0.17(4) $ 0.26(4) $ 0.55(5)
======== ======== ========
Weighted average common and
common equivalent
shares -- diluted........ $ 8,353(4) 8,433(4) 10,960
======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------------------------
1993 1994 1995 1996 1997
------- ------- ------- ------- --------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital................................. $ 4,341 $ (763) $13,216 $17,353 $ 42,823
Total assets.................................... 21,036 29,094 40,687 51,953 109,794
Long-term debt, net of current portion(6)....... 7,281 1,437 14,609 19,706 3,495
Shareholders' equity............................ 2,123 2,252 3,577 5,409 74,531
</TABLE>
- ---------------
(1) The Company's U.S. operations fiscal year ends on the last Friday in
December. Each of the fiscal years presented consists of 52 weeks except
that fiscal 1993 consists of 53 weeks.
(2) The income tax provision for 1993 and 1994 was negatively impacted by the
significance of non-deductible expenses relative to income before income
taxes.
(3) In the second quarter of 1997, the Company recorded extraordinary items
resulting from the early extinguishment of debt associated with the
Company's initial public offering.
(4) Pro forma to give effect to the Reorganization.
(5) Excluding the extraordinary items, net income would have been $0.59 per
share.
(6) Includes a note payable to shareholder in the amount of $650,000 and
$528,000 at December 31, 1995 and 1996, respectively.
15
<PAGE> 18
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
AHL provides contract staffing and management of its clients'
labor-intensive operational support functions on an outsourced basis throughout
the United States and Europe. Through its 83 offices in the United States and 28
offices in six European countries, AHL is able to service the multinational
outsourcing needs of its largely Fortune 1000 client base. The Company currently
has approximately 630 contracts to provide services and has established
long-term relationships with its largest clients providing the Company with a
significant source of predictable recurring revenues. Revenues have grown from
$104.1 million in 1993 to $276.0 million in 1997, a compounded annual growth
rate of 27.5%. Frank A. Argenbright, Jr., the Company's Chairman and Co-Chief
Executive Officer, founded the Company in 1979. As of February 1, 1997, all of
the outstanding shares of common stock of Argenbright, a holding company for
U.S. operations, and ADI, a holding company for European operations, were
contributed to AHL by Mr. Argenbright. As a result, Argenbright and ADI became
wholly-owned subsidiaries of the Company.
Since 1992, the Company has completed nine acquisitions, all of which have
been accounted for under the purchase method of accounting. In March 1992, ADI
acquired a portion of the passenger services operation of British Airways at
Heathrow Airport. This passenger services operation had revenues in the first
twelve months of operations of approximately $18.0 million. The Company has used
ADI as a platform to expand its operations in Europe. In August 1993, ADI
acquired Express Baggage Reclaim Services Limited, a provider of lost baggage
delivery and replacement services in the United Kingdom, with revenues of
approximately $1.8 million for the twelve months prior to the acquisition. In
July 1996, the Company acquired Intersec, a provider of access control services
in the mid-Atlantic region of the United States, with revenues of approximately
$10.0 million for the twelve months prior to the acquisition. In 1997, the
Company recorded a non-recurring after tax charge of $385,000 as a result of the
early extinguishment of debt incurred to finance the Intersec acquisition.
Since its initial public offering in March 1997, the Company has completed
six acquisitions. In February 1998, AHL acquired SES, a company that provides
warehouse "pick and pack" and light industrial staffing for commercial entities,
with revenues for the twelve months preceding the acquisition of approximately
$16.0 million. In December 1997, the Company acquired Midwest Staffing, a
Chicago-based company that provides staffing for warehouse "pick and pack" and
light industrial functions, with revenues for the twelve months ended December
31, 1997 of approximately $8.0 million. In October 1997, AHL acquired RightSide
Up, an order fulfillment company, with revenues for the twelve months ended
August 31, 1997 of approximately $6.4 million. In September 1997, AHL acquired
Lloyd, a Chicago-based company that provides staffing for warehouse "pick and
pack" and light industrial functions, with revenues for the twelve months prior
to the acquisition of approximately $14.0 million. In May 1997, AHL acquired the
access control business of New Jersey-based USA Security, with revenues for the
twelve months prior to the acquisition of approximately $8.6 million. Also in
May 1997, AHL acquired EAS, an operation of British Airways at London's Heathrow
Airport. EAS provides ground handling and passenger services for large, private
executive aircraft with revenues for the twelve months prior to the acquisition
of approximately $2.4 million. These acquisitions were financed with borrowings
under the Company's credit facility and proceeds from the Company's public
offerings in March and October 1997.
The Company's services are primarily provided under contracts, typically
having terms of one to five years, which provide the Company with a significant
source of predictable recurring revenues. Although the terms of the Company's
contracts vary significantly, clients generally agree that the Company will
provide a stated service level and agree to pay an hourly rate for services
provided. Certain of the Company's clients, especially in the cargo services
area, are billed a fixed dollar amount per month for services performed. Under
some contracts, the Company is entitled to rate increases when there are
increases in the Federal minimum wage although most of the Company's employees
are paid at rates in excess of the Federal minimum wage.
The Company recognizes revenues as services are performed. A substantial
amount of the Company's revenues are received, and operating costs are incurred,
in foreign currencies (primarily the British Pound and the German Deutsche
Mark), with a significant amount of operating income having been derived from
16
<PAGE> 19
operations in the United Kingdom. The denomination of foreign subsidiaries'
account balances in their local currency exposes the Company to certain foreign
exchange rate risks. The Company addresses the exposure by financing most
working capital needs in the applicable foreign currencies. The Company does not
engage in other purchased hedging transactions to reduce any remaining exposure
to fluctuations in foreign currency exchange rates. However, management does not
believe that the remaining risks are significant.
In the fall of 1996, the Company made the decision to terminate the
paratransit and municipal bus services offered by its transportation subsidiary
in Florida. The Company incurred nonrecurring pre-tax losses (including
termination costs) associated with these operations aggregating $665,000 in
1996.
RESULTS OF OPERATIONS
The following table sets forth Statement of Operations data as a percentage
of revenues for the periods indicated:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
DECEMBER 31,(1)
-----------------------
1995 1996 1997
----- ----- -----
<S> <C> <C> <C>
Revenues.................................................... 100.0% 100.0% 100.0%
Operating expenses:
Cost of services.......................................... 73.8 74.2 74.1
Field operating........................................... 18.0 17.8 16.6
Corporate general and administrative...................... 6.5 5.6 5.4
----- ----- -----
Operating income....................................... 1.7 2.4 3.9
Interest expense............................................ 0.8 0.8 0.4
Other income, net........................................... (0.5) (0.1) (0.2)
----- ----- -----
Income before income taxes and extraordinary items..... 1.4 1.7 3.7
Income tax provision........................................ 0.5 0.7 1.4
----- ----- -----
Income before extraordinary items......................... 0.9 1.0 2.3
Extraordinary items, net of taxes........................... -- -- (0.1)
----- ----- -----
Net income................................................ 0.9% 1.0% 2.2%
===== ===== =====
</TABLE>
- ---------------
(1) The Company's U.S. operations' fiscal year ends on the last Friday in
December. Each of the fiscal years presented consists of 52 weeks.
FISCAL 1997 COMPARED TO FISCAL 1996
Revenues. Revenues increased $65.8 million, or 31%, to $276.0 million in
fiscal 1997 from $210.2 million in fiscal 1996. Of this increase, approximately
$6.3 million was attributable to the July 1996 Intersec acquisition and $15.2
million was attributable to the Midwest Staffing, RightSide Up, Lloyd, USA
Security and EAS acquisitions completed in 1997. The remaining increase was a
result of entering into contracts to provide services to new clients and as a
result of providing additional services and expanding into new markets with
existing clients.
Cost of Services. Cost of services represents the direct costs
attributable to a specific contract, predominantly wages and related benefits,
as well as certain related expenses such as workers' compensation and other
direct labor related expenses. Cost of services increased $48.6 million, or 31%,
to $204.5 million in fiscal 1997 from $155.9 million in fiscal 1996. As a
percentage of revenues, cost of services improved slightly at 74.1% in fiscal
1997 from 74.2% in fiscal 1996.
Field Operating Expenses. Field operating expenses represent expenses
which directly support field operations, such as each district's management,
facilities expenses (such as rent, communication costs and taxes), employee
uniforms, equipment leasing, depreciation and maintenance, local sales and
marketing activities and acquisition related goodwill. These expenses increased
$8.5 million, or 23%, to $46.0 million in
17
<PAGE> 20
fiscal 1997 from $37.5 million in fiscal 1996. As a percentage of revenues,
field operating expenses decreased to 16.6% in fiscal 1997 from 17.8% in fiscal
1996. This percentage decrease was primarily attributable to the better
leveraging of existing field operations and termination of the Company's Florida
transportation operations which had significant field operating expenses.
Corporate General and Administrative Expenses. Corporate general and
administrative expenses, which includes the cost of services the Company
provides to support and manage its field activities, increased $3.1 million, or
27%, to $14.8 million in fiscal 1997 from $11.7 million in fiscal 1996. As a
percentage of revenues, these expenses decreased to 5.4% in fiscal 1997 as
compared to 5.6% in fiscal 1996. This percentage decrease was primarily due to
the Company's ability to increase revenues without a commensurate increase in
corporate expenses.
Operating Income. Operating income increased $5.7 million, or 112%, to
$10.7 million in fiscal 1997 from $5.0 million in fiscal 1996. As a percentage
of revenues, operating income improved to 3.9% in fiscal 1997 from 2.4% in
fiscal 1996.
Interest Expense. Interest expense decreased $567,000, or 33%, to $1.2
million in fiscal 1997 from $1.7 million in fiscal 1996. Interest expense for
fiscal 1997 decreased due to the application of the proceeds from the Company's
initial public offering to repay the Company's outstanding debt in 1997.
Income Tax Provision. Income tax provision increased $2.4 million, or
166%, to $3.9 million in fiscal 1997 from $1.5 million in fiscal 1996. The
Company provided income taxes at rates of approximately 38% in fiscal 1997 and
40% in fiscal 1996. The reduction in the effective rate was primarily due to a
reduction in the United Kingdom corporate tax rate in 1997.
Income Before Extraordinary Items. Income before extraordinary items for
fiscal 1997 increased $4.2 million, or 196%, to $6.4 million, or 2.3% of
revenues, from $2.2 million, or 1.0% of revenues, for fiscal 1996. The Company
expensed extraordinary items during 1997 of $642,000, before income tax benefit
of $257,000. The extraordinary items consisted of the write-off of unamortized
loan origination costs and debt discount.
Net Income. Net income increased $3.8 million, or 178%, to $6.0 million,
or 2.2% of revenues, in fiscal 1997 from $2.2 million, or 1.0% of revenues, in
fiscal 1996.
FISCAL 1996 COMPARED TO FISCAL 1995
Revenues. Revenues increased $41.6 million, or 25%, to $210.2 million in
fiscal 1996 from $168.6 million in fiscal 1995. Of this increase, approximately
$26.2 million was attributable to higher revenues from existing clients,
approximately $9.1 million to services initiated for new clients and $6.3
million to the Intersec acquisition. Revenues from existing clients increased
16% in fiscal 1996 over fiscal 1995 primarily as a result of providing
additional services and expanding into new markets with these clients.
Cost of Services. Cost of services increased $31.4 million, or 25%, to
$155.9 million in fiscal 1996 from $124.5 million in fiscal 1995. As a
percentage of revenues, cost of services increased to 74.2% in fiscal 1996 from
73.8% in fiscal 1995. This percentage increase was primarily attributable to
lower gross margins on the terminated Florida transportation operations and
operating inefficiencies associated with a contract in Detroit which began in
April 1996. The Company has corrected these inefficiencies through a change in
management at the Detroit location and increases in rates paid to the Company
with respect to this Detroit contract.
Field Operating Expenses. Field operating expenses increased $7.2 million,
or 24%, to $37.5 million in fiscal 1996 from $30.3 million in fiscal 1995,
primarily as a result of administrative staff, systems and facilities expenses
for new operations in Chicago, Cincinnati, San Francisco, Los Angeles and
Seattle opened during fiscal 1996. As a percentage of revenues, these expenses
decreased to 17.8% in fiscal 1996 from 18.0% in fiscal 1995.
Corporate General and Administrative Expenses. Corporate general and
administrative expenses increased $754,000, or 7%, to $11.7 million in fiscal
1996 from $10.9 million in fiscal 1995. As a percentage of revenues, these
expenses decreased to 5.6% in fiscal 1996 from 6.5% in fiscal 1995. This
percentage decrease
18
<PAGE> 21
was primarily due to the Company's ability to increase revenues without a
commensurate increase in corporate expenses.
Operating Income. Operating income increased $2.2 million, or 77%, to $5.0
million in fiscal 1996 from $2.8 million in fiscal 1995. As a percentage of
revenues, operating income improved to 2.4% in fiscal 1996 from 1.7% in fiscal
1995.
Interest Expense. Interest expense increased $417,000 to $1.7 million in
fiscal 1996 from $1.3 million in fiscal 1995. This was the result of
approximately $4.7 million of additional indebtedness incurred in connection
with the Intersec Acquisition in July 1996 and higher borrowings under the
Company's revolving line of credit.
Other Income, Net. Other income, net decreased $519,000 to $301,000 in
fiscal 1996 from $820,000 in fiscal 1995. This decrease was primarily due to the
non-recurring collection of notes received in the sale of the Company's drug
testing subsidiary in October 1995.
Net Income. Net income increased $733,000, or 51%, to $2.2 million, or
1.0% of revenues, in fiscal 1996 from net income of $1.4 million, or 0.9% of
revenues, in fiscal 1995. The Company's effective income tax rate was
approximately 40% for fiscal 1996 compared to 39% in fiscal 1995.
QUARTERLY RESULTS AND SEASONALITY
The following table sets forth statement of operations data for the four
quarters of fiscal 1996 and 1997. This quarterly information is unaudited but
has been prepared on a basis consistent with the Company's audited financial
statements presented elsewhere herein and, in the Company's opinion, includes
all adjustments (consisting only of normal recurring adjustments) necessary for
a fair presentation of the information for the quarters presented. The operating
results for any quarter are not necessarily indicative of results for any future
period.
<TABLE>
<CAPTION>
QUARTER ENDED
----------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1997 1997 1997 1997
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
Revenues...................................... $60,424 $63,770 $72,369 $79,450
Operating expenses:
Cost of services............................ 45,428 47,341 53,242 58,501
Field operating............................. 9,923 10,343 11,880 13,810
Corporate general and administrative........ 3,435 3,668 4,041 3,696
------- ------- ------- -------
Operating income......................... 1,638 2,418 3,206 3,443
Interest expense.............................. 648 170 177 164
Other income, net............................. (88) (154) (201) (280)
------- ------- ------- -------
Income before income taxes and extraordinary
items.................................... 1,078 2,402 3,230 3,559
Income tax provision.......................... 427 948 1,210 1,265
------- ------- ------- -------
Income before extraordinary items........... 651 1,454 2,020 2,294
Extraordinary items, net of taxes ............ -- (385) -- --
------- ------- ------- -------
Net income.......................... $ 651 $ 1,069 $ 2,020 $ 2,294
======= ======= ======= =======
</TABLE>
19
<PAGE> 22
<TABLE>
<CAPTION>
QUARTER ENDED
----------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1996 1996 1996 1996
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
Revenues...................................... $45,519 $47,643 $57,320 $59,671
Operating expenses:
Cost of services............................ 33,541 35,342 42,453 44,590
Field operating............................. 8,253 8,427 10,193 10,619
Corporate general and administrative........ 2,864 2,848 2,708 3,272
------- ------- ------- -------
Operating income......................... 861 1,026 1,966 1,190
Interest expense.............................. 309 301 549 567
Other income, net............................. (57) (81) (81) (82)
------- ------- ------- -------
Income before income taxes.................. 609 806 1,498 705
Income tax provision.......................... 244 322 599 282
------- ------- ------- -------
Net income.......................... $ 365 $ 484 $ 899 $ 423
======= ======= ======= =======
</TABLE>
The Company's contracts at airports with large volumes of international
passengers (such as New York -- Kennedy and London -- Heathrow) result in an
increase in staffing for certain passenger services during periods of higher air
travel, typically in the summer. The Company's contracts at airports with fewer
international passengers generally require more constant staffing throughout the
year. Therefore, the Company has experienced, and expects to continue to
experience, quarterly variations in its results of operations principally as a
result of the seasonality of air travel primarily to and from Europe. While the
effects of seasonality on AHL's business often are obscured by the timing of the
addition of new clients and the commencement of new services for existing
clients, the Company's operating income tends to be lower in the first and
fourth quarters of the fiscal year and highest in the third quarter of the
fiscal year. Additionally, the Company's operating margin tends to be lower in
the fourth quarter because of the occurrence of holidays during which the
Company pays overtime wages to employees. Under certain of the Company's
contracts, the Company is not entitled to recoup the cost of these overtime
wages.
LIQUIDITY AND CAPITAL RESOURCES
To support its rapid growth, AHL has historically relied on borrowings
under its bank revolving credit facility. In May 1997, the Company entered into
a three-year, $35 million revolving bank line of credit to replace the Company's
prior $25 million revolving credit facility. In February 1998, the Company
expanded the credit facility (the "Credit Facility") to $100 million (of which
$35 million is available in foreign currencies) through a syndication of five
banks, lengthened the term to five years and lowered the interest rate.
Borrowings under the Credit Facility bear interest at the prime rate, the
Federal Funds rate plus 50 basis points or LIBOR plus 55 basis points. The
Credit Facility is collateralized by substantially all of the Company's assets.
In addition, the Credit Facility is subject to certain restrictive covenants. As
of December 31, 1997, there was approximately $1.8 million outstanding under the
Credit Facility.
Cash used in operating activities was $2.6 million in fiscal 1997 compared
to cash provided by operating activities of $1.2 million for fiscal 1996. This
decrease was the result of the increase of $5.3 million in net income before
depreciation and amortization and extraordinary items offset by $9.1 million of
changes in working capital due to increase in accounts receivable as a result of
the increase in revenues and the timing of payments of accounts payable and
accrued expenses. Cash used in investing activities for fiscal 1997 was $26.8
million compared to $4.0 million for fiscal 1996. This was principally the
result of the five acquisitions completed in 1997 as compared to only one in
1996 as well as increased expenditures on capital assets, primarily
transportation and computer equipment. Cash provided by financing activities for
fiscal 1997 was $43.1 million compared to $3.4 million for fiscal 1996. The
increase was principally the result of proceeds from the public offerings of
common stock in 1997, net of expenses, of $63.4 million offset by an increase in
net payments of debt of $24.7 million, as compared to 1996.
Cash provided by operating activities was $1.2 million for fiscal 1996 as
compared to cash used in operating activities of $3.5 million in fiscal 1995.
This increase was primarily the result of the increase of $1.0
20
<PAGE> 23
million in net income before depreciation and amortization and by $2.9 million
of changes in operating assets, primarily accounts receivable, accrued salaries
and related benefits payable. These changes were consistent with the Company's
higher volume of business. Cash used in investing activities for fiscal 1996 was
$4.0 million as compared to $1.6 million in fiscal 1995, principally as a result
of the Intersec acquisition made in July 1996. Cash provided by financing
activities for fiscal 1996 was $3.3 million compared to $5.1 million in fiscal
1995, principally representing changes in borrowings under the Company's credit
facility and issuance of the subordinated notes associated with the Intersec
acquisition.
Capital expenditures were $2.6 million, $2.0 million and $4.7 million in
fiscal 1995, 1996 and 1997, respectively. Historically, capital expenditures
have been, and future expenditures are anticipated to be, primarily to support
expansion of the Company's operations and management information systems. The
Company's capital expenditures over the next several years, as a percentage of
its revenues, are expected to be generally consistent with those of the past
three fiscal years.
The Company completed its initial public offering of Common Stock in March
1997, raising net proceeds of approximately $22 million. These proceeds were
used to repay all outstanding amounts under the Company's Credit Facility, to
repurchase an outstanding warrant and to retire other outstanding acquisition-
related debt. The Company completed a follow-on offering in October 1997,
raising net proceeds of approximately $41 million. These proceeds were used to
repay outstanding debt used to fund acquisitions of approximately $16 million
with the balance for general corporate purposes, including working capital to
support the Company's growth and acquisitions.
The Company believes that funds generated from operations, together with
existing cash and borrowings under the Credit Facility, will be sufficient to
finance its current operations, planned capital expenditure requirements,
additional acquisitions and internal growth for at least the next several years.
If the Company were to make a significant acquisition for cash, it may be
necessary for the Company to obtain additional debt or equity financing.
INFLATION
The Company does not believe that inflation has had a material effect on
its results of operations in recent years. However, there can be no assurance
that the Company's business will not be affected by inflation in the future.
YEAR 2000
The Company has determined that the year 2000 issue will not have a
material effect on its business, operations or management information systems.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements are listed under Item 14(a) of this annual report
and are filed as part of this report on the pages indicated. The supplementary
data are included under Item 7 of this annual report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
21
<PAGE> 24
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The sections under the headings "Election of Directors" entitled "Nominees
for Election -- Term Expiring 1998," "Incumbent Directors -- Term Expiring
1999," and "Incumbent Directors -- Term Expiring 2000" of the Proxy Statement
for the Annual Meeting of Shareholders to be held May 14, 1998 (the "Proxy
Statement") are incorporated herein by reference for information on Directors of
the Registrant. See Item X in Part I hereof for information regarding executive
officers of the Registrant. The section under the heading "Other Matters"
entitled "Section 16(a) Beneficial Ownership Reporting Compliance" of the Proxy
Statement is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
The section under the heading "Election of Directors" entitled
"Compensation of Directors" of the Proxy Statement and the sections under the
heading titled "Executive Compensation" entitled "Summary Compensation Table",
"Fiscal Year-End Option Value Table", "Employment Agreements" and "Compensation
Committee Interlocks and Insider Participation" of the Proxy Statement are
incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The section under the heading "Common Stock Ownership by Management and
Principal Shareholders" of the Proxy Statement is incorporated herein by
reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The section under the heading "Certain Transactions" of the Proxy Statement
is incorporated herein by reference.
22
<PAGE> 25
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES, AND REPORTS ON FORM 8-K.
(a) Financial Statements and Schedules
1. The following financial statements are filed with this report on the pages
indicated:
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
AHL SERVICES, INC.:
Report of Independent Public Accountants.................... 26
Consolidated Balance Sheets at December 31, 1996 and 1997... 27
Consolidated Statements of Operations for the years ended
December 31, 1995, 1996 and 1997.......................... 28
Consolidated Statements of Shareholders' Equity for the
years ended December 31, 1995, 1996 and 1997.............. 29
Consolidated Statements of Cash Flows for the years ended
December 31, 1995, 1996 and 1997.......................... 30
Notes to Consolidated Financial Statements.................. 32
</TABLE>
2. The Company is not required to file any financial statement schedules.
3. Exhibits
See Item 14(c) below.
(b) The Company filed no Current Reports on Form 8-K during the last
quarter of the period covered by this Report.
(c) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER NUMBER DESCRIPTION
- ------- ------------------
<C> <S> <C>
3.1 -- Restated and Amended Articles of Incorporation of the
Company (incorporated by reference to the Registration
Statement on Form 8-A dated March 25, 1997)
3.2 -- Bylaws of the Company (incorporated by reference to the
Registration Statement on Form 8-A dated March 25, 1997)
4.1 -- Specimen Common Stock Certificate (incorporated by reference
to the Company's Registration Statement on Form S-1 (File
No. 333-20315))
4.2 -- 1997 Stock Incentive Plan (incorporated by reference to the
Company's Registration Statement on Form S-1 (File No.
333-20315))
4.3* -- AHL Services, Inc. 1997 Non-Qualified Employee Stock
Purchase Plan USA
10.1 -- Restated Employment Agreement between the Company and Edwin
R. Mellett dated as of February 1, 1997, as amended on
February 28, 1997 (incorporated by reference to the
Company's Registration Statement on Form S-1 (File No.
333-20315))
10.2 -- Restated Employment Agreement between the Company and Thomas
J. Marano dated as of February 1, 1997, as amended on
February 28, 1997 (incorporated by reference to the
Company's Registration Statement on Form S-1 (File No.
333-20315))
10.3 -- Restated Employment Agreement between the Company and David
L. Gamsey dated as of February 1, 1997, as amended on
February 28, 1997 (incorporated by reference to the
Company's Registration Statement on Form S-1 (File No.
333-20315))
</TABLE>
23
<PAGE> 26
<TABLE>
<CAPTION>
EXHIBIT
NUMBER NUMBER DESCRIPTION
- ------- ------------------
<C> <S> <C>
10.4 -- Director's Service Agreement between The ADI Group Limited
and Alan Trevor Warburton dated as of January 1, 1993
(incorporated by reference to the Company's Registration
Statement on Form S-1 (File No. 333-20315))
10.5 -- Letter Agreement between the Company and Ernest Patterson
dated as of May 23, 1997 (incorporated by reference to the
Company's Registration Statement on Form S-1 (File No. 333-
37327))
10.6* -- Credit Agreement dated as of February 10, 1998 by and among
AHL Services, Inc., Argenbright Security, Inc., Argenbright,
Inc., ADI U.K. Limited, Aviation Defense International
Germany Limited, Argenbright Holdings Limited and The ADI
Group Limited, as borrowers, the Lenders referred to
therein, First Union National Bank (London Branch), as
European Facility Lender and First Union National Bank of
Georgia, as Administrative Agent
10.7+ -- Agreement between Argenbright Security Inc. and United Air
Lines, Inc., dated as of November 16, 1996 (incorporated by
reference to the Company's Registration Statement on Form
S-1 (File No. 333-20315))
10.8+ -- Agreement between Argenbright Security, Inc. and United Air
Lines, Inc., dated of December 8, 1996 (incorporated by
reference to the Company's Registration Statement on Form
S-1 (File No. 333-20315))
10.9+ -- Security Services Agreement between Argenbright Security,
Inc. and America Online Inc., dated as of March 12, 1997 and
relating to services commenced on June 1, 1996 (incorporated
by reference to the Company's Registration Statement on Form
S-1 (File No. 333-20315))
11.1* -- Statement of Computation of Earnings Per Share
21.1* -- List of subsidiaries
23.1* -- Consent of Arthur Andersen LLP
27.1* -- Financial data schedule December 31, 1997 (for SEC filing
purposes only)
27.2* -- Restated Financial data schedule December 31, 1996 (for SEC
filing purposes only)
</TABLE>
- ---------------
+ The Company has been granted confidential treatment of portions of this
Exhibit. Accordingly, portions thereof have been omitted and filed separately
with the Commission.
* Included herewith
24
<PAGE> 27
AHL SERVICES, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants.................... 26
Consolidated Balance Sheets -- December 31, 1996 and 1997... 27
Consolidated Statements of Operations for the Years Ended
December 31, 1995, 1996, and 1997......................... 28
Consolidated Statements of Shareholders' Equity for the
Years Ended December 31, 1995, 1996, and 1997............. 29
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1995, 1996, and 1997......................... 30
Notes to Consolidated Financial Statements.................. 32
</TABLE>
25
<PAGE> 28
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders of
AHL Services, Inc.:
We have audited the accompanying consolidated balance sheet of AHL
SERVICES, INC. (a Georgia corporation) AND SUBSIDIARIES as of December 31, 1997
and the combined balance sheets of ARGENBRIGHT HOLDINGS LIMITED (a Georgia
corporation) AND SUBSIDIARIES and THE ADI GROUP LIMITED (incorporated in the
United Kingdom) (collectively, AHL Services, Inc.) as of December 31, 1996 and
the related consolidated and combined statements of operations, shareholders'
equity, and cash flows for each of the three years in the period ended December
31, 1997. 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 financial position of AHL Services, Inc. and
subsidiaries as of December 31, 1997 and 1996 and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1997 in conformity with generally accepted accounting principles.
Arthur Andersen LLP
Atlanta, Georgia
February 18, 1998
26
<PAGE> 29
AHL SERVICES, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1996 1997
--------- ----------
(IN THOUSANDS, EXCEPT
PER SHARE DATA)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents................................. $ 1,842 $ 15,456
Accounts receivable, less allowance for doubtful accounts
of $341 and $532
in 1996 and 1997....................................... 34,692 51,247
Due from related parties.................................. 269 --
Uniforms in service, net.................................. 1,987 2,087
Prepaid expenses and other................................ 2,085 2,761
------- --------
Total current assets.............................. 40,875 71,551
PROPERTY AND EQUIPMENT, net................................. 5,674 10,885
INTANGIBLES, net............................................ 4,141 25,665
DEFERRED INCOME TAXES....................................... 708 980
OTHER ASSETS................................................ 555 713
------- --------
$51,953 $109,794
======= ========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable.......................................... $ 4,667 $ 3,298
Accrued payroll and other current liabilities............. 15,413 22,561
Current portion of self-insurance reserves................ 640 760
Income taxes payable...................................... 1,018 1,281
Current portion of long-term debt......................... 1,617 496
Deferred income taxes..................................... 167 332
------- --------
Total current liabilities......................... 23,522 28,728
------- --------
LONG-TERM DEBT, less current portion........................ 19,178 3,495
------- --------
SELF-INSURANCE RESERVES, less current portion............... 2,560 3,040
------- --------
DEFERRED INCOME TAXES....................................... 50 --
------- --------
COMMITMENTS AND CONTINGENCIES (Notes 4, 6, and 10).......... -- --
------- --------
REDEEMABLE WARRANT.......................................... 706 --
------- --------
NOTE PAYABLE TO SHAREHOLDER................................. 528 --
------- --------
SHAREHOLDERS' EQUITY:
Common stock of AHL Services, Inc., $.01 par value;
50,000,000 shares authorized, 13,605,000 shares issued
and outstanding in 1997................................ -- 136
Preferred stock of AHL Services, Inc., no par value;
5,000,000 shares authorized, no shares outstanding
Common stock of Argenbright, $1 par value; 50,000 shares
authorized, 500 and 0 shares issued and outstanding in
1996 and 1997.......................................... 1 --
Common stock of ADI, no par value; 5,000,000 shares
authorized, 296,868 and 0 shares issued and outstanding
in 1996 and 1997
Cumulative translation adjustment......................... 74 (83)
Paid-in capital........................................... -- 62,908
Retained earnings......................................... 5,952 11,570
Due from shareholder...................................... (618) --
------- --------
Shareholders' equity, net.............................. 5,409 74,531
------- --------
$51,953 $109,794
======= ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
27
<PAGE> 30
AHL SERVICES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------
1995 1996 1997
--------- --------- ---------
(IN THOUSANDS, EXCEPT PER SHARE
DATA)
<S> <C> <C> <C>
REVENUES.................................................... $168,601 $210,153 $276,013
OPERATING EXPENSES:
Cost of services.......................................... 124,491 155,926 204,512
Field operating........................................... 30,328 37,492 45,956
Corporate, general, and administrative.................... 10,938 11,692 14,840
-------- -------- --------
Total operating expenses.......................... 165,757 205,110 265,308
-------- -------- --------
OPERATING INCOME............................................ 2,844 5,043 10,705
INTEREST EXPENSE............................................ 1,309 1,726 1,159
OTHER INCOME, net........................................... (820) (301) (723)
-------- -------- --------
INCOME BEFORE INCOME TAXES AND EXTRAORDINARY ITEMS.......... 2,355 3,618 10,269
INCOME TAX PROVISION........................................ 917 1,447 3,850
-------- -------- --------
INCOME BEFORE EXTRAORDINARY ITEMS........................... 1,438 2,171 6,419
EXTRAORDINARY ITEMS--LOSS ON EARLY EXTINGUISHMENT OF DEBT,
net of tax benefit of $257................................ -- -- (385)
-------- -------- --------
NET INCOME.................................................. $ 1,438 $ 2,171 $ 6,034
======== ======== ========
EARNINGS PER SHARE:
Basic:
Income before extraordinary items per common and common
equivalent shares.................................... $ 0.17 $ 0.26 $ 0.60
Extraordinary items per common and common equivalent
shares............................................... -- -- (0.04)
-------- -------- --------
Net income per common and common equivalent shares..... $ 0.17 $ 0.26 $ 0.56
======== ======== ========
Diluted:
Income before extraordinary items per common and common
equivalent shares.................................... $ 0.17 $ 0.26 $ 0.59
Extraordinary items per common and common equivalent
shares............................................... -- -- (0.04)
-------- -------- --------
Net income per common and common equivalent shares..... $ 0.17 $ 0.26 $ 0.55
======== ======== ========
Weighted average common and common equivalent shares:
Basic.................................................. 8,353 8,353 10,707
======== ======== ========
Diluted................................................ 8,353 8,433 10,960
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
28
<PAGE> 31
AHL SERVICES, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
AHL SERVICES, INC. ARGENBRIGHT ADI
COMMON STOCK COMMON STOCK COMMON STOCK CUMULATIVE
------------------- ------------------- ------------------- TRANSLATION
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT ADJUSTMENT
---------- ------ ---------- ------ ---------- ------ -----------
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31,
1994................ -- $ -- 500 $ 1 296,868 $ - $ 18
Increase in due from
shareholder....... -- -- -- -- -- -- --
Translation
adjustment........ -- -- -- -- -- -- (16)
Net income.......... -- -- -- -- -- -- --
---------- ---- ---------- --- ---------- -- ----
BALANCE, DECEMBER 31,
1995................ -- -- 500 1 296,868 -- 2
Accretion of
redeemable
warrant........... -- -- -- -- -- -- --
Increase in due from
shareholder....... -- -- -- -- -- -- --
Translation
adjustment........ -- -- -- -- -- -- 72
Net income.......... -- -- -- -- -- -- --
---------- ---- ---------- --- ---------- -- ----
BALANCE, DECEMBER 31,
1996................ -- -- 500 1 296,868 -- 74
Reorganization (Note
1)................ 8,353,430 84 (500) (1) (296,868) -- --
Issuance of common
stock, net........ 5,251,570 52 -- -- -- -- --
Accretion of
redeemable
warrant........... -- -- -- -- -- -- --
Decrease in due from
shareholder....... -- -- -- -- -- -- --
Translation
adjustment........ -- -- -- -- -- -- (157)
Net income.......... -- -- -- -- -- -- --
---------- ---- ---------- --- ---------- -- ----
BALANCE, DECEMBER 31,
1997................ 13,605,000 $136 -- $-- -- $-- $(83)
========== ==== ========== === ========== === ====
<CAPTION>
PAID-IN RETAINED DUE FROM
CAPITAL EARNINGS SHAREHOLDER TOTAL
------- -------- ----------- -------
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<S> <C> <C> <C> <C>
BALANCE, DECEMBER 31,
1994................ $ -- $ 2,431 $(198) $ 2,252
Increase in due from
shareholder....... -- -- (97) (97)
Translation
adjustment........ -- -- -- (16)
Net income.......... -- 1,438 -- 1,438
------- ------- ----- -------
BALANCE, DECEMBER 31,
1995................ -- 3,869 (295) 3,577
Accretion of
redeemable
warrant........... -- (88) -- (88)
Increase in due from
shareholder....... -- -- (323) (323)
Translation
adjustment........ -- -- -- 72
Net income.......... -- 2,171 -- 2,171
------- ------- ----- -------
BALANCE, DECEMBER 31,
1996................ -- 5,952 (618) 5,409
Reorganization (Note
1)................ -- (372) -- (289)
Issuance of common
stock, net........ 62,908 -- -- 62,960
Accretion of
redeemable
warrant........... -- (44) -- (44)
Decrease in due from
shareholder....... -- -- 618 618
Translation
adjustment........ -- -- -- (157)
Net income.......... -- 6,034 -- 6,034
------- ------- ----- -------
BALANCE, DECEMBER 31,
1997................ $62,908 $11,570 $ -- $74,531
======= ======= ===== =======
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
29
<PAGE> 32
AHL SERVICES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31
---------------------------------
1995 1996 1997
--------- --------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income................................................ $ 1,438 $ 2,171 $ 6,034
Adjustments to reconcile net income to net cash (used in)
provided by operating activities:
Extraordinary items.................................... -- -- 385
Depreciation and amortization.......................... 3,897 4,158 5,234
Gain on sale of subsidiary............................. (823) (325) --
Loss (gain) on sales of property and equipment......... -- 133 (119)
Amortization of debt discount.......................... -- 180 93
Minority interest in net income........................ (26) -- --
Changes in assets and liabilities, net of assets of
acquired businesses:
Accounts receivable.................................. (12,511) (7,860) (16,859)
Due from related parties............................. 305 (538) 242
Uniforms in service.................................. (1,912) (2,575) (2,582)
Prepaid expenses and other........................... 1,343 3,304 (1,422)
Accounts payable..................................... (343) 141 (1,334)
Accrued payroll and other current liabilities........ 2,844 4,068 6,856
Self-insurance reserves.............................. 1,427 1,000 600
Income taxes payable................................. 1,769 (2,634) 413
Deferred income taxes................................ (949) (42) (157)
--------- --------- ---------
Net cash (used in) provided by operating
activities...................................... (3,541) 1,181 (2,616)
--------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment, net.................. (2,571) (1,974) (4,653)
Proceeds from sales of property and equipment............. -- 245 440
Proceeds from sale of subsidiary.......................... 975 325 --
Purchase of businesses.................................... -- (2,500) (22,420)
Other activities, net..................................... -- (102) (172)
--------- --------- ---------
Net cash used in investing activities............. (1,596) (4,006) (26,805)
--------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of long-term debt............................... (909) (1,609) (8,346)
Repayments of line of credit.............................. (115,617) (142,350) (114,102)
Borrowings under line of credit........................... 107,938 144,094 101,925
Proceeds from issuance of common stock.................... -- -- 64,854
Expenses from issuance of common stock.................... -- -- (1,467)
Repurchase of outstanding warrant......................... -- -- (750)
Proceeds from refinancing of debt......................... 13,965 -- --
Proceeds from issuance of long-term debt.................. -- 4,000 --
(Increase) decrease in due from shareholder............... (97) (323) 618
Repayment of note from shareholder........................ -- -- 346
Repayment of note payable to shareholder.................. -- (122) --
Payment of debt issuance costs............................ (166) (340) --
--------- --------- ---------
Net cash provided by financing activities......... 5,114 3,350 43,078
--------- --------- ---------
EFFECT OF EXCHANGE RATES ON CASH............................ (18) 148 (43)
--------- --------- ---------
NET CHANGE IN CASH AND CASH EQUIVALENTS..................... (41) 673 13,614
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR.............. 1,210 1,169 1,842
--------- --------- ---------
CASH AND CASH EQUIVALENTS AT END OF YEAR.................... $ 1,169 $ 1,842 $ 15,456
========= ========= =========
</TABLE>
30
<PAGE> 33
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31
---------------------------------
1995 1996 1997
--------- --------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
CASH PAID DURING THE YEAR FOR:
Interest.................................................. $ 1,381 $ 1,427 $ 1,159
========= ========= =========
Income taxes.............................................. $ 562 $ 2,538 $ 3,710
========= ========= =========
NONCASH INVESTING AND FINANCING ACTIVITIES:
Equipment purchases under capital lease obligations....... $ 530 $ 546 $ 472
========= ========= =========
Redeemable warrant issued in connection with Sirrom
Notes.................................................. $ -- $ 618 $ --
========= ========= =========
Accretion of redeemable warrant........................... $ -- $ 88 $ 44
========= ========= =========
Notes issued for Intersec acquisition..................... $ -- $ 1,155 $ --
========= ========= =========
Contribution of real estate (Note 1)...................... $ -- $ -- $ 1,637
========= ========= =========
Forgiveness of note payable to shareholder................ $ -- $ -- $ 528
========= ========= =========
Assumption of real estate debt............................ $ -- $ -- $ 2,532
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
31
<PAGE> 34
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. DESCRIPTION OF THE BUSINESS
AHL Services, Inc. ("AHL" or the "Company") provides predeparture
screening, passenger profiling, access control, shuttle bus, cargo handling,
staff for light industrial and warehouse pick and pack functions, order
fulfillment, and other services primarily throughout the United States, the
United Kingdom, France, and Germany to various customers, including airlines,
governmental entities, corporations, and other enterprises.
The accompanying consolidated financial statements for the years ended
December 31, 1995 and 1996 represent the combination of the consolidated
financial statements of Argenbright Holdings Limited ("Argenbright") and The ADI
Group Limited and its predecessor entities ("ADI"). On February 1, 1997, Frank
A. Argenbright, Jr. (the "primary shareholder") contributed all of the
outstanding shares of common stock of Argenbright and ADI to AHL. In addition to
the contribution of the shares of Argenbright and ADI to AHL, Mr. Argenbright
contributed certain real estate, a portion of which was previously rented by the
Company (with the Company assuming the related mortgage debt) and a note with a
balance of $528,000 payable by the Company to Mr. Argenbright (collectively the
"Reorganization"). All of these transactions were brought forward at historical
values. Effective with the Reorganization, the capital structure of AHL
consisted of 50,000,000 shares authorized, 8,353,430 shares issued and
outstanding of $.01 par value common stock and 5,000,000 shares authorized, no
shares issued and outstanding of no par value preferred stock. Shares
outstanding and all other references to shares of common stock for the years
ended December 31, 1995 and 1996 are pro forma to give effect to the revised
capital structure.
In March 1997, the Company completed an initial public offering of its
common stock. The Company issued 2,500,000 shares at an initial public offering
price of $10.00 per share. The total proceeds of the initial public offering,
net of underwriting discounts and offering expenses, were approximately
$22,000,000. Subsequent to the public offering of common stock, the Company
repaid outstanding debt of approximately $19,000,000 and repurchased the
outstanding warrant of $750,000. Upon repayment of outstanding debt, the Company
wrote off $642,000 of debt issuance costs before income tax benefit of $257,000,
which was reported as an extraordinary item.
In October 1997, the Company completed a follow-on offering of 2,751,570
shares of its common stock at an offering price of $16.00 per share. The total
proceeds, net of underwriting discounts and offering expenses, were
approximately $41,000,000. The proceeds were used to repay outstanding debt of
approximately $16,000,000 with the balance for general corporate purposes,
including working capital to support the Company's growth and acquisitions.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The accompanying consolidated financial statements include the accounts of
AHL and its wholly owned subsidiaries. All significant intercompany accounts
have been eliminated.
FISCAL YEAR-END
The Company's United States operation (Argenbright) maintains its books by
using a 52/53-week fiscal year ending on the last Friday in December. The end of
Argenbright's 1997 fiscal year was December 26. For purposes of the consolidated
financial statements, the year-end is stated as of December 31. The impact of
the use of different year-ends is immaterial, and each of the years ended
December 31, 1995, 1996, and 1997 include 52 weeks.
32
<PAGE> 35
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
PRESENTATION
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 the
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents include highly liquid investments with original
purchase maturities of three months or less.
UNIFORMS IN SERVICE
Uniforms in service are recorded at cost and are amortized over their
estimated useful life of 18 months.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost, less accumulated depreciation
and amortization. Depreciation and amortization are provided using the
straight-line method over estimated useful lives of 2 to 10 years for office
furniture and equipment and transportation equipment and 25 years for buildings.
Leasehold improvements are amortized over the lesser of their useful lives or
the terms of the related leases.
Property and equipment were comprised of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------
1996 1997
------- --------
(IN THOUSANDS)
<S> <C> <C>
Land........................................................ $ -- $ 321
Buildings and leasehold improvements........................ 1,493 3,029
Office furniture and equipment.............................. 6,223 10,163
Transportation equipment.................................... 6,266 7,745
------- --------
13,982 21,258
Less accumulated depreciation............................... (8,308) (10,373)
------- --------
$ 5,674 $ 10,885
======= ========
</TABLE>
Depreciation expense was $1,806,000, $1,870,000, and $2,211,000 for the
years ended December 31, 1995, 1996, and 1997, respectively.
INTANGIBLES
Intangibles were comprised of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------
1996 1997
------ -------
(IN THOUSANDS)
<S> <C> <C>
Goodwill.................................................... $3,757 $24,773
Other intangibles........................................... 881 1,702
------ -------
4,638 26,475
Less accumulated amortization............................... (497) (810)
------ -------
$4,141 $25,665
====== =======
</TABLE>
33
<PAGE> 36
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Goodwill and other intangibles are amortized using the straight-line method
over periods ranging up to 40 years. Amortization expense for goodwill and other
intangibles was $153,000, $236,000, and $522,000 for the years ended December
31, 1995, 1996, and 1997, respectively.
ACCOUNTS PAYABLE
Accounts payable at December 31, 1996 includes book overdrafts created by
outstanding checks of $2,098,000. There were no book overdrafts at December 31,
1997.
REVENUE RECOGNITION
The Company recognizes revenues as services are performed.
EARNINGS PER SHARE
In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share," effective
for the Company's fiscal year ended December 31, 1997. The Company adopted the
new guidelines for the calculation in 1997 and presentation of earnings per
share, and all prior periods have been restated. Basic earnings per share are
based on the weighted average number of shares outstanding. Diluted earnings per
share are based on the weighted average number of shares outstanding and the
dilutive effect of common stock equivalent shares ("CSEs") issuable upon the
conversion of stock options and the warrant (using the treasury stock method).
Net income is not reduced by the $88,000 and $44,000 provisions for accretion of
the redeemable warrant redemption value for the years ended December 31, 1996
and 1997, respectively, because the calculation assumes that the related common
stock was outstanding in lieu of the redeemable warrant (Notes 6 and 8).
Pursuant to the Securities and Exchange Commission ("SEC") Staff Accounting
Bulletin ("SAB") No. 83, common stock and CSEs issued at prices below the public
offering price during the 12-month period prior to the initial public offering
were included in the calculation in previously issued financial statements as if
they were outstanding for all periods presented, regardless of whether they are
dilutive. In February 1998, the SEC released SAB No. 98 on computations of
earnings per share. SAB No. 98 replaces SAB No. 83 and requires, among other
items, that only "nominal issuances" of common stock be reflected in the
calculation as if they were outstanding for all periods presented and that the
calculation be made in accordance with SFAS No. 128 for periods subsequent to
the offering. Accordingly, CSEs for 1996 have been restated to be included only
from the date of grant resulting on increase in earnings per share for the year
ended December 31, 1996 from $0.25 to $0.26.
The following table reconciles the denominator of the basic and diluted
earnings per share computations (in thousands):
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
--------------
1996 1997
----- ------
<S> <C> <C>
Weighted average common shares.............................. 8,353 10,707
Incremental shares from assumed conversion of stock options
granted and warrants issued............................... 80 253
----- ------
Weighted average common shares and dilutive potential common
shares.................................................... 8,433 10,960
===== ======
</TABLE>
FOREIGN CURRENCY TRANSLATION AND EXPOSURE
In the accompanying balance sheets, all asset and liability accounts of
foreign subsidiaries are translated into U.S. dollars at the rate of exchange in
effect at the balance sheet date. Shareholders' equity is translated
34
<PAGE> 37
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
at historical rates. All income statement accounts of foreign subsidiaries are
translated at average exchange rates during the year. Resulting translation
adjustments arising from these translations are charged or credited directly to
shareholders' equity. Gains or losses on foreign currency transactions are
included in income as incurred. The denomination of foreign subsidiaries'
account balances in their local currencies exposes the Company to certain
foreign exchange rate risks. The Company addresses the exposure by financing
most working capital needs in the applicable foreign currencies. The Company
does not engage in other purchased hedging transactions to reduce any remaining
exposure to fluctuations in foreign currency exchange rates. However, management
does not believe the remaining risks to be significant.
SIGNIFICANT CUSTOMER CONCENTRATION
During the years ended December 31, 1995, 1996, and 1997, the following
clients individually accounted for more than 10% of the Company's revenues:
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Customer A.................................................. 10.5% 11.3% 18.8%
Customer B.................................................. 23.6 23.1 17.2
Customer C.................................................. 15.7 12.6 12.7
</TABLE>
As of December 31, 1996 and 1997, approximately 37.9% and 32.8%,
respectively, of the Company's accounts receivable were from these three
clients. The Company's policy does not require significant collateral or other
security to support such receivables.
3. SALE OF SUBSIDIARY
In October 1995, the Company sold substantially all of the assets of
Intergram, Inc., Argenbright's wholly owned subsidiary which provided drug
testing, for $1,300,000, of which $975,000 was received in cash and the
remaining $325,000 was in the form of a note receivable. During fiscal 1995, the
cash portion of the sale resulted in a gain of $823,000, which is reflected in
the accompanying statements of operations as other income, net in 1995. The
balance of the gain reflected by the note receivable of $325,000 was recognized
during 1996 upon receipt of the proceeds.
4. ACQUISITIONS
In July 1996, the Company acquired Intersec, Inc. ("Intersec") for
$2,500,000 in cash and $1,155,000 in the form of notes payable. Intersec
provides access control services in the Washington, D.C. area.
In May 1997, the Company entered into a joint venture with British Airways
to acquire Executive Aircraft Services ("EAS"), a division of British Airways.
EAS provides ground handling, passenger handling, and concierge services for
large private executive aircraft. Heathrow Airport licensing rules prevented an
outright purchase of the business by AHL, so the parties entered into a joint
venture and agency agreement under which AHL retained an option to purchase all
of the business when regulatory authorities permit and AHL receives all of the
revenues and profits from the business performed by EAS. AHL paid approximately
$2,800,000 to British Airways, and British Airways contributed the license to
operate the executive aircraft services business at Heathrow Airport to the
joint venture. In addition, AHL has committed to pay British Airways up to
$550,000 for each of three years if EAS achieves certain operating results.
In May 1997, the Company acquired the access control business of USA
Security Systems, Inc., located in New Jersey, for approximately $2,600,000 in
cash.
In September 1997, the Company acquired Lloyd Creative Staffing of Chicago
("Lloyd") for approximately $5,000,000 in cash plus contingent consideration
based on future operating results. Lloyd provides staff for warehouse "pick and
pack" and light industrial functions to companies in the Chicago area.
35
<PAGE> 38
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In October 1997, the Company acquired RightSide Up, Inc., a California
order fulfillment company, for $6,000,000 in cash plus contingent consideration
based on future operating results.
In December 1997, the Company acquired Midwest Staffing Systems, Inc., a
Chicago-based company that provides staff for warehouse "pick and pack" and
light industrial functions, for $5,000,000 in cash.
The acquisitions above were accounted for using the purchase method of
accounting. As a result, the purchase prices have been allocated to the assets
acquired, including intangibles, based on their respective fair values.
The Company's unaudited pro forma results of operations are presented
assuming that the acquisitions had been consummated January 1 of each year
presented and are not necessarily indicative of the results of operations which
would have actually been obtained:
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
---------------------
1996 1997
--------- ---------
(IN THOUSANDS, EXCEPT
PER SHARE DATA)
<S> <C> <C>
Pro forma revenue........................................... $252,818 $303,473
======== ========
Pro forma net income........................................ $ 3,379 $ 6,793
======== ========
Pro forma earnings per share, diluted....................... $ 0.34 $ 0.57
======== ========
Pro forma dilutive weighted average shares.................. 9,982 11,930
======== ========
</TABLE>
Pro forma adjustments were recorded to include (i) increased interest
expense to reflect interest expense on long-term debt entered into as a part of
the Intersec acquisition, (ii) increased depreciation and amortization expense
as a result of the excess of the purchase price over the book value, (iii)
contractually obligated reductions in former officers' salaries, and (iv)
provision for income taxes for net income of the acquired companies and pro
forma adjustments. In March and October 1997, the Company completed offerings to
finance acquisitions and growth (Note 1). Pro forma diluted weighted average
shares reflect the incremental shares that would have been issued to finance the
acquisitions.
SUBSEQUENT EVENT (UNAUDITED)
In February 1998, AHL acquired SES Staffing Solutions, Inc. ("SES"), a
Baltimore-based company that provides staffing for light industrial and
warehouse "pick and pack" functions, for approximately $12,625,000 in cash. The
transaction was accounted for as a purchase. The results of SES's operations
have been properly excluded from the above pro forma information.
36
<PAGE> 39
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
5. INCOME TAXES
The income tax provision consists of the following:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1995 1996 1997
------ ------ ------
(IN THOUSANDS)
<S> <C> <C> <C>
Current:
Federal................................................... $ 861 $ 517 $2,033
State..................................................... 153 76 592
Foreign................................................... 852 785 1,382
------ ------ ------
1,866 1,378 4,007
------ ------ ------
Deferred:
United States............................................. (630) 39 (149)
Foreign................................................... (319) 30 (8)
------ ------ ------
(949) 69 (157)
------ ------ ------
Total............................................. $ 917 $1,447 $3,850
====== ====== ======
</TABLE>
The reconciliation of the federal statutory rate to the Company's effective
tax provision is as follows:
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
------------------
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Statutory federal tax rate.................................. 34.0% 34.0% 34.0%
State income taxes, net of federal benefit.................. 2.5 2.0 3.8
Effect of foreign taxes greater (less) than U.S. statutory
federal rate.............................................. -- 2.2 (1.6)
Other....................................................... 2.4 1.8 1.3
---- ---- ----
Total............................................. 38.9% 40.0% 37.5%
==== ==== ====
</TABLE>
Deferred income taxes reflect the tax consequences on future years of
differences between the tax bases of assets and liabilities and their financial
reporting amounts. The tax effect of significant temporary differences
representing deferred tax assets and liabilities is as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------
1996 1997
------- -------
(IN THOUSANDS)
<S> <C> <C>
Deferred tax assets:
Allowance for doubtful accounts........................... $ 115 $ 155
Self-insurance reserves................................... 1,229 1,590
Accruals.................................................. 339 187
Other..................................................... 61 116
------- -------
1,744 2,048
------- -------
Deferred tax liabilities:
Tax depreciation in excess of book value.................. (351) (511)
Tax amortization in excess of book value.................. -- (137)
Prepaid expenses currently deductible..................... (882) (732)
Other..................................................... (20) (20)
------- -------
(1,253) (1,400)
------- -------
Net deferred tax asset.................................... $ 491 $ 648
======= =======
</TABLE>
37
<PAGE> 40
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
6. LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------
1996 1997
------- ------
(IN THOUSANDS)
<S> <C> <C>
Credit Facility, interest at prime (8.5% at December 31,
1997) with a LIBOR option at LIBOR plus 1.5% (5.7% at
December 31, 1997)........................................ $14,088 $1,785
Term note, interest at prime plus .75% with a LIBOR option
at LIBOR plus 3.0% payable in 36 equal monthly
installments through December 1998, repaid in full during
1997...................................................... 542 --
Subordinated notes payable to Sirrom Capital Corporation
("Sirrom Notes"), interest at 13.5%, principal of
$3,500,000 due July 9, 2001, secured by a second security
interest in substantially all of the assets of
Argenbright, repaid in full during 1997................... 3,130 --
Subordinated notes payable to former owners of Intersec,
interest at 9%, payable in varying installments through
April 1998, repaid in full during 1997.................... 1,155 --
Transportation and other equipment notes payable, interest
ranging from 7% to 15%, payable monthly through 2003,
secured by related equipment, denominated in U.S. dollars,
British pounds, and German deutsche marks................. 1,780 2,131
Other....................................................... 100 75
------- ------
20,795 3,991
Less current portion........................................ 1,617 496
------- ------
$19,178 $3,495
======= ======
</TABLE>
Future aggregate annual maturities of long-term debt are as follows as of
December 31, 1997 (in thousands):
<TABLE>
<S> <C>
1998........................................................ $ 496
1999........................................................ 378
2000........................................................ 326
2001........................................................ 324
2002........................................................ 367
Thereafter.................................................. 2,100
------
$3,991
======
</TABLE>
In May 1997, the Company entered into a three-year credit facility (the
"Credit Facility") with First Union National Bank, raising the total borrowing
availability to $35,000,000, of which $25,000,000 was denominated in U.S.
dollars and $10,000,000 was denominated in either U.S. dollars or British
pounds, at the Company's option. At December 31, 1997, $1,785,000 was
outstanding, $3,320,000 was utilized under standby letters of credit, and
$29,895,000 was available under the Credit Facility. In February 1998, the
Company expanded and restated its Credit Facility to $100 million through a
syndication of national banking organizations, led by First Union National Bank
as administrative agent, including NationsBank, SunTrust, Wachovia, and Bank of
America. Any unpaid balance on the Credit Facility is due upon expiration of the
new agreement in February 2003. The Credit Facility is secured by substantially
all of the Company's assets. In addition, the Credit Facility is subject to
certain restrictive covenants, including maintaining minimum debt-
38
<PAGE> 41
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
to-equity ratio, debt-to-earnings ratio, current ratio, and interest coverage
ratio. The carrying value of the Credit Facility approximates its fair value due
to the floating market interest rate charged on that facility.
The Sirrom Notes were issued in July 1996 for $3,500,000. As discussed in
Note 8, a warrant ("Redeemable Warrant") to purchase 3.5% of Argenbright's
common shares for an exercise price of $18.00 was issued with the notes (before
adjustment associated with the Reorganization). The value of this warrant at
issuance was determined to be $618,000 based on the relative fair value of the
warrant to the notes. A corresponding amount of the proceeds was allocated to
the warrant, net of deferred tax effects, and was accounted for as a debt
discount and amortized over the expected life of the related notes using the
effective interest method. The warrant was repurchased in 1997.
7. RELATED-PARTY TRANSACTIONS
The note payable to shareholder at December 31, 1996 of $528,000 was
contributed to the Company as part of the Reorganization (Note 1).
In addition to the note payable discussed above, prior to the
Reorganization, the Company had other transactions with the Company's chairman
and sole shareholder and other companies related by common ownership. During
1997, the Company's chairman repaid all amounts due from these transactions
totaling $964,000.
During fiscal 1996, the Company bought a 20% and a 49% interest in ASAP
Uniform Company, Inc. ("ASAP") and Premium Services Management, Inc. ("PSM"),
respectively. Both investments are accounted for using the equity method of
accounting and had an immaterial effect on the current year financial
statements. The Company made payments of $1,829,000 and $1,782,000 to ASAP and
$48,000 and $1,221,000 to PSM, respectively, for uniforms and services performed
for the years ended December 31, 1996 and 1997, respectively.
8. REDEEMABLE WARRANT
In connection with the issuance of the Sirrom Notes (Note 6), the Company
issued a Redeemable Warrant to purchase 3.5% of Argenbright's common shares
(146,185 pro forma shares of AHL at December 31, 1996, as adjusted for the
Reorganization) for an exercise price of $18.00. The Company repurchased the
warrant in 1997 for a purchase price of $750,000.
9. STOCK-BASED COMPENSATION
In October 1996, the Company issued nonqualified stock options to purchase
107,500 common shares at $4.64 per share. The options became exercisable upon
grant.
In December 1996, the Company issued nonqualified stock options to purchase
591,250 common shares at $11.76 per share. The options become exercisable in
varying percentages over four years. Effective February 28, 1997, the Company
amended its employment agreements with three officers (Note 10). The amendment
provides for 16,250 additional options to purchase shares of common stock at
$10.75 per share exercisable in varying percentages over four years. The
amendment also reduces the exercise price of the December 1996 option grants
from $11.76 per share to $10.75 per share. Concurrent with the initial public
offering in March 1997, the exercise price was changed from $10.75 to $10.00 per
share.
The options above were granted at exercise prices which were not less than
estimated fair value of the common stock at the dates of grant as determined by
the board of directors. While the Company estimates that the fair value of the
common stock increased between the October and December grant dates, the Company
believes that the $11.76 per share exercise price exceeded the estimated fair
value of the common stock at December 1, 1996, as there was no public market for
the Company's stock at that time. Events that
39
<PAGE> 42
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
contributed to the increase in the value of the common stock between the dates
of the grants included the award of new contracts to the Company by certain
major clients and commitments by these clients for additional contract awards.
STOCK OPTION PLAN
The Company's stock option plan (the "Stock Option Plan") provides for the
award of incentive stock options to officers and employees of the Company and
nonqualified stock options to officers, employees, and independent directors of
the Company. In February 1997, AHL reserved 385,000 shares of common stock for
issuance under the Stock Option Plan. The Company expanded the plan in October
1997 by approving the reservation and issuance of 442,500 additional options. As
of December 31, 1997, 819,000 options to purchase common stock were outstanding
under the plan. The Plan is administered by the compensation committee of the
board of directors. The purchase price of common stock upon grant of incentive
stock options must not be less than the fair market value of the common stock on
the date of grant. The maximum term of any incentive stock option is ten years.
The aggregate fair market value on the date of the grant of the stock for which
incentive stock options are exercisable for the first time by an employee during
any calendar year may not exceed $100,000. Options are exercisable over a period
of time in accordance with the terms of option agreements entered into at the
time of grant. Options granted under the Stock Option Plan are generally
nontransferable by the optionee and, unless otherwise determined by the
compensation committee, must be exercised by the optionee during the period of
the optionee's employment or service with the Company.
STOCK OPTION SUMMARY
The following is a summary of the Company's stock option information:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
EXERCISE
OPTIONS PRICE
--------- --------
<S> <C> <C>
Balance at December 31, 1995................................ -- $ --
---------
Granted................................................... 698,750 9.18
Exercised................................................. -- --
Forfeited................................................. -- --
---------
Balance at December 31, 1996................................ 698,750 9.18
---------
Granted................................................... 852,750 15.08
Exercised................................................. -- --
Forfeited................................................. 17,500 10.00
---------
Balance at December 31, 1997................................ 1,534,000 12.45
=========
Exercisable at December 31, 1997.......................... 372,750 $ 8.45
========= ======
Reserved for issuance..................................... 8,500
=========
</TABLE>
The Company accounts for these stock option grants under Accounting
Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees,"
under which no compensation cost has been recognized. Had compensation cost for
these plans been determined consistent with SFAS No. 123, "Accounting for Stock-
40
<PAGE> 43
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Based Compensation," the Company's net income and earnings per share would have
been reduced to the following pro forma amounts during 1996 and 1997 (in
thousands, except per share data):
<TABLE>
<CAPTION>
1996 1997
------ ------
<S> <C> <C> <C>
Net income............................................... As reported $2,171 $6,034
Pro forma 1,701 4,867
Earnings per share:
Basic.................................................. As reported $ 0.26 $ 0.56
Pro forma 0.20 0.45
Diluted................................................ As reported 0.26 0.55
Pro forma 0.20 0.44
</TABLE>
The weighted average fair value of the options granted was $4.19 and $3.80
for fiscal years 1996 and 1997, respectively. The fair value of each option
granted is estimated on the date of grant using the Black-Scholes option-pricing
model with the following weighted-average assumptions used for grants in 1996
and 1997:
<TABLE>
<CAPTION>
1996 1997
------ ------
<S> <C> <C>
Risk-free interest rate..................................... 5.84% 6.37%
Dividend yield.............................................. 0.00% 0.00%
Volatility factor........................................... 37.00% 41.00%
Average expected life (years)............................... 2.9 3.2
Forfeiture rate............................................. 0.00% 0.45%
</TABLE>
EMPLOYEE STOCK PURCHASE PLAN
The Company has adopted, effective January 1, 1998, an employee stock
purchase plan, pursuant to which employees are able to purchase shares of common
stock through a payroll deduction program. The Company intends to purchase such
shares of common stock on the open market.
10. COMMITMENTS AND CONTINGENCIES
LEASES
The Company leases office space, transportation equipment, and office
equipment from unrelated parties under lease agreements expiring through
December 2003. Rental expense under these operating leases was $4,390,000,
$6,297,000, and $6,515,000 in 1995, 1996, and 1997, respectively.
Future minimum lease payments for noncancelable leases were as follows at
December 31, 1997 (in thousands):
<TABLE>
<S> <C>
1998........................................................ $5,162
1999........................................................ 2,876
2000........................................................ 1,869
2001........................................................ 1,316
2002........................................................ 495
Thereafter.................................................. 110
</TABLE>
INSURANCE
Argenbright participates in partially self-insured, large-deductible
workers' compensation, auto, and health insurance plans. Argenbright's exposure
is limited per occurrence ($250,000 for workers' compensation and auto liability
claims) and in the aggregate. Reserves are estimated for both reported and
unreported claims. Revisions to estimated reserves are recorded in the periods
in which they become known. Estimated
41
<PAGE> 44
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
self-insurance reserves as of December 31, 1996 and 1997 totaling $3,200,000 and
$3,800,000, respectively, represent management's best estimate. While there can
be no assurance that actual future claims will not exceed the amount of the
Company's reserves, in the opinion of the Company's management, any future
adjustments to estimated reserves included in the accompanying balance sheets
will not have a material impact on the financial statements.
The Company is exposed to liability for the acts or negligence of its
employees while on assignment that cause personal injury or damages as well as
claims of misuse of client proprietary information or theft of client property.
As a provider of access control services, the Company faces potential liability
claims in the event of any terrorist attempt or other criminal activity which
occurs on any airline or premises subject to the Company's access control
services. The Company has policies, guidelines, and insurance to reduce its
exposure to these risks.
EMPLOYMENT AGREEMENTS
In December 1996, the Company entered into employment agreements with three
officers which expire through December 1, 2001. If any agreement is terminated
by the Company prior to the expiration date, except for cause or upon the
employee's death or disability, the Company must continue to pay the employee's
base salary and bonus for up to one year. The agreements provide for annual base
salaries of up to $350,000 per officer and bonuses up to 50% of salaries.
DEFERRED COMPENSATION
In September 1996, Argenbright entered into a nonqualified deferred
compensation arrangement with certain eligible employees by which they could
elect to defer a specified portion of their compensation. The participants may
choose among several investment options, but returns are not guaranteed. As of
December 31, 1997, the Company has an obligation of approximately $75,000 under
the plan.
BENEFIT PLAN
In April 1996, Argenbright began a 401(k) plan covering salaried employees,
excluding highly compensated employees. Employees must complete one year of
service to become eligible. Participants may contribute up to 15% of their
compensation to the plan. Argenbright modified the plan in October 1997 to begin
a matching of 20% of the first 4% contributed by the participants. Argenbright
expensed $6,000 for the employer match for the year ended December 31, 1997.
LITIGATION
The Company is involved in various routine litigation arising in the
ordinary course of business. Management is of the opinion that the resolution of
these matters will not have a material effect on the consolidated results of
operations or financial condition of the Company.
42
<PAGE> 45
AHL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
11. OPERATIONS BY GEOGRAPHICAL AREA
The following table presents information regarding the Company's different
geographical regions (in thousands):
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
---------------------------------
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Revenue:
United States........................................ $107,388 $140,295 $193,437
United Kingdom....................................... 41,013 47,028 61,367
Germany.............................................. 15,638 17,617 14,700
Other European....................................... 4,562 5,213 6,509
-------- -------- --------
$168,601 $210,153 $276,013
======== ======== ========
Operating income:
United States........................................ $ 1,208 $ 2,639 $ 5,743
United Kingdom....................................... 1,809 2,182 4,397
Germany.............................................. 312 319 575
Other European....................................... (485) (97) (10)
-------- -------- --------
$ 2,844 $ 5,043 $ 10,705
======== ======== ========
Capital expenditures:
United States........................................ $ 1,143 $ 1,556 $ 2,776
United Kingdom....................................... 1,351 357 1,813
Germany.............................................. 66 47 31
Other European....................................... 11 14 33
-------- -------- --------
$ 2,571 $ 1,974 $ 4,653
======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
------------------
1996 1997
------- --------
<S> <C> <C>
Identifiable assets:
United States............................................. $36,740 $ 83,287
United Kingdom............................................ 10,487 21,409
Germany................................................... 3,715 3,486
Other European............................................ 1,011 1,612
------- --------
$51,953 $109,794
======= ========
</TABLE>
43
<PAGE> 46
SIGNATURES
Pursuant to requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized on the 30th day of
March, 1998.
AHL SERVICES, INC.
(Registrant)
By: /s/ EDWIN R. MELLETT
------------------------------------
Edwin R. Mellett
Vice Chairman and Co-Chief Executive
Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed by the following persons on behalf of the registrant and
in the capacities indicated on March 30, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ FRANK A. ARGENBRIGHT, JR. Chairman of the Board, Co-Chief Executive
- -------------------------------------------- Officer and Director
Frank A. Argenbright, Jr.
/s/ EDWIN R. MELLETT Vice Chairman, Co-Chief Executive Officer
- -------------------------------------------- and Director
Edwin R. Mellett
/s/ DAVID L. GAMSEY Vice President, Chief Financial Officer
- -------------------------------------------- (Principal Financial Officer)
David L. Gamsey
/s/ ROBERT F. MCCULLOUGH Director
- --------------------------------------------
Robert F. McCullough
/s/ HAMISH LESLIE MELVILLE Director
- --------------------------------------------
Hamish Leslie Melville
</TABLE>
44
<PAGE> 1
EXHIBIT 4.3
AHL SERVICES, INC.
1997 NON-QUALIFIED
EMPLOYEE STOCK PURCHASE PLAN
USA
EFFECTIVE 10/1/97
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
------- ----
<S> <C> <C>
1. Purpose....................................................................................................1
2. Definitions
2.1. Account...........................................................................1
2.2. AHL...............................................................................1
2.3. Beneficiary.......................................................................1
2.4. Board.............................................................................1
2.5. Closing Price.....................................................................1
2.6. Committee.........................................................................2
2.7. Election Form.....................................................................2
2.8. Election Period...................................................................2
2.9. Eligible Employee.................................................................2
2.10. Participant.......................................................................2
2.11. Participating Employer............................................................2
2.12. Plan..............................................................................2
2.13. Plan Administrator................................................................3
2.14. Purchase Period...................................................................3
2.15. Purchase Price....................................................................3
2.16. Rule 16b-3........................................................................3
2.17. Stock.............................................................................3
3. Administration.............................................................................................3
4. Participation..............................................................................................4
5. Contributions
5.1. Initial Contributions.............................................................4
5.2. Changes in Contributions or Withdrawals...........................................4
5.3. Account Credits, General Assets and Taxes.........................................5
5.4. Automatic Refunds.................................................................5
6. Purchase of Stock.........................................................................................6
7. Delivery..................................................................................................6
8. Designation of Beneficiary................................................................................6
9. Transferability...........................................................................................7
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
10. Securities Registration...................................................................................7
11. Compliance with Rule 16b-3................................................................................7
12. Amendment or Termination..................................................................................8
13. Notices...................................................................................................8
14. Employment................................................................................................8
15. Employment Transfers......................................................................................9
16. Headings, References and Construction.....................................................................9
</TABLE>
<PAGE> 4
1. Purpose
The primary purpose of this Plan is to encourage Stock ownership by
each Eligible Employee in the belief that such ownership will increase his or
her interest in the success of AHL Services, Inc.
2. Definitions
2.1. The term Account shall mean the separate bookkeeping
account which shall be established and maintained by the Plan Administrator for
each Participant for each Purchase Period to record the contributions made on
his or her behalf to purchase Stock under this Plan and the Stock purchased with
such contributions.
2.2. The term AHL shall mean AHL Services, Inc., a corporation
incorporated under the laws of the State of Georgia, and its wholly owned
subsidiaries and any successor to AHL.
2.3. The term Beneficiary shall mean the person designated as
such in accordance with Section 8.
2.4. The term Board shall mean the Board of Directors of AHL.
2.5. The term Closing Price shall mean the value of a share of
Stock at any particular date, which shall be (i) if shares of Stock are listed
on a securities exchange or the Nasdaq National Market, the closing price on the
date in question (or if there were no trades on such date, the next preceding
date on which a trade or trades occurred); or (ii) if shares of Stock are traded
in any other over-the-counter market, the mean between the lowest reported bid
price and the highest reported asked price of the Stock on the date in question,
as such prices are reported in a publication of general circulation selected by
the Board and regularly reporting the market price of the Stock in such market;
or (iii) if shares of Stock are not then actively traded on an exchange or in
the over-the-counter market, the amount determined in good faith by the Board.
<PAGE> 5
2.6. The term Committee shall mean the Compensation Committee
of the Board.
2.7. The term Election Form shall mean the form which an
Eligible Employee shall be required to properly complete in writing and timely
file in order to make any of the elections available to an Eligible Employee
under this Plan.
2.8. The term Election Period shall mean a period which (a)
shall be set by the Committee, (b) shall come before a related Purchase Period
and (c) shall continue for no more than two calendar months.
2.9. The term Eligible Employee shall mean each officer or
employee of each Participating Employer
(a) who is shown on the payroll records of each
Participating Employer as a full-time employee who has received pay for wages
earned within the prior ninety (90) day period, and
(b) who has completed at least three full calendar months of
employment with his or her Participating Employer. Employees of companies
acquired by any Participating Employer shall be able to utilize his or her
tenure with the acquired company in order to satisfy the above criteria.
2.10. The term Participant shall mean (a) for each Purchase
Period an Eligible Employee who has elected to purchase Stock in accordance with
Section 4 during such Purchase Period and (b) for any period any person for whom
Stock is held pending delivery under Section 9.
2.11. The term Participating Employer shall mean any
organization owned in whole or in part, directly or indirectly, by AHL and which
is designated as such by the Committee.
2.12. The term Plan shall mean this AHL Services, Inc. 1997
Non-Qualified Employee Stock Purchase Plan USA, effective as of October 1, 1997,
and as thereafter amended from time to time.
2
<PAGE> 6
2.13. The term Plan Administrator shall mean AHL or AHL's
delegate.
2.14. The term Purchase Period shall mean a period set by the
Committee before the beginning of the related Election Period which shall begin
on a date which immediately follows the last day of such Election Period and
which shall run for no more than one year.
2.15. The term Purchase Price shall mean either (i) the price
to purchase the applicable shares of Stock on the open market or (ii) if the
Stock is newly issued by the Company the Closing Price on the date of issuance.
The Committee may reduce the purchase price at its discretion by up to 25%.
2.16. The term Rule 16b-3 shall mean Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended, or any successor to such
rule.
2.17. The term Stock shall mean the $.0l par value common
stock of AHL.
3. Administration
The Committee shall have the exclusive power to set the
Election Period, the Purchase Period, the Purchase Price discount (if any), the
Participating Employers and the minimum number of shares (in stock or cash)
which can be withdrawn. The Plan Administrator shall be responsible for the
administration of this Plan and shall have the power in connection with such
administration to interpret this Plan and to take such other action in
connection with such administration as the Plan Administrator deems necessary or
equitable under the circumstances. The Plan Administrator also shall have the
power to delegate the duty to perform such administrative functions as the Plan
Administrator deems appropriate under the circumstances. Any person to whom the
duty to perform an administrative function is delegated shall act on behalf of
and shall be responsible to the Plan Administrator for such function. Any action
or inaction by or on behalf of the Plan Administrator under this Plan shall be
final and binding on each Eligible Employee, each Participant and on each other
person who makes a claim under this Plan based on the rights, if any, of any
such Eligible Employee or Participant under this Plan.
3
<PAGE> 7
4. Participation
Each person who is an Eligible Employee on the last day of an
Election Period shall be a Participant in this Plan for the related Purchase
Period if he or she properly completes and files an Election Form with the Plan
Administrator on or before such date pursuant to which he or she elects to
participate in this Plan. An Election Form may require an Eligible Employee to
provide such information and to agree to take such action (in addition to the
action required under Section 5) as the Plan Administrator deems necessary or
appropriate in light of the purpose of this Plan or for the orderly
administration of this Plan.
5. Contributions
5.1. Initial Contributions. Each Participant's Election Form
under Section 4 shall specify the contributions which he or she proposes to make
for the related Purchase Period. Contributions shall be exclusively by payroll
deductions. Such contributions shall be expressed as a specific whole dollar
amount which the Participant authorizes his or her Participating Employer to
deduct from his or her paycheck each pay day during the Purchase Period,
provided;
(a) the minimum payroll deduction for a Participant for each
pay period for purchases under this Plan shall be $10.00,
and
(b) the maximum contribution which a Participant can make for
purchases under this Plan for any calendar year shall be
$100,000.
5.2. Changes in Contributions and Withdrawals. A Participant
shall have the right to amend his or her Election Form after the end of an
Election Period to reduce or to stop his or her payroll deductions, and such
election shall be effective as soon as practicable after the Plan Administrator
actually delivers such amended Election Form to the appropriate Participating
Employers' payroll department. A Participant also shall have the right at any
time on or before the last day of a Purchase Period to withdraw all or any part
of the Stock, in whole shares or in cash, and the cash balance (without
interest) credited to his or her Account by delivering an amended Election Form
to the Plan Administrator on or before the last day of such Purchase Period.
4
<PAGE> 8
A withdrawal shall be deducted from the Participant's Account
as of the date the Plan Administrator receives such amended Election Form, and
the actual withdrawal shall be effected by the Plan Administrator as soon as
practicable after such date. All withdrawals will be net of any costs associated
with the withdrawal. The minimum amount of a withdrawal in cash shall be
determined by the Committee and shall equal the Participant's entire Account if
the value of such Account is less than the minimum. If a Participant elects to
receive cash in lieu of the Stock in his or her account, the Plan Administrator
shall sell whole shares in the Account on the open market and shall distribute
the proceeds thereof, net of transaction costs to the Participant. If a
Participant elects to withdraw his or her account in Stock, the Account must be
withdrawn in full and the value of any fractional shares at the Closing Price on
such date shall be distributed in cash, net of transaction costs. Once fully
withdrawn, an Eligible Employee may not participate in the Plan for a period of
no less than two succeeding Election Periods and the corresponding Purchase
Periods unless otherwise determined by the Committee.
5.3. Accounts Credits, General Assets and Taxes. All payroll
deductions made for a Participant shall be credited to his or her Account as of
the pay day on which the deduction is made and shall be held by AHL or its agent
as part of the general assets of AHL and shall not be held in trust or otherwise
segregated from AHL's general assets. No interest shall be paid or accrued on
any such contributions. Each Participant's right to the Stock and cash credited
to his or her Account shall be that of a general and unsecured creditor of AHL.
Each Participating Employer shall have the right to make such provisions as it
deems necessary or appropriate to satisfy any tax laws with respect to purchases
of Stock made under this Plan.
5.4. Automatic Refunds. The Stock (in whole shares) and cash
credited to the Account of an Eligible Employee automatically shall be refunded
in full (without interest) if his or her status as an employee of a
Participating Employer terminates for any reason whatsoever during a Purchase
Period. Such refunds shall be made as soon as practicable after the Plan
Administrator has actual notice of any such termination. A person's status as a
Participant under this Plan shall terminate at the same time as his or her
status as an Eligible Employee terminates.
5
<PAGE> 9
6. Purchase of Stock
Shares of Stock automatically shall be purchased for each
Participant who is an Eligible Employee, in whole and fractional shares, at the
Purchase Price on the 21st day of each calendar month in a Purchase Period or,
(a) if the 21st is not a business day or, (b) if such shares are not available
for purchase on the open market, on the next business day. Such Stock shall be
purchased on behalf of the Plan in whole and fractional shares and shall be held
in street name on behalf of the Plan with individual participant ownership
recorded by the Plan Administrator as part of his or her account records. The
cost basis for the shares of Stock credited to each Participant's Account for
each month shall be the average cost to purchase all shares in the open market
for such month. 7. Delivery
No stock certificate representing a fractional share of Stock
credited to a Participants' account shall be delivered to a Participant. Cash
which the Plan Administrator deems representative of the value of a
Participant's fractional share shall be distributed (when a Participant requests
on an Election Form a distribution of all of the shares of Stock credited to
such Participant's Account) in lieu of such fractional share unless a
Participant waives his or her right to such cash payment, and the Plan
Administrator shall have the right to charge a Participant for registering Stock
in the name of the Participant and any other person. No Participant (or any
person who makes a claim for, on behalf of, or in place of a Participant) shall
have any interest in any shares of Stock credited to a Participants' account
under this Plan until the certificate for such shares of Stock has been
delivered to such person or such shares have been credited to a brokerage
account maintained for the benefit of such person. 8. Designation of Beneficiary
A Participant may designate on his or her Election Form a
Beneficiary (a) who shall receive the balance credited to his or her Account if
the Participant dies before the end of a Purchase Period and (b) who shall
receive the Stock, if any, purchased for the Participant under this Plan if the
Participant dies after the end of a Purchase Period but before either the
certificate
6
<PAGE> 10
representing such shares of Stock has been delivered to the Participant or
before such Stock has been credited to a brokerage account maintained for the
Participant. Such designation may be revised in writing at any time by the
Participant by filing an amended Election Form, and his or her revised
designation shall be effective at such time as the Plan Administrator receives
such an amended Election Form. If a deceased Participant fails to designate a
Beneficiary or, if no person so designated survives a Participant or, if after
checking his or her last known mailing address, the whereabouts of the person so
designated are unknown, then the Participant's estate shall be treated as his
designated Beneficiary under this Section 8.
9. Transferability
Neither the balance credited to a Participant's Account nor
any rights to receive shares of Stock under this Plan may be assigned,
encumbered, alienated, transferred, pledged, or otherwise disposed of in any way
by a Participant during his or her lifetime or by his or her Beneficiary or by
any other person during his or her lifetime, and any attempt to do so shall be
without effect.
10. Securities Registration
If AHL shall deem it necessary to register under the
Securities Act of 1933, as amended, or any other applicable statutes any shares
of Stock purchased under this Plan or to qualify any such shares of Stock for an
exemption from any such statutes, AHL shall take such action at its own expense
before delivery of the certificate representing such shares of Stock. If shares
of Stock are listed on any national stock exchange at the time an option to
purchase shares of Stock is exercised under this Plan, AHL, whenever required,
shall register shares of Stock for which such option is exercised under the
Securities Exchange Act of 1933, as amended, and shall make prompt application
for the listing on such national stock exchange of such shares, all at the
expense of AHL.
11. Compliance with Rule 16b-3
All elections and transactions under this Plan by persons
subject to Rule 16b-3 are intended to comply with at least one of the exemptive
conditions under Rule 16b-3. The Plan
7
<PAGE> 11
Administrator shall establish such administrative guidelines to facilitate
compliance with at least one such exemptive condition under Rule 16b-3 as the
Plan Administrator may deem necessary or appropriate. If any provision of this
Plan or such administrative guidelines or any act or omission with respect to
this Plan (including any act or omission by an Eligible Employee) fails to
satisfy such exemptive condition under Rule 16b-3 or otherwise is inconsistent
with such condition, such provision, guidelines or act or omission shall be
deemed null and void.
12. Amendment or Termination
This Plan may be amended by the Board from time to time to the
extent that the Board deems necessary or appropriate, and any such amendment
shall be subject to the approval of AHL's shareholders to the extent such
approval is required under the laws of the State of Georgia or the rules of the
stock exchange in which the Stock is listed; provided, however, no amendment
shall be retroactive unless the Board in its discretion determines that such
amendment is in the best interest of AHL or such amendment is required by
applicable law to be retroactive. The Board also may terminate this Plan and any
Purchase Period at any time (together with any related contribution elections)
or may terminate any Purchase Period (together with any related contribution
elections) at any time; provided, however, no such termination shall be
retroactive unless the Board determines that applicable law requires a
retroactive termination of this Plan.
13. Notices
All Election Forms and other communications from a Participant
to the Plan Administration under, or in connection with, this Plan shall be
deemed to have been filed with the Plan Administrator when actually received in
the form specified by the Plan Administrator at the location, or by the person,
designated by the Plan Administrator for the receipt of any such Election Form
and communications.
14. Employment
The right to elect to participate in this Plan shall not
constitute an offer of employment and no election to participate in this Plan
shall constitute an employment agreement
8
<PAGE> 12
for an Eligible Employee. Any such right or election shall have no bearing
whatsoever on the employment relationship between an Eligible Employee and any
other person. No Eligible Employee shall be induced to participate in this Plan,
or shall participate in this Plan, with the expectation that such participation
will lead to employment or continued employment.
15. Employment Transfers.
No Eligible Employee's employment shall be treated as
terminated under this Plan as a result of a transfer between, or among, AHL, any
wholly owned subsidiaries of AHL or any other Participating Employer.
16. Headings, References and Construction
The headings to sections in this Plan have been included for
convenience of reference only. Except as otherwise expressly indicated, all
references in this Plan to sections shall be to sections of this Plan. This Plan
shall be interpreted and construed in accordance with the laws of the State of
Georgia.
9
<PAGE> 1
EXHIBIT 10.6
- -------------------------------------------------------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF FEBRUARY 10, 1998
BY AND AMONG
AHL SERVICES, INC.,
ARGENBRIGHT SECURITY, INC.,
ARGENBRIGHT, INC.,
ADI U.K. LIMITED,
AVIATION DEFENCE INTERNATIONAL GERMANY LIMITED,
ARGENBRIGHT HOLDINGS LIMITED AND
THE ADI GROUP LIMITED
AS BORROWERS,
THE LENDERS REFERRED TO HEREIN,
FIRST UNION NATIONAL BANK (LONDON BRANCH)
AS EUROPEAN SWINGLINE LENDER
AND
FIRST UNION NATIONAL BANK
AS ADMINISTRATIVE AGENT
$100,000,000.00 CREDIT FACILITY
<PAGE> 2
AMENDED AND RESTATED CREDIT AGREEMENT
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
<S> <C> <C>
DEFINITIONS..............................................................................................1
SECTION 1.1 Definitions.................................................................................1
SECTION 1.2 General....................................................................................21
SECTION 1.3 Accounting Matters.........................................................................21
SECTION 1.4 Other Definitions and Provisions...........................................................22
ARTICLE II
CREDIT FACILITY.........................................................................................22
SECTION 2.1 Revolving Loans............................................................................22
SECTION 2.2 Procedure for Advances of Revolving Loans..................................................23
SECTION 2.3 Swingline Loan Subfacility.................................................................24
SECTION 2.4 Repayment of Revolving Loans...............................................................26
SECTION 2.5 Letters of Credit..........................................................................27
SECTION 2.6 Revolving Notes............................................................................32
SECTION 2.7 Termination of Revolving Facility..........................................................32
SECTION 2.8 Use of Proceeds............................................................................33
SECTION 2.9 Security; Reaffirmation of Obligations and Lien, etc.......................................33
SECTION 2.10 Maximum Borrower Liability.................................................................34
SECTION 2.11 Waiver of Subrogation......................................................................36
SECTION 2.12 European Swingline Loans...................................................................36
SECTION 2.13 Liability Unconditional....................................................................38
ARTICLE III
GENERAL LOAN PROVISIONS.................................................................................39
SECTION 3.1 Interest...................................................................................39
SECTION 3.2 Notice and Manner of Conversion or Continuation of Loans...................................43
SECTION 3.3 Fees.......................................................................................43
SECTION 3.4 Manner of Payment..........................................................................45
SECTION 3.5 Crediting of Payments and Proceeds.........................................................45
SECTION 3.6 Nature of Obligations of Lenders Regarding Loans; Assumption by
Administrative Agent..............................................................................46
SECTION 3.7 Changed Circumstances......................................................................46
SECTION 3.8 Indemnity..................................................................................48
SECTION 3.9 Capital Requirements.......................................................................48
SECTION 3.10 Taxes; Currency............................................................................49
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 3.11 Special Lenders............................................................................52
ARTICLE IV
CLOSING: CONDITIONS OF CLOSING AND BORROWING............................................................53
SECTION 4.1 Closing....................................................................................53
SECTION 4.2 Conditions to Closing and Initial Loan.....................................................53
SECTION 4.3 Conditions to All Loans....................................................................57
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BORROWERS.............................................................57
SECTION 5.1 Representations and Warranties.............................................................57
SECTION 5.2 Survival of Representations and Warranties, Etc............................................63
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES.......................................................................64
SECTION 6.1 Financial Statements and Projections.......................................................64
SECTION 6.2 Officer's Compliance Certificate...........................................................65
SECTION 6.3 Other Reports..............................................................................65
SECTION 6.4 Notice of Litigation and Other Matters.....................................................65
SECTION 6.5 Accuracy of Information....................................................................67
ARTICLE VII
AFFIRMATIVE COVENANTS...................................................................................67
SECTION 7.1 Preservation of Corporate Existence and Related Matters....................................67
SECTION 7.2 Maintenance of Property....................................................................67
SECTION 7.3 Insurance..................................................................................67
SECTION 7.4 Accounting Methods and Financial Records...................................................67
SECTION 7.5 Payment and Performance of Obligations.....................................................68
SECTION 7.6 Compliance With Laws and Approvals.........................................................68
SECTION 7.7 Environmental Laws.........................................................................68
SECTION 7.8 Compliance with ERISA and the Code.........................................................68
SECTION 7.9 Compliance With Other Agreements...........................................................69
SECTION 7.10 Conduct of Business........................................................................69
SECTION 7.11 Visits and Inspections.....................................................................69
SECTION 7.12 Subsidiaries...............................................................................69
SECTION 7.13 Further Assurances.........................................................................70
SECTION 7.14 Year 2000 Compatibility....................................................................70
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE VIII
FINANCIAL COVENANTS.....................................................................................70
SECTION 8.1 Capitalization Ratio........................................................................70
SECTION 8.2 Total Indebtedness to Pro Forma EBITDA.....................................................70
SECTION 8.3 Senior Indebtedness to Pro Forma EBITDA....................................................70
SECTION 8.4 Interest Coverage Ratio....................................................................71
SECTION 8.5 Current Ratio...............................................................................71
ARTICLE IX
NEGATIVE COVENANTS......................................................................................71
SECTION 9.1 Limitations on Debt........................................................................71
SECTION 9.2 Limitations on Contingent Obligations......................................................72
SECTION 9.3 Limitations on Liens.......................................................................72
SECTION 9.4 Limitations on Loans, Advances, Investments and Acquisitions...............................72
SECTION 9.5 Limitations on Mergers and Liquidation.....................................................74
SECTION 9.6 Limitations on Sale of Assets..............................................................74
SECTION 9.7 Limitations on Dividends and Distributions.................................................75
SECTION 9.8 Transactions with Affiliates...............................................................75
SECTION 9.9 Certain Accounting Changes.................................................................75
SECTION 9.10 Licenses..................................................................................76
SECTION 9.11 Restrictive Agreements....................................................................76
ARTICLE X
DEFAULT AND REMEDIES....................................................................................76
SECTION 10.1 Events of Default.........................................................................76
SECTION 10.2 Remedies..................................................................................78
SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver; etc...........................................79
SECTION 10.4 Set-off...................................................................................79
SECTION 10.5 Adjustments...............................................................................79
SECTION 10.6 Consents..................................................................................80
ARTICLE XI
THE ADMINISTRATIVE AGENT................................................................................80
SECTION 11.1 Appointment...............................................................................80
SECTION 11.2 Nature of Duties..........................................................................80
SECTION 11.3 Exculpatory Provisions....................................................................81
SECTION 11.4 Reliance by Administrative Agent..........................................................81
SECTION 11.5 Non-Reliance on Administrative Agent and Other Lenders....................................82
SECTION 11.6 Notice of Default.........................................................................82
SECTION 11.7 Indemnification...........................................................................82
SECTION 11.8 The Administrative Agent in its Individual Capacity.......................................83
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C> <C>
SECTION 11.9 Successor Administrative Agent............................................................83
ARTICLE XII
MISCELLANEOUS...........................................................................................84
SECTION 12.1 Notices...................................................................................84
SECTION 12.2 Expenses..................................................................................85
SECTION 12.3 Governing Law.............................................................................86
SECTION 12.4 Consent to Jurisdiction...................................................................86
SECTION 12.5 Arbitration...............................................................................86
SECTION 12.6 WAIVER OF JURY TRIAL......................................................................87
SECTION 12.7 Reversal of Payment.......................................................................87
SECTION 12.8 Successors and Assigns; Participations....................................................88
SECTION 12.9 Amendments, Waivers and Consents: Renewal.................................................90
SECTION 12.10 Performance of Duties.....................................................................91
SECTION 12.11 Indemnification...........................................................................91
SECTION 12.12 All Powers Coupled with Interest..........................................................91
SECTION 12.13 Survival of Indemnities...................................................................91
SECTION 12.14 Provision of Loan Documents...............................................................92
SECTION 12.15 Titles and Captions.......................................................................92
SECTION 12.16 Severability of Provisions................................................................92
SECTION 12.17 Counterparts..............................................................................92
SECTION 12.18 AHL as Agent for Other Borrowers..........................................................92
SECTION 12.19 Term of Agreement.........................................................................92
SECTION 12.20 EMU; Continuity of Contract...............................................................92
SECTION 12.21 Entire Agreement..........................................................................93
</TABLE>
iv
<PAGE> 6
EXHIBITS
Exhibit A-1 Form of Revolving Note
Exhibit A-2 Form of Swingline Note
Exhibit A-3 Form of European Swingline Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Officer's Compliance Certificate
Exhibit E Form of Assignment and Acceptance
Exhibit F-1 Form of Pledge Agreement - AHL Services, Inc.
Exhibit F-2 Form of Pledge Agreement - Argenbright Holdings Limited
Exhibit F-3 Form of Supplemental Assignment - ADI Germany
Exhibit G Form of Security Agreement
Exhibit H Form of Intercompany Subordination Agreement
Exhibit I Form of Joinder Agreement
SCHEDULES
<TABLE>
<S> <C> <C>
Schedule 1.1 - Lenders and Commitments
Schedule 1.1(PL) - Existing Liens
Schedule 5.1(a) - Jurisdictions of Organization and Qualification to Do
Business as Foreign Corporation; Chief Executive Office
Schedule 5.1(b) - Subsidiaries and capitalization
Schedule 5.1(d) - Regulatory Matters
Schedule 5.1(g) - Environmental Matters
Schedule 5.1(h) - ERISA Plans
Schedule 5.1(k) - Patents, Copyrights and Trademarks
Schedule 5.1(1) - Material Contracts
Schedule 5.1(m) - Labor and Collective Bargaining Agreements
Schedule 5.1(o) - Liabilities Not Reflected in Financial Statements
Schedule 5.1(r) - Real Property
Schedule 5.1(t) - Debt and Contingent Obligations
Schedule 5.1(u) - Litigation
Schedule 9.1 - Existing Debt
Schedule 9.4 - Existing Loans, Advances and Investments
</TABLE>
v
<PAGE> 7
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 10, 1998,
by and among AHL SERVICES, INC. ("AHL"), ARGENBRIGHT SECURITY, INC.
("Argenbright Security"), ARGENBRIGHT, INC. ("Argenbright Transportation"), ADI
U.K. LIMITED ("ADI U.K."), AVIATION DEFENCE INTERNATIONAL GERMANY LIMITED ("ADI
Germany"), Argenbright Holdings Limited ("U.S. Holdings") and THE ADI GROUP
LIMITED ("European Holdings") (each of AHL, Argenbright Security, Argenbright
Transportation, ADI U.K., ADI Germany, U.S. Holdings, and European Holdings is
sometimes individually referred to as a "Borrower" and collectively are referred
to as the "Borrowers"), each a corporation, the financial institutions who are
or may become party hereto (the "Lenders"), FIRST UNION NATIONAL BANK, LONDON
BRANCH (the "European Swingline Lender"), and FIRST UNION NATIONAL BANK, a
national banking association ("First Union"), as Administrative Agent for the
Lenders and individually a Lender.
RECITALS
WHEREAS, Borrowers, First Union, as administrative agent, and the
Existing Lenders are parties to that certain Credit Agreement, dated as of May
2, 1997 (as amended prior to the date hereof, the "Original Credit Agreement"),
pursuant to which the Existing Lenders have extended to Borrowers a revolving
credit facility in the original principal amount of up to Thirty-Five Million
Dollars ($35,000,000); and
WHEREAS, Borrowers, Lenders and Administrative Agent desire to enter
into this Agreement to (i) amend and restate the Original Credit Agreement so
that the terms and conditions of the Original Credit Agreement are the terms and
conditions set forth herein, (ii) refinance the Debt outstanding under the
Original Credit Agreement on the Closing Date, (iii) to increase the amount of
the credit facility available to the Borrowers from $35,000,000 to $100,000,000
upon the terms and subject to the conditions set forth herein, (iv) finance
certain Acquisitions, and (v) provide working capital for the Borrowers.
NOW, THEREFORE, in consideration of the premises and the agreements,
covenants and provisions herein contained and for TEN DOLLARS ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of the Borrowers, jointly and severally, the Lenders and
First Union hereby agree that the Original Credit Agreement be, and it hereby
is, amended and restated as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. In addition to the terms defined above and the
terms defined elsewhere herein, the following terms when used in this Agreement
shall have the meanings assigned to them below:
<PAGE> 8
"Accounts Designation Letter" means the letter executed by each of the
Borrowers, delivered on the Closing Date and from time to time thereafter,
designating the accounts of AHL or the other Borrowers to which proceeds of
Loans are to be disbursed and authorizing Loan proceeds to be disbursed to such
accounts.
"Adjusted EBITDA" as applied to AHL and the Subsidiaries, means, for
any period, AHL and the Subsidiaries' Net Income (but without deduction of
income and franchise taxes that have been accrued), plus (a) Interest Expense
paid or accrued, (b) amortization and depreciation deducted in determining Net
Income, and (c) the Reserve Increase during the period, provided that in
calculating Net Income for the purpose of calculating EBITDA there shall be
excluded therefrom (i) any gain or loss arising from the sale of capital assets;
(ii) any gain or loss arising from any write-up of assets; (iii) all net
earnings of any entity (other than a Subsidiary) in which AHL has an ownership
interest unless such net earnings have actually been received by AHL and the
Subsidiaries in the form of cash distributions; (iv) any portion of the net
earnings of any Subsidiary which for any reason is unavailable for payment of
dividends to the AHL and the Subsidiaries; and (v) any gain or loss arising from
extraordinary or nonrecurring items.
"Administrative Agent" means First Union in its capacity as
administrative agent hereunder, and any successor thereto appointed pursuant to
Section 11.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
12.1.
"Affiliate" means a Person: (i) that directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under common
control with, a Person; (ii) that beneficially owns or holds 25% or more of any
class of voting stock or other equity interest of the Person; or (iii) 25% or
more of whose voting stock (or in the case of a Person which is not a
corporation, 25% or more of whose equity interest) is beneficially owned or held
by the Person. For purposes hereof, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting stock or other
equity interests, by contract, or otherwise.
"Aggregate Commitment" means One Hundred Million Dollars
($100,000,000).
"Agreement" means this Amended and Restated Credit Agreement, as
amended or supplemented from time to time.
"AHL" shall have the meaning assigned thereto in the preamble hereof.
"Alternative Currency" shall mean English Pounds or any other currency
(other than Dollars), in each case, freely transferable and convertible into
Dollars in the London Interbank market requested by a Foreign Borrower and
acceptable to the Lenders.
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<PAGE> 9
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, treaties, rules, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
3.1(a).
"Assigned Dollar Value" shall mean, in respect of any Foreign Currency
Loan, the Dollar equivalent thereof determined based upon the applicable Spot
Exchange Rate as of the Denomination Date for such Loan.
"Assigned Dollar Value Excess" shall mean the Dollar amount by which,
at the end of any Interest Period for a Foreign Currency Loan, the Assigned
Dollar Value of outstanding Foreign Currency Loans under the subject Loan
facility exceeds the applicable Foreign Currency Sublimit.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 12.8(a).
"Assignment of Accounts Receivable" means the Assignment of Accounts
Receivable dated as of May 2, 1997, executed by ADI Germany in favor of the
Administrative Agent for the benefit of itself and the Lenders, as amended by
the Supplemental Assignment, and as it may further be amended, modified or
supplemented from time to time.
"Avoidance Provisions" shall have the meaning assigned thereto in
Section 2.10(a).
"Bankruptcy Code" means the U.S. Bankruptcy Code, 11 U.S.C. ss. 101 et
seq., as amended.
"Base Rate Currency" means English Pounds but no other Alternative
Currency.
"Base Rate Loan" means any loan made by the Lenders under the Revolving
Facility and bearing interest determined with reference to the Domestic Base
Rate or by the European Swingline Lender under the European Swingline and
bearing interest at a rate determined with reference to the Foreign Base Rate.
"Benefitted Lender" shall have the meaning assigned thereto in Section
10.5.
"Borrowers" shall have the meaning assigned thereto in the preamble
hereof.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and Atlanta, Georgia are open for the
conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan or Foreign Currency Loan, any day that is a
Business Day described in clause (a) and that is also, with respect to LIBOR
Rate Loans, a day for trading by and between banks in deposits in the London
interbank market, and, with respect to such Foreign Currency Loans, is a day in
which the banks in the capital of the country of the foreign currency are open.
-3-
<PAGE> 10
"Capital Asset" means, with respect to AHL and its Subsidiaries, any
asset that would, in accordance with GAAP, be required to be classified and
accounted for as a capital asset on a Consolidated balance sheet of AHL and its
Subsidiaries.
"Capital Expenditures" means, with respect to AHL and its Subsidiaries
for any period, the aggregate cost of all Capital Assets acquired by AHL and its
Subsidiaries during such period, determined in accordance with GAAP.
"Capital Lease" means, with respect to AHL and its Subsidiaries, any
lease of any property that would, in accordance with GAAP, be required to be
classified and accounted for as a capital lease on a Consolidated balance sheet
of AHL and its Subsidiaries.
"Cash Collateral Account" shall have the meaning assigned thereto in
Section 2.5(a).
"Change in Control" means (i) any person or group of persons other than
Frank A. Argenbright, Jr. shall obtain beneficial ownership or control (within
the meaning of Section 13(d)(3) of the Exchange Act) in one or more series of
transactions of more than fifty percent (50%) of the common stock of AHL or more
than fifty percent (50%) of the voting power of shareholders of AHL entitled to
vote in the election of members of the board of directors (ii) during any period
of twenty-four consecutive months, individuals who at the beginning of such
period constituted the board of directors of AHL cease for any reason to
constitute a majority of the members of the board of directors of such company,
or (iii) there shall have occurred under any indenture or other instrument
evidencing any Debt in excess of Five Million Dollars ($5,000,000) any "change
in control" (as defined in such indenture or other evidence of Debt) obligating
AHL or any Subsidiary to repurchase, redeem or repay all or any part of the Debt
or capital stock provided for therein.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Collateral" means any assets pledged by any of the Borrowers or any of
their Subsidiaries in order to secure the Obligations or a portion thereof.
"Commitment" means the commitment of a Lender to make Loans, the
Issuing Bank to issue Letters of Credit hereunder, and of each Lender to
reimburse the Issuing Bank for unreimbursed drawings under any Letter of Credit.
On the Closing Date, the Commitment of each Lender shall be the amount set forth
opposite such Lender's name on Schedule 1.1 under the caption "Commitment", as
the same may be reduced or modified at any time or from time to time pursuant to
Section 2.4(c) and Section 12.9.
"Commitment Percentage" means, at any time, with respect to any Lender
or the Issuing Bank, the ratio of (a) the Commitment of such Lender or the
Issuing Bank at such time to (b) the Aggregate Commitments of all Lenders and
the Issuing Bank at such time.
-4-
<PAGE> 11
"Composite Debenture" means the Composite Debenture dated as of May 2,
1997, executed by European Holdings, ADI Germany and ADI U.K. in favor of the
Administrative Agent for the benefit of itself and the Lenders, as amended,
modified or supplemented from time to time.
"Consolidated" means, when used with reference to financial statements
or financial statement items of AHL and its Subsidiaries, such statements or
items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Contributing Borrower" shall have the meaning assigned thereto in
Section 2.10(d).
"Contingent Obligation" means, with respect to AHL and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, that the term Contingent
Obligation shall not include (i) customary indemnification obligations provided
in connection with previously-consummated acquisition or sale transactions or
provided in connection with future acquisition or sale transactions consummated
in compliance with the terms of this Agreement or (ii) endorsements for
collection or deposit in the ordinary course of business.
"Correspondent(s) means the financial institution(s) or office(s),
which may or may not be an Affiliate of the Administrative Agent or the European
Swingline Lender, which the Administrative Agent or the European Swingline
Lender from time to time designates to the Borrowers as its correspondent
hereunder in disbursing proceeds of a Loan and/or receiving payments with
respect to a Loan.
"Credit Facility" means the several credits to be extended to the
Borrowers pursuant to Article II.
"Current Assets" at any date, the amount at which all of the
Consolidated current assets of AHL and Subsidiaries would be properly classified
in accordance with GAAP as current assets on a balance sheet at such date.
"Current Liabilities" at any date, the amount at which all of the
Consolidated current liabilities of AHL and Subsidiaries would be properly
classified in accordance with GAAP as current liabilities on a balance sheet at
such date, excluding the Loans, current maturities of any Funded Indebtedness,
amounts due to Affiliates, and the current portion of the reserve maintained by
AHL and its Subsidiaries for the payment of workers' compensation and vehicle
claims.
-5-
<PAGE> 12
"Debt" means, with respect to AHL and its Subsidiaries, at any date and
without duplication, the sum, calculated in accordance with GAAP, of (a) all
liabilities, obligations and indebtedness for borrowed money including but not
limited to obligations evidenced by bonds, debentures, notes or other similar
instruments of any such Person, (b) all obligations to pay the deferred purchase
price of property or services of any such Person, except trade payables or
accrued liabilities arising in the ordinary course of business not more than
ninety (90) days past due or, if more than ninety (90) days past due, being
contested by such Person in good faith, (c) all obligations of any such Person
as lessee under Capital Leases, (d) all Debt of any other Person secured by a
Lien on any asset of any such Person, (e) all obligations, contingent or
otherwise, of any such Person relative to the face amount of letters of credit,
whether or not drawn, and banker's acceptances issued for the account of any
such Person, (f) all Contingent Obligations of such Person, (g) all obligations
to redeem, repurchase, exchange, defease or otherwise make payments in respect
of capital stock or other securities of such Person and (h) all termination
payments which would be due and payable by any such Person pursuant to a Hedging
Agreement.
"Default" means any of the events specified in Section 10.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Domestic Borrower" means each Borrower other than a Foreign Borrower.
"Denomination Date" means, (a) in determining the Assigned Dollar Value
of any European Swingline Loan, in determining the conversion to Dollars of all
Foreign Currency Loans pursuant to Section 3.1(f), or in determining the
Assigned Dollar Value of all Foreign Currency Loans pursuant to Section 3.10(g),
the same Business Day on which such determination is made, (b) in determining
the Assigned Dollar Value of any Foreign Currency Loans to be made, continued or
converted, the date that is two Business Days before the date on which the
applicable Foreign Currency Loan is made, continued or converted, and (c) with
respect to any determination of any Denomination Date, from time to time by the
Administrative Agent in its sole discretion.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Domestic Base Rate" means, at any time, with respect to Revolving
Loans made in Dollars and Swingline Loans the higher of (a) the U.S. Prime Rate
or (b) the Federal Funds Rate plus one half of one percent (0.50%); each change
in the Domestic Base Rate shall take effect simultaneously with the
corresponding change or changes in the U.S. Prime Rate or the Federal Funds
Rate, as applicable.
"EBITDA" as applied to AHL and the Subsidiaries, means, for any period,
AHL and the Subsidiaries' Net Income (but without deduction of income and
franchise taxes that have been accrued), plus (a) Interest Expense paid or
accrued, (b) amortization and depreciation deducted in determining Net Income,
and (c) the Reserve Increase during the period, provided that in calculating Net
Income for the purpose of calculating EBITDA there shall be excluded therefrom
(i) any gain arising from the sale of capital assets; (ii) any gain arising from
any write-up of assets; (iii) all net earnings of any entity (other than a
Subsidiary) in which AHL has an ownership interest unless such
-6-
<PAGE> 13
net earnings have actually been received by AHL and the Subsidiaries in the form
of cash distributions; (iv) any portion of the net earnings of any Subsidiary
which for any reason is unavailable for payment of dividends to the AHL and the
Subsidiaries; and (v) any gain arising from extraordinary or nonrecurring items.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States or any state thereof and having total assets in excess
of $1,000,000,000, (ii) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development or any successor thereto (the "OECD") or a political subdivision of
any such country and having total assets in excess of $1,000,000,000, provided
that such bank or other financial institution is acting through a branch or
agency located in the United States, in the country under the laws of which it
is organized or in another country that is also a member of the OECD, (iii) the
central bank of any country that is a member of the OECD, (iv) a finance
company, insurance company or other financial institution or fund that is
engaged in making, purchasing or otherwise investing in loans in the ordinary
course of its business and having total assets in excess of $500,000,000, (v)
any Affiliate of an existing Lender or (vi) any other Person approved by the
Administrative Agent and, if and to the extent required under Section 12.8, AHL,
which approval shall not be unreasonably withheld.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees or former
employees of any Borrower or any ERISA Affiliate or (b) has at any time within
the preceding six years been maintained for the employees or former employees of
any Borrower or any current or former ERISA Affiliate.
"EMU Event" means an event associated with economic and monetary union
in the European Community, including, without limitation, each (and any
combination) of the following:
(a) the introduction of, changeover to or operation of a single or
unified European currency (whether known as the euro or otherwise);
(b) the fixing of conversion rates between a member state's currency
and the new currency or between the currencies of member states;
(c) the substitution of that new currency for the Ecu as the unit of
account of the European Community;
(d) the introduction of that new currency as lawful currency in a
member state;
(e) the withdrawal from legal tender of any currency that, before the
introduction of the new currency, was lawful currency in one of the member
states; or
(f) the disappearance or replacement of a relevant rate option or other
price source for the Ecu or the national currency of any member state, or the
failure of the agreed sponsor (or a successor sponsor) to publish or display a
relevant rate, index, price, page or screen.
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"English Pounds" means Pounds Sterling, the lawful currency of the
United Kingdom on the date of this Agreement.
"Environmental Laws" means any and all federal, state, provincial and
local laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals and interpretations, and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with any Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"European Swingline Committed Amount" means the Assigned Dollar Value
of $7,500,000.
"European Swingline Facility" means the revolving credit facility
extended in English Pounds or any other currency (other than Dollars), in each
case, freely transferable and convertible into Dollars in the London Interbank
market requested by a Foreign Borrower and acceptable to the European Swingline
Lender in the aggregate principal amount not to exceed at any time the European
Swingline Committed Amount.
"European Swingline Lender" shall have the meaning assigned thereto in
the preamble hereof.
"European Swingline Loan" means any Loan made pursuant to the European
Swingline Facility.
"European Swingline Note" means the European Swingline Note made by the
Borrowers and payable to the order of the European Swingline Lender
substantially in the form of Exhibit A-3 hereto, evidencing the European
Swingline Facility, and any amendments and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or extension
thereof, in whole or in part; "European Swingline Note" means any of such Notes.
"European Swingline Termination Date" means the date that is the
Revolving Facility Termination Date.
"Event of Default" means any of the events specified in Section 10.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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<PAGE> 15
"Existing Lenders" means, collectively, First Union and First Union
National Bank, London Branch.
"Existing LIBOR Rate Loans" means the two LIBOR Rate Loans (as such
term is defined in the Original Credit Agreement) made by First Union to the
Borrowers under the Original Credit Agreement, in the aggregate principal amount
of $1,600,000, which shall be deemed converted to European Swingline Loans made
as LIBOR Rate Loans on the Closing Date.
"Expiration Date" means the fifth anniversary of the Closing Date.
"Facility Fee" shall have the meaning assigned thereto in Section
3.3(a).
"Facility Fee Percentage" shall have the meaning assigned thereto in
Section 3.3(a).
"Federal Funds Rate" means, for any day, a fluctuating interest rate
per annum (rounded upward, if necessary, to the next 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published at 11:00 a.m. (Eastern Standard or Daylight Time) for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it in good faith as reasonably
representative of such rate.
"First Union" shall have the meaning assigned thereto in the preamble
hereof.
"Fiscal Year" means each fiscal year of AHL and its Subsidiaries ending
on the last Friday in December, or, with respect to the Foreign Borrowers,
ending on December 31.
"Foreign Base Rate" means, at any time, with respect to European
Swingline Loans made as Base Rate Loans in the Base Rate Currency, the Prime
Rate; each change in the Foreign Base Rate shall take effect simultaneously with
the corresponding change or changes in the Prime Rate.
"Foreign Borrowers" means each of ADI U.K., ADI Germany, and European
Holdings.
"Foreign Currency Loan" means any Loan that is borrowed in, and to be
repaid in, an Alternative Currency.
"Foreign Currency Sublimit" means, with respect to the Revolving
Facility, the Assigned Dollar Value of $35,000,000, and with respect to the
European Swingline Facility, the Assigned Dollar Value of $7,500,000, being the
maximum aggregate Loans to be made in the Alternative Currency under the
respective Facilities.
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"Foreign Subsidiary Note" means each and every promissory note made to
AHL from a foreign Subsidiary and made to evidence the loans to be made by AHL
to the foreign Subsidiary from proceeds of the Loans and other cash sources.
"FUCMC" means First Union Capital Markets Corp.
"Funded Indebtedness" means all (i) Debt for money borrowed, (ii) all
guaranties of Funded Indebtedness described in clauses (i), (iii), and (iv) of
this definition, (iii) the face amount of the Letters of Credit then
outstanding, and (iv) Capital Lease obligations, in each case that by their
terms mature more than one year from the date of any calculation thereof or that
are renewable or extendable at the option of the obligor to a date beyond one
year from such date of calculation.
"Funding Borrower" shall have the meaning assigned thereto in Section
2.10(d).
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for AHL and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of AHL and the Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing having
jurisdiction over the Person and the subject matter, including, without
limitation, the Federal Reserve Board and the Bank of England.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (b) which are
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, (c) the presence of which
require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license
under any Environmental Law or other Governmental Approval, (e) which are deemed
to constitute a nuisance, a trespass or pose a health or safety hazard to
persons or neighboring properties, (f) which are materials consisting of
underground or aboveground storage tanks, whether empty, filled or partially
filled with any substance, or (g) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedging Agreement" means any agreement with any Lender with respect to
an interest rate swap, collar, cap, floor or a forward rate agreement or other
agreement regarding the hedging of
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<PAGE> 17
interest rate or currency risk exposure executed in connection with hedging the
interest rate or currency exposure of the Borrowers, and any confirming letter
executed pursuant to such hedging agreement, all as amended or supplemented from
time to time.
"Intercompany Subordination Agreement" means the Intercompany
Subordination Agreement of even date by and among AHL, certain Subsidiaries of
AHL identified therein and the Administrative Agent, for the benefit of itself
and the Lenders, substantially in the form of Exhibit H attached hereto, as
amended or supplemented from time to time.
"Interest Coverage Ratio" means, at any date of determination thereof,
the ratio of (a) (i) Consolidated Net Income of AHL and its Subsidiaries for the
period of four (4) consecutive fiscal quarters ending on or immediately prior to
such date, plus (ii) income and franchise taxes paid in cash during such period,
plus (iii) Interest Expense paid in cash during such period, plus (iv) the
Reserve Increase during the period to (b) Interest Expense for such period.
"Interest Expense" means, with respect to AHL and the Subsidiaries, for
any period of calculation and without duplication, gross interest expense
(including without limitation, interest expense attributable to Capital Leases
and, after taking into account appropriate netting, all amounts due or
receivable, pursuant to hedging agreements), determined for such period in
accordance with GAAP.
"Interest Payment Date" means, with respect to Base Rate Loans, the
last Business Day of each calendar quarter commencing with the first calendar
quarter ending after the Closing Date, and with respect to LIBOR Rate Loans, the
last day of each Interest Period applicable thereto (unless such Interest Period
extends over three (3) months, in which case "Interest Payment Date" shall also
include the last Business Day of the third month during such Interest Period).
"Interest Period" shall have the meaning assigned thereto in Section
3.1(b).
"Issuing Bank" means First Union, as the issuer of a Letter of Credit.
"Joinder Agreement" means a Joinder Agreement substantially in the form
of Exhibit I executed by each Subsidiary in accordance with Section 7.12, as
amended or supplemented from time to time.
"Joinder Event" shall have the meaning assigned thereto in Section
7.12.
"Lender" includes the European Swingline Lender, each Person executing
this Agreement as a Lender set forth on the signature pages hereto, and each
Person that hereafter becomes a party to this Agreement as a Lender pursuant to
Section 12.8.
"Letter of Credit" means a letter of credit at any time issued by the
Issuing Bank for the account of the Borrowers and includes each of the two
letters of credit issued for the account of the Borrowers prior to the Closing
Date and specified in Schedule 9.1.
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<PAGE> 18
"LIBOR" means the rate of interest determined on the basis of the rate
of interest at which Dollar deposits, in the case of any Loan other than a
Foreign Currency Loan, or deposits in the Alternative Currency, in the case of
any Foreign Currency Loan, for a period comparable to the applicable Interest
Period commencing on the first day of such Interest Period appearing on Telerate
Page 3750 as of 11:00 a.m. (London time) two Business Days prior to the first
day of the applicable Interest Period. In the event that such rate does not
appear on Telerate Page 3750, "LIBOR" shall be determined by the Administrative
Agent to be the rate per annum at which Dollar deposits or deposits in the
Alternative Currency, as the case may be, are offered by leading reference banks
in the London interbank market to the Administrative Agent at approximately
11:00 a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period for a period comparable to such Interest Period and
in an amount comparable to the amount of the applicable Revolving Loan.
"LIBOR Rate" means:
(a) with respect to all Loans (other than Foreign Currency Loans
made in English Pounds) (i) LIBOR divided by (ii) one (1) less
the Reserve Percentage (such rate to be rounded upward to the
next whole multiple of 1/16 of 1%); and
(b) with respect to all Foreign Currency Loans made in English
Pounds (i) LIBOR plus (ii) MLA Costs.
As used herein "MLA Cost" means, subject to paragraph 3 below, the rate per
annum determined by the Administrative Agent to be equal to the arithmetic mean
(rounded to three decimal places with the mid-point rounded up) of the
respective rates determined by the Administrative Agent as the rate resulting
from the application of the following formula:
A(D-E) + BD + C(D-F)
-------------------
100 - (B+C)
where on the date upon which the calculation fails to be made:
"A" is the level of secured loans which the Administrative Agent
is required by the Bank of England to maintain with members of
the London Discount Market Association, gilt-edged market
makers and Stock Exchange money brokers or certain marketable
or callable securities approved by the Bank of England,
expressed as a percentage of Eligible Liabilities;
"B" is the level of interest free cash balances which the
Administrative Agent is required to maintain with the Bank of
England expressed as a percentage of Eligible Liabilities;
"C" is the level of interest-bearing Special Deposits which the
Administrative Agent is required to maintain with the Bank of
England, expressed as a percentage of Eligible Liabilities;
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"D" is the interest rate expressed as a percentage per annum at
which one, two, three or six months (as the case may be)
English Pounds are offered to the Administrative Agent in the
London Interbank Market at or about 11:00 a.m. (London time);
"E" is the lower of D (above) and the interest rate expressed as a
percentage per annum offered by Discount Houses for secured
one, two, three or six month callable fixtures (as the case
may be) at or about 11:00 a.m. (London time); and
"F" is the lower of D (above) and the interest rate expressed as a
percentage per annum payable by the Bank of England to the
Administrative Agent on interest-bearing Special Deposits.
1. For purposes hereof, Eligible Liabilities and Special
Deposits have the meanings given to them at the time of application of
the formula by the Bank of England.
2. The MLA Cost shall be calculated at or about 11:00 a.m.
(London time) on the first day of each Interest Period and, if
necessary, on days falling at intervals of three months thereafter
during such Interest Period; the MLA Cost so calculated shall apply
from and including the date on which the calculation is made to, but
excluding, the date on which the MLA Cost is next calculated or, as the
case may require, the last day of the Interest Period in question.
3. If there is any change in applicable law or regulation, or
the interpretation thereof, by any governmental authority charged with
the administration thereof, or in the nature of any request or
requirement by the Bank of England, or other applicable banking
authority, the effect of which is to impose, modify or deem applicable
any reserve, special deposit, liquidity or similar requirements against
assets held by, or deposits in, or for the account of, or advances by
the Administrative Agent, or in any other respect whatsoever, the
Administrative Agent shall be entitled to vary the above formula so as
(but only so as) to restore the position, in terms of overall return to
that which prevailed before such change became necessary. The
Administrative Agent shall notify AHL of any necessary variation to the
formula and the formula, as so varied, shall be the formula for the
purposes hereof with effect from the date of notification; however,
such change shall not affect the MLA Cost in respect of any period of
calculation which commenced before the date of such notification.
The LIBOR Rate shall be adjusted automatically as of the effective date of any
change in the Reserve Percentage or the MLA Cost.
"LIBOR Rate Loan" means any Loan bearing interest at a rate determined
with reference to the LIBOR Rate.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the
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<PAGE> 20
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"Loan" means any loan or advance made by any Lender pursuant to this
Agreement, including without limitation, any Revolving Loan, any Swingline Loan,
any European Swingline Loan, and all such Loans collectively as the context
requires.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Intercompany Subordination Agreement, any Joinder Agreement, the Security
Documents and any supplements thereto executed in connection with any Joinder
Agreement, any Hedging Agreement executed by any Lender and each other document,
instrument and agreement executed and delivered by any Borrower or a Subsidiary
thereof in connection with this Agreement or otherwise referred to herein or
contemplated hereby, all as may be amended or supplemented from time to time.
"Loan Office" means the office specified by the Administrative Agent or
any Lender from time to time as its office for disbursement or receipt of Loan
proceeds.
"LOC Committed Amount" means Ten Million Dollars ($10,000,000).
"LOC Fronting Fee" means the non-refundable, fully-earned fee equal to
0.125% per annum of the undrawn face amount of each Letter of Credit issued,
renewed or extended by the Issuing Bank.
"LOC Issuance Fee"shall have the meaning assigned thereto in Section
2.5(b).
"LOC Obligations" means, as to each Letter of Credit, all liabilities
of the Borrowers or any of their Subsidiaries thereunder or in respect thereof,
whether contingent or otherwise, including (a) the amount available to be drawn
or which may become available to be drawn, (b) all amounts that have been paid
or made available by the Administrative Agent or the Issuing Bank to the extent
not reimbursed, and (c) all unpaid interest, fees and expenses relating thereto.
"Material Adverse Effect" means, with respect to AHL and its
Subsidiaries, a material adverse effect on (a) the properties, business,
prospects, operations or condition (financial or otherwise) of AHL and its
Subsidiaries, taken as a whole, or (b) the ability of AHL or any of its
Subsidiaries to perform its obligations under the Loan Documents to which it is
a party.
"Material Contract" means (a) any contract or other agreement, written
or oral, of AHL or any of its Subsidiaries involving monetary liability of or to
any such Person in an amount in excess of $1,000,000 per annum, or (b) any other
contract or agreement, written or oral, of AHL or any of its Subsidiaries the
failure to comply with which could reasonably be expected to have a Material
Adverse Effect.
"Material Judgment Amount" means $1,000,000.
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"Material Subsidiary" means (i) each Borrower and (ii) any Subsidiary
having at any fiscal quarter end, a Revenue Percentage, for the period
consisting of the quarter just ended, equal to or greater than ten percent
(10%).
"Maximum Borrower Liability" shall have the meaning assigned thereto in
Section 2.10(a).
"Mortgage of Shares" means, collectively, (a) the Mortgage of Shares
dated May 2, 1997 executed by AHL, and (b) the Mortgage of Shares dated May 2,
1997 executed by European Holdings, in each case, with respect to the stock of
the Material Subsidiaries and in favor of the Administrative Agent for the
benefit of itself and the Lenders.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which any Borrower or any ERISA Affiliate has made, or
accrued an obligation to make, contributions within the preceding six years.
"Net Cash Proceeds" means, as applicable, (a) with respect to any sale
or other disposition of assets (including sale/leaseback transactions), the
gross cash proceeds received by AHL or any of its Subsidiaries from such sale or
other disposition less (i) the sum of (A) all legal, title, recording, transfer
and income tax expenses, commissions and other fees and expenses incurred, and
all other federal, state, local and foreign taxes assessed in connection
therewith and (ii) the principal amount of, premium, if any, and interest on any
Debt secured by a Lien on the asset (or a portion thereof) sold or disposed of,
which Debt is required to be repaid in connection with such sale, (b) with
respect to any offering of debt or equity securities, the gross cash proceeds
received by AHL or any of its Subsidiaries therefrom less all legal,
underwriting and other fees, commissions and expenses incurred in connection
therewith and (c) with respect to any payment under an insurance policy, the
amount of cash proceeds received by AHL or its applicable Subsidiary from the
related insurance company.
"Net Income" means, with respect to AHL and its Subsidiaries, for any
period and without duplication, net income (or loss) for such period determined
in accordance with GAAP.
"Notes" means the Revolving Notes, the Swingline Note, the European
Swingline Note and collectively all of such Notes.
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.2(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 3.2.
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
all payment and other obligations owing by a Borrower to any Lender under any
Hedging Agreement and (c) all other fees and commissions (including attorney's
fees), charges, indebtedness, loans, liabilities, financial accommodations,
obligations, covenants and duties owing by a Borrower to the Lenders or to the
Administrative Agent under or in respect of this Agreement, any Note or any of
the other Loan Documents, of every kind, nature and description, direct or
indirect, absolute or contingent, due or to become due, contractual or tortious,
liquidated or
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<PAGE> 22
unliquidated, and whether or not evidenced by any note, and whether or not for
the payment of money.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 6.2.
"Original Credit Agreement" shall have the meaning assigned thereto in
the first paragraph of the recitals hereto.
"Other Debtor Relief Law" shall have the meaning assigned thereto in
Section 2.10(a).
"Other Taxes" shall have the meaning assigned thereto in Section
3.10(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees or former
employees of any Borrower or any ERISA Affiliates or (b) has at any time within
the preceding six years been maintained for the employees or former employees of
any Borrower or any of their current or former ERISA Affiliates.
"Permitted Liens" means (a) Liens for taxes, assessments and other
governmental charges or levies (excluding any Lien imposed pursuant to any of
the provisions of ERISA or Environmental Laws) not yet due or as to which the
period of grace (not to exceed thirty (30) days), if any, related thereto has
not expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP,
(b) the claims of materialmen, mechanics, carriers, warehousemen, processors or
landlords for labor, materials, supplies or rentals incurred in the ordinary
course of business, (i) which are not overdue for a period of more than thirty
(30) days or (ii) which are being contested in good faith and by appropriate
proceedings, (c) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
performance obligations under customer service contracts, (d) Liens constituting
encumbrances in the nature of zoning restrictions, easements and rights or
restrictions of record on the use of real property, which in the aggregate are
not substantial in amount and which do not, in any case, materially detract from
the value of such property or impair the use thereof in the ordinary conduct of
business, (e) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders, (f) Liens securing Debt permitted by
Section 9.1(h), but only if each such Lien attaches only to the property
acquired with the proceeds of such permitted Debt and it is expressly
subordinated to newly-created or existing Liens in favor of the Administrative
Agent for the benefit of the Lenders pursuant to subordination documentation
with terms and in a form approved by the Administrative Agent, (g) Liens
securing Debt permitted by Section 9.1(i), but only if each such Lien attaches
only to the property acquired with the proceeds of such permitted Debt, and (h)
Liens existing on the Closing Date and described on Schedule 1.1(PL).
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<PAGE> 23
"Person" means an individual, corporation, partnership, association,
trust, business trust, limited liability company, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group.
"Pledge Agreement" means, collectively, (a) the Pledge Agreement of
even date herewith executed by AHL substantially in the form of Exhibit F-1, and
(b) the Pledge Agreement of even date herewith executed by U.S. Holdings
substantially in the form of Exhibit F-2, in each case, with respect to the
stock of the Material Subsidiaries and in favor of the Administrative Agent for
the benefit of itself and the Lenders.
"Possible Obligation Liability" means, with respect to any Borrower,
the maximum amount of the outstanding Obligations at the time of determination
which the Administrative Agent determines in its sole discretion that the
individual Borrower would be required to pay upon an Event of Default, taking
into consideration the financial resources of all of the other Borrowers that
are jointly and severally obligated upon the Obligations.
"Prime Rate" means, at any time, with respect to European Swingline
Loans in the Base Rate Currency, the fluctuating and publicly announced base
rate of Midland Bank, plc, plus two percent (2%). Each change in the Prime Rate
shall be effective as of the opening of business on the day such change in the
Prime Rate occurs. The parties hereto acknowledge that the rate that may be
announced publicly as the Prime Rate is an index or base rate and shall not
necessarily be the lowest or best rate charged to customers or other banks.
"Prior Security Documents" means, collectively, the Composite
Debenture, the Mortgage of Shares and the Assignment of Accounts Receivable.
"Projections" shall have the meaning assigned thereto in Section
6.1(c).
"Pro Forma Adjusted EBITDA" as applied to AHL and the Subsidiaries,
means, for any period, Consolidated Adjusted EBITDA of AHL and the Subsidiaries
calculated on a pro forma basis to include as of the first day of such period,
the Adjusted EBITDA of all companies acquired during such period as if they had
been owned by AHL and the Subsidiaries for the entire period (adjusted for any
non-recurring costs and expenses incurred by the acquired company prior to the
date of such acquisition) as approved by the Administrative Agent in its sole
discretion (or, in the case of any acquisition that requires the consent of the
Required Lenders, as approved by the Administrative Agent and the Required
Lenders). Borrowers hereby agree to promptly furnish to the Administrative Agent
any information, including, without limitation, financial statements of the
acquired company, as may reasonably be requested by the Administrative Agent in
order to calculate Pro Forma Adjusted EBITDA.
"Pro Forma EBITDA" as applied to AHL and the Subsidiaries, means, for
any period, Consolidated EBITDA of AHL and the Subsidiaries calculated on a pro
forma basis to include as of the first day of such period, the EBITDA of all
companies acquired during such period as if they had been owned by AHL and the
Subsidiaries for the entire period (adjusted for any non-recurring costs and
expenses incurred by the acquired company prior to the date of such acquisition)
as approved by
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<PAGE> 24
the Administrative Agent in its sole discretion (or, in the case of any
acquisition that requires the consent of the Required Lenders, as approved by
the Administrative Agent and the Required Lenders). Borrowers hereby agree to
promptly furnish to the Administrative Agent any information, including, without
limitation, financial statements of the acquired company, as may reasonably be
requested by the Administrative Agent in order to calculate Pro Forma EBITDA.
"Register" shall have the meaning assigned thereto in Section 12.8(b).
"Required Lenders" means, at any date, any combination of the Lenders
holding at least 51% of the combined sum of the Commitments of all Lenders, or
if the Commitments of the Lenders shall have been terminated, any combination of
the Lenders holding at least 51% of the sum of the aggregate unpaid principal
amount of the Loans and the LOC Obligations.
"Reserve Increase" means for any period the amount by which the reserve
maintained by AHL and its Subsidiaries for the payment of workers' compensation
and vehicle claims increased during the period after netting and deducting any
charges or offsets to the reserve during the period.
"Reserve Percentage" means the maximum daily arithmetic (expressed as a
decimal) reserve requirement imposed by any Governmental Authority on Dollar or
Alternative Currency liabilities, including, without limitation, any reserve
requirement or increased cost imposed by any Governmental Authority, including,
without limitation, the Board of Governors of the Federal Reserve System (or any
successor) under Regulation D.
"Revenue Percentage" means, for any Subsidiary of any Borrower, for any
period of calculation, the percentage derived by dividing (A) the product of (i)
Consolidated revenues for such Subsidiary during the period, multiplied by (ii)
the percentage amount of direct or indirect ownership by all Borrowers of all
outstanding capital stock or other ownership interests in the Subsidiary at the
end of the period by (B) Consolidated revenues for AHL and all its Subsidiaries
during the period.
"Revolving Facility" means the revolving credit facility extended to
the Borrowers pursuant to Section 2.1.
"Revolving Facility Termination Date" means the earliest of the dates
referred to in Section 2.7.
"Revolving Loan" means any Loan made to the Borrowers pursuant to
Section 2.1, and all such Loans collectively as the context requires.
"Revolving Notes" means the separate Revolving Credit Notes made by the
Borrowers payable to the order of each Lender, substantially in the form of
Exhibit A-1 hereto, evidencing the Revolving Facility, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part; "Revolving
Note" means any of such Notes.
"SEC" means the Securities and Exchange Commission.
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"Security Agreement" means the Security Agreement of even date
herewith substantially in the form of Exhibit G executed by the Borrowers in
favor of the Administrative Agent for the benefit of itself and the Lenders, as
amended, modified or supplemented from time to time.
"Security Documents" means the collective reference to the Security
Agreement, the Pledge Agreement, the Mortgage of Shares, the Composite
Debenture, the Assignment of Accounts Receivable and each other agreement or
writing pursuant to which AHL or any Subsidiary thereof pledges or grants a
security interest in the Collateral or such Person guaranties the payment or
performance of the Obligations.
"Senior Indebtedness" means, at any date of determination thereof, the
Total Indebtedness, less all Subordinated Indebtedness, of AHL and its
Subsidiaries.
"Solvent" means, with respect to each of AHL and each of its
Subsidiaries, that such Person (a) has capital sufficient to carry on its
business and transactions and all business and transactions in which it is about
to engage and is able to pay its debts as they mature, (b) owns property having
a value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"Spot Exchange Rate" shall mean, on any day, (i) with respect to any
Alternative Currency, the spot rate at which Dollars are offered on such day to
the Administrative Agent by the European Swingline Lender, for delivery two
Business Days forward for such Alternative Currency at approximately 11:00 a.m.
(London time), and (ii) with respect to Dollars in relation to any specified
Alternative Currency, the spot rate at which such specified Alternative Currency
is offered for Dollars for delivery two Business Days forward on such day to the
Administrative Agent by the European Swingline Lender at approximately 11:00
a.m. (London time).
"Subordinated Indebtedness" means, at any date of determination
thereof, any Debt of AHL and its Subsidiaries that is subordinated to the Credit
Facilities upon terms and conditions satisfactory to the Administrative Agent
and the Required Lenders.
"Subsidiary" means any corporation, partnership or other entity of
which more than fifty percent (50%) of the outstanding capital stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other managers of such corporation, partnership or other
entity is at the time, directly or indirectly, owned by AHL or the management is
otherwise controlled by such Person (irrespective of whether, at the time,
capital stock or other ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have voting power
by reason of the happening of any contingency).
"Supplemental Assignment" means the Supplemental Assignment of even
date herewith substantially in the form of Exhibit F-3 executed by ADI Germany
in favor of the Administrative Agent for the benefit of itself and the Lenders,
as amended, modified or supplemented from time to time.
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"Swingline Committed Amount" means $7,500,000.
"Swingline Lender" means First Union, as the Lender with respect to
Swingline Loans.
"Swingline Loans" shall have the meaning assigned thereto in Section
2.3(a).
"Swingline Note" shall have the meaning assigned thereto in Section
2.3(b).
"Taxes" shall have the meaning assigned thereto in Section 3.10(a).
"Term Sheet" shall have the meaning assigned thereto in Section 3.3(b).
"Termination Event" means: (a) a "Reportable Event" described in
Section 4043 of ERISA (other than a Reportable Event as to which the provision
of 30 days' notice has been waived by the PBGC under applicable regulations);
(b) the withdrawal of any Borrower or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA; (c) the termination of a Pension Plan, the filing
of a notice of intent to terminate a Pension Plan or the treatment of a Pension
Plan amendment as a distress termination under Section 4041(c) of ERISA; (d) the
institution of proceedings to terminate, or the appointment of a trustee with
respect to, any Pension Plan by the PBGC; (e) any other event or condition which
would constitute grounds under Section 4042(a) of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan; (f) the partial
or complete withdrawal of any Borrower or any ERISA Affiliate from a
Multiemployer Plan; (g) the imposition of a Lien pursuant to Section 412 of the
Code or Section 302 of ERISA; (h) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245
of ERISA; or (i) any event or condition which results in the termination of a
Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of
proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA.
"Total Capitalization" means, as of any date of determination,
Borrower's Consolidated shareholders equity, plus Consolidated Total
Indebtedness, as of such date.
"Total Indebtedness" means, at any date of determination thereof, all
(a) Debt (including Subordinated Indebtedness) for money borrowed of AHL and its
Consolidated Subsidiaries, (b) guaranties of Debt described in clauses (a), (c),
and (d) of this definition by AHL and its Consolidated Subsidiaries, (c) the
undrawn face amount of any Letters of Credit then outstanding, and (d) Capital
Lease obligations of AHL and its Consolidated Subsidiaries.
"UCC" means the Uniform Commercial Code as in effect in the State of
Georgia.
"United States" means the United States of America.
"U.S. Prime Rate" means, with respect to Revolving Loans made in
Dollars, the rate of interest publicly announced by First Union from time to
time as its prime rate. Each change in the U.S. Prime Rate shall be effective as
of the opening of the Business Day on the day such change in
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the U.S. Prime Rate occurs. The parties hereto acknowledge that the rate
announced publicly by First Union as the prime rate is an index or base rate and
shall not necessarily be its lowest or best rate charged to its customers or
other banks.
"Wholly-Owned" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests of which are, directly
or indirectly, owned or controlled by AHL and/or one or more of its Wholly-Owned
Subsidiaries.
SECTION 1.2 General. All terms of an accounting nature not specifically
defined herein shall have the meanings assigned thereto by GAAP. Unless
otherwise specified, a reference in this Agreement to a particular section,
subsection, Schedule or Exhibit is a reference to that section, subsection,
Schedule or Exhibit of this Agreement. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include the
singular and plural, and pronouns stated in the masculine, feminine or neuter
gender shall include the masculine, the feminine and the neuter. Any reference
herein to "Charlotte time" shall refer to the applicable time of day in
Charlotte, North Carolina. Any reference herein to "London time" shall refer to
the applicable time of day in London, England.
SECTION 1.3 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including without limitation, all computations utilized by the
Borrowers or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Administrative Agent to the
contrary agreed to by the Borrowers, be performed in accordance with GAAP. In
the event that changes in GAAP (as in effect on the Closing Date) shall be
mandated by the Financial Accounting Standards Board or any similar accounting
body of comparable standing or shall be recommended by the Borrowers' certified
public accountants, to the extent that such changes would modify such accounting
terms or the interpretation or computation thereof, such changes shall be
followed in defining such accounting terms only from and after the date the
Borrowers, the Required Lenders and the Administrative Agent shall have entered
into an amendment of this Agreement to the extent necessary to reflect any such
changes in the financial covenants and other terms and conditions of this
Agreement.
SECTION 1.4 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. 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.
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ARTICLE II
CREDIT FACILITY
SECTION 2.1 Revolving Loans. Subject to the terms and conditions of
this Agreement, each Lender severally but not jointly agrees to make Revolving
Loans to the Borrowers jointly and severally from time to time from the Closing
Date through the Revolving Facility Termination Date as requested by AHL, on
behalf of the Borrowers, in accordance with the terms of Section 2.2; provided
that, after giving effect to any amount requested, (i) the aggregate principal
amount (reflecting the Assigned Dollar Value of any outstanding Foreign Currency
Loans) of all outstanding Revolving Loans shall not exceed the Aggregate
Commitment less the sum of (A) the undrawn amount of outstanding Letters of
Credit, (B) the aggregate principal amount of all outstanding Swingline Loans,
and (C) the Assigned Dollar Value of all outstanding European Swingline Loans,
(ii) the sum of (A) the principal amount of Revolving Loans (reflecting the
Assigned Dollar Value of any outstanding Foreign Currency Loans) from any single
Lender, plus (B) the principal amount of such Lender's share of any required
participations in outstanding Swingline Loans, as required pursuant to Section
2.4, plus (C) the principal amount of such Lender's share of any required
participations in outstanding European Swingline Loans, as required pursuant to
Section 2.12, plus such Lender's share of any required participations in the
outstanding amount of any outstanding Letters of Credit, as required pursuant to
Section 2.5, shall not at any time exceed such Lender's Commitment, and (iii)
the Assigned Dollar Value of the principal amount of all outstanding Foreign
Currency Loans made under the Revolving Facility shall not exceed $35,000,000.
Each Revolving Loan by a Lender shall be in a principal amount equal to such
Lender's Commitment Percentage of the aggregate principal amount of Revolving
Loans requested on such occasion. Subject to the terms and conditions hereof,
the Borrowers may borrow, repay and reborrow Revolving Loans hereunder until the
Revolving Facility Termination Date.
SECTION 2.2 Procedure for Advances of Revolving Loans.
(a) Requests for Borrowing. AHL, on behalf of the Borrowers, shall
give the Administrative Agent irrevocable prior written notice in the form
attached hereto as Exhibit B (a "Notice of Borrowing") not later than 11:00 a.m.
(Charlotte time) (i) on the date of borrowing with respect to each Revolving
Loan constituting a Base Rate Loan that is not a Foreign Currency Loan (ii) at
least three (3) Business Days before each Dollar LIBOR Rate Loan, and (iii) at
least four (4) Business Days before each Foreign Currency Loan of its intention
to borrow, specifying (A) the Borrower to whom loan proceeds are to be advanced,
(B) the date of such borrowing, which shall be a Business Day, (C) the amount of
such borrowing, which shall, with respect to (I) Foreign Currency Loans (other
than European Swingline Loans) and LIBOR Rate Loans, be in an aggregate
principal amount of $2,000,000 or a whole multiple of $100,000 in excess
thereof, (II) Base Rate Loans (other than Swingline Loans and European Swingline
Loans made as Base Rate Loans), be in an aggregate principal amount of
$1,000,000 and or a whole multiple of $100,000 in excess thereof, and (III)
European Swingline Loans, be in an aggregate principal amount of $500,000 and or
a whole multiple of $100,000 in excess thereof, (D) if not a Foreign Currency
Loan, whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E)
in the case of a LIBOR Rate Loan, the duration of the Interest Period applicable
thereto. Notices received after 11:00 a.m. (Charlotte time)
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shall be deemed received on the next Business Day. The Administrative Agent
shall promptly notify the Lenders of each Notice of Borrowing.
(b) Disbursement of Revolving Loans. Not later than 1:00 p.m.
(Charlotte time) on the proposed borrowing date for any Revolving Loan to be
made in Dollars (or if such Revolving Loan is to be made in an Alternative
Currency, no later than 1:00 p.m. (local time in the country having such
Alternative Currency as its lawful currency ) on the proposed borrowing date as
is necessary for such funds to be received and transferred to the Borrowers for
same day value on the date of such borrowing), each Lender will make available
to the Administrative Agent, for the account of the Borrowers, at the
Correspondent or Loan Office designated by the Administrative Agent, in Dollars
or the Alternative Currency in which the Loan is to be made, and funds
immediately available to the Administrative Agent, such Lender's Commitment
Percentage of the Revolving Loans requested. The proceeds of each Dollar Loan
requested pursuant to this Section 2.2 shall be disbursed in immediately
available funds by crediting or wiring such proceeds to the account of the
relevant Borrower designated in the Accounts Designation Letter. The proceeds of
each Foreign Currency Loan requested pursuant to this Section 2.2 shall be
transferred by wire from the Loan Office or an account maintained by the
Administrative Agent at a Correspondent to the account of the Foreign Borrower
specified by AHL in its Notice of Borrowing. All costs incurred and paid by the
Administrative Agent in advancing Loan proceeds, including all wire transfer
fees charged to the Administrative Agent and the Administrative Agent's own wire
transfer fees, shall be borne solely by the Borrowers and shall be paid or
reimbursed to the Administrative Agent immediately upon billing, or, at the
option of the Administrative Agent, shall be paid by deduction from the Loan
proceeds. Subject to Section 3.6 hereof, the Administrative Agent shall not be
obligated to disburse the proceeds of any Revolving Loan requested pursuant to
this Section 2.2 until each Lender shall have made available to the
Administrative Agent its applicable Commitment Percentage of such Revolving
Loan; provided, however, that the failure of a Lender to make available to the
Administrative Agent such Commitment Percentage shall not affect the obligation
of the Administrative Agent to disburse the proceeds of any Revolving Loan with
respect to that portion of such Loan as to which the Administrative Agent shall
have received the applicable Commitment Percentage.
SECTION 2.3 Swingline Loan Subfacility.
(a) Swingline Commitment. Subject to the terms and conditions of this
Agreement, First Union, in its individual capacity, agrees to make certain
revolving credit loans requested by the Borrowers in Dollars to the Borrowers
(each a "Swingline Loan" and, collectively, the "Swingline Loans") from time to
time from the Closing Date until the Revolving Facility Termination Date for the
purposes hereinafter set forth; provided, however, that at any time (i) the
aggregate principal amount of Swingline Loans outstanding shall not exceed the
Swingline Committed Amount, and (ii) the aggregate principal amount (reflecting
the Assigned Dollar Value of any outstanding Foreign Currency Loans) of all
outstanding Revolving Loans plus the aggregate principal amount of outstanding
Swingline Loans plus the undrawn amount of outstanding Letters of Credit plus
the Assigned Dollar Value of all outstanding European Swingline Loans shall not
exceed the Aggregate Commitment. Swingline Loans hereunder shall be made as Base
Rate Loans and may be repaid and reborrowed in accordance with the provisions
hereof.
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(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrowers desire a
Swingline Loan advance hereunder AHL, on behalf of the Borrowers, shall give
written notice (or telephone notice promptly confirmed in writing) to the
Swingline Lender not later than 12:00 Noon (Charlotte time) on the Business Day
of the requested Swingline Loan advance. Each such notice shall be irrevocable
and shall specify (A) that a Swingline Loan advance is requested, (B) the date
of the requested Swingline Loan advance (which shall be a Business Day) and (C)
the principal amount of the Swingline Loan advance requested.
Each Swingline Loan shall be made as a Base Rate Loan and
shall mature as provided in subsection (b)(iii) below.
(ii) Minimum Amounts. Each Swingline Loan advance made by
the Swingline Lender in response to a notice submitted by the Borrowers pursuant
to the first paragraph of this Section 2.3(b) shall be in a minimum principal
amount of $50,000 and in integral multiples of $50,000 in excess thereof (or the
remaining amount of the Swingline Committed Amount, if less).
(iii) Repayment of Swingline Loans. The principal amount of
all Swingline Loans shall be due and payable on the earlier of (A) the maturity
date specified by the Swingline Lender or (B) the Revolving Facility Termination
Date. The Swingline Lender may, at any time, in its sole discretion, by written
notice to the Borrowers and the Lenders, demand repayment of its Swingline Loans
by way of an advance under the Revolving Facility, in which case the Borrowers
shall be deemed to have requested a Revolving Loan comprised solely of Base Rate
Loans in the amount of such Swingline Loans; provided, however, that any such
demand shall be deemed to have been given one Business Day prior to the
Revolving Facility Termination Date and on the date of the occurrence of any
Event of Default described in Section 10.1 and upon acceleration of the
Obligations hereunder and the exercise of remedies in accordance with the
provisions of Section 10.2. Each Lender hereby irrevocably agrees to make its
pro rata share of each such Revolving Loan in the amount, in the manner and on
the date specified in the preceding sentence notwithstanding (I) the amount of
such borrowing may not comply with the minimum amount for advances of Revolving
Loans otherwise required hereunder, (II) whether any conditions specified in
Section 4.3 are then satisfied, (III) whether a Default or an Event of Default
then exists, (IV) failure of any such request or deemed request for a Revolving
Loan to be made by the time otherwise required hereunder, (V) whether the date
of such borrowing is a date on which Revolving Loans are otherwise permitted to
be made hereunder or (VI) any termination of the Revolving Facility relating
thereto immediately prior to or contemporaneously with such borrowing. In the
event that any Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to any
Borrower or any Subsidiary of any Borrower), then each Lender hereby agrees that
it shall forthwith purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from such Borrower on or after
such date and prior to such purchase) from the Swingline Lender such
participations in the outstanding Swingline Loans as shall be necessary to cause
each such Lender to share in such Swingline Loans ratably based upon its
Commitment Percentage of the Aggregate Commitment (determined before giving
effect to any termination of the Revolving Facility pursuant
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to Section 2.7), provided that (A) all interest payable on the Swingline Loans
shall be for the account of the Swingline Lender until the date as of which the
respective participation is purchased and (B) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Lender
shall be required to pay to the Swingline Lender, to the extent not paid to the
Swingline Lender by the Borrowers in accordance with the terms of subsection
(c)(ii) hereof, interest on the principal amount of participation purchased for
each day from and including the day upon which such borrowing would otherwise
have occurred to but excluding the date of payment for such participation, at
the rate equal to the Federal Funds Rate.
(c) Interest on Swingline Loans.
(i) Subject to the provisions of Section 3.1, each Swingline
Loan shall bear interest at a per annum rate (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be) equal to the Domestic Base Rate.
(ii) Payment of Interest. Interest on Swingline Loans shall be
payable quarterly in arrears on the last Business Day of each calender quarter,
at such other times as the Swingline Lender may specify from time to time, and
on the Revolving Facility Termination Date.
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note (the "Swingline Note") of the Borrowers to the
Swingline Lender in substantially the form of Exhibit A-2.
SECTION 2.4 Repayment of Revolving Loans.
(a) Repayment on Revolving Facility Termination Date. The
Borrowers shall repay the outstanding principal amount of all Revolving Loans
made to such Borrowers in full, together with all accrued but unpaid interest
thereon, on the Revolving Facility Termination Date.
(b) Mandatory Repayment of Excess Loans. If at any time the sum
of (i) the outstanding aggregate principal amount of all outstanding Revolving
Loans (after giving effect to the Assigned Dollar Value of any Foreign Currency
Loans) plus (ii) the undrawn amount of outstanding Letters of Credit plus (iii)
the outstanding aggregate principal amount of all Swingline Loans and plus (iv)
the Assigned Dollar Value of all outstanding European Swingline Loans exceeds
the Aggregate Commitment, the Borrowers shall immediately repay such excess, and
such payment shall be applied in the following order: (i) first, to Swingline
Loans; (ii) secondly, to European Swingline Loans, (iii) thirdly, to Revolving
Loans which are Base Rate Loans; (iv) fourthly, to Revolving Loans made in
Dollars which are LIBOR Loans, and (v) finally, to Foreign Currency Loans (other
than European Swingline Loans). Each such repayment shall be accompanied by
accrued interest on the amount repaid and any amount required to be paid
pursuant to Section 3.8 hereof.
(c) Mandatory Repayment and Reduction Upon Net Proceeds
Realization. At the time of and upon the consummation of any sale or other
disposition of assets producing Net Cash Proceeds in excess of $5,000,000 in any
single transaction or, together with all other sales or dispositions of assets
during the current Fiscal Year, $10,000,000, the Borrowers shall apply all Net
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Cash Proceeds from such sale or other disposition (including all amounts up to
the $5,000,000 and $10,000,000 minimum triggering amounts) to repay the
Revolving Loans and the Swingline Loans and reduce the Aggregate Commitment by
the amount of such repayment, provided, however, that no reduction in the
Aggregate Commitment shall be required to the extent that the Borrowers reinvest
the Net Cash Proceeds of such disposition or casualty loss in equipment used or
useful in the business of the Borrowers or in a acquisition permitted under
Section 9.4 within one hundred eighty (180) days after such disposition or
casualty loss. The payment shall be applied in the following order: (i) first to
Swingline Loans; (ii) secondly, to European Swingline Loans, (iii) thirdly, to
Revolving Loans which are Base Rate Loans; and (iv) fourthly, to Revolving Loans
made in Dollars which are LIBOR Loans, and (v) finally, to Foreign Currency
Loans (other than European Swingline Loans) based upon the Assigned Dollar Value
as of the date of such payment.
(d) Optional Repayments and Commitment Reductions. Subject to
Section 2.4(e) below, without fee or penalty, the Borrowers may at any time and
from time to time repay the Revolving Loans made thereto, in whole or in part,
upon irrevocable notice to the Administrative Agent not later than 11:00 a.m.
(Charlotte time) on the date of repayment with respect to Base Rate Loans, at
least three (3) Business Days before with respect to LIBOR Rate Loans, and at
least four (4) Business Days before with respect to Foreign Currency Loans,
specifying the date and amount of repayment and whether the repayment is of
Base Rate Loans, LIBOR Rate Loans, or Foreign Currency Loans, or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of such notice, the Administrative Agent shall promptly notify each
Lender. If any such notice is given, the amount specified in such notice shall
be due and payable on the date set forth in such notice. Partial repayments
shall be in an aggregate amount of $2,000,000 or a whole multiple of $100,000 in
excess thereof with respect to LIBOR Rate Loans or Foreign Currency Loans (other
than European Swingline Loans), $1,000,000 or a whole multiple of $100,000 in
excess thereof with respect to Base Rate Loans (other than Swingline Loans and
European Swingline Loans made as Base Rate Loans), $500,000 or a whole multiple
of $100,000 in excess thereof with respect to European Swingline Loans, and
$50,000 or a whole multiple of $50,000 in excess thereof with respect to
Swingline Loans. Each such repayment shall be accompanied by any amount required
to be paid pursuant to Section 3.8. Upon the repayment of any Loan, the
Borrowers, without fee or penalty, upon irrevocable notice to the Administrative
Agent at least five (5) Business Days prior to the proposed Aggregate Commitment
reduction, may reduce the Aggregate Commitment for more or less than the repaid
Loan amount, but with such Aggregate Commitment reduction to be in a minimum
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(e) Limitation on Repayment of LIBOR Rate Loans. No Borrower may
repay any LIBOR Rate Loan hereunder on any day other than on the last day of the
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 3.8.
(f) Pro-Rata Commitment Reductions. All repayments and Commitment
reductions made pursuant to this Section 2.4 shall be applied proportionally to
all Lenders based on each Lenders pro rata share of the Aggregate Commitment.
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SECTION 2.5 Letters of Credit.
(a) Issuance of Letters of Credit. Issuing Bank shall from time
to time issue, extend or renew Letters of Credit that are payable in Dollars for
the account of each of the Borrowers, upon such terms and conditions as Issuing
Bank may then require; provided that (i) the undrawn amount of outstanding
Letters of Credit shall at no time exceed the LOC Committed Amount, and (ii) the
sum of (A) the aggregate principal amount of Revolving Loans outstanding
(reflecting the Assigned Dollar Value of all Foreign Currency Loans), (B) the
undrawn amount of outstanding Letters of Credit, and (C) the aggregate principal
amount of outstanding Swingline Loans and (D) the Assigned Dollar Value of the
aggregate European Swingline Loans outstanding shall all at no time exceed the
Aggregate Commitment. No Letter of Credit shall have an original expiration date
more than one year from the date of issuance or that extends beyond the
Revolving Facility Termination Date. The joint and several reimbursement
obligations of the Borrowers under any such Letters of Credit are to be
Obligations hereunder, and the coming due of any reimbursement obligation under
any such Letter of Credit shall be deemed to be a request for a Revolving Loan
in the amount of such Obligation. If an Event of Default occurs or exists, or,
if at the Revolving Facility Termination Date, there is outstanding a Letter of
Credit that as originally issued or as extended had an expiry date extending
beyond the Revolving Facility Termination Date, Borrowers, on demand, are to
deliver to the Administrative Agent good funds equal to 100% of the maximum
liability under all outstanding Letters of Credit, which funds are to be
deposited in a separate, blocked account (the "Cash Collateral Account")
maintained by Borrowers with the Administrative Agent and are to be held in the
Cash Collateral Account for the benefit of the Lenders as cash collateral for
the Borrowers' joint and several reimbursement obligations and the other
Obligations.
(b) Letter of Credit Fees. Upon the issuance, renewal or
extension of a Letter of Credit on or after the Closing Date, the Borrowers
jointly and severally agree to pay to the Administrative Agent, for the account
of the Lenders as set forth below, a fee (the "LOC Issuance Fee") with respect
to the undrawn amount of the Letter of Credit and such fee shall be paid by the
Borrowers in arrears on the last Business Day of each calendar quarter
commencing March 31, 1998, and on the Revolving Facility Termination Date, based
upon the average daily undrawn amount of such Letter of Credit multiplied by the
Applicable Margin for LIBOR Rate Loans in effect on the last day of immediately
preceding calender quarter (irrespective of whether any LIBOR Rate Loans are
then outstanding). Each Lender, upon the issuance, renewal or extension of a
Letter of Credit on or after the Closing Date, shall share in the LOC Issuance
Fee which shall be computed on the basis of a year of 360 days and assessed for
the actual number of days elapsed. The Borrowers jointly and severally further
agree to (I) pay to the Issuing Bank, for its own account, the LOC Fronting Fee,
payable by the Borrowers in arrears on the last Business Day of each calendar
quarter commencing March 31, 1998, and on the Revolving Facility Termination
Date, and (II) pay the to the Issuing Bank, for its own account, such
administrative and operational fees, charges, and expenses customarily charged
by the Issuing Bank with respect to the issuance, handling, and administration
of payment under Letters of Credit.
(c) Participation. To the extent that Issuing Bank has not been
reimbursed as required hereunder or under any such Letter of Credit, the
Administrative Agent shall notify each of the Lenders, and each such Lender
shall pay to the Administrative Agent for the Issuing Bank such
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Lender's Commitment Percentage of the Revolving Loan made to pay such
unreimbursed drawing in same day funds on the day of notification by Issuing
Bank of an unreimbursed drawing pursuant to the provisions of subsection (d)
hereof. The obligation of each Lender to fund any Revolving Loan as provided
above shall be absolute and unconditional and shall not be affected by any
dispute over the propriety of payment under any Letter of Credit, the occurrence
of a Default, an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the joint and several
obligations of the Borrowers to reimburse Issuing Bank under any Letter of
Credit, together with interest on such reimbursement amounts as provided in
subsection (d) hereof.
(d) Reimbursement. Issuing Bank will promptly notify the
Borrowers of any drawing under any Letter of Credit. Unless AHL, on behalf of
the Borrowers, shall immediately notify Issuing Bank that the Borrowers intend
to reimburse Issuing Bank for such drawing other than from proceeds of Revolving
Loans, the Borrowers shall be deemed to have requested that the Lenders make
Revolving Loans in the amount of such drawing as provided in subsection (e)
hereof on the related Letter of Credit, the proceeds of which will be used to
satisfy the related reimbursement obligations to Issuing Bank. The Borrowers
jointly and severally agree to reimburse Issuing Bank on the date of drawing
under any Letter of Credit (either with the proceeds of Revolving Loans or
otherwise) in immediately available funds. If the conditions for making a
Revolving Loan deemed requested pursuant to this Section 2.3(c) to reimburse any
Letter of Credit drawing have not been satisfied, and the Administrative Agent
in its sole discretion has not waived the unsatisfied conditions for making the
Revolving Loan but has not accelerated the payment date of the Obligations
pursuant to Section 10.2 hereof because of the Borrowers' failure to reimburse
such drawing, the Borrowers shall pay the Letter of Credit drawing in full, or
the unreimbursed amount of such drawing shall bear interest at a rate per annum
equal to (i) the higher of the U.S. Prime Rate or the Federal Funds Rate plus
1/2 of 1% plus (ii) two percent (2%). The Borrowers' reimbursement obligations
hereunder shall be absolute and unconditional under all circumstances
irrespective of any rights of setoff, counterclaim or defense to payment any
Borrower may claim or have against Issuing Bank, the Administrative Agent, the
Lenders, the beneficiary of such Letter of Credit or any other Person, including
without limitation any defense based on any failure of any Borrower or any
Subsidiary of any Borrower to receive consideration or the legality, validity or
unenforceability of the Letter of Credit. Issuing Bank will promptly notify the
other Lenders of the amount of any unreimbursed drawing and each Lender shall
promptly pay to the Administrative Agent for the account of Issuing Bank, in
Dollars and in immediately available funds, the amount of such Lender's
Commitment Percentage of such unreimbursed drawing and such payment shall be
made or deemed made pursuant to clause (e) below. Such payment shall be made on
the day such notice is received by such Lender from Issuing Bank if such notice
is received at or before 3:00 P.M. (Charlotte time); otherwise, such payment
shall be made at or before 1:00 P.M. (Charlotte time) on the Business Day next
succeeding the day such notice is received. If such Lender does not pay such
amount to Issuing Bank in full upon such request, such Lender shall, on demand,
pay to the Administrative Agent for the account of Issuing Bank interest on the
unpaid amount during the period from the date of such drawing until such Lender
pays such amount to Issuing Bank in full at a rate per annum equal to, if paid
within two (2) Business Days of the date that such Lender is required to make
payments of such amount pursuant to the preceding sentence, the Federal Funds
Rate and thereafter at a rate equal to the Domestic Base Rate. Each Lender's
obligation to make such payment to Issuing Bank, and the right of Issuing Bank
to receive the same, shall be absolute and unconditional, shall not be affected
by any circumstance
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whatsoever and without regard to the termination of this Agreement or the
Commitments hereunder, the existence of a Default or Event of Default or the
acceleration of the obligations of the Borrowers hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Lender to Issuing Bank,
such Lender shall, automatically and without any further action on the part of
Issuing Bank or such Lender, acquire a participation in an amount equal to such
payment (excluding the portion of such payment constituting interest owing to
Issuing Bank) in the related unreimbursed drawing portion of the LOC Obligation
and in the interest thereon, and shall have a claim against Borrowers with
respect thereto.
(e) Repayment with Revolving Loans. On any day on which the
Borrowers shall have requested, or been deemed to have requested as provided in
(d) above, a Revolving Loan advance to reimburse a drawing under a Letter of
Credit, the Administrative Agent shall give notice to the Lenders that a
Revolving Loan has been requested or deemed requested by the Borrowers to be
made in connection with a drawing under a Letter of Credit, in which case
Lenders shall severally make Revolving Loans to the Borrowers jointly and
severally in a principal amount for each Lender equal to such Lender's
Commitment Percentage of such Revolving Loan requested or deemed to be requested
by the Borrowers. Each Lender shall make available to the Administrative Agent,
at the office of the Administrative Agent in Dollars in funds immediately
available to the Administrative Agent, such Lender's Commitment Percentage of
the Revolving Loans requested, and the proceeds thereof shall be paid directly
to Issuing Bank for application to the respective LOC Obligations. Each such
Lender hereby irrevocably agrees to make its Commitment Percentage of each such
Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified Section 4.2 are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) failure for any such request or
deemed request for Revolving Loans to be made by the time otherwise required
hereunder, (v) whether the date of such borrowing is a date on which Revolving
Loans are otherwise permitted to be made hereunder or (vi) any termination of
the Commitments relating thereto immediately prior to or contemporaneously with
such borrowing. In the event that any Revolving Loan cannot for any reason be
made on the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code with
respect to any Borrower or any other Person obligated upon the Obligations),
then each such Lender hereby agrees that it shall forthwith purchase (as of the
date such borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrowers on or after such date and prior to such purchase)
from Issuing Bank such participation in the outstanding LOC Obligations as shall
be necessary to cause each such Lender to share in such LOC Obligations ratably
(based upon the respective Commitment Percentages of the Lenders (determined
before giving effect to any termination of the Commitments pursuant to Section
2.7)), provided that at the time any such purchase of a participation is
actually made, the purchasing Lender shall be required to pay to Issuing Bank,
to the extent not paid to the Issuing Bank by the Borrowers in accordance with
the terms of subsection (d) hereof, interest on the principal amount of
participation purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of payment for
such participation, if paid within two (2) Business Days of the date of the
Revolving Loan, at the Federal Funds Rate, and thereafter at the Domestic Base
Rate.
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(f) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. Issuing Bank may have the
Letters of Credit be subject to the Uniform Customs and Practices for
Documentary Credits, as published as of the date of issue by the International
Chamber of Commerce (the "UCP") that shall be specified in the Letter of Credit,
in which case the UCP may be incorporated therein and deemed in all respects to
be a part thereof.
(h) Indemnification; Nature of Issuing Bank's Duties.
(i) In addition to its other obligations under this Section,
the Borrowers jointly and severally shall and do hereby protect,
indemnify, pay and save Issuing Bank and each Lender harmless from and
against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys' fees) that
Issuing Bank or such Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of Issuing Bank to honor a drawing under a
Letter of Credit as a result of any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions, herein called
"Government Acts").
(ii) As between the Borrowers and Issuing Bank, the Borrowers
shall assume all risks of the acts, omission or misuse of any Letter of
Credit by the beneficiary thereof, and Issuing Bank shall not be
responsible (A) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of
Credit, even if any such document should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or forged,
(B) for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason, (C)
for errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher, (D) for any loss or delay
in the transmission or otherwise of any document required in order to
make a drawing under a Letter of Credit or of the proceeds thereof, and
(E) for any consequences arising from causes beyond the control of
Issuing Bank, including, without limitation, any Government Acts. None
of the above shall affect, impair, or prevent the vesting of Issuing
Bank's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions of the foregoing, any action taken or omitted
by Issuing Bank or any Lender, under or in connection with any Letter
of Credit or the related certificates, if taken or omitted in good
faith, shall not put such Issuing Bank or such Lender under any
resulting liability to the Borrowers or any of their Subsidiaries. It
is the intention of the parties that this Agreement shall be construed
and applied to protect and indemnify Issuing Bank and each Lender
against
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any and all risks involved in the issuance of the Letters of Credit,
all of which risks are hereby assumed by the Borrowers (on behalf of
themselves and each of their Subsidiaries), including, without
limitation, any and all Government Acts. Issuing Bank and the Lender
shall not, in any way, be liable for any failure by Issuing Bank or
anyone else to pay any drawing under any Letter of Credit as a result
of any Government Acts or any other cause beyond the control of Issuing
Bank.
(iv) Nothing in this subsection (h) is intended to limit the
joint and several reimbursement obligations of the Borrowers contained
in subsection (d) above. The joint and several obligations of the
Borrowers under this subsection (h) shall survive the termination of
this Agreement. No act or omissions of any current or prior beneficiary
of a Letter of Credit shall in any way affect or impair the rights of
Issuing Bank or any Lender to enforce any right, power or benefit under
this Agreement.
(v) Notwithstanding anything to the contrary contained in
this subsection (h), the Borrowers shall not have an obligation to
indemnify Issuing Bank or any Lender in respect of any liability
incurred by Issuing Bank or such Lender (A) arising solely out of the
gross negligence or willful misconduct of Issuing Bank or such Lender,
as determined by a court of competent jurisdiction, or (B) caused by
Issuing Bank's failure to pay under any Letter of Credit after
presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of
competent jurisdiction, unless such payment is prohibited by at law,
regulation, court order or decree.
(i) Responsibility of Issuing Bank. It is expressly understood
and agreed that the obligations of Issuing Bank to the Lenders are only those
expressly set forth in this Agreement and that Issuing Bank shall be entitled to
assume with respect to any Revolving Loans requested or deemed to be requested
hereunder that the conditions precedent to borrowings set forth in Section 4.3
have been satisfied; provided, however, that nothing set forth in this Section
2.5 shall be deemed to prejudice the right of any Lender to recover from Issuing
Bank any amounts made available by such Lender to Issuing Bank pursuant to this
Section 2.5 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit constituted
gross negligence or willful misconduct on the part of Issuing Bank.
(j) Conflict with Letter of Credit Documents. All documents and
instruments executed in connection with the issuance of any Letter of Credit
shall be interpreted in a manner to be consistent with, and not in conflict of,
this Agreement and the other Loan Documents, but in the event of any conflict
between the provisions of this Agreement and any document or instrument executed
in connection with the issuance of any Letter of Credit (including any letter of
credit application), the terms and provisions of this Agreement shall control.
SECTION 2.6 Revolving Notes. Each Lender's Revolving Loans and the
joint and several obligation of the Borrowers to repay the Revolving Loans made
thereto shall be evidenced by the Revolving Note executed by the Borrowers
payable to the order of such Lender representing the Borrowers' joint and
several obligation to pay such Lender's Commitment or, if less, the aggregate
unpaid principal amount of all Revolving Loans made and to be made by such
Lender to the
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Borrowers hereunder, plus interest and all other fees, charges and other amounts
due thereon. Each Revolving Note shall be dated the date hereof and shall bear
interest on the unpaid principal amount thereof at the applicable interest rate
per annum specified in Section 3.1.
SECTION 2.7 Termination of Revolving Facility. The Lenders' Commitments
under Sections 2.1 and 2.2 shall terminate on the earlier of (a) the Expiration
Date or (b) the date of termination by the Administrative Agent on behalf of the
Lenders pursuant to Section 10.2(a).
SECTION 2.8 Use of Proceeds. The Borrowers shall use the proceeds of
the Loans (a) to refinance the existing Debt of the Borrowers outstanding under
the Original Credit Agreement on the Closing Date and (b) for working capital
and general corporate requirements of the Borrowers, including the payment of
consideration in acquisitions and investments permitted by this Agreement and
the payment of certain fees and expenses incurred in connection with the
transactions contemplated hereby; provided, that in the event any Borrower
intends to use the proceeds of any of the Loans hereunder to finance or
refinance, directly or indirectly, an acquisition of any Person (or the
acquisition of (i) more than 50% of the publicly traded securities (of any
class) of any Person or (ii) any of the publicly traded stock (of any class) of
any Person after such Borrower or any of its Subsidiaries shall have been
required to file a Schedule 13D under the Exchange Act, with respect to such
stock), then unless such acquisition (or such other acquisition) has been
approved by the board of directors of such Person or officers thereof duly
authorized to do so, then notwithstanding any other provision of this Agreement,
each Lender shall have the right to assign all of its interest in its Loans and
Commitments under the Credit Facility, after first offering such assignment of
its interest to each of the other Lenders, without the consent of the
Administrative Agent or, if and to the extent required under Section 12.8 AHL,
provided that such assignment is made within 90 days after the public
announcement of such acquisition.
SECTION 2.9 Security; Reaffirmation of Obligations and Lien, etc.
(a) Security. The Obligations of each Borrower shall be secured
in accordance with the terms of the applicable Security Documents.
(b) Reaffirmation of Obligations and Liens. Each of the Borrowers
does hereby reaffirm all of its indebtedness, obligations and liabilities to the
Administrative Agent and the Lenders under the Prior Security Documents executed
by it and does hereby reaffirm the grant of any and all Liens on its property
held by the Administrative Agent (for the benefit of the Lenders) under such
Prior Security Documents; provided, however, that nothing in this Section 2.9(b)
is intended, or shall be construed, to constitute a novation of any such
indebtedness, obligations or liabilities or to modify, affect, release or
otherwise impair the continuity or perfection of such Liens.
(c) Continued Effectiveness of Prior Security Documents. Each of
the Borrowers does hereby confirm and agree that all of the Prior Security
Documents shall, after giving effect to the execution, delivery and performance
of this Agreement and the other Loan Documents executed on the Closing Date, (i)
remain in full force and effect, and (ii) guarantee or secure (as the case may
be) all Obligations which may now exist or hereafter arise.
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(d) Cross-References. Each and every reference in the Prior
Security Documents to the "Facility Agreement" or the "Agreement" and to
capitalized words and expressions as defined and used in the "Facility
Agreement" or the "Agreement" (including, without limitation, the terms
"Lenders") shall be deemed to refer to and mean this Agreement and to such
capitalized terms as defined and used in this Agreement. Each and every
reference to in the Prior Security Documents to the "Chargee", the "Mortgagee"
or the "Assignee"shall be deemed to refer to and mean First Union in its
capacity as administrative agent for the Lenders hereunder, and any successor
thereto appointed pursuant to Section 11.9.
SECTION 2.10 Maximum Borrower Liability.
(a) It is the intent of the Borrowers, the Administrative Agent,
the Lenders and any other Person holding any of the Obligations that each
Borrower's (other than AHL's) maximum obligations hereunder (such Borrower's
"Maximum Borrower Liability") in any case or proceeding referred to below (but
only in such a case or proceeding) shall not be in excess of:
(i) in a case or proceeding commenced by or against such
Borrower under the Bankruptcy Code on or within one year from the date on which
any of the Obligations of such Borrower are incurred, the maximum amount that
would not otherwise cause the obligations of such Borrower hereunder (or any
other obligations of such Borrower to the Administrative Agent, the Lenders and
any other Person holding any of the Obligations) to be avoidable or
unenforceable against such Borrower under (A) Section 548 of the Bankruptcy Code
or (B) any state fraudulent transfer or fraudulent conveyance act or statute
applied in such case or proceeding by virtue of Section 544 of the Bankruptcy
Code; or
(ii) in a case or proceeding commenced by or against such
Borrower under the Bankruptcy Code subsequent to one year from the date on which
any of the Obligations of such Borrower are incurred, the maximum amount that
would not otherwise cause the obligations of such Borrower hereunder (or any
other obligations of such Borrower to the Administrative Agent, the Lenders and
any other Person holding any of the Obligations) to be avoidable or
unenforceable against such Borrower under any state fraudulent transfer or
fraudulent conveyance act or statute applied in any such case or proceeding by
virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such
Borrower under any law, statute or regulation other than the Bankruptcy Code
relating to dissolution, liquidation, conservatorship, bankruptcy, moratorium,
readjustment of debt, compromise, rearrangement, receivership, insolvency,
reorganization or similar debtor relief from time to time in effect affecting
the rights of creditors generally (collectively, "Other Debtor Relief Law"), the
maximum amount that would not otherwise cause the obligations of such Borrower
hereunder (or any other obligations of such Borrower to the Administrative
Agent, the Lenders and any other Person holding any of the Obligations) to be
avoidable or unenforceable against such Borrower under such Other Debtor Relief
Law, including, without limitation, any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding. (The
substantive state or federal laws under which the possible avoidance or
unenforceability of the obligations of any Borrower hereunder (or any other
obligations of such Borrower to the Administrative Agent, the Lenders and any
other Person holding
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any of the Obligations) shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b) To the extent set forth in Section 2.10(a), but only to the
extent that the Obligations of any Borrower hereunder, or the transfers made by
such Borrower under the Pledge Agreement, the Mortgage of Shares or the
Security Agreement, would otherwise be subject to avoidance under any Avoidance
Provisions if such Borrower is not deemed to have received valuable
consideration, fair value, fair consideration or reasonably equivalent value for
such transfers or obligations, or if such transfers or obligations of any
Borrower hereunder would render such Borrower insolvent, or leave such Borrower
with an unreasonably small capital or unreasonably small assets to conduct its
business, or cause such Borrower to have incurred debts (or to have intended to
have incurred debts) beyond its ability to pay such debts as they mature, in
each case as of the time any of the obligations of such Borrower are deemed to
have been incurred and transfers made under such Avoidance Provisions, then the
obligations of such Borrower hereunder shall be reduced to that amount which,
after giving effect thereto, would not cause the Obligations of such Borrower
hereunder (or any other obligations of such Borrower to the Administrative
Agent, the Lenders or any other Person holding any of the Obligations), as so
reduced, to be subject to avoidance under such Avoidance Provisions. This
Section 2.10(b) is intended solely to preserve the rights hereunder of the
Administrative Agent, the Lenders and any other Person holding any of the
Obligations to the maximum extent that would not cause the obligations of the
Borrowers hereunder to be subject to avoidance under any Avoidance Provisions,
and no Borrower nor any other Person shall have any right, defense, offset, or
claim under this Section 2.10(b) as against the Administrative Agent, the
Lenders or any other Person holding any of the Obligations that would not
otherwise be available to such Person under the Avoidance Provisions.
(c) Each Borrower agrees that the Obligations may at any time and
from time to time exceed the Maximum Borrower Liability of such Borrower, and
may exceed the aggregate Maximum Borrower Liability of all Borrowers hereunder,
without impairing this Agreement or any provision contained herein or affecting
the rights and remedies of the Lenders and the Administrative Agent hereunder.
(d) In the event any Borrower (a "Funding Borrower") shall make
any payment or payments under this Agreement or shall suffer any loss as a
result of any realization upon any collateral granted by it to secure its
obligations hereunder, each other Borrower (each, a "Contributing Borrower")
shall contribute to such Funding Borrower an amount equal to such payment or
payments made, or losses suffered, by such Funding Borrower determined as of the
date on which such payment or loss was made multiplied by the ratio of (i) the
Maximum Borrower Liability of such Contributing Borrower (without giving effect
to any right to receive any contribution or other obligation to make any
contribution hereunder), to (ii) the aggregate Maximum Borrower Liability of all
Borrowers (including the Funding Borrowers) hereunder (without giving effect to
any right to receive, or obligation to make, any contribution hereunder).
Nothing in this Section 2.10(d) shall affect each Borrower's joint and several
liability to the Administrative Agent and the Lenders for the entire amount of
its Obligations. Each Borrower covenants and agrees that its right to receive
any contribution hereunder from a Contributing Borrower shall be subordinate and
junior in right of payment to all obligations of the Borrowers to the
Administrative Agent and Lenders hereunder.
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(e) Notwithstanding anything to the contrary appearing herein or
in the other Loan Documents, no Foreign Borrower shall be liable with respect to
the Obligations except for (i) the principal, interest, and other amounts owing
with respect to Loans made under the European Swingline Facility; (ii) the
principal, interest, and other amounts owing with respect to Revolving Loans or
Swingline Loans made to, and Letters of Credit issued for the benefit of, one or
more of the Foreign Borrowers; (iii) the costs incurred by the Administrative
Agent or any Lender in enforcing obligations of the Foreign Borrowers; and (iv)
the maximum principal amount at any time outstanding under all Foreign
Subsidiary Notes executed by such Foreign Borrower.
SECTION 2.11 Waiver of Subrogation. Except for the contribution
provided for in Section 2.10(d) above, each Borrower hereby waives, to the
fullest extent possible, as against each other Borrower and its assets, any and
all rights, whether at law, in equity, by agreement or otherwise, to
subrogation, indemnity, reimbursement, contribution, or any other similar claim,
cause of action or remedy that otherwise would arise out of such Borrower's
payment or performance of the Obligations. The preceding waiver is intended by
each Borrower, the Lenders and the Administrative Agent to be for the benefit of
each other Borrower and any of their successors or assigns as an absolute
defense, other than under Section 2.10(d), to any action by any such Borrower
against any other Borrower or its assets.
SECTION 2.12 European Swingline Loans.
(a) European Swingline Commitment. Subject to the terms and conditions
of this Agreement, the European Swingline Lender agrees to make European
Swingline Loans to the Foreign Borrowers (but with each of the Borrowers,
including, without limitation, each of the Foreign Borrowers, jointly and
severally obligated to repay such Loans) from time to time from the Closing Date
through the European Swingline Termination Date as requested by the Foreign
Borrowers, in accordance with the terms of Section 2.12(b); provided, that (a)
the Assigned Dollar Value of all outstanding European Swingline Loans (after
giving effect to any amount requested) when added to the sum of (i) the
aggregate principal amount (reflecting the Assigned Dollar Value of any
outstanding Foreign Currency Loans) of all outstanding Revolving Loans plus (ii)
the undrawn amount of outstanding Letters of Credit plus (iii) the aggregate
principal amount of any outstanding Swingline Loans, shall not exceed the
Aggregate Commitment, and (b) the Assigned Dollar Value of all outstanding
European Swingline Loans (after giving effect to any amount requested) shall not
exceed $7,500,000. Subject to the terms and conditions hereof the Foreign
Borrowers may borrow, repay and reborrow Revolving Loans hereunder until the
European Swingline Termination Date.
(b) Procedure for Advances of European Swingline Loans.
(i) Notices; Disbursement. The Foreign Borrowers shall give
the European Swingline Lender notice in the form and at the times required by
the European Swingline Lender from time to time, and the European Swingline
Lender shall advance funds to a bank account of the Foreign Borrower in London
pursuant to procedures approved by the European Swingline Lender from time to
time.
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Each European Swingline Loan shall be made as a Base Rate Loan or LIBOR
Rate Loans as provided in Section 3.1 and shall mature as provided in subsection
(b)(iii) below.
(ii) Minimum Amounts. Each European Swingline Loan advance
made by the European Swingline Lender in response to a notice submitted by a
Foreign Borrower pursuant to the first paragraph of this Section 2.12(b) shall
be in a minimum principal amount of $500,000 and in integral multiples of
$100,000 in excess thereof (or the remaining amount of the European Swingline
Committed Amount, if less).
(iii) Repayment of European Swingline Loans. The principal
amount of all European Swingline Loans shall be due and payable on the earlier
of (A) the maturity date specified by the European Swingline Lender (which, in
the case of any European Swingline Loans made as LIBOR Rate Loans, shall be the
last day of the one month interest period applicable to such Loan or such
earlier date pursuant to the proviso contained in this sentence), or (B) the
Revolving Facility Termination Date. The European Swingline Lender may, at any
time, in its sole discretion, by written notice to the Foreign Borrowers and the
Lenders, demand repayment of any of its European Swingline Loans by way of an
advance under the Revolving Facility (except that the European Swingline Lender
may not demand repayment of any European Swingline Loans made as LIBOR Rate
Loans prior to the expiration of the last day of the one month interest period
applicable to such Loans unless either of the conditions set forth in the
proviso contained in this sentence have occurred), in which case (I) such
European Swingline Loans shall be converted on such maturity date to Loans
payable in Dollars at the Assigned Dollar Value of the outstanding amount of
such European Swingline Loans and shall bear interest thereafter at a rate per
annum equal to the rate then applicable to Base Rate Loans made in Dollars, and
(II) the Borrowers shall be deemed to have requested a Revolving Loan comprised
solely of Base Rate Loans in the amount of such converted European Swingline
Loans; provided, however, that any such demand shall be deemed to have been
given one Business Day prior to the Revolving Facility Termination Date and on
the date of the occurrence of any Event of Default described in Section 10.1 and
upon acceleration of the Obligations hereunder and the exercise of remedies in
accordance with the provisions of Section 10.2. Each Lender hereby irrevocably
agrees to make its pro rata share of each such Revolving Loan in the amount, in
the manner and on the date specified in the preceding sentence notwithstanding
(I) the amount of such borrowing may not comply with the minimum amount for
advances of Revolving Loans otherwise required hereunder, (II) whether any
conditions specified in Section 4.3 are then satisfied, (III) whether a Default
or an Event of Default then exists, (IV) failure of any such request or deemed
request for a Revolving Loan to be made by the time otherwise required
hereunder, (V) whether the date of such borrowing is a date on which Revolving
Loans are otherwise permitted to be made hereunder or (VI) any termination of
the Revolving Facility relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to any Borrower or any Subsidiary of any Borrower),
then each Lender hereby agrees that it shall forthwith purchase (as of the date
such borrowing would otherwise have occurred, but adjusted for any payments
received from such Borrower on or after such date and prior to such purchase)
from the European Swingline Lender such participations in the outstanding
European Swingline Loans as shall be necessary to cause each such Lender to
share in such European Swingline Loans ratably based upon its
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Commitment Percentage of the Aggregate Commitment (determined before giving
effect to any termination of the Revolving Facility pursuant to Section 2.7),
provided that (A) all interest payable on the European Swingline Loans shall be
for the account of the European Swingline Lender until the date as of which the
respective participation is purchased and (B) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Lender
shall be required to pay to the European Swingline Lender, to the extent not
paid to the European Swingline Lender by the Borrowers in accordance with the
terms of this subsection (b)(iii) hereof, interest on the principal amount of
participation purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of payment for
such participation, at the rate equal to the Federal Funds Rate.
(c) Swingline Note. The European Swingline Loans shall be evidenced by
a European Swingline Note duly executed by all of the Borrowers.
SECTION 2.13 Liability Unconditional
. Each Domestic Borrower hereby agrees that such Borrower is
jointly and severally liable for the full and prompt payment (whether at stated
maturity, by acceleration or otherwise) and performance of, all Obligations owed
or hereafter owing to the Administrative Agent, Issuing Bank and the Lenders by
each other Borrower. Each Domestic Borrower agrees that its liability shall be
absolute and unconditional, irrespective of, and unaffected by,
(i) the genuineness, validity, regularity, enforceability or
any future amendment of, or change in, this Agreement, any other Loan
Document or any other agreement, document or instrument to which any
Borrower is or may become a party;
(ii) the absence of any action to enforce this Agreement
(including this Section 2.13) or any other Loan Document or the waiver
or consent by the Administrative Agent or the Lenders with respect to
any of the provisions thereof;
(iii) the existence, value or condition of, or failure to
perfect its Lien against, any security for the Obligations or any
action, or the absence of any action, by the Administrative Agent or
any Lender in respect thereof (including the release of any such
security);
(iv) the insolvency of any Borrower; or
(v) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor,
it being agreed by each Domestic Borrower that its obligations as confirmed
under this Section 2.13 shall not be discharged until the payment and
performance, in full, of the Obligations has occurred. Each Domestic Borrower
expressly waives all rights it may have now or in the future under any statute,
or at common law, or at law or in equity, or otherwise, to compel the
Administrative Agent or any Lender to marshall assets or to proceed in respect
of the Obligations guaranteed hereunder against any other Borrower, any other
party or against any security for the payment and performance
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<PAGE> 44
of the Obligations before proceeding against, or as a condition to proceeding
against, such Borrower. It is agreed among each Domestic Borrower, the
Administrative Agent, the Issuing Bank and the Lenders that the foregoing
waivers are of the essence of the transaction contemplated by this Agreement and
the other Loan Documents and that, but for the provisions of this Section 2.13
and such waivers, each Lender would decline to enter into this Agreement.
ARTICLE III
GENERAL LOAN PROVISIONS
SECTION 3.1 Interest.
(a) Interest Rate Options. Loans made on the Closing Date shall
be made only as Base Rate Loans and shall bear interest at a rate equal to (i)
the Domestic Base Rate, if such Loans constitute Revolving Loans made in Dollars
or Swingline Loans, or (ii) the Foreign Base Rate, if such Loans constitute
European Swingline Loans made as Base Rate Loans in the Base Rate Currency.
Thereafter, (A) Base Rate Loans shall bear interest at a rate equal to (i) the
Domestic Base Rate, if such Loans constitute Revolving Loans made in Dollars or
Swingline Loans, or (ii) the Foreign Base Rate, if such Loans constitute
European Swingline Loans made as Base Rate Loans in the Base Rate Currency, and
(B) LIBOR Rate Loans (which shall include all Revolving Loans made as Foreign
Currency Loans, and any European Swingline Loans made in Alternative Currencies
other than Europeans Swingline Loans made as Base Rate Loans in the Base Rate
Currency) shall bear interest at the LIBOR Rate plus the Applicable Margin (the
"Applicable Margin") as set forth below in this Section 3.1. On behalf of the
Borrowers, AHL shall determine whether a Revolving Loan is to be a Foreign
Currency Loan, Base Rate Loan or LIBOR Rate Loan and select the Interest Period,
if any, applicable to such Loan at the time a request for borrowing is given or
at the time a Notice of Conversion/Continuation is given pursuant to Section
3.2. Any Revolving Loan or any portion thereof as to which the Company has not
duly specified an interest rate as provided herein shall, (x) if it is a Loan
made in Dollars, be deemed a Base Rate Loan, and (y) if it is a Revolving Loan
made as a Foreign Currency Loan, be deemed a LIBOR Rate Loan having an interest
period of one month. Any LIBOR Rate Loan for which an interest Period has ended,
shall, so long as no Event of Default has occurred and shall be continuing, be
deemed renewed as a LIBOR Rate Loan in the currency in which the LIBOR Rate Loan
was repayable (unless it is a Foreign Currency Loan made in German deutsche
marks, which shall be paid in full at the end of such Interest Period), and have
an Interest Period of one month, provided that no Event of Default shall arise
as a result thereof.
For the avoidance of doubt and without limiting the foregoing, (i) any
borrowings under the Revolving Facility made in an Alternative Currency
(including English Pounds) shall be made by the Lenders solely as LIBOR Rate
Loans, (ii) any borrowings under the European Swingline Facility made in an
Alternative Currency (other than English Pounds) shall be made by the European
Swingline Lender solely as LIBOR Rate Loans having an Interest Period of one
month, and (iii) any borrowings under the European Swingline Facility made in
English Pounds shall be made by the European Swingline Lender as Foreign Base
Rate Loans or, if acceptable to the European Swingline Lender, as LIBOR Rate
Loans having a one month Interest Period.
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<PAGE> 45
(b) Interest Periods. In connection with each LIBOR Rate Loan
(and except as otherwise provided in Section 2.12(b) with respect to European
Swingline Loans), AHL, on behalf of the Borrowers for Revolving Loans, by giving
notice at the times required hereunder, shall elect an interest period (each, an
"Interest Period") to be applicable to such Loan, which Interest Period shall,
be a period of one, two, three, or six months; provided that:
(i) the Interest Period shall commence on the date of
advance of or conversion to LIBOR Rate Loan and, in the case of
immediately successive Interest Periods, each successive Interest
Period shall commence on the date on which the next preceding Interest
Period expires;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, that, with respect to any LIBOR
Rate Loan, if any Interest Period would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iii) with respect to any LIBOR Rate Loan, any Interest
Period 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 the calendar month at the end of such Interest
Period;
(iv) no Interest Period for Revolving Loans shall extend
beyond the Revolving Facility Termination Date;
(v) at any time there shall be no more than eight Tranches
of LIBOR Rate Loans (excluding European Swingline Loans made as LIBOR
Rate Loans) under the Revolving Facility, no more than three of which
Tranches may be Foreign Currency Loans (excluding European Swingline
Loans made as LIBOR Rate Loans); for purposes of this provision, a
"Tranch" of Loan shall refer to Loans with Interest Periods beginning
and ending on the same date;
(vi) such right of election is subject to Section 3.1(f);
(vii) the interest period to be applicable to European
Swingline Loans made as LIBOR Rate Loans shall be a period of one
month; and
(viii) at any time there shall be no more than five Tranches
of European Swingline Loans made as LIBOR Rate Loans (including the
Existing LIBOR Rate Loans); for purposes of this provision, a "Tranch"
of Loan shall refer to European Swingline Loans with Interest Periods
beginning and ending on the same date.
(c) Initial Applicable Margin. Base Rate Loans under the
Revolving Facility shall always bear interest at the Domestic Base Rate, without
any additional applicable margin. European Swingline Loans shall always bear
interest at (A) if made as Base Rate Loans, the Foreign Base Rate
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which, as defined, represents a margin over the base rate quoted publicly by
Midland Bank, plc., and (B) if made as LIBOR Rate Loans, at the LIBOR Rate plus
the Applicable Margin. The Applicable Margin provided for in Section 3.1(a)
shall initially be 0.55%.
(d) Applicable Margin. The Applicable Margin with respect to
LIBOR Rate Loans shall vary from time to time, beginning with the earlier of (i)
the delivery by Borrowers pursuant to Section 6.1(a) of the financial statements
of AHL and its Subsidiaries for the fiscal quarter ending on March 31, 1998, and
(ii) the delivery of the officer's certificate required to be delivered under
Section 9.4(g)(v) hereof. At the end of each fiscal quarter thereafter and at
any time Borrowers are required to deliver an officer's certificate under
Section 9.4(g)(v) hereof, the Applicable Margin with respect to such LIBOR Rate
Loans shall be determined (A) at the end of each fiscal quarter hereof by
reference to the ratio of Consolidated Total Indebtedness of AHL and its
Subsidiaries as of the end of such fiscal quarter to Consolidated Pro Forma
Adjusted EBITDA for AHL and its Subsidiaries for the period of four consecutive
fiscal quarters ending on the last day of such fiscal quarter, and (B) where the
Borrowers are required to deliver an officer's certificate under Section
9.4(g)(v), as of the date of the consummation of each subject acquisition, by
reference to the ratio of Consolidated Total Indebtedness of AHL and its
Subsidiaries to Consolidated Pro Forma Adjusted EBITDA for AHL and its
Subsidiaries calculated on a pro forma basis in accordance with said Section),
in each case, as follows:
<TABLE>
Total Indebtedness/Pro Forma LIBOR Margin
Adjusted EBITDA ------------
- ----------------------------
<S> <C>
Greater than or equal to 4.00 to 1.50%
1.00
Greater than or equal to 3.50 to 1.375%
1.00 but less than 4.00 to 1.00
Greater than or equal to 3.00 to 1.15%
1.00 but less than 3.50 to 1.00
Greater than or equal to 2.50 to 0.975%
1.00 but less than 3.00
Greater than or equal to 1.50 to 0.75%
1.00 but less than 2.50 to 1.00
Less than 1.50 to 1.00 0.55%
</TABLE>
(e) Adjustments to Applicable Margin. Adjustments, if any, in
the Applicable Margin shall be made by the Administrative Agent five (5)
Business Days after receipt by the Administrative Agent of (i) quarterly
financial statements for AHL and its Subsidiaries and the accompanying Officer's
Compliance Certificate setting forth the ratio of Consolidated Total
Indebtedness to Consolidated Pro Forma Adjusted EBITDA for AHL and its
Subsidiaries as of the most recent fiscal quarter end (calculated as provided
in subsection (d) above), and (ii) each officer's certificate setting forth the
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ratio of Consolidated Total Indebtedness to Consolidated Pro Forma Adjusted
EBITDA for AHL and its Subsidiaries calculated on a pro forma basis required to
be delivered pursuant to Section 9.4(g)(v). Subject to Section 3.1(f), in the
event AHL fails to deliver such financial statements and certificate within the
time required by Section 6.2 or Section 9.4(g)(v), as applicable, the Applicable
Margin shall be the highest Applicable Margin set forth above until five (5)
Business Days after the delivery of such financial statements and certificate.
(f) Default Rate. Upon the occurrence and during the continuance
of an Event of Default, (i) the Borrowers shall no longer have the option to
request LIBOR Rate Loans and Foreign Currency Loans, (ii) all outstanding LIBOR
Rate Loans shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to LIBOR Rate Loans until the end of the
applicable Interest Period and thereafter shall bear interest at a rate equal to
two percent (2%) in excess of the rate then applicable to Base Rate Loans made
in Dollars and, if Foreign Currency Loans under the Revolving Facility are
outstanding, and the acceleration rights under Section 10.2(a) shall have been
exercised by the Administrative Lender, such Foreign Currency Loans shall be
converted on the date of acceleration to Loans payable in Dollars at the
Assigned Dollar Value of the outstanding amount of the Loans and shall bear
interest thereafter at a rate per annum equal to two percent (2%) in excess of
the rate then applicable to Base Rate Loans made in Dollars, and (iii) all other
Loans shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to Base Rate Loans made in Dollars. Interest
shall continue to accrue on the Notes after the filing by or against any
Borrower of any petition seeking any relief in bankruptcy or under any act or
law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(g) Interest Payment and Computation. Interest on each Base Rate
Loan and LIBOR Rate Loan shall be payable in arrears on each Interest Payment
Date and on the Revolving Facility Termination Date. Interest on Base Rate Loans
and Foreign Currency Loans made in the Base Rate Currency shall be computed on
the basis of a year of 365 or 366 days, as the case may be, and assessed for the
actual number of days elapsed, and interest on all other Loans shall be computed
on the basis of a year of 360 days and assessed for the actual number of days
elapsed.
(h) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option promptly refund to the applicable Borrower or Borrowers any
interest received by Lenders in excess of the maximum lawful rate or shall apply
such excess to the principal balance of the Obligations. It is the intent hereof
that the Borrowers not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by the Borrowers under Applicable Law.
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SECTION 3.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Default or Event of Default has occurred and is then
continuing, the Borrowers, with respect to Revolving Loans, shall have the
option to (i) convert at any time all or any portion of their outstanding Base
Rate Loans in a principal amount equal to $2,000,000 or any whole multiple of
$100,000 in excess thereof into LIBOR Rate Loans, (ii) upon the expiration of
any Interest Period, convert all or any part of their outstanding LIBOR Rate
Loans in a principal amount equal to $1,000,000 or a whole multiple of $100,000
in excess thereof into Base Rate Loans, and (iii) upon the expiration of its
Interest Period, continue any LIBOR Rate Loan in a principal amount of
$2,000,000 or any whole multiple of $100,000 in excess thereof as a LIBOR Rate
Loan; provided, that the Borrowers shall not be entitled to continue, but shall
repay, such portion of any Foreign Currency Loan that equals the Assigned Dollar
Value Excess as of the end of the Interest Period. Whenever the Borrowers desire
to convert or continue Loans as provided above, AHL, on behalf of the Borrowers,
shall give the Administrative Agent irrevocable prior written notice in the form
attached hereto as Exhibit C (a "Notice of Conversion/Continuation") not later
than 11:00 a.m. (Charlotte time or London time, respectively) three (3) Business
Days before the Business Day, in the case of a conversion to or a continuation
of a LIBOR Rate Loan, four (4) Business Days before the Business Day, in the
case of a continuation of a LIBOR Rate Loan that is a Foreign Currency Loan, and
the same Business Day, in the case of a conversion to a Base Rate Loan, on which
a proposed conversion or continuation of such Loan is to be effective specifying
(i) the Loans to be converted or continued and, with respect to any LIBOR Rate
Loan to be converted or continued, the last day of the current Interest Period
therefor, (ii) the effective date of such conversion or continuation (which
shall be a Business Day), (iii) the principal amount of such Loans to be
converted or continued and (iv) with respect to a continuation of Foreign
Currency Loan, the Alternative Currency and the Interest Period to be applicable
thereto. The Administrative Agent shall promptly notify the Lenders of such
Notice of Conversion/Continuation received with respect to Revolving Loans.
SECTION 3.3 Fees.
(a) Facility Fee. Commencing on the Closing Date and continuing
through and including the Revolving Facility Termination Date, the Borrowers
shall pay to the Administrative Agent, for the account of the Lenders, a
non-refundable facility fee (the "Facility Fee") on the average daily Aggregate
Commitment of the Lenders outstanding at a rate per annum (the "Facility Fee
Percentage") (based on a 360 day year) as set forth below in this Section
3.3(a). At the Closing Date the initial Facility Fee Percentage for the Facility
Fee shall equal 0.20%, thereafter, the Facility Fee Percentage shall vary from
time to time, beginning with the earlier of (i) the delivery by Borrowers
pursuant to Section 6.1(a) of the financial statements of AHL and its
Subsidiaries for the fiscal quarter ending on March 31, 1998, or (ii) the
delivery of the officer's certificate required to be delivered under Section
9.4(g)(v) hereof. At the end of each fiscal quarter after the Closing Date and
at each time Borrowers are required to deliver an officer's certificate under
Section 9.4(g)(v) hereof, the Facility Fee Percentage shall be determined (A) at
the end of each fiscal quarter hereof by reference to the ratio of Consolidated
Total Indebtedness of AHL and its Subsidiaries as of the end of such fiscal
quarter to Consolidated Pro Forma Adjusted EBITDA for AHL and its Subsidiaries
for the period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, and to deliver an officer's certificate under Section
9.4(g)(v), as of the date
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of the consummation of the subject acquisition, by reference to the ratio of
Consolidated Total Indebtedness to Consolidated Pro Forma Adjusted EBITDA for
AHL and its Subsidiaries calculated on a pro forma basis in accordance with said
Section), in each case, as follows:
<TABLE>
Total Indebtedness/Pro Forma Facility Fee
Adjusted EBITDA Percentage
- ---------------------------- ------------
<S> <C>
Greater than or equal to 4.0 to 1.00 .500%
Greater than or equal to 3.50 to .375%
1.00 but less than 4.0 to 1.00
Greater than or equal to 3.00 to .350%
1.00 but less than 3.50 to 1.00
Greater than or equal to 2.50 to .275%
1.00 but less than 3.00 to 1.00
Greater than or equal to 1.50 to .250%
1.00 but less than 2.5 to 1.00
Less than 1.50 to 1.00 .200%
</TABLE>
In the event AHL fails to deliver such financial statements and certificate
within the time required by Section 6.2 or Section 9.4(g)(v), as applicable, the
Facility Fee Percentage shall be the highest Facility Fee Percentage set forth
above until five (5) Business Days after the delivery of such financial
statements and certificate. The Facility Fee shall be payable quarterly in
arrears on the last Business Day of each calendar quarter commencing March 31,
1998, and on the Revolving Facility Termination Date. Such Facility Fee shall be
distributed by the Administrative Agent between the Lenders pro rata in
accordance with the Lenders' respective Commitment Percentages.
(b) Agent's Fees. In order to compensate the Administrative Agent
for its obligations hereunder, the Borrowers jointly and severally agree to pay
to the Administrative Agent, for its own account, the fees set forth in the
Commitment Letter and related Summary of Terms and Conditions between First
Union, FUCMC and AHL dated December 24, 1997 and the Fee Letter executed by AHL
in connection therewith (collectively, the "Term Sheet").
(c) Letter of Credit Fees. Borrowers jointly and severally agree
to pay the Letter of Credit fees as set forth in Section 2.5(b) hereof.
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SECTION 3.4 Manner of Payment.
(a) Revolving Loan Payments. Each Revolving Loan payment
(including repayments described in Article II) by any Borrower on account of the
principal of or interest on the Revolving Loans or of any fee, commission or
other amounts payable to the Lenders under this Agreement or any Note shall be
made in Dollars or, if such Revolving Loan was made as a Foreign Currency Loan,
in the applicable Alternative Currency, not later than 1:00 p.m. (local time at
the Loan Office specified with respect to the Loan) on the date specified for
payment under this Agreement to the Administrative Agent for the account of the
Lenders to be distributed pro rata among the Revolving Loans, and among such
Lenders in accordance with their respective Commitment Percentages, as
applicable, at the Administrative Agent's Office, in immediately available
funds, and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 2:00 p.m. (Charlotte
time) on such day shall be deemed a payment on such date for the purposes of
Section 10.1, but for all other purposes shall be deemed to have been made on
the next succeeding Business Day. Any Revolving Loan payment received after 2:00
p.m. (Charlotte time) shall be deemed to have been made on the next succeeding
Business Day for all purposes.
(b) European Swingline Loan Payments. Each Payment by a Borrower
on account of the principal of or interest on the European Swingline Loans or of
any fee, commission or other amounts payable to the European Swingline Lender
under this Agreement or the European Swingline Note shall be made not later than
1:00 p.m. (local time of the Loan Office designated by the European Swingline
Lender to receive Loan repayments) on the date specified for payment under this
Agreement at the Loan Office, in immediately available funds, and shall be made
without any set-off, counterclaim or deduction whatsoever. Any payment received
after such time shall be deemed to have been made on the next succeeding
Business Day for all purposes. All payments of principal and interest with
respect to European Swingline Loans shall be repayable in the Foreign Currency
in which such European Swingline Loan was made.
(c) Business Days. If any payment under this Agreement or any
Note shall be specified to be made upon a day which is not a Business Day, it
shall be made on the next succeeding day which is a Business Day and such
extension of time shall in such case be included in computing any interest if
payable along with such payment.
SECTION 3.5 Crediting of Payments and Proceeds. In the event that any
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 10.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be first applied to all Administrative
Agent's fees and expenses then due and payable, then to all other expenses then
due and payable by the Borrowers hereunder, then to all indemnity obligations
then due and payable by the Borrowers hereunder, then to all Facility Fee and
other fees and commissions then due and payable, then to accrued and unpaid
interest on the Notes, then to the principal amount of the Notes (pro rata in
accordance with all amounts due), and any termination payments due in respect of
a Hedging Agreement with any Lender (pro rata in accordance with all such
amounts due), in that order.
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<PAGE> 51
SECTION 3.6 Nature of Obligations of Lenders Regarding Loans;
Assumption by Administrative Agent. The obligations of the Lenders under this
Agreement to make the Loans and to purchase participation interests in Swingline
Loans, Letters of Credit and European Swingline Loans pursuant to the provisions
of this agreement are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.2 and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrowers on such date a corresponding
amount. If such amount is made available to the Administrative Agent on a date
after such borrowing date, such Lender shall pay to the Administrative Agent on
demand an amount, until paid, equal to such Lender's applicable Commitment
Percentage of such borrowing and interest thereon at a rate per annum equal to
the daily average Federal Funds Rate during such period as determined by the
Administrative Agent. A certificate of the Administrative Agent with respect to
any amounts owing under this Section shall be conclusive, absent manifest error.
If such Lender's applicable Commitment Percentage of such borrowing is not made
available to the Administrative Agent by such Lender within three (3) Business
Days of such borrowing date, the Administrative Agent shall be entitled to
recover such amount made available by the Administrative Agent with interest
thereon at the rate per annum then applicable to such Loan hereunder, on demand,
from the applicable Borrower or Borrowers. The failure of any Lender to make its
applicable Commitment Percentage of any Loan available shall not relieve it or
any other Lender of its obligation, if any, hereunder to make its applicable
Commitment Percentage of such Loan available on such borrowing date, but no
Lender shall be responsible for the failure of any other Lender to make its
applicable Commitment Percentage of such Loan available on the borrowing date.
SECTION 3.7 Changed Circumstances.
(a) Circumstances Affecting Foreign Currency and LIBOR Rate
Availability. If the Administrative Agent, any Lender, or any Loan Office shall
determine that by reason of circumstances affecting the foreign exchange and
interbank markets generally, LIBOR deposits in Dollars or deposits in the
Alternative Currency are not being offered to the Person, then such Person shall
forthwith give notice thereof to AHL. Thereafter, until such Person notifies AHL
that such circumstances no longer exist, the obligation of the Person to make
the affected Loan, and the right of each of the Borrowers to convert any Loan to
the affected Loan or to continue any Foreign Currency Loan or LIBOR Rate Loan or
otherwise defer payment of any Loan, shall be suspended, and each of the
Borrowers shall repay in full (or cause to be repaid in full) the
then-outstanding principal amount of each such Loan, together with accrued
interest thereon and any payments required by Section 3.8 hereof.
(b) Laws Affecting Foreign Currency and LIBOR Rate Availability. If,
after the date hereof, the introduction of, or any change in, any Applicable Law
or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Administrative
Agent, any
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<PAGE> 52
Lender or any Loan Office with any request or directive (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, shall make it unlawful or impossible for the Administrative
Agent, any Lender, or any Loan Office to honor its obligations hereunder to make
or maintain any Foreign Currency Loan or LIBOR Rate Loan, then such Person shall
forthwith give notice thereof to AHL on behalf of the Borrowers. Thereafter,
until such Person notifies AHL on behalf of the Borrowers that such
circumstances no longer exist, the obligation of the Person to make the affected
Loan, and the right of each of the Borrowers to convert any Loan to the affected
Loan or to continue any Foreign Currency Loan or LIBOR Rate Loan or otherwise
defer payment of any Loan, shall be suspended, and each of the Borrowers shall
repay in full (or cause to be repaid in full) the then-outstanding principal
amount of each such Loan, together with accrued interest thereon and any
payments required by Section 3.8 hereof.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Administrative Agent, any Lender, or the European Swingline Lender (or any Loan
Office) with any request or directive (whether or not having the force of law)
of such Governmental Authority, central bank or comparable agency:
(i) shall subject the Administrative Agent, any Lender, or the
European Swingline Lender (or any Loan Office) to any tax, duty or other charge
with respect to any Foreign Currency Loan, LIBOR Rate Loan, any Letter of
Credit, or any Note or shall change the basis of taxation of payments to the
Lender (or any Loan Office) of the principal of or interest on any Foreign
Currency Loan, LIBOR Rate Loan, any Letter of Credit, or the Note or any other
amounts due under this Agreement in respect thereof (except for changes in the
rate of tax or any tax, duty, or other charge imposed on the overall net income
of the Administrative Agent, any Lender, or the European Swingline Lender or any
Loan Office imposed by the jurisdiction in which the Administrative Agent, any
Lender, or the European Swingline Lender is organized or is or should be
qualified to do business or such Loan Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Bank of England or Board of
Governors of the Federal Reserve System), special deposit, insurance or capital
or similar requirement against assets of, deposits with or for the account of,
or credit extended by the Administrative Agent, any Lender, or the European
Swingline Lender(or any Loan Office) or shall impose on the Administrative
Agent, any Lender, or the European Swingline Lender or any Loan Office or the
foreign exchange and interbank markets any other condition affecting any Foreign
Currency Loan, LIBOR Rate Loan, any Letter of Credit, or the Note; and the
result of any of the foregoing is to increase the costs to the Lender of
maintaining any Foreign Currency Loan, LIBOR Rate Loan, or Letter of Credit
(after consideration of any changes in the Reserve Percentage) or to reduce the
yield or amount of any sum received or receivable by the Lender under this
Agreement or under the Note in respect of a Foreign Currency Loan, LIBOR Rate
Loan, or Letter of Credit, then the affected Person shall promptly notify AHL of
such fact and demand compensation therefor and, within fifteen (15) days after
such notice, each of the Borrowers shall pay to such Person such additional
amount or amounts as will compensate such Person for such increased cost or
reduction. The Administrative Agent will promptly notify AHL of the Borrowers
shall pay to such Person such additional amount or amounts as will compensate
such Person for such increased cost or reduction. The Administrative Agent will
promptly notify AHL
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of any event of which it has knowledge that will entitle any Person to
compensation pursuant to this Section 3.7(c); provided, that the Administrative
Agent shall incur no liability whatsoever to any of the Borrowers in the event
it fails to do so. A certificate of the Administrative Agent setting forth the
basis for determining such additional amount or amounts necessary to compensate
the any Person shall be conclusively presumed to be correct absent manifest
error. If any Person claims compensation under this Section, each of the
Borrowers may at any time, upon at least four (4) Business Days' prior notice to
the Administrative Agent, pay in full the affected Loan or substitute a letter
of credit issued other than pursuant to this Agreement.
SECTION 3.8 Indemnity. Each of the Borrowers does hereby indemnify each
of the Administrative Agent, any Lender, and the European Swingline Lender
against any loss or expense (including without limitation any foreign exchange
costs) which may arise or be attributable to the Lender's obtaining, liquidating
or employing deposits or other funds acquired to effect, fund or maintain the
Loans or the Issuing Bank's issuance or honor of a Letter of Credit (i) as a
consequence of any failure by any of the Borrowers to make any payment when due
of any amount due hereunder in connection with a Foreign Currency Loan or a
LIBOR Rate Loan, (ii) due to any failure of any of the Borrowers to borrow on a
date specified therefor in a Notice of Borrowing or Notice of
Continuation/Conversion with respect to any Foreign Currency Loan or a LIBOR
Rate Loan or (iii) due to any payment, prepayment or conversion of any Foreign
Currency Loan or LIBOR Rate Loan on a date other than the last day of the
Interest Period therefor. The Lender's calculations of any such loss or expense
shall be furnished to each of the Borrowers and shall be presumed to be correct,
absent manifest error.
SECTION 3.9 Capital Requirements. If either (i) the introduction of, or
any change in, or in the interpretation of, any Applicable Law or (ii)
compliance with any guideline or request after the Closing Date from any central
bank or comparable agency or other Governmental Authority (whether or not having
the force of law), has or would have the effect of reducing the rate of return
on the capital of, or has affected or would affect the amount of capital
required to be maintained by the Administrative Agent, any Lender or the
European Swingline Lender or any corporation controlling such Person as a
consequence of, or with reference to the Commitment and other commitments of
this type, below the rate which the Person or such other corporation could have
achieved but for such introduction, change or compliance, then within five (5)
Business Days after written demand by any such Lender, each of the Borrowers
shall pay to such Person from time to time as specified by the Person additional
amounts sufficient to compensate (after consideration of any change in the
Reserve Percentage) the Administrative Agent, any Lender, or the European
Swingline Lender or other corporation for such reduction. A certificate as to
such amounts submitted to each of the Borrowers by the Administrative Agent, any
Lender, or the European Swingline Lender shall, in the absence of manifest
error, be presumed to be correct and binding for all purposes.
SECTION 3.10 Taxes; Currency.
(a) Payments Free and Clear. Any and all payments by each of the
Borrowers hereunder or under the Note shall be made free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholding, and all liabilities with respect thereto
excluding income and franchise taxes imposed by the jurisdiction under the laws
of which the
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Administrative Agent, any Lender, or the European Swingline Lender is organized
or is or should be qualified to do business or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, with each of
the Borrowers and liabilities being hereinafter referred to as "Taxes"). If any
of the Borrowers shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to the Administrative Agent, any
Lender, or the European Swingline Lender, (A) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.10) the
Administrative Agent, any Lender, or the European Swingline Lender receives an
amount equal to the amount the Lender would have received had no such deductions
been made, (B) such Borrower shall make such deductions, (C) such Borrower shall
pay the full amount deducted to the relevant taxing authority or other authority
in accordance with Applicable Law, and (D) such Borrower shall deliver to the
Administrative Agent, any Lender, or the European Swingline Lender evidence of
such payment to the relevant taxing authority or other authority in the manner
provided in Section 3.10(d).
(b) Stamp and Other Taxes. In addition, each of the Borrowers shall pay
any present or future stamp, registration, recordation or documentary taxes or
any other similar fees or charges or excise or property taxes, levies of the
United States or any state or political subdivision thereof or any applicable
foreign jurisdiction which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the Loans, the other Loan Documents, or the perfection of any rights
in respect thereto (hereinafter referred to as "Other Taxes").
(c) Indemnity. Each of the Borrowers shall and does hereby indemnify
the Administrative Agent, any Lender, or the European Swingline Lender for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
and Other Taxes imposed by any jurisdiction on amounts payable under this
Section 3.10) paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Such indemnification shall be made within thirty
(30) days from the date such Lender or the Administrative Agent, any Lender, or
the European Swingline Lender (as the case may be) makes written demand
therefor.
(d) Evidence of Payment. Within ten (10) days after the date of any
payment of Taxes or Other Taxes, the affected Borrower shall furnish to the
Administrative Agent, any Lender, or the European Swingline Lender, at its
address referred to in Section 12.1, the original or a certified copy of a
receipt evidencing payment thereof or other evidence of payment satisfactory to
the Administrative Agent, the Lender, or the European Swingline Lender
(e) If any Lender is incorporated or organized under the laws of a
jurisdiction other than the United States of America or any state thereof (a
"Non-U.S. Lender"), such Non-U.S. Lender will deliver to each of the
Administrative Agent and each of the Borrowers, on or prior to the Closing Date
(or, in the case of a Non-U.S. Lender that becomes a party to this Agreement as
a result of an assignment after the Closing Date, on the effective date of such
assignment), (i) in the case of a Non-U.S. Lender that is a "bank" for purposes
of Section 881(c)(3)(A) of the Internal Revenue Code, a
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properly completed Internal Revenue Service Form 4224 or 1001, as applicable
(or successor forms), certifying that such Non-U.S. Lender is entitled to an
exemption from or a reduction of withholding or deduction for or on account of
United States federal income taxes in connection with payments under this
Agreement or any of the Notes, together with a properly completed Internal
Revenue Service Form W-8 or W-9, as applicable (or successor forms), and (ii) in
the case of a Non-U.S. Lender that is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code, a certificate in form and substance
reasonably satisfactory to the Agent and each of the Borrowers and to the effect
that such Non-U.S. Lender (x) is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue 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 any tax, securities law or other legal
requirements, (y) is not a 10-percent shareholder for purposes of Section
881(c)(3)(B) of the Internal Revenue Code and (z) is not a controlled foreign
corporation receiving interest from a related person for purposes of Section
881(c)(3)(C) of the Internal Revenue Code, together with a properly completed
Internal Revenue Service Form W-8 or W-9, as applicable (or successor forms).
Each such Non-U.S. Lender further agrees to deliver to each of the
Administrative Agent and the Borrower an additional copy of each such relevant
form on or before the date that such form expires or becomes obsolete or after
the occurrence of any event (including a change in its applicable Loan Office)
requiring a change in the most recent forms so delivered by it, in each case
certifying that such Non-U.S. Lender is entitled to an exemption from
withholding or deduction for or on account of United States federal income taxes
in connection with payments under this Agreement or any of the Notes, unless an
event (including, without limitation, any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required, which event renders all such forms inapplicable or the exemption to
which such forms relate unavailable and such Non-U.S. Lender notifies the
Administrative Agent and the Borrower that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes.
Each such Non-U.S. Lender will promptly notify the Administrative Agent and each
of the Borrowers of any changes in circumstances that would modify or render
invalid any claimed exemption or reduction.
(f) Survival. Without prejudice to the survival of any other agreement
of each of the Borrowers hereunder, the agreements and obligations of each of
the Borrowers contained in this Section 3.10 shall survive the payment in full
of the Obligations and the termination of the Commitments.
(g) Failure to Pay in Foreign Currency. If any of the Borrowers is
unable for any reason to effect payment of a Loan or to reimburse a drawing
under the Letter of Credit in the Alternative Currency as required by this
Agreement, the Administrative Agent, any Lender, or the European Swingline
Lender may require such payment to be made in Dollars in the Assigned Dollar
Value of such payment. In any case in which each of the Borrowers shall make
such payment in Dollars, such Borrower agrees to hold the Administrative Agent,
any Lender, or the European Swingline Lender harmless from any loss incurred by
the Administrative Agent, any Lender, or the European Swingline Lender arising
from any change in the value of Dollars in relation to such Alternative Currency
between the date such payment became due and the date of payment thereof.
Without limiting the generality of the foregoing, if any of the Borrowers is
unable for any reason to effect payment of a Swingline Lender may require such
payment to be made in Dollars in the Assigned Dollar Value of such payment. In
any case in which each of the Borrowers shall make such payment in Dollars, such
Borrower agrees to hold the Administrative Agent, any Lender, or the European
Swingline Lender harmless from any loss incurred by the Administrative Agent,
any Lender, or the European Swingline Lender arising from any change in the
value of Dollars in relation to such Alternative Currency between the date such
payment became due and the date of payment thereof. Without limiting the
generality of the foregoing, if any of the Borrowers is unable for any reason to
effect payment of a
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Loan in the Alternative Currency as required by this Agreement or if any of the
Borrowers shall default in the payment of any Foreign Currency Loan under the
Revolving Facility, then, if the Required Lenders shall so agree, the Borrowers
shall be deemed to have requested, and Lenders shall be deemed to have extended,
a Base Rate Loan under the Revolving Facility in an amount sufficient to
purchase an amount of the Alternative Currency sufficient to repay such Foreign
Currency Loan in full.
(h) Judgment Currency. If for the purpose of obtaining judgment in any
court or enforcing any such judgment it is necessary to convert any amount due
in any Alternative Currency into any other currency, the rate of exchange used
shall be the Administrative Agent, any Lender, or the European Swingline
Lender's spot rate of exchange for the purchase of the Alternative Currency with
such other currency at the close of business on the Business Day preceding the
date on which judgment is given or any order for payment is made. The obligation
of each of the Borrowers in respect of any amount due from it hereunder shall,
notwithstanding any judgment or order for a liquidated sum or sums in respect of
amounts due hereunder or under any judgment or order in any other currency or
otherwise, be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent, any Lender, or the European Swingline
Lender of any payment in a currency other than the Alternative Currency, the
Administrative Agent, any Lender, or the European Swingline Lender is able (in
accordance with normal banking procedures) to purchase the Alternative Currency,
with such other currency. If the amount of the Alternative Currency that the
Administrative Agent, any Lender, or the European Swingline Lender is able to
purchase with such other currency is less than the amount due in the relevant
Alternative Currency, notwithstanding any judgment or order, each of the
Borrower shall indemnify the Lender for the shortfall.
(i) United Kingdom Tax Forms.
(A) Each Lender that is not a United Kingdom Bank (as defined in
Section 840A of the United Kingdom Income and Corporation Taxes Act of
1988) subject to United Kingdom corporation tax as respects interest
payments to it pursuant to this Agreement (each a "Non-U.K. Bank")
shall deliver to the United Kingdom Inland Revenue (whether directly,
through the United States Internal Revenue Service or such other
appropriate channels), with copies sent contemporaneously therewith to
AHL and the Administrative Agent, within seven (7) Business Days after
it becomes a Lender hereunder, a form 13-D or such other appropriate
official form (each, a "U.K. Tax Form") duly completed and signed by
such Lender establishing that such Non-U.K. Bank is entitled to
exemption (regardless of such Lender's Lending Office) from United
Kingdom tax treaty with the appropriate jurisdiction, or establishing
that it is otherwise entitled to receive payments without such
withholdings; provided, however, that no Non-U.K. Bank shall be
required to furnish any such documentation under this subparagraph (A)
if it is not entitled to claim an exemption from or reduced rate of
withholding under applicable law. At any time a Non-U.K. Bank is not
entitled to claim an exemption from or a reduced rate of withholding
under applicable law, such Non-U.K. Bank shall so inform AHL the
Administrative Agent.
(B) Each Lender that is a United Kingdom Bank (as defined in
Section 840A of the United Kingdom Income and Corporation Taxes Act of
1988) (each a "U.K. Bank") shall
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complete and deliver to AHL and the Administrative Agent a
statement signed by an authorized signatory of such U.K. bank, and
other documentation reasonably required to the effect that it is
subject to United Kingdom corporation tax on interest payable to it
pursuant to this Agreement.
(C) No Borrower shall be required to pay any additional amount to
any Non-U.K. Bank or U.K. Bank in respect of United Kingdom withholding
taxes under this Section 3.10(i) if such Lender shall have failed to
deliver (1) the U.K. Tax Form as required under subparagraph (A) in the
case of a Non-U.K. Bank, or (2) the statement and other documentation
under subparagraph (B) in the case of a U.K. Bank; provided, however,
that if a Non-U.K. Bank shall not have a Lending Office in the United
Kingdom and shall not be entitled to an exemption from United Kingdom
withholding tax under a treaty, each as of the time of a given payment
by any Borrower hereunder, then Section 3.10(a) shall not apply with
respect to such payment.
SECTION 3.11 Special Lenders. Unless the Required Lenders seek
indemnification, payment, or reimbursement under, or invoke the provisions of,
Sections 3.7, 3.8, 3.9, or 3.10, if any Borrower is obligated to pay to the
Administrative Agent or any Lender any amount under said Sections, the Borrowers
may, so long as no Default or Event of Default then exists, replace such Lender
with a new Lender reasonably acceptable to the Administrative Agent, and such
Lender hereby agrees to be so replaced subject to the following:
(a) the obligations of the Borrowers hereunder to the Lender to be
replaced (including such increased or additional costs incurred from
the date of notice to the Borrowers of such increase or additional
costs through the date such Lender is replaced hereunder) shall be paid
in full to such Lender concurrently with such replacement;
(b) The replacement Lender shall be a Lender that is not subject to
the increased costs arising under such Sections which may have
effectuated the Borrower's election to replace any Lender hereunder;
(c) Each such replacement Lender shall execute and deliver to the
Administrative Agent such documentation reasonably satisfactory to the
Administrative Agent pursuant to which such Lender is to become a party
hereto with a Commitment equal to that of the Lender being replaced and
shall make a Loan or Loans in the aggregate principal amount equal to
the aggregate outstanding principal amount of the Loan or Loans of the
Lender being replaced;
(d) Upon such execution of such documents referred to in clause (c)
and repayment of the amounts referred to in clause (a), the replacement
Lender shall be a "Lender" with a Commitment as specified hereinabove
and the Lender being replaced shall cease to be a "Lender" hereunder,
except with respect to indemnification provisions under this Agreement,
which shall survive as to such replaced Lender;
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(e) The Administrative Agent shall reasonably cooperate in
effectuating the replacement of any Lender hereunder, but at no time
shall the Administrative Agent be obligated to initiate any such
replacement; and
(f) Any Lender replaced hereunder shall be replaced at the
Borrower's sole cost and expense and at no cost or expense to the
Administrative Agent.
ARTICLE IV
CLOSING: CONDITIONS OF CLOSING AND BORROWING
SECTION 4.1 Closing. The closing shall take place at the offices of
Sutherland, Asbill & Brennan LLP at First Union Plaza, 999 Peachtree Street,
N.E., 23rd Floor, Atlanta, Georgia at 10:00 a.m. on the Closing Date.
SECTION 4.2 Conditions to Closing and Initial Loan. The obligations of
the Lenders and the Administrative Agent to close this Agreement, the Lenders to
make the initial Loans and the Issuing Bank to issue, extend or renew any
Letters of Credit, are subject to the satisfaction of each of the following
conditions:
(a) Executed Loan Documents. (i) This Agreement, (ii) the Notes, (iii)
the Intercompany Subordination Agreement, and (iv) Security Documents
(including, without limitation, the Supplemental Assignment) shall have been
duly authorized and executed by the parties thereto in form and substance
satisfactory to the Administrative Agent, shall be in full force and effect and
no default shall exist thereunder, and the Borrowers party thereto shall have
delivered original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate. The Administrative Agent shall have
received a certificate from the chief executive officer and chief financial
officer of AHL, on behalf of the Borrowers, in form and substance reasonably
satisfactory to the Administrative Agent, to the effect that all representations
and warranties of the Borrowers contained in this Agreement and the other Loan
Documents are true, correct and complete; that the Borrowers are not in
violation of any of thecovenants contained in this Agreement and the other Loan
Documents; that, after giving effect to the transactions contemplated by this
Agreement, no Default or Event of Default has occurred and is continuing; that
the Borrowers have satisfied each of the closing conditions to be satisfied
thereby; and that the Borrowers have filed all required tax returns and owe no
delinquent taxes.
(ii) Certificate of Secretary of Each Borrower. The Administrative
Agent shall have received a certificate of the secretary or assistant secretary
of each Borrower certifying, as applicable, that attached thereto is a true and
complete copy of the articles of incorporation or other charter documents of
such Borrower and all amendments thereto, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of incorporation; that
attached thereto is a true
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and complete copy of the bylaws of such Borrower as in effect on the date of
such certification; that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Borrower, authorizing
the borrowings contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a
party; and as to the incumbency and genuineness of the signature of each officer
of such Borrower executing Loan Documents to which such Borrower is a party.
(iii) Certificates of Good Standing. The Administrative Agent shall
have received certificates as of a recent date of the good standing of each
Borrower under the laws of their respective jurisdictions of organization.
(iv) Accounts Designation Letter. The Accounts Designation Letter
to be delivered by the Borrowers pursuant to Section 2.2, dated as of the
Closing Date.
(v) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of counsel to the Borrowers addressed to the
Administrative Agent and Lenders with respect to the Borrowers and such other
Persons, the Loan Documents, the transactions contemplated thereby, regulatory
matters and such other matters as the Administrative Agent and the Lenders may
reasonably request, reasonably satisfactory in form and substance to the
Administrative Agent and Lenders.
(vi) Tax Forms. The Administrative Agent shall have received
copiesof the United States Internal Revenue Service forms required by Section
3.10 hereof.
(c) Collateral.
(i) Filings and Recordings. The Administrative Agent shall have
received all Uniform Commercial Code financing statements, in each case, duly
executed and delivered by the Domestic Borrowers in the appropriate form
required for filing for recording in all appropriate jurisdictions where such
filing may be necessary or appropriate to perfect the Liens of the
Administrative Agent and the Lenders in the Collateral described in the Security
Agreement (to the extent not so perfected) other than Uniform Commercial Code
financing statements for the State of Tennessee. All other filings and/or
recordings that are necessary to perfect the Liens of the Administrative Agent
and the Lenders in the Collateral described in the Security Documents
(including, without limitation, the Assignment of Accounts Receivable) shall
have been filed for recording in all appropriate jurisdictions, including,
without limitation, the United Kingdom and Federal Republic of Germany and the
Administrative Agent shall have received evidence satisfactory to the
Administrative Agent that such security interests constitute valid and perfected
first priority Liens therein.
(ii) Pledged Stock. The Administrative Agent shall have received
(A) original stock certificates evidencing the capital stock pledged pursuant to
the Pledge Agreement, together with an appropriate undated stock power and
irrevocable proxy for each certificate duly executed in blank by the registered
owner thereof, and (B) original share certificates evidencing the ordinary
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shares pledged pursuant to the Mortgage of Shares, together with an appropriate
undated stock transfer form for each certificate duly executed in blank by the
registered owner thereof.
(iii) UCC Lien Searches. The Borrowers shall have delivered the
results of a Lien search of all filings made against such Borrowers under the
Uniform Commercial Code as in effect in those jurisdictions as required by the
Administrative Agent, indicating among other things that their assets are free
and clear of any Lien except for Permitted Liens.
(iv) Insurance. The Administrative Agent shall have received
certificates of insurance and copies of insurance policies in the form required
under Section 7.3 and the Security Documents and otherwise in form and substance
reasonably satisfactory to the Administrative Agent.
(d) Consents; No Adverse Change.
(i) Governmental and Third Party Approvals. All necessary
approvals, authorizations and consents, if any be required, of any Person and of
all Governmental Authorities and courts having jurisdiction with respect to the
execution and delivery of this Agreement and the other Loan Documents shall have
been obtained.
(ii) Permits and Licenses. All permits and licenses, including
permits and licenses required under Applicable Laws, necessary to the conduct of
business by the Borrowers and their Subsidiaries shall have been obtained.
(iii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Administrative Agent's
reasonable discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(iv) No Material Adverse Change. Since December 27, 1996, there
shall not have occurred any material adverse change in the condition (financial
or otherwise), operations, properties, business or prospects of AHL or any of
its Subsidiaries, taken as a whole, or any event or condition that has had or
could be reasonably expected to have a Material Adverse Effect.
(v) No Event of Default. No Default or Event of Default shall
have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent and each
Lender shall have received recent annual and interim financial statements and
other financial information with respect to AHL and its Subsidiaries prepared in
accordance with GAAP. Without limitation of the foregoing, the Administrative
Agent and each Lender shall have received audited financial statements
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for AHL and its Subsidiaries for the Fiscal Year ended December 27, 1996 and
unaudited financial statements for AHL and its Subsidiaries for the three month
period ended December 26, 1997.
(ii) Financial Condition Certificate. AHL, on behalf of the
Borrowers, shall have delivered to the Administrative Agent a certificate, in
form and substance satisfactory to the Administrative Agent, and certified as
accurate in all material respects by the chief executive officer or chief
financial officer of AHL, to the effect that (A) attached thereto is a pro forma
balance sheet of AHL and its Subsidiaries setting forth on a pro forma basis the
financial condition of AHL and its Subsidiaries on a Consolidated basis as of
that date, reflecting on a pro forma basis the effect of the transactions
contemplated herein, and evidencing compliance on a pro forma basis with the
covenants contained in Articles VIII and IX hereof, (B) the financial
projections previously delivered to the Administrative Agent represent the good
faith opinions of the Borrowers and senior management thereof as to the
projected results contained therein, and (C) that AHL and each of its
Subsidiaries singly (i) has capital sufficient to carry on its business and
transactions and all business and transactions in which it is about to engage
and is able to pay its debts as they mature, (ii) owns property having a value,
both at fair valuation and at present fair saleable value, greater than the
amount required to pay its probable liabilities (including contingencies and its
liabilities with respect to the Obligations), and (iii) does not believe that it
will incur debts or liabilities beyond its ability to pay such debts or
liabilities as they mature.
(f) Miscellaneous.
(i) Refinanced Facilities. The Administrative Agent shall have
received evidence, in form and substance reasonably satisfactory to the
Administrative Agent, that the Debt outstanding under the Original Credit
Agreement will be refinanced with proceeds of the initial Loans.
(ii) Notice of Borrowing. The Administrative Agent shall have
received written instructions from AHL, on behalf of the Borrowers, directing
the payment of any proceeds of Loans made under this Agreement that are to be
made on the Closing Date. (iii) Proceedings and Documents. All opinions,
certificates and other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be reasonably satisfactory in
form and substance to the Lenders. The Lenders shall have received copies of all
other instruments and other evidence as the Lenders may reasonably request, in
form and substance reasonably satisfactory to the Lenders, with respect to the
transactions contemplated by this Agreement and the taking of all actions in
connection therewith.
(iv) Due Diligence and Other Documents. The Borrowers shall have
delivered to the Administrative Agent such other documents, certificates and
opinions as the Administrative Agent reasonably request.
(v) Payments at Closing. There shall have been paid by the
Borrowers to the Administrative Agent, FUCMC and the Lenders the fees set forth
or referenced in the Term Sheet, and any other accrued and unpaid fees or
commissions due hereunder (including, without limitation, up-front fees, legal
fees and expenses), and to any other Person such amount as may be due thereto
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in connection with the transactions contemplated hereby, including all taxes,
fees and other charges in connection with the execution, delivery, recording,
filing and registration of any of the Loan Documents.
SECTION 4.3 Conditions to All Loans. The obligations of the Lenders to
make any Loan and the Issuing Bank to issue, extend or renew any Letters of
Credit are subject to the satisfaction of the following conditions precedent on
the relevant borrowing date:
(i) Continuation of Representations and Warranties. The
representations and warranties contained in Article V shall be true and correct
on and as of such borrowing date with the same effect as if made on and as of
such date, except to the extent that such representations and warranties relate
solely to an earlier date, in which case such representations and warranties
shall have been true and correct on and as of such earlier date.
(ii) No Existing Default. No Default or Event of Default shall
have occurred and be continuing hereunder on the borrowing date with respect to
such Loan or after giving effect to the Loans to be made on such date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BORROWERS
SECTION 5.1 Representations and Warranties. To induce the
Administrative Agent and the Lenders to enter into this Agreement and to induce
the Lenders and the European Swingline Lender to make the Loans and the Issuing
Bank to issue, extend and renew the Letters of Credit, the Borrowers hereby
jointly and severally represent and warrant to the Administrative Agent, the
Lenders, the Issuing Bank and the European Swingline Lender that:
(a) Organization; Power; Qualification. Each of AHL and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being
conducted and is duly qualified and authorized to do business in each
jurisdiction where the failure to be so qualified or authorized could reasonably
be expected to have a Material Adverse Effect. The jurisdictions in which AHL
and its Subsidiaries are organized and qualified to do business as of the
Closing Date are described on Schedule 5.1(a). The address of the chief
executive office and principal place of business of each Borrower as of the
Closing Date is set forth on Schedule 5.1(a) hereto.
(b) Ownership. As of the Closing Date, (i) each Subsidiary of AHL is
listed on Schedule 5.1(b), (ii) the capitalization of each of the Subsidiaries
of AHL consists of the number of shares, authorized, issued and outstanding, of
such classes and series, with or without par value, described on Schedule
5.1(b), (iii) all outstanding shares have been duly authorized and validly
issued and are fully paid and nonassessable, (iv) the shareholders of each of
the Subsidiaries of AHL and the number of shares owned by each are described on
Schedule 5.1 (b), and (v) there are no outstanding stock
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purchase warrants, subscriptions, options, securities, instruments or other
rights of any type or nature whatsoever, which are convertible into,
exchangeable for or otherwise provide for or permit the issuance of capital
stock of any Subsidiaries of AHL, except as described on Schedule 5.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
AHL and its Subsidiaries has the right, power and authority and has taken all
necessary corporate and other action to authorize the execution, delivery and
performance of this Agreement and each of the other Loan Documents to which it
is a party in accordance with their respective terms. This Agreement and each of
the other Loan Documents have been duly executed and delivered by the duly
authorized officers of AHL and each of its Subsidiaries party thereto and each
such document constitutes the legal, valid and binding obligation of AHL or its
Subsidiary party thereto, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by AHL and each of its Subsidiaries
of the Loan Documents to which each such Person is a party in accordance with
their respective terms, the borrowings hereunder and the transactions
contemplated hereby do not and will not, by the passage of time, the giving of
notice or otherwise, (i) except as set forth on Schedule 5.1(d) hereto, require
any Governmental Approval or violate any Applicable Law relating to AHL or any
of its Subsidiaries, (ii) conflict with, result in a breach of or constitute a
default under the articles of incorporation, bylaws or other organizational
documents of AHL or any of its Subsidiaries or any Material Contract to which
such Person is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Person or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any material property
now owned or hereafter acquired by such Person other than Liens arising under
the Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of AHL and its
Subsidiaries (i) has all Governmental Approvals required by any Applicable Law
material to the conduct of its business and (ii) is in compliance with each such
Governmental Approval applicable to it and in compliance with all other
Applicable Laws relating to it or any of its respective properties, except where
the failure to be in such compliance could not reasonably be expected to have a
Material Adverse Effect. Each such Governmental Approval is in full force and
effect, is final and not subject to review on appeal and is not the subject of
any pending or, to the best knowledge of the Borrowers, threatened attack by
direct or collateral proceeding.
(f) Tax Returns and Payments. Each of AHL and its Subsidiaries has duly
filed or caused to be filed all federal, state, local and other tax returns
required by Applicable Law to be filed, and has paid, or made adequate provision
for the payment of, all federal, state, local and other taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable, except where the payment of such tax is being
disputed in good faith and adequate reserves have been established in accordance
with GAAP. No Governmental Authority has asserted any Lien or other claim
against AHL or any Subsidiary thereof with respect to material unpaid taxes
which has not been discharged or resolved or is not being contested in good
faith. The
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charges, accruals and reserves on the books of AHL and any of its
Subsidiaries in respect of federal, state, local and other taxes for all Fiscal
Years and portions thereof are in the judgment of the Borrowers adequate, and
the Borrowers do not anticipate any additional material taxes or assessments for
any of such years.
(g) Environmental Matters. The properties of AHL and its Subsidiaries
are in compliance in all material respects with all applicable Environmental
Laws. There is no contamination at, under or about such properties or such
operations which could interfere in any material respect with the continued
operation of such properties or, except as set forth on Schedule 5.1(g), impair
in any material respect the fair saleable value thereof. Neither AHL nor any of
its Subsidiaries has received any written notice of material violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of its properties or the operations conducted in connection therewith, nor does
AHL nor any of its Subsidiaries have knowledge or reason to believe that any
such notice will be received or is being threatened.
(h) ERISA.
(i) As of the Closing Date, neither any Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified on Schedule 5.1(h);
(ii) Each Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and all other laws applicable
to any Employee Benefit Plans and the regulations and published interpretations
thereunder with respect to all Employee Benefit Plans except for any required
amendments for which the remedial amendment period as defined in Section 401(b)
of the Code has not yet expired. Each Employee Benefit Plan that is intended to
be qualified under Section 401(a) of the Code has been determined by the
Internal Revenue Service to be so qualified, and each trust related to such plan
has been determined to be exempt under Section 501(a) of the Code. Each such
Employee Benefit Plan has been operated in a manner to preserve such
qualification. No liability has been incurred by any Borrower or any ERISA
Affiliate which remains unsatisfied for any taxes or penalties with respect to
any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor has
any funding waiver from the Internal Revenue Service been received or requested
with respect to any Pension Plan, nor has any Borrower or any ERISA Affiliate
failed to make any contributions or to pay any amounts due and owing as required
by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension
Plan prior to the due dates of such contributions under Section 412 of the Code
or Section 302 of ERISA, nor has there been any event requiring any disclosure
under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension
Plan;
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(iv) Neither any Borrower nor any ERISA Affiliate has: (A) engaged
in a nonexempt prohibited transaction described in Section 406 of ERISA or
Section 4975 of the Code; (B) incurred any liability to the PBGC which remains
outstanding other than the payment of premiums and there are no premium payments
which are due and unpaid; (C) failed to make a required contribution or payment
to a Multiemployer Plan; or (D) failed to make a required install ment or other
required payment under Section 412 of the Code;
(v) The execution and delivery by Borrowers of this Agreement and
the borrowings hereunder will not involve any prohibited transaction under ERISA
or the Code;
(vi) No Termination Event has occurred or is reasonably expected
to occur; and
(vii) No material proceeding, claim, lawsuit and/or investigation
is existing or, to the best knowledge of any Borrower after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) maintained or contributed to by any Borrower
or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(i) Margin Stock. Neither AHL nor any Subsidiary thereof is engaged
principally or as one of its significant activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used in Regulations G and U of the Board of Governors of
the Federal Reserve System). No part of the proceeds of any of the Loans will be
used for purchasing or carrying margin stock or for any purpose which violates,
or which would be inconsistent with, the provisions of Regulation G, T, U or X
of such Board of Governors.
(j) Government Regulation. Neither AHL nor any Subsidiary thereof is an
"investment company" or a company "controlled" by an "investment company" (as
each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither AHL nor any Subsidiary thereof is, or after giving effect
to any Loan will be, a "Holding Company" or a "Subsidiary Company" of a "Holding
Company" or an "Affiliate" of a "Holding Company" within the respective meanings
of each of the quoted terms of the Public Utility Holding Company Act of 1935 as
amended, or any other Applicable Law which materially limits its ability to
incur or consummate the transactions contemplated hereby.
(k) Patents, Copyrights and Trademarks. Each of AHL and its
Subsidiaries owns or possesses all patent, copyright and trademark rights which
are material to the conduct of its business without infringing upon any validly
asserted rights of others. No event has occurred which permits, or after notice
or lapse of time or both would permit, the revocation or termination of any such
rights. Except as set forth on Schedule 5.1(k), neither AHL nor any of its
Subsidiaries has been threatened with any litigation regarding patents,
copyrights or trademarks that would present a material impediment to the
business of AHL and its Subsidiaries, taken as a whole.
(l) Material Contracts. Schedule 5.1(1) sets forth a complete and
accurate list of all Material Contracts of AHL and its Subsidiaries in effect as
of the Closing Date not listed on any other Schedule hereto; other than as set
forth in Schedule 5.1(1), each of AHL and any Subsidiary thereof party thereto
has performed all of its material obligations under such Material Contracts and,
to the
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best knowledge of the Borrowers, each other party thereto is in compliance in
all material respects with each such Material Contract, and each such Material
Contract is, and after giving effect to the consummation of the transactions
contemplated by the Loan Documents will be, in full force and effect in
accordance with the terms thereof. AHL and its Subsidiaries have delivered to
the Administrative Agent a true and complete copy of each Material Contract
required to be listed on Schedule 5.1(1).
(m) Employee Relations. As of the Closing Date, each of AHL and its
Subsidiaries is not, except as set forth on Schedule 5.1(m), party to any
collective bargaining agreement nor has any labor union been recognized as the
representative of its employees. AHL knows of no pending, threatened or
contemplated strikes, work stoppage or other collective labor disputes involving
its employees or those of its Subsidiaries.
(n) Burdensome Provisions. Neither AHL nor any Subsidiary thereof is a
party to any indenture, agreement, lease or other instrument, or subject to any
corporate or partnership restriction, Governmental Approval or Applicable Law
which is so unusual or burdensome as in the foreseeable future could be
reasonably expected to have a Material Adverse Effect. AHL and its Subsidiaries
do not presently anticipate that future expenditures needed to meet the
provisions of any statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse Effect.
(o) Financial Statements. All balance sheets, statements of income,
retained earnings, stockholders' equity and cash flows, and all other financial
information of AHL and its Subsidiaries which have been furnished by the
Borrowers to the Administrative Agent and the Lenders for the purposes of or in
connection with this Agreement, including without limitation the financial
statements described in Section 4.2 (e), have been prepared in accordance with
GAAP consistently applied (except to the extent pro forma statements are based
upon reasonable estimates in accordance with Section 4.2(e)(ii)) throughout the
periods involved and present fairly in all material respects the matters
reflected therein subject, in the case of unaudited statements, to changes
resulting from normal year-end audit adjustments and items that would be
disclosed in footnotes to the audited statements. As of the Closing Date, except
as set forth on Schedule 5.1(o), neither AHL nor any of its Subsidiaries has any
contingent liability or liability for taxes, long-term leases or unusual forward
or long-term commitments which are not reflected in the financial statements
described above or in the notes thereto.
(p) No Material Adverse Change. Since December 27, 1996, there has been
no material adverse change in the condition (financial or otherwise),
operations, properties, business or prospects of AHL and its Subsidiaries, taken
as a whole, including any event or condition that has had or is reasonably
likely to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Loan made hereunder, each of AHL and each of its Subsidiaries will be Solvent.
(r) Titles to Properties. Each of AHL and its Subsidiaries has such
title to the real property owned or leased by it as is material to the conduct
of its business and good and marketable
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title to all of its personal property material to its business as presently
conducted, except such property as has been disposed of by AHL or its
Subsidiaries subsequent to such date which dispositions have been in the
ordinary course of business or as otherwise expressly permitted hereunder.
Schedule 5.1(r) hereto sets forth the address of all real property owned or
leased by a Borrower as of the Closing Date.
(s) Liens. None of the properties and assets of AHL or any Subsidiary
thereof is subject to any Lien, except in each case Permitted Liens. No
financing statement under the Uniform Commercial Code of any state which names
AHL or any Subsidiary thereof or any of their respective trade names or
divisions as debtor and which has not been terminated, has been filed in any
state or other jurisdiction and neither AHL nor any Subsidiary thereof has
signed any such financing statement or any security agreement authorizing any
secured party thereunder to file any such financing statement, except to perfect
Permitted Liens. No filing or recording of any document or instrument under the
laws of the United Kingdom or the Federal Republic of Germany or any
jurisdiction thereof which names AHL or any Subsidiary thereof or any of their
respective trade names or divisions as debtor, chargor, assignor or mortgagor
and which has not been terminated, has been filed in the United Kingdom or the
Federal Republic of Germany or any jurisdiction thereof and neither AHL nor any
Subsidiary thereof has signed any pledge, mortgage, assignment, debenture or any
other form of security agreement authorizing any secured party thereunder to
file or record any such document, instrument or agreement, except to perfect
Permitted Liens.
(t) Debt and Contingent Obligations. Schedule 5.1(t) is a complete and
correct listing as of the Closing Date of all Debt and Contingent Obligations of
AHL and its Subsidiaries. Each of AHL and its Subsidiaries have performed and
are in material compliance with all of the terms of such Debt and Contingent
Obligations and all instruments and agreements relating thereto, and no default
or event of default, or event or condition which with notice or lapse of time or
both would constitute such a default or event of default on the part of AHL or
its Subsidiaries exists with respect to any such Debt or Contingent Obligation.
(u) Litigation. Except as set forth on Schedule 5.1(u), as of the
Closing Date there are no actions, suits or proceedings pending nor, to the
knowledge of the Borrowers, threatened against or in any other way relating
adversely to or adversely affecting AHL or any Subsidiary thereof or any of
their respective properties in any court or before any arbitrator of any kind or
before or by any Governmental Authority which, if adversely determined, is
reasonably likely to have a Material Adverse Effect.
(v) Franchise and License Fees. AHL and each of its Subsidiaries have
paid all material franchise, license or other fees and charges which have become
due pursuant to any Governmental Approval in respect of its business and has
made appropriate provision as is required by GAAP for any such fees and charges
which have accrued.
(w) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by AHL or any Subsidiary thereof under
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any Material Contract or judgment, decree or order to which AHL or its
Subsidiaries is a party or by which AHL or its Subsidiaries or any of their
respective properties may be bound.
(x) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of AHL or any
Subsidiary thereof and furnished to the Lenders were, at the time the same were
so furnished, complete and correct in all material respects. No document
furnished or written statement made to the Administrative Agent or the Lenders
by AHL or any Subsidiary thereof in connection with the negotiation, preparation
or execution of this Agreement or any of the Loan Documents contains any untrue
statement of a fact material to the creditworthiness of AHL or its Subsidiaries
or omits to state a material fact necessary in order to make the statements
contained therein not misleading. AHL is not aware of any facts which it has not
disclosed in writing to the Administrative Agent having a Material Adverse
Effect, or insofar as AHL can now foresee, could reasonably be expected to have
a Material Adverse Effect.
SECTION 5.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article V and all
representations and warranties contained in any certificate or in any of the
Loan Documents (including without limitation, any such representation or
warranty made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement (a) shall be made or deemed to be made
at and as of the Closing Date, as of each borrowing date and as of the date of
the issuance, renewal or extension of each Letter of Credit with the same effect
as if made on and as of the Closing Date, except to the extent that such
representations and warranties relate solely to an earlier date, in which case
such representations and warranties shall have been true and correct on and as
of such earlier date, (b) shall survive the Closing Date, and (c) shall not be
waived by the execution and delivery of this Agreement, any investigation made
by or on behalf of the Lenders or any borrowing hereunder.
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full (other
than any Obligations that survive the termination of this Agreement pursuant to
Section 12.13) and the Commitments terminated, unless consent has been obtained
in the manner set forth in Section 12.9 hereof, the Borrowers will furnish or
cause to be furnished to the Administrative Agent and each Lender at their
respective addresses set forth in Section 12.1 hereof, or such other address as
may be designated by such Administrative Agent or Lenders from time to time:
SECTION 6.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days after the end of each fiscal quarter, an
unaudited Consolidated balance sheet of AHL and its Subsidiaries as of the close
of such fiscal quarter and unaudited Consolidated statements of income, retained
earnings and cash flows for the fiscal quarter then ended and that portion of
the
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Fiscal Year then ended, including the notes thereto, all in reasonable
detail setting forth in comparative form the corresponding figures for the
preceding Fiscal Year for the portion of the Fiscal Year then ended and prepared
by AHL in accordance with GAAP, and certified by the chief financial officer of
AHL to present fairly in all material respects the financial condition of AHL
and its Subsidiaries as of their respective dates and the results of operations
of AHL and its Subsidiaries for the respective periods then ended.
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of AHL and its Subsidiaries as of the close of such
Fiscal Year and audited Consolidated statements of income, retained earnings and
cash flows for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures
for the preceding Fiscal Year and prepared by an independent certified public
accounting firm of nationally recognized standing in accordance with GAAP, and
accompanied by a report thereon by such certified public accountants that is not
qualified with respect to scope limitations imposed by AHL or any of its
Subsidiaries, with respect to accounting principles followed by AHL or any of
its Subsidiaries not in accordance with GAAP, or with respect to any going
concern status of AHL and its Subsidiaries taken as a whole.
(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within thirty (30) days after the beginning of each
Fiscal Year, a business plan of AHL and its Subsidiaries for the ensuing four
fiscal quarters, such plan to include, on a quarterly basis, the following,
prepared in GAAP format: a quarterly operating and capital budget, a projected
income statement, statement of cash flows and balance sheet and a report, if
such a report is requested by the Administrative Agent from time to time,
containing management's discussion and analysis of such projections (such
business plan and projections, the "Projections"), accompanied by a certificate
from the chief financial officer of AHL to the effect that, to the best of such
officer's knowledge, the Projections are good faith estimates of the financial
condition and operations of AHL and its Subsidiaries for such four quarter
period.
SECTION 6.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 6.1(a) or (b), a certificate of
the chief financial officer of AHL in the form of Exhibit D attached hereto (an
"Officer's Compliance Certificate"):
(a) stating that such officers have reviewed such financial statements
and such statements fairly present the financial condition of AHL and its
Subsidiaries as of the dates indicated and the results of their operations and
cash flows for the periods indicated;
(b) stating that to such officer's knowledge, based on a reasonable
examination, no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Borrowers with respect
to such Default or Event of Default; and
(c) setting forth as at the end of such fiscal quarter or Fiscal Year,
as the case may be, the calculations required to establish whether or not AHL
and its Subsidiaries were in compliance with
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the financial covenants set forth in Article VIII hereof as at the end of each
respective period, and the calculation of the Applicable Margin pursuant to
Section 3.1(d) as at the end of each respective period.
SECTION 6.3 Other Reports.
(a) Promptly upon receipt thereof, copies of any management report and
any management responses thereto submitted to any Borrower or its Board of
Directors by its independent public accountants in connection with their
auditing function;
(b) Such other information regarding the operations, business affairs
and financial condition of AHL or any of its Subsidiaries as the Administrative
Agent or the Required Lenders may reasonably request; and
(c) All filings by, or in connection with and received by, AHL, with or
from the SEC (other than filings made by individuals and not involving a Change
in Control on Forms 3 or 4 pursuant to Section 16 of the Exchange Act) and all
notices and proxy and other information provided by AHL to its shareholders
generally.
SECTION 6.4 Notice of Litigation and Other Matters. Promptly (but in no
event later than five (5) Business Days after an officer of AHL obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all material proceedings and investigations by
or before any Governmental Authority and all material actions and proceedings in
any court or before any arbitrator against or involving AHL or any Subsidiary
thereof or any of their respective properties, assets or businesses;
(b) any notice of any material violation received by AHL or any
Subsidiary thereof from any Governmental Authority, including without
limitation, any notice of a material violation of Environmental Laws;
(c) any material labor controversy that has resulted in, or could
reasonably be expected to result in, a strike or other work action against AHL
or any Subsidiary thereof;
(d) any attachment, judgment, lien, levy or order exceeding the
Material Judgment Amount that may be assessed against or threatened against AHL
or any of its Subsidiaries;
(e) any Default or Event of Default;
(f) any event which constitutes or which with the passage of time or
giving of notice or both would constitute a default or event of default under
any Material Contract to which AHL or any of its Subsidiaries is a party or by
which AHL or any Subsidiary thereof or any of their respective properties may be
bound;
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(g) (i) the failure of any Borrower or any ERISA Affiliate to make a
required installment or payment under Section 302 of ERISA or Section 412 of the
Code by the due date, (ii) any Termination Event or "prohibited transaction," as
such term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Employee Benefit Plan or any trust created thereunder, along
with a description of the nature thereof, what action such Borrower has taken,
is taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto, (iii) all notices received by any Borrower or any
ERISA Affiliate of the PBGC's intent to terminate any Pension Plan or to have a
trustee appointed to administer any Pension Plan, (iv) all notices received by
any Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor concerning
the imposition or amount of withdrawal liability pursuant to Section 4202 of
ERISA, (v) any Borrower obtaining knowledge or reason to know that AHL or any
ERISA Affiliate has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section 4041(c)
of ERISA, and (vi) the requirement to file any notice with the Internal Revenue
Service, Department of Labor, PBGC or any plan participant, beneficiary or
alternate payee required under Sections 101(d), 302(f)(4), 303 and 307 of ERISA
or under Section 401(a)(29) of the Code with respect to any Employee Benefit
Plan of any Borrower or any ERISA Affiliate; or
(h) any event which makes any of the representations set forth in
Section 5.1 inaccurate in any material respect.
SECTION 6.5 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of any Borrower
to any Agent or Lender whether pursuant to this Article VI or any other
provision of this Agreement, or any of the Security Documents, shall be, at the
time the same is so furnished, complete and correct in all material respects
based on the applicable Borrower's knowledge thereof.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full
(other than Obligations that survive the termination of this Agreement pursuant
to Section 12.13) and the Commitments terminated, unless consent has been
obtained in the manner provided for in Section 12.9, AHL and each Borrower will,
and will cause each of its Subsidiaries to:
SECTION 7.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 9.5, preserve and maintain its separate corporate
existence and all rights, franchises, licenses and privileges material to the
conduct of its business, and qualify and remain qualified as a foreign
corporation and authorized to do business in each jurisdiction where its
business requires such qualification and authorization, if failure to qualify or
to remain so qualified would have or could reasonably be expected to have a
Material Adverse Effect.
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SECTION 7.2 Maintenance of Property. Protect and preserve all
properties useful in and material to its business, including material
copyrights, patents, trade names and trademarks; maintain in good working order
and condition (reasonable wear and tear excepted) all buildings, equipment and
other tangible real and personal property useful in and material to its
business; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary in the reasonable
judgement of such Borrower for the conduct of its business, so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times.
SECTION 7.3 Insurance. In addition to the requirements set forth in the
Security Documents, maintain insurance with financially sound and reputable
insurance companies against such risks and in such amounts as are customarily
maintained by similar businesses and as may be required by Applicable Law,
including, without limitation, an aviation services insurance policy in an
amount not less than $500,000,000, and on the Closing Date and from time to time
thereafter deliver to the Administrative Agent upon its request a detailed list
of the insurance then in effect, stating the names of the insurance companies,
the amounts and rates of the insurance, the dates of the expiration thereof and
the properties and risks covered thereby.
SECTION 7.4 Accounting Methods and Financial Records. Maintain a system
of accounting, and keep such books, records and accounts (which shall be true
and complete in all material respects) as may be required or as may be necessary
to permit the preparation of financial statements in accordance with GAAP and in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 7.5 Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents and pay or perform
(a) all taxes, assessments and other governmental charges that may be levied or
assessed upon it or any of its property, and (b) all other indebtedness,
obligations and liabilities in accordance with customary trade practices;
provided, that such Borrower and its Subsidiaries may contest any item described
in clauses (a) and (b) hereof in good faith so long as adequate reserves are
maintained with respect thereto in accordance with GAAP.
SECTION 7.6 Compliance With Laws and Approvals. Observe and remain in
material compliance with all Applicable Laws and maintain in full force and
effect all material Governmental Approvals, in each case to the extent that
failure to so observe or remain in material compliance could reasonably be
expected to have a Material Adverse Effect.
SECTION 7.7 Environmental Laws. In addition to and without limiting the
generality of Section 7.6, (a) comply in all material respects with, and use its
best efforts to ensure such compliance by all of its tenants and subtenants, if
any, with, all applicable Environmental Laws and obtain and comply with and
maintain, and use its best efforts to ensure that all of its tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws; (b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws, and timely comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws; and (c) defend,
indemnify and hold harmless the
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Administrative Agent and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under any Environmental Laws applicable to
the operations of such Borrower or its subsidiaries, or any orders, requirements
or demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing arise out of or relate to the gross
negligence or willful misconduct of the party seeking indemnification therefor.
SECTION 7.8 Compliance with ERISA and the Code. In addition to and
without limiting the generality of Section 7.6, make timely payment of
contributions required to meet the minimum funding standards set forth in ERISA
or the Code with respect to any Employee Benefit Plan; not take any action or
fail to take action the result of which could be a liability to the PBGC or to a
Multiemployer Plan; not participate in any prohibited transaction that could
result in any civil penalty under ERISA or tax under the Code; furnish to the
Administrative Agent upon the Administrative Agent's request such additional
information about any Employee Benefit Plan as may be reasonably requested by
the Administrative Agent; and operate each Employee Benefit Plan in such a
manner that such plan will not incur any tax liability under Section 4980B of
the Code or any liability to any qualified beneficiary as defined in Section
4980B of the Code.
SECTION 7.9 Compliance With Other Agreements. Comply in all material
respects with each term, condition and provision of all leases, other agreements
and instruments (other than this Agreement and the Loan Documents) entered into
in the conduct of its business if noncompliance would have or could reasonably
be expected to have a Material Adverse Effect, including, without limitation,
any Material Contract; provided, that such Borrower or Subsidiary may contest
any such lease, agreement or other instrument in good faith so long as adequate
reserves are maintained in accordance with GAAP.
SECTION 7.10 Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
and in lines of business reasonably related thereto.
SECTION 7.11 Visits and Inspections. Upon reasonable notice therefrom
and during normal business hours, permit representatives of any of the
Administrative Agent or Lenders, from time to time, to visit and inspect its
properties; inspect, audit and make extracts from its books, records and files,
including, but not limited to, management letters prepared by independent
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects.
SECTION 7.12 Subsidiaries. Unless a new Subsidiary is, as a part of an
acquisition transaction, merged upon the consummation thereof into one of the
Borrowers with such Borrower being the surviving entity, then the Borrowers
shall cause each new Subsidiary that is a Material Subsidiary, to cause to be
executed and delivered to the Administrative Agent: (a) a Joinder
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Agreement and the documents referred to therein, (b) the supplement
substantially in the form attached to the Security Agreement, (c) the supplement
substantially in the form attached to the Pledge Agreement, or if the owner of
such Subsidiary is not AHL, a pledge agreement substantially in the form of the
Pledge Agreement executed by such owner with such modifications thereto as
requested by the Administrative Agent, (d) such other documents reasonably
requested by the Administrative Agent consistent with the terms of this
Agreement which provide that such Subsidiary shall become a Borrower hereunder
bound by all of the terms, covenants and agreements contained in the Loan
Documents and that the assets of such Subsidiary shall become Collateral for the
Obligations and (e) such other documents as the Administrative Agent shall
reasonably request, including without limitation, officers' certificates,
financial statements, opinions of counsel, board resolutions, charter documents,
certificates of existence and authority to do business and any other closing
certificates and documents described in Section 4.2; provided, however, that if
at any time after the Closing Date, the aggregate Revenue Percentage of all
direct and indirect Subsidiaries of AHL that have not executed Joinder
Agreements exceeds fifteen percent (15%) (each a ("Joinder Event") (in each case
determined for the fiscal quarter of the Borrowers then most recently ended),
then the Borrowers shall within the later to occur of (i) the date which is
thirty (30) days after such Joinder Event, or (ii) the last Business Day of the
then current Fiscal Quarter during which such Joinder Event has occurred, cause
a sufficient number of such Subsidiaries to execute and deliver a Joinder
Agreement and any other documents as set forth in clauses (a) through (e) of
this Section 7.12 so that, after giving effect to all such Joinder Agreements,
the aggregate Revenue Percentage of all direct and indirect Subsidiaries of AHL
that have not executed Joinder Agreements does not exceed fifteen percent (15%).
SECTION 7.13 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as any Agent or
Lender may reasonably require to document and consummate the transactions
contemplated hereby and to vest completely in and insure each Agent and the
Lenders their respective rights under this Agreement, the Notes and the other
Loan Documents.
SECTION 7.14 Year 2000 Compatibility. Promptly and in no event later
than January 1, 2000, take all action necessary to ensure that Borrowers'
computer based systems are able to operate and effectively process data
including dates on and after January 1, 2000. At the request of the
Administrative Agent, Borrowers shall provide the Administrative Agent and
Lenders assurances in form and substance satisfactory to the Administrative
Agent and Lenders of Borrowers' year 2000 compatibility.
ARTICLE VIII
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied (other than
Obligations that survive the termination of this Agreement pursuant to Section
12.13) in full and the Commitments terminated, unless consent has been obtained
in the manner set forth in Section 12.9 hereof, AHL and its Subsidiaries on a
Consolidated basis will not:
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SECTION 8.1 Capitalization Ratio. At any date, permit the ratio of
Consolidated Total Indebtedness to Total Capitalization to be more than 0.50 to
1.00.
SECTION 8.2 Total Indebtedness to Pro Forma EBITDA. As of any fiscal
quarter end, permit the ratio of (a) Consolidated Total Indebtedness of AHL and
its Subsidiaries as of such date to (b) Consolidated Pro Forma EBITDA of AHL and
its Subsidiaries for the period of four (4) consecutive fiscal quarters ending
on or immediately prior to such date to exceed (i) except as provided in clause
(ii) below, 3.50 to 1.00, and (ii) upon the consummation of any subordinated
note issuance in an aggregate principal amount of at least Seventy-Five Million
Dollars ($75,000,000) in form and substance satisfactory to the Administrative
Agent and the Lenders in accordance with Section 9.1(j) (and after giving effect
thereto) 4.50 to 1.00.
SECTION 8.3 Senior Indebtedness to Pro Forma EBITDA. As of any fiscal
quarter end on or after the consummation of any subordinated note issuance in an
aggregate principal amount of at least Seventy-Five Million Dollars
($75,000,000) in form and substance satisfactory to the Administrative Agent and
the Lenders in accordance with Section 9.1(j) (and after giving effect thereto),
permit the ratio of (a) Consolidated Senior Indebtedness of AHL and its
Subsidiaries as of such date to (b) Consolidated Pro Forma EBITDA of AHL and its
Subsidiaries for the period of four (4) consecutive fiscal quarters ending on or
immediately prior to such date to exceed 2.00 to 1.00.
SECTION 8.4 Interest Coverage Ratio. As of any fiscal quarter end,
permit the Interest Coverage Ratio to be less than 2.00 to 1.00.
SECTION 8.5 Current Ratio. As of any fiscal quarter end, permit the
ratio of Current Assets to Current Liabilities to be less than 1.50 to 1.00.
ARTICLE IX
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full
(other than Obligations that survive termination of this Agreement pursuant to
Section 12.13) and the Commitments terminated, unless consent has been obtained
in the manner set forth in Section 12.9 hereof, AHL will not and will not permit
any of its Subsidiaries to:
SECTION 9.1 Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except (a) the Obligations, (b) Debt incurred in connection with
a Hedging Agreement with a counterparty and upon terms and conditions reasonably
satisfactory to the Administrative Agent, (c) existing Debt set forth on
Schedule 9.1, (d) Debt consisting of Contingent Obligations permitted by Section
9.2, (e) Debt of any Borrower to any other Borrower, but only if such Debt is
subordinated to the Obligations pursuant to the terms and conditions of the
Intercompany Subordination Agreement, (f) Debt constituting trade payables and
accruals arising in the ordinary course of business of AHL and its Subsidiaries,
(g) Debt for which any Person acquired by AHL in a transaction permitted by
Section 9.4(g) is obligated, but only if such Debt has as its sole obligor such
acquired Person,
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(h) Debt constituting seller financing of up to $5,000,000 in the aggregate at
any time outstanding and incurred in connection with a purchase or acquisition
permitted by Section 9.4(g), (i) purchase money Debt and Capital Leases secured
only by an interest in the property being acquired, but only (x) if the amount
of such purchase money Debt and the amount of such Capital Leases attributable
to principal, when aggregated with all other purchase money Debt incurred and
the principal amounts of Capital Leases entered into by AHL or any of its
Subsidiaries pursuant to this subsection 9.1(i) during the current Fiscal Year,
does not exceed $1,500,000 in total, and (y) if the amount of such Capital
Leases attributable to principal, when aggregated with all principal amounts of
Capital Leases entered into by AHL or any of its Subsidiaries pursuant to this
subsection 9.1(i) during the current Fiscal Year, does not exceed $ 1,000,000 in
total, and (j) unsecured Subordinated Indebtedness in an aggregate principal
amount at any time not to exceed $100,000,000 incurred by Borrowers in
connection with the issuance of their unsecured subordinated promissory notes,
provided that the terms of such Subordinated Indebtedness are in form and
substance satisfactory to the Administrative Agent and the Lenders and no
Default or Event of Default shall have occurred before and after giving effect
to the incurrence of such Subordinated Indebtedness.
SECTION 9.2 Limitations on Contingent Obligations. Create, incur,
assume or suffer to exist any Contingent Obligations except for (i) Contingent
Obligations comprised of guaranties or other support of or for Debt, leases,
obligations, and undertakings permitted to any Borrower or any Subsidiary by
this Agreement and (ii) Contingent Obligations in favor of the Administrative
Agent for the benefit of the Administrative Agent and the Lenders.
SECTION 9.3 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties (including
shares of capital stock), real or personal, whether now owned or hereafter
acquired, except Permitted Liens.
SECTION 9.4 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture,
evidence of Debt or other obligation or security, substantially all or a
material portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person; or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit to,
or any investment in cash or by delivery of property in, any Person; or enter
into, directly or indirectly, any commitment or option in respect of the
foregoing except:
(a) investments in Wholly-Owned Subsidiaries, joint ventures or
minority interests existing on the Closing Date and the other existing loans,
advances and investments described on Schedule 9.4;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within one (1) year from the date of acquisition thereof, (ii)
commercial paper maturing no more than 120 days from the date of creation
thereof and currently having the highest rating obtainable from either Standard
& Poor's Corporation or Moody's Investors Service, Inc., (iii) certificates of
deposit maturing no more than 120 days from the date of creation thereof issued
by commercial banks incorporated under the laws of the United States of America,
each having combined capital, surplus and undivided profits of not
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less than $500,000,000 and having a rating of "A" or better by a nationally
recognized rating agency; provided, that the aggregate amount invested in such
certificates of deposit shall not at any time exceed $5,000,000 for any one such
certificate of deposit and $10,000,000 for any one such bank, (iv) time deposits
maturing no more than 30 days from the date of creation thereof with commercial
banks or savings banks or savings and loan associations each having membership
either in the Federal Deposit Insurance Corporation ("FDIC") or the deposits of
which are insured by the FDIC and in amounts not exceeding the maximum amounts
of insurance thereunder, or (v) money market mutual funds.
(c) capital contributions to and investments in Wholly-owned
Subsidiaries created or acquired after the Closing Date; provided, that such
Wholly-Owned Subsidiaries become Borrowers hereunder pursuant to the
requirements of Section 7.12 hereof;
(d) loans and advances to employees for reasonable and necessary
business and travel expenses in the ordinary course of business of AHL and its
Subsidiaries;
(e) deposits for utilities, security deposits, leases and similar
prepaid expenses incurred in the ordinary course of business;
(f) trade accounts created in the ordinary course of business;
(g) AHL or any Subsidiary may make investments in the form of
acquisitions of all or substantially all of the business or a line of business
(whether by the acquisition of capital stock, assets or any combination thereof)
of any other Person, without the consent of the Administrative Agent or any
Lender, so long as
(i) the acquisition is of a company, business or property in
substantially the same fields of business as AHL or any Subsidiary of
AHL,
(ii) no Default or Event of Default is in existence at the time of
such acquisition or would be created as a consequence of such
acquisition,
(iii) the aggregate consideration (including any indebtedness
assumed by AHL or any of its Subsidiaries in connection with such
acquisition) for the acquisition does not exceed $15,000,000,
(iv) the aggregate consideration (including any indebtedness
assumed by AHL or any of its Subsidiaries in connection with such
acquistion) paid by AHL and its Subsidiaries for all such acquisitions
during the Fiscal Year of the subject acquisition, together with
aggregate consideration (including any indebtedness assumed by AHL or
any of its Subsidiaries in connection with such acquistion) for the
acquisition, does not exceed (I) $30,000,000 if, after giving effect to
any such acquisition on a pro forma basis, the ratio of Consolidated
Total Indebtedness of AHL and its Subsidiaries as of the most recently
ended fiscal quarter to Consolidated Pro Forma EBITDA of AHL and its
Subsidiaries for the period of four (4) consecutive fiscal quarters
ending on or immediately prior to such fiscal quarter
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end is equal to or greater than 2.00 to 1.00, and (II) $50,000,000
if, after giving effect to any such acquisition on a pro forma basis,
the ratio of Consolidated Total Indebtedness of AHL and its
Subsidiaries as of the most recently ended fiscal quarter to
Consolidated Pro Forma EBITDA of AHL and its Subsidiaries for the
period of four (4) consecutive fiscal quarters ending on or immediately
prior to such fiscal quarter end is less than 2.00 to 1.00,
(v) within thirty (30) days following the consummation of such
acquisition, AHL, on behalf of the Borrowers, shall deliver to the
Administrative Agent a certificate of its chief executive officer and
chief financial officer, (I) describing the principal terms of the
acquisition and the business or assets to be acquired, and (II)
demonstrating on a pro forma combined basis, assuming that the Person
that is the target of the acquisition had been acquired as of the first
day of the four quarter fiscal period ending at the immediately
preceding fiscal quarter end, all financial covenants and other terms
and provisions of this Agreement would have been complied with during
the four fiscal quarters ending at the immediately preceding fiscal
quarter end, after giving pro forma effect to the acquisition,
including, without limitation, any Debt incurred or assumed by AHL and
its Subsidiaries as a result of such acquisition, and setting forth in
reasonable detail AHL's calculations of the Applicable Margin and the
Facility Fee Percentage on a pro forma combined basis after giving
effect to such acquisition,
(vi) prior to the consummation of the subject acquisition, the
board of directors or equivalent governing body of the target of such
acquisition (or, in connection with any acquisition of a target company
or the assets of a target company that is the subject of a bankruptcy
case, the bankruptcy court presiding over such case) shall have
approved of the terms of such acquisition and Borrower shall have
furnished to the Administrative Agent evidence of such approval, and
(vii) AHL, on behalf of Borrowers, shall promptly deliver to the
Administrative Agent such other documents and information as the
Administrative Agent shall reasonably request; and
(h) such other investments by AHL or any Subsidiary in the form of
acquisitions of all or substantially all of the business or a line of business
(whether by the acquisition of capital stock, assets or any combination thereof)
of any other Person if approved by the Required Lenders, in their sole and
absolute discretion, in writing prior to such consummation so long as, within
ten (10) Business Days prior to the consummation of the subject acquisition,
AHL, on behalf of Borrowers, shall deliver to the Administrative Agent the
officer's certificate described in Section 9.4(g)(v) above and such other
documents and information as the Required Lenders shall reasonably request.
SECTION 9.5 Limitations on Mergers and Liquidation. Merge, consolidate
or enter into any similar combination with any other Person or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution) except (a)
any Wholly-Owned Subsidiary of AHL may merge with AHL or any other Wholly-Owned
Subsidiary of AHL and (b) AHL or any Wholly-Owned Subsidiary may merge with or
into any other Person for the purpose of consummating any acquisition permitted
by Section 9.4 as long as AHL, in the case of a merger by AHL, or, in the case
of a merger by a Wholly- Owned Subsidiary that is a Material Subsidiary, such
Wholly-Owned Subsidiary, is the surviving
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Person or the surviving Person becomes a party to the Loan Documents as a
Borrower, and no Default or Event of Default shall have occurred before and
after giving effect to such merger.
SECTION 9.6 Limitations on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in the
business of AHL or any of its Subsidiaries;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;
(d) the transfer by any Subsidiary of any of its property to any
Borrower, or the transfer by AHL of any of its intellectual property to any
Borrower; or
(e) sales of assets in the ordinary course of business (i) in the
aggregate not producing in excess of $500,000 in Net Cash Proceeds in any Fiscal
Year and (ii ) all of whose Net Cash Proceeds are applied towards replacement
property similar to the assets sold within one hundred and eighty (180) days
after consummation of the sale.
SECTION 9.7 Limitations on Dividends and Distributions. Declare or pay
any dividends upon any of its capital stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its capital stock, or
make any distribution of cash, property or assets among the holders of shares of
its capital stock; or make any material change in its capital structure that
could reasonably be expected to have a Material Adverse Effect; provided that
(a) AHL or any Subsidiary may pay dividends in shares of its own capital stock,
(b) any Subsidiary of a Borrower may pay dividends or make other distributions
in respect of its capital stock to such Borrower, (c) any Subsidiary of a
Borrower may make payments on any Debt or other obligation owed to such Borrower
which Debt or other obligation is permitted hereunder and (d) AHL may purchase
restricted securities (as defined in Rule 144(a)(3) promulgated under the
Securities Act of 1933, as amended) issued by AHL in connection with
acquisitions consummated prior to the Closing Date or in connection with
acquisitions consummated in compliance with Section 9.4(g), in an aggregate
amount not to exceed $500,000 in any fiscal year; and (d) AHL may repurchase
shares of its capital stock for an employee benefit plan sponsored by AHL or one
of its subsidiaries so long as the total consideration paid in such repurchases
does not exceed $500,000 in any Fiscal Year.
SECTION 9.8 Transactions with Affiliates. Directly or indirectly: (a)
make any loan or advance to, or purchase or assume any note or other obligation
to or from, any of its officers, directors, shareholders or other Affiliates, or
to or from any member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations to any of its
Affiliates, or (b) enter into, or be a party to, any transaction with any of its
Affiliates, except pursuant
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to the reasonable requirements of its business and upon fair and reasonable
terms that are no less favorable to it than it would obtain in a comparable
arm's length transaction with a Person not its Affiliate.
SECTION 9.9 Certain Accounting Changes. Change its Fiscal Year end, or
make any material change in its accounting treatment and reporting practices
except as required by GAAP.
SECTION 9.10 Licenses. Terminate any material Governmental Approval or
any Material Contract without the prior written consent of the Required Lenders
if such termination would have a Material Adverse Effect.
SECTION 9.11 Restrictive Agreements. Enter into (a) any agreement
providing for Debt of AHL or its Subsidiaries which contains any negative pledge
on assets (other than negative pledges on assets securing Capital Leases or
purchase money Debt permitted under Section 9.1(i)) or any covenants materially
more restrictive than the provisions of Articles VII, VIII and IX hereof, or
which restricts, limits or otherwise encumbers its ability to incur Liens on or
with respect to any of its assets or properties other than the assets or
properties securing such Debt or (b) any agreement which shall restrict, limit
or otherwise encumber (by covenant or otherwise) the ability to make any payment
to AHL or any of its Subsidiaries, in the form of dividends, intercompany
advances or otherwise.
ARTICLE X
DEFAULT AND REMEDIES
SECTION 10.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans. Any Borrower shall
default in any payment of principal of any Loan or Note when and as due (whether
at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. Any Borrower shall default for more than ten
(10) days past the due date (whether at maturity, by reason of acceleration or
otherwise) in the payment of interest on any Loan or Note or the payment of any
other Obligation.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by any Borrower or any of its Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or deemed
made, except to the extent that (i) an event or condition has occurred that
would cause a representation or warranty to be incorrect or misleading, (ii) the
occurrence of such event or condition and the representation or warranty to
which it relates has been previously disclosed in writing to the Administrative
Agent and the Lenders and (iii) the occurrence
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of such event or condition did not and will not have, and is not reasonably
expected to have, a Material Adverse Effect with respect to AHL or any of its
Subsidiaries.
(d) Default in Performance of Certain Covenants. Any Borrower shall
default in the performance or observance of any covenant or agreement contained
in Section 6.4(e), Section 7.11, Section 7.3 (solely as it relates to the
required maintenance of the $500,000,000 aviation services insurance policy) or
Articles VIII or IX of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. Any
Borrower or Subsidiary thereof shall default in the performance or observance of
any term, covenant, condition or agreement contained in this Agreement (other
than as specifically provided for otherwise in this Section 10.1) or any other
Loan Document and such default shall continue for a period of fifteen (15) days
after written notice thereof has been given to such Borrower or Subsidiary by
the Administrative Agent or knowledge thereof is gained by any officer of any
Borrower.
(f) Debt Cross-Default. AHL or any of its Subsidiaries shall (i)
default in the payment of any Debt in an amount exceeding $1,000,000 (or
equivalent thereof in another currency) beyond the period of grace, if any,
provided in the instrument or agreement under which such Debt was created; or
(ii) default in the observance or performance of any other agreement or
condition relating to any Debt in an amount exceeding $1,000,000 (or equivalent
thereof in another currency) 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 Debt (or a trustee or agent on
behalf of such holder or holders) to cause, with the giving of notice if
required, any such Debt to become due prior to its stated maturity (any
applicable grace period having expired).
(g) Change in Control. A Change in Control shall occur.
(h) Voluntary Bankruptcy Proceeding. AHL or any Subsidiary thereof
shall (i) commence a voluntary case under the federal bankruptcy laws (as now or
hereafter in effect); (ii) file a petition seeking to take advantage of any
other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts; (iii) consent
to or fail to contest within sixty (60) days of the filing thereof any petition
filed against it in an involuntary case under such bankruptcy laws or other
laws; (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property; (v) admit in writing its inability to pay its debts as they
become due; (vi) make a general assignment for the benefit of creditors; or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(i) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against AHL or any Subsidiary thereof in any court of competent
jurisdiction seeking (i) relief under the federal bankruptcy laws (as now or
hereafter in effect) or under any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or adjustment of debts; or
(ii) the appointment of a trustee, receiver, custodian, liquidator or the like
for AHL or any Subsidiary thereof or for all or any substantial part of their
respective assets, and such case or proceeding shall
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continue undismissed or unstayed for a period of sixty (60) consecutive calendar
days, or an order granting the relief requested in such case or proceeding
(including, but not limited to, an order for relief under such federal
bankruptcy laws) shall be entered.
(j) Failure of Agreements. Any material provision of any other Loan
Document shall for any reason cease to be valid and binding on any Borrower or
Subsidiary thereof party thereto or any such Person shall so state in writing or
the Loan Documents shall for any reason cease to create a valid and perfected
first priority Lien on, or security interest in, any of the Collateral purported
to be covered thereby, in each case other than in accordance with the express
terms hereof or thereof.
(k) Termination Event. The occurrence of any of the following events:
(i) any Borrower or any ERISA Affiliate fails to make full payment when due of
all amounts which, under the provisions of any Pension Plan or Section 412 of
the Code, such Borrower or ERISA Affiliate is required to pay as contributions
thereto; (ii) an accumulated funding deficiency in excess of $250,000 or
equivalent thereof in another currency occurs or exists, whether or not waived,
with respect to any Pension Plan; (iii) a Termination Event; or (iv) any
Borrower or any ERISA Affiliate as employers under one or more Multiemployer
Plan makes a complete or partial withdrawal from any such Multiemployer Plan and
the plan sponsor of such Multiemployer Plan notifies such withdrawing employer
that such employer has incurred a withdrawal liability requiring payments in an
amount exceeding $250,000 or equivalent thereof in another currency.
(l) Judgment. A judgment or judgments or order or orders for the
payment of money which, individually or in the aggregate, exceed in amount the
Material Judgment Amount shall be entered against AHL or any of its Subsidiaries
by any court and such judgment or order shall continue undischarged or unstayed
for a period of thirty (30) days.
(m) Attachment. A warrant or writ of attachment or execution or similar
process shall be issued against any property of AHL or any Subsidiary thereof
which exceeds in value the Material Judgment Amount and such warrant or process
shall continue undischarged or unstayed for a period of thirty (30) days.
SECTION 10.2 Remedies. Upon the occurrence and during the continuance
of an Event of Default, the Administrative Agent shall, upon the request and
direction of the Required Lenders, by notice to the Borrowers:
(a) Acceleration: Termination of Facilities. Declare the principal of
and interest on the Loans and the Notes at the time outstanding, and all other
amounts owed to the Lenders, the European Swingline Lender, and to the
Administrative Agent under this Agreement or any of the other Loan Documents and
all other Obligations, to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived, anything in this
Agreement or the other Loan Documents to the contrary notwithstanding, and
terminate the Credit Facilities and the Commitments and any right of the
Borrowers to request borrowings thereunder; provided, that upon the occurrence
of an Event of Default specified in Section 10.1(h) or (i), the Credit
Facilities and the Commitments shall be automatically terminated and all
Obligations shall automatically become due and payable.
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(b) Rights of Collection. Exercise on behalf of the Lenders all of
their other rights and remedies under this Agreement, the other Loan Documents
and Applicable Law, in order to satisfy all of the Borrowers' Obligations.
SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrowers, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default. Notwithstanding anything to the
contrary set forth herein or in any other Loan Document, neither the
Administrative Agent nor any Lender shall exercise at any time during which no
Event of Default shall have occurred and be continuing any right or remedy with
respect to any of the Collateral, including, but not limited to, any right
granted in any Security Document to collect accounts receivable or to notify
account debtors.
SECTION 10.4 Set-off. Except to the extent prohibited by law, in
addition to any rights now or hereafter granted under Applicable Law and not by
way of limitation of any such rights, upon and after the occurrence of any Event
of Default and during the continuance thereof, the Lenders and any assignee or
participant of a Lender in accordance with Section 12.8 are hereby authorized by
the Borrowers at any time or from time to time, without notice to the Borrowers
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and to apply any and all deposits (general or special,
time or demand, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured, excluding government
securities required by Applicable Law to be held as security for worker's
compensation and similar claims and of whatever currency exchanged, if
necessary, at the Spot Rate to the currency of the Obligations) and any other
indebtedness at any time held or owing by the Lenders, or any such assignee or
participant to or for the credit or the account of the Borrowers against and on
account of the Obligations then due and payable.
SECTION 10.5 Adjustments. If any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of its Loans, or interest
thereon, or if any Lender shall at any time receive any Collateral in respect to
its Loans (whether voluntarily or involuntarily, by set-off or otherwise) in a
greater proportion than any such payment to and Collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest thereon,
such Benefitted Lender shall, to the extent permitted by Applicable Law,
purchase for cash from the other Lenders such portion of each such other
Lender's Loans, or shall provide such other Lenders with the benefits of any
such Collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the
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excess payment or benefits of such Collateral or proceeds ratably with each of
the Lenders; provided, 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. The Borrowers agree that each Lender so
purchasing a portion of another Lender's Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
SECTION 10.6 Consents. The Borrowers acknowledge that certain
transactions contemplated by this Agreement and the other Loan Documents and
certain actions which may be taken by the Administrative Agent or the Lenders in
the exercise of their respective rights under this Agreement and the other Loan
Documents may require the consent of a Governmental Authority. If counsel to the
Administrative Agent reasonably determines that the consent of a Governmental
Authority is required in connection with the execution, delivery and performance
of any of the aforesaid documents or any documents delivered to the
Administrative Agent or the Lenders in connection therewith or as a result of
any action which may be taken pursuant thereto, then the Borrowers, at their
sole cost and expense, agree to use their reasonable best efforts to secure such
consent and to cooperate with the Administrative Agent and the Lenders in any
action commenced by the Administrative Agent or any Lender to secure such
consent.
ARTICLE XI
THE ADMINISTRATIVE AGENT
SECTION 11.1 Appointment. Each Lender hereby irrevocably appoints and
authorizes First Union to act as Administrative Agent hereunder and under the
other Loan Documents and to take such actions as agent on its behalf hereunder
and under the other Loan Documents, and to exercise such powers and to perform
such duties, as are specifically delegated to the Administrative Agent by the
terms hereof or thereof, together with such other powers and duties as are
reasonably incidental thereto.
SECTION 11.2 Nature of Duties. The Administrative Agent shall have no
duties or responsibilities other than those expressly set forth in this
Agreement and the other Loan Documents. The Administrative Agent shall not have,
by reason of this Agreement or any other Loan Document, a fiduciary relationship
in respect of any Lender; and nothing in this Agreement or any other Loan
Document, express or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations or liabilities in respect
of this Agreement or any other Loan Document except as expressly set forth
herein or therein. The Administrative Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents or
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact that it selects with reasonable care. The
Administrative Agent shall be entitled to consult with legal counsel,
independent public accountants and other experts selected by it with respect to
all matters pertaining to this Agreement and the other Loan Documents and its
duties hereunder and thereunder and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance
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with the advice of such counsel, accountants or experts. The Lenders hereby
acknowledge that the Administrative Agent shall not be under any duty to take
any discretionary action permitted to be taken by it pursuant to the provisions
of this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders (or, where a higher percentage of the
Lenders is expressly required hereunder, such Lenders).
SECTION 11.3 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 taken or omitted to be taken by it
or such Person under or in connection with the Loan Documents, except for its or
such Person's own gross negligence or willful misconduct, (ii) responsible in
any manner to any Lender for any recitals, statements, information,
representations or warranties herein or in any other Loan Document or in any
document, instrument, certificate, report or other writing delivered in
connection herewith or therewith, for the execution, effectiveness, genuineness,
validity, enforceability or sufficiency of this Agreement or any other Loan
Document, or for the financial condition of Borrowers or any of their
Subsidiaries or any other Person, or (iii) required to ascertain or make any
inquiry concerning the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Loan Document or the existence or
possible existence of any Default or Event of Default, or to inspect the
properties, books or records of the Borrowers or any of their Subsidiaries.
SECTION 11.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
notice, statement, consent or other communication (including, without
limitation, any thereof by telephone, telecopy, telex, telegram or cable)
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons. The Administrative Agent may deem
and treat each Lender as the owner of its interest hereunder for all purposes
hereof unless and until a written notice of the assignment, negotiation or
transfer thereof shall have been given to the Administrative Agent in accordance
with the provisions of this Agreement. The Administrative Agent shall be
entitled to refrain from taking or omitting to take any action in connection
with this Agreement or any other Loan Document (i) if such action or omission
would, in the reasonable opinion of the Administrative Agent, violate any
applicable law or any provision of this Agreement or any other Loan Document or
(ii) unless and until it shall have received such advice or concurrence of the
Required Lenders (or, where a higher percentage of the Lenders is expressly
required hereunder, such Lenders) as it deems appropriate or it shall first have
been indemnified to its satisfaction by the Lenders against any and all
liability and expense (other than liability and expense arising from its own
gross negligence or willful misconduct) that may be incurred by it by reason of
taking, continuing to take or omitting to take any such action. Without limiting
the foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent's acting or
refraining from acting hereunder or under any other Loan Document in accordance
with theinstructions of the Required Lenders (or, where a higher percentage of
the Lenders is expressly required hereunder, such Lenders), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding upon all of the Lenders (including all subsequent Lenders).
SECTION 11.5 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors,
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employees, agents, attorneys-in-fact or Affiliates has made any representation
or warranty to it and that no act by the Administrative Agent or any such Person
hereafter taken, including any review of the affairs of AHL and its
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that (i) 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, prospects, operations, properties, financial
and other condition and creditworthiness of AHL and its Subsidiaries and made
its own decision to enter into this Agreement and extend credit to the Borrowers
hereunder, and (ii) it will, independently and without reliance upon the
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
hereunder and under the other Loan Documents and to make such investigation as
it deems necessary to inform itself as to the business, prospects, operations,
properties, financial and other condition and creditworthiness of AHL and its
Subsidiaries. Except as expressly provided in this Agreement and the other Loan
Documents, the Administrative Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit or
other information concerning the business, prospects, operations, properties,
financial or other condition or creditworthiness of AHL or its Subsidiaries or
any other Person that may at any time come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
SECTION 11.6 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 unless the Administrative Agent shall have received written notice from
Borrowers or a Lender referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default." In the
event that the Administrative Agent receives such a notice, the Administrative
Agent will give notice thereof to the Lenders as soon as reasonably practicable;
provided, however, that if any such notice has also been furnished to the
Lenders, the Administrative Agent shall have no obligation to notify the Lenders
with respect thereto. The Administrative Agent shall (subject to Sections 11.4
and 12.10) take such action with respect to such Default or Event of Default as
shall reasonably be directed by the Required Lenders; provided that, unless and
until the 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.
SECTION 11.7 Indemnification. To the extent the Administrative Agent is
not reimbursed by or on behalf of Borrowers, and without limiting the joint and
several obligations of Borrowers to do so, the Lenders (i) shall and do hereby
indemnify the Administrative Agent and its officers, directors, employees,
agents, attorneys-in-fact and Affiliates, ratably in proportion to their
respective percentages as used in determining the Required Lenders as of the
date of determination, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, attorneys' fees and expenses) or disbursements
of any kind or nature whatsoever that may at any time (including at any time
following the repayment in full of the Loans and the termination of the
Commitments) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement or any other Loan
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Document or any documents contemplated by or referred to herein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing, and
(ii) shall reimburse the Administrative Agent upon demand, ratably in proportion
to their respective percentages as used in determining the Required Lenders as
of the date of determination, for any expenses incurred by the Administrative
Agent in connection with the preparation, negotiation, execution, delivery,
administration, amendment, modification, waiver or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement or any of the other Loan
Documents (including, without limitation, reasonable attorneys' fees and
expenses and compensation of agents and employees paid for services rendered on
behalf of the Lenders); provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
resulting from the gross negligence or willful misconduct of the party to be
indemnified.
SECTION 11.8 The Administrative Agent in its Individual Capacity. With
respect to its Commitment, the Loans made by it and the Note or Notes issued to
it, the Administrative Agent in its individual capacity and not as
Administrative Agent shall have the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though it were not
performing the agency duties specified herein; and the terms "Lenders,"
"Required Lenders," "holders of Notes" and any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with the Borrowers, any of their
Subsidiaries or any of their respective Affiliates as if the Administrative
Agent were not performing the agency duties specified herein, and may accept
fees and other consideration from any of them for services in connection with
this Agreement and otherwise without having to account for the same to the
Lenders.
SECTION 11.9 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving thirty (30) days' prior written notice to the
Borrowers and the Lenders. Upon any such notice of resignation, the Required
Lenders will, with the prior written consent of the Borrowers (which consent
shall not be unreasonably withheld), appoint from among the Lenders a successor
to the Administrative Agent (provided that the Borrowers' consent shall not be
required in the event a Default or Event of Default shall have occurred and be
continuing). If no successor to the Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within such thirty-day period, then the retiring Administrative Agent may, on
behalf of the Lenders and after consulting with the Lenders and the Borrowers,
appoint a successor Administrative Agent from among the Lenders. Upon the
acceptance of any appointment as Administrative Agent by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Article XI shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent. If no successor to the Administrative Agent has accepted
appointment as Administrative Agent by the thirtieth (30th) day following a
retiring Administrative Agent's notice of resignation,
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the retiring Administrative Agent's resignation shall nevertheless thereupon
become effective, and the Lenders shall thereafter perform all of the duties of
the Administrative Agent hereunder and under the other Loan Documents until such
time, if any, as the Required Lenders appoint a successor Administrative Agent
as provided for hereinabove.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to any Agent as
understood by such Agent will be deemed to be the controlling and proper notice
in the event of a discrepancy with or failure to receive a confirming written
notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to any Borrower: AHL Services, Inc.
3353 Peachtree Road, N.E.
Suite 1120, North Tower
Atlanta, Georgia 30326
Attention: David L. Gamsey
Chief Financial Officer
Telephone No.:(404) 267-2222 Ext. 207
Telecopy No.: (404) 267-2230
If to First Union,
as Administrative Agent: First Union National Bank
999 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Grace M. Jackson
Telephone No.: (404) 827-7102
Telecopy No.: (404) 225-4066
Attention: James R. Mortimer
Telephone No.: (404) 827-7344
Telecopy No.: (404) 827-7199
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and
First Union Capital Markets Corp.
One First Union Center, TW-10
Charlotte, North Carolina 28288-0608
Attention: Syndication Agency Services
Telephone No.: (704) 383-8452
Telecopy No.: (704) 383-0288
If to any Lender: The Address set forth on Schedule 1.1
If to the European
Swingline Lender: First Union National Bank - London Branch
3 Bishopsgate
London EC2N 3AB
England
Attention: Claire Hatherley
Telephone No.: 44 171 621-1477
Telecopy No.: 44 171 929-4644
(c) Administrative Agent's Office. With respect to the Revolving
Facility, so long as First Union is the sole Lender, the Loan Office for the
Administrative Agent shall be its office at 999 Peachtree Street, N.E. Atlanta,
Georgia 30309, but after any other party becomes a Lender hereunder, the Loan
Office for the Administrative Agent shall be its office at One First Union
Center, TW-10, Charlotte, North Carolina 28288-0608, or any subsequent office
which shall have been specified for such purpose by written notice to the
Borrowers and Lenders, as the Administrative Agent's office referred to herein.
SECTION 12.2 Expenses. The Borrowers will pay all out-of-pocket
expenses of the Administrative Agent in connection with: (a) the preparation,
execution and delivery of this Agreement and each of the other Loan Documents,
whenever the same shall be executed and delivered, including all syndication and
due diligence expenses, appraiser's fees, search fees, recording fees, taxes and
reasonable fees and disbursements of counsel for the Administrative Agent; (b)
the preparation, execution and delivery of any waiver, amendment or consent by
the Administrative Agent or the Lenders relating to this Agreement or any of the
other Loan Documents including reasonable fees and disbursements of counsel for
the Administrative Agent, search fees, appraiser's fees, recording fees and
taxes imposed in connection therewith; and (c) after the occurrence and during
the continuance of an Event of Default consulting with one or more Persons,
including appraisers, accountants, engineers and attorneys, concerning or
related to the nature, scope or value of any right or remedy of the
Administrative Agent or any of the Lenders hereunder or under any of the other
Loan Documents, including any review of factual matters in connection therewith,
which expenses shall include the reasonable fees and disbursements of such
Persons. In addition, the Borrowers will pay all out-of-pocket expenses of the
Administrative Agent and each Lender in connection with prosecuting or defending
any claim in any way arising out of, related to, connected with, or enforcing
any provision of, this Agreement or any of the other Loan Documents, which
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expenses shall include the reasonable fees and disbursements of counsel and of
experts and other consultants retained by the Administrative Agent or any of the
Lenders.
SECTION 12.3 Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accor dance with the laws of the State of Georgia,
without reference to the conflicts or choice of law principles thereof.
SECTION 12.4 Consent to Jurisdiction. The Borrowers hereby irrevocably
consent to the personal jurisdiction of the state and federal courts located in
Fulton County, Georgia, in any action, claim or other proceeding arising out of
any dispute in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations. The Borrowers hereby irrevocably consent to the
service of a summons and compliant and other process in any action, claim or
proceeding brought by any Agent or Lender in connection with this Agreement, the
Notes or the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations, on behalf of
itself or its property, in the manner specified in Section 12.1. Each of the
Borrowers (other than AHL) hereby irrevocably appoints AHL as its agent to
receive on its behalf service of copies of the summons and complaint or any
other process that may be served in any such action or proceedings at the
address of AHL as specified in Section 12.1. Such service may be made by mailing
or delivering a copy of such process to such Borrowers in care of AHL, as agent
for service of process, at the address of AHL as specified in Section 12.1, and
each of the Borrowers (other than AHL) hereby irrevocably authorizes and directs
AHL, as agent for service of process, to receive such service on its behalf.
Nothing in this Section 12.4 shall affect the right of the Administrative Agent
or any Lender to serve legal process in any other manner permitted by Applicable
Law or to bring any action or proceeding against any Borrower or its properties
in the courts of any other jurisdictions.
SECTION 12.5 Arbitration.
(a) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to the Notes or any other
Loan Documents ("Disputes"), between or among parties to the Notes or any other
Loan Document shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising from
Loan Documents executed in the future, or claims concerning any aspect of the
past, present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Atlanta, Georgia. The expedited
procedures set forth in Rule 51, et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000. All applicable statutes of
limitation shall apply to any Dispute. A judgment upon the award may be entered
in any court having jurisdiction. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys. The single arbitrator
selected for
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expedited procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted. The arbitrators shall be appointed as provided in the Arbitration
Rules.
(b) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the Administrative Agent and the Lenders
preserve, without diminution, certain remedies that the Administrative Agent and
the Lenders may employ or exercise freely, either alone, in conjunction with or
during a Dispute. The Administrative Agent and the Lenders shall have and hereby
reserve the right to proceed in any court of proper jurisdiction or by self help
to exercise or prosecute the following remedies: (i) all rights to foreclose
against any real or personal property or other security by exercising a power of
sale granted in the Loan Documents or under applicable law or by judicial
foreclosure and sale, (ii) all rights of self help including peaceful occupation
of property and collection of rents, set off, and peaceful possession of
property, (iii) when applicable, a judgement by confession of judgement and (iv)
obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and in filing an
involuntary bankruptcy proceeding. Preservation of these remedies does not limit
the power of an arbitrator to grant similar remedies that may be requested by a
party in a Dispute.
SECTION 12.6 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH BORROWER HEREBY
IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY
ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
SECTION 12.7 Reversal of Payment. To the extent any Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
Collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 12.8 Successors and Assigns; Participations.
(a) Assignment by Lenders. Each Lender may assign to one or more other
Eligible Assignees (each, an "Assignee") all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the outstanding Loans made by it and the Note or
Notes held by it); provided, however, that (i) any such assignment (other than
an assignment to a Lender or an Affiliate of a Lender) shall not be made without
the prior written consent of the Administrative Agent and, if no Event of
Default then exists, the Borrowers (to be evidenced by their counter execution
of the relevant Assignment and Acceptance), which
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<PAGE> 92
consent shall not be unreasonably withheld, (ii) except in the case of an
assignment to a Lender or an Affiliate of a Lender, the amount of the Commitment
of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to each
such assignment) shall in no event be less than the lesser of (y) the entire
Commitment of such Lender immediately prior to such assignment or (z)
$5,000,000, and (iii) the parties to each such assignment will execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance (an "Assignment and Acceptance") in the
form of Exhibit E attached hereto, together with any Note or Notes subject to
such assignment, and will pay a nonrefundable processing fee of $3,500 to the
Administrative Agent for its own account. Upon such execution, delivery,
acceptance and recording of the Assignment and Acceptance, from and after the
effective date specified therein, which effective date shall be at least five
Business Days after the execution thereof (unless the Administrative Agent shall
otherwise agree), (A) the Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of the assigning Lender hereunder with respect thereto and (B) the
assigning Lender shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights (other than rights under the provisions of this Agreement and the other
Loan Documents relating to indemnification or payment of fees, costs and
expenses, to the extent such rights relate to the time prior to the effective
date of such Assignment and Acceptance) and be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of such assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto). The terms
and provisions of each Assignment and Acceptance shall, upon the effectiveness
thereof, be incorporated into and made a part of this Agreement, and the
covenants, agreements and obligations of each Lender set forth therein shall be
deemed made to and for the benefit of the Administrative Agent and the other
parties hereto as if set forth at length herein.
(b) Maintenance of the Register. The Administrative Agent will maintain
at its address for notices referred to herein a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitments of, and principal
amount of the Loans owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrowers, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by Borrowers and each Lender at any reasonable time and from time
to time upon reasonable prior notice.
(c) Acceptance of Assignment; Replacement Notes. Upon its receipt of a
duly completed Assignment and Acceptance executed by an assigning Lender and an
Assignee and counter executed by the Borrowers (if required), together with any
Note or Notes subject to such assignment and the processing fee referred to in
subsection (a) above, the Administrative Agent will (i) accept such Assignment
and Acceptance, (ii) on the effective date thereof, record the information
contained therein in the Register and (iii) give notice thereof to the Borrowers
and the Lenders. Within five (5) Business Days after its receipt of such notice,
the Borrowers, at their own expense, will execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note or
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<PAGE> 93
Notes to the order of such Assignee in an aggregate principal amount equal to
the principal amount of the Commitment (or, if the Commitments have been
terminated, the principal amount of the Loans) assumed by it pursuant to such
Assignment and Acceptance and, to the extent the assigning Lender has retained
its Loans and/or Commitment hereunder, a new Note or Notes to the order of the
assigning Lender in an aggregate principal amount equal to the principal amount
of the Commitment (or, if the Commitments have been terminated, the principal
amount of the Loans) retained by it hereunder. Such new Note or Notes shall be
dated the date of the replaced Note or Notes and shall otherwise be in
substantially the forms of the Notes attached hereto as Exhibits A-1 and A-2.
The Administrative Agent will return canceled Notes to the Borrowers.
(d) Participations. Each Lender may, without the consent of the
Borrowers, the Administrative Agent or any other Lender, sell to one or more
other Persons (each, a "Participant") participations in any portion comprising
less than all of its rights and obligations under this Agreement (including,
without limitation, a portion of its Commitment, the outstanding Loans made by
it and the Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged and such Lender shall
remain solely responsible for the performance of such obligations, (ii) any such
participation shall be in an amount of not less than $5,000,000, but no Lender
shall sell any participation that, when taken together with all other
participations, if any, sold by such Lender, covers more than fifty percent of
the beneficial interests in all of such Lender's rights and obligations under
this Agreement, (iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
no Lender shall permit any Participant to have any voting rights or any right to
control the vote of such Lender with respect to any amendment, modification,
waiver, consent or other action hereunder or under any other Loan Document
(except as to actions that would (w) reduce or forgive the principal amount of,
or rate of interest (other than interest accruing as provided in Section 3.1(f))
on, any Loan, or reduce or forgive any fees or other Obligations, (x) extend any
date (including without limitation, the Revolving Facility Termination Date)
fixed for the payment of any principal of or interest on any Loan, any fees or
any other Obligations, (y) release any material portion of Collateral securing
the Obligations (other than (1) upon termination of the Commitments and payment
and satisfaction of all Obligations (other than any Obligations that survive the
termination of this Agreement pursuant to Section 12.13), (2) Collateral
constituting property being sold or disposed of if Borrowers certify to the
Administrative Agent that the sale or disposition is made in compliance with the
provisions of this Agreement and the Security Documents, upon which
certification the Administrative Agent may conclusively rely in good faith,
without further inquiry, or (3) otherwise in accordance with the terms of this
Agreement and the Security Documents), or (z) increase any Commitment of any
Lender), and (iv) except as expressly set forth in this Agreement, no
Participant shall have any rights under this Agreement or any of the other Loan
Documents, each Participant's rights against the granting Lender in respect of
any participation are to be those set forth in the participation agreement, and
all amounts payable by the Borrowers hereunder shall be determined as if such
Lender had not granted such participation. Each Participant may be entitled,
pursuant to the terms of its participation agreement, to compensation calculated
in accordance with the provisions of Sections 3.7, 3.8, 3.9 and 3.10 and to
rights of setoff in accordance with Section 10.4, in each case to the extent
that the Lender from which it purchased its participation would be entitled to
such benefits if the participation had not been made; provided
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<PAGE> 94
that nothing contained herein shall cause the Participant to be deemed to be a
Lender or to otherwise be granted any rights under this Agreement.
(e) Other Assignments. Nothing in this Agreement shall be construed to
prohibit any Lender from pledging or assigning all or any portion of its rights
and interest hereunder or under any Note to any Federal Reserve Bank as security
for borrowings therefrom; provided, however, that no such pledge or assignment
shall release a Lender from any of its obligations hereunder.
(f) Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall treat as confidential all non-public information,
including, without limitation, all financial projections, obtained pursuant to
the Loan Documents and shall disclose such information outside their
organizations only as may be deemed appropriate by any of the Administrative
Agent or the Lenders in the exercise of its or their rights under the Loan
Documents or as compelled by judicial or administrative process or by other
requirements of Applicable Law. The Administrative Agent and any Lender may, in
connection with any assignment, proposed assignment, participation or proposed
participation pursuant to this Section 12.8, disclose to the assignee,
participant, proposed assignee or proposed participant, any information relating
to the Borrowers furnished to the Administrative Agent or such Lender.
SECTION 12.9 Amendments, Waivers and Consents: Renewal. Except as set
forth below, any term, covenant, agreement or condition of this Agreement or any
of the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent
is in writing signed by the Required Lenders (or by the Administrative Agent
with the consent of the Required Lenders) and delivered to the Administrative
Agent and, in the case of an amendment, signed by the Borrowers; provided, that
no amendment, waiver or consent shall (a) increase the amount or extend the time
of the obligation of the Lenders to make Loans, (b) extend the originally
scheduled time or times of payment of the principal of any Loan or the time or
times of payment of interest on any Loan or any fees due hereunder, (c) reduce
the rate of interest or fees payable on any Loan (other than interest accruing
as provided in Section 3.1(f)), (d) permit any subordination of the principal or
interest on any Loan, (e) release any material portion of the Collateral or
Security Document (other than (i) upon termination of the Commitments and
payment and satisfaction of all Obligations (other than any Obligations that
survive the termination of this Agreement pursuant to Section 12.13), (ii)
Collateral constituting property being sold or disposed of if Borrowers certify
to the Administrative Agent that the sale or disposition is made in compliance
with the provisions of this Agreement and the Security Documents, upon which
certification the Administrative Agent may conclusively rely in good faith,
without further inquiry, or (iii) as specifically permitted in this Agreement or
the applicable Security Document), (f) amend the provisions of this Section 12.9
or the definition of Required Lenders, (g) amend the provisions of this Section
3.5 or (h) change the provisions of Section 2.4(f) so that the percentage of the
Commitments allocated to each Lender is changed upon a reduction of the
Commitments, without the prior written consent of each Lender. In addition, no
amendment, waiver or consent to the provisions of Article XI shall be made
without the written consent of the Administrative Agent.
-88-
<PAGE> 95
SECTION 12.10 Performance of Duties. The Borrowers' obligations under
this Agreement and each of the Loan Documents shall be performed at the joint
and several sole cost and expense of the Borrowers.
SECTION 12.11 Indemnification. The Borrowers agree to reimburse the
Administrative Agent and the Lenders for all reasonable costs and expenses,
including reasonable counsel, appraisal, or other expert or consultant fees and
disbursements incurred, and the Borrowers hereby indemnify and hold the
Administrative Agent and the Lenders harmless from and against all losses
suffered by the Administrative Agent and the Lenders in connection with (a) the
exercise by the Administrative Agent or the Lenders of any right or remedy
granted to them under this Agreement or any of the other Loan Documents, (b) any
claim, and the prosecution or defense thereof, arising out of or in any way
connected with this Agreement or any of the other Loan Documents and (c) the
collection or enforcement of the Obligations or any of them; provided, that the
indemnity contained herein shall not apply to the extent that such losses,
claims, damages, liabilities or other expenses result from the gross negligence
or willful misconduct of such indemnified person.
SECTION 12.12 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or such Lenders pursuant to
any provisions of this Agreement or any of the other Loan Documents shall be
deemed coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Credit Facilities have not been
terminated.
SECTION 12.13 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XII and any other
provision of this Agreement and the Loan Documents shall continue in full force
and effect and shall protect the Administrative Agent and the Lenders against
events arising after such termination as well as before.
SECTION 12.14 Provision of Loan Documents. Upon request by AHL, the
Administrative Agent shall use its best efforts to provide to AHL, or to cause
to be provided to AHL, a copy of the final forms of this Agreement and the other
Loan Documents on a diskette or other machine readable format.
SECTION 12.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 12.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 12.17 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed
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<PAGE> 96
shall be deemed to be an original and shall be binding upon all parties, their
successors and assigns, and all of which taken together shall constitute one and
the same agreement.
SECTION 12.18 AHL as Agent for Other Borrowers. Each Borrower hereby
irrevocably appoints and authorizes AHL to be its agent to transact all matters
relating to this Agreement and the other Loan Documents, including, without
limitation, (a) to provide the Administrative Agent with all notices with
respect to Loans for the benefit of any other Borrower and all other notices and
instructions under this Agreement and (b) to take, on behalf of Borrowers, all
actions, including, without limitation, the provision of consents, as are
required or permitted to be taken by any or all of the Borrowers pursuant to
this Agreement.
SECTION 12.19 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been paid and satisfied in full (other than any Obligations that
survive the termination of this Agreement pursuant to Section 12.13) and the
Commitments have been terminated. No termination of this Agreement shall affect
the rights and obligations of the parties hereto arising prior to such
termination.
SECTION 12.20 EMU; Continuity of Contract. The parties hereto confirm
that the occurrence or non-occurrence of an EMU Event will not have the effect
of altering any term of, or discharging or excusing performance under, this
Agreement or any other Loan Document, give any party the right unilaterally to
alter or terminate this Agreement or any other Loan Document or, in and of
itself, give rise to an Event of Default, provided, however, that no currency
shall be included as an Alternative Currency within the meaning of the
definition thereof if the Administrative Agent reasonably believes that it is
impracticable or impossible for the Lenders to fund Loans in such currency.
SECTION 12.21 Entire Agreement. This Agreement and the other Loan
Documents referred to herein embody the final, entire agreement among the
parties hereto and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the
subject matter hereof and may not be contradicted or varied by evidence of
prior, contemporaneous, or subsequent oral agreements or discussions of the
parties hereto. There are no oral agreements among the parties hereto.
[Remainder of page intentionally blank; signatures appear on following pages]
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<PAGE> 97
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
AHL SERVICES, INC.
Signed, sealed, and ("BORROWER")
delivered in the presence of:
By:/s/
- ----------------------------- ------------------------------------
Notary Public Title:
---------------------------------
- ----------------------------
Unofficial Witness
[CORPORATE SEAL]
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404-267-2230
ARGENBRIGHT SECURITY, INC.
Signed, sealed, and ("BORROWER")
delivered in the presence of:
By:/s/
- ---------------------------- ------------------------------------
Notary Public Title:
---------------------------------
- ----------------------------
Unofficial Witness
[CORPORATE SEAL]
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404-267-2230
[Signature Page to Amended and Restated Credit Agreement]
<PAGE> 98
ARGENBRIGHT, INC.
Signed, sealed, and ("BORROWER")
delivered in the presence of:
By:/s/
- ----------------------------- ------------------------------------
Notary Public Title:
---------------------------------
- ----------------------------
Unofficial Witness
[CORPORATE SEAL]
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404-267-2230
ADI U.K. LIMITED
Signed, sealed, and ("BORROWER")
delivered in the presence of:
By:/s/
- ----------------------------- ------------------------------------
Notary Public Title:
---------------------------------
- ----------------------------
Unofficial Witness
[CORPORATE SEAL]
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404-267-2230
[Signature Page to Amended and Restated Credit Agreement]
<PAGE> 99
AVIATION DEFENCE INTERNATIONAL
Signed, sealed, and GERMANY LIMITED
delivered in the presence of: ("BORROWER")
By:/s/
- ----------------------------- ------------------------------------
Notary Public Title:
---------------------------------
- ----------------------------
Unofficial Witness
[CORPORATE SEAL]
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404-267-2230
ARGENBRIGHT HOLDINGS LIMITED
Signed, sealed, and ("BORROWER")
delivered in the presence of:
By:/s/
- ----------------------------- ------------------------------------
Notary Public Title:
---------------------------------
- ----------------------------
Unofficial Witness
[CORPORATE SEAL]
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404-267-2230
[Signature Page to Amended and Restated Credit Agreement]
<PAGE> 100
THE ADI GROUP LIMITED
Signed, sealed, and ("BORROWER")
delivered in the presence of:
- ----------------------------- By:/s/
------------------------------------
Notary Public Title:
---------------------------------
- ----------------------------
Unofficial Witness
[CORPORATE SEAL]
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404-267-2230
FIRST UNION NATIONAL BANK, as
Administrative Agent, Issuing Bank and
Lender
By:/s/
------------------------------------
Title:
---------------------------------
Address:
-------------------------------
Telecopier:
----------------------------
[Signature Page to Amended and Restated Credit Agreement]
<PAGE> 101
FIRST UNION NATIONAL BANK,
LONDON BRANCH, as European Swingline Lender
By:/s/
-------------------------------------
Title:
----------------------------------
Address:
--------------------------------
--------------------------------
--------------------------------
Telecopier:
-----------------------------
BANK OF AMERICA, FSB, as Lender
By:/s/
-------------------------------------
Title:
----------------------------------
Address: 1230 Peachtree Street
Suite 3600
Atlanta, GA 30309
Telecopier: (404) 815-5919
WACHOVIA BANK, N.A., as Lender
By:/s/
-------------------------------------
Title:
----------------------------------
Address: 191 Peachtree Street, N.E.
30th Floor, MC:GA212
Atlanta, GA 30303-1757
Telecopier: (404) 332-6920
[Signature Page to Amended and Restated Credit Agreement]
<PAGE> 102
SUNTRUST BANK, ATLANTA, as Lender
By:/s/
-------------------------------------
Title:
----------------------------------
By:/s/
-------------------------------------
Title:
----------------------------------
Address: 25 Park Place
23rd Floor
Atlanta, GA 30303
Telecopier: (404) 588-8833
NATIONSBANK, N.A., as Lender
By:/s/
-------------------------------------
Title:
----------------------------------
Address: 600 Peachtree Street, N.E.
19th Floor
Atlanta, GA 30308
Telecopier: (404) 607-6343
[Signature Page to Amended and Restated Credit Agreement]
<PAGE> 103
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, LONDON BRANCH, as
Lender for Revolving Loans made in
Alternative Currencies
By:/s/
-------------------------------------
Title:
----------------------------------
Address: 1 Alie Street
London, England E1 8DE
Telecopier: 011-44-171-634-4707
[Signature Page to Amended and Restated Credit Agreement]
<PAGE> 104
SCHEDULE 1.1: LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
Commitment Commitment
Lenders (Dollars) Percentage
------- ---------- ----------
<S> <C> <C>
First Union National $ 25,000,000 25.00%
Bank and its Lender
Affiliates
Bank of America, FSB $ 20,000,000 20.00%
and its Lender
Affiliates
NationsBank, N.A. $ 20,000,000 20.00%
Wachovia Bank N.A. $ 20,000,000 20.00%
SunTrust Bank, Atlanta $ 15,000,000 15.00%
TOTAL: $100,000,000 100%
</TABLE>
[Signature Page to Amended and Restated Credit Agreement]
<PAGE> 1
12
EXHIBIT 11.1
AHL SERVICES, INC.
COMPUTATION OF EARNINGS PER SHARE
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
---------------------------
1995 1996 1997
<S> <C> <C> <C>
Income Applicable to Common Stock
Income before extraordinary items $1,438 $2,171 $ 6,419
Extraordinary items, net of taxes - - (385)
------ ------ -------
Net income $1,438 $2,171 $ 6,034
====== ====== =======
Weighted Average Shares
Common shares 8,353 8,353 10,707
Common share equivalents applicable to
stock options and warrant outstanding - 80 253
------ ------ -------
Weighted average common and common
equivalent shares outstanding during
the period 8,353 8,433 10,960
====== ====== =======
Per Share Amount
Basic
Income before extraordinary items $ 0.17 $ 0.26 $ 0.60
Extraordinary items, net of taxes - - (0.04)
------ ------ -------
Net income $ 0.17 $ 0.26 $ 0.56
====== ====== =======
Diluted
Income before extraordinary items $ 0.17 $ 0.26 $ 0.59
Extraordinary items, net of taxes - - (0.04)
------ ------ -------
Net income $ 0.17 $ 0.26 $ 0.55
====== ====== =======
</TABLE>
<PAGE> 1
EXHIBIT 21.1
Subsidiaries
<TABLE>
<CAPTION>
State of
Name Incorporation Other Trade Names
---- ------------- -----------------
<S> <C> <C>
Argenbright Holdings Limited Georgia --
Argenbright, Inc. Georgia RightSide Up
Lloyd Creative Staffing
Midwest Staffing
Argenbright Security, Inc. Georgia Intersec
USA Security
The ADI Group Limited United Kingdom --
ADI U.K. Limited United Kingdom --
Aviation Defence International United Kingdom --
Germany Limited
Argenbright Motor Coach, Inc. Georgia --
Argenbright Substance Testing, Inc. Georgia --
IPS Training Institute, Inc. Georgia --
</TABLE>
<PAGE> 1
EXHIBIT 23.1
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
AS independent public accountants, we hereby consent to the incorporation of
our reports included in this Form 10-K, into the Company's previously filed
Registration Statement File No. 333-36813 and Registration Statement File No.
333-37627.
Arthur Andersen LLP
Atlanta, Georgia
March 30, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM AHL
SERVICES, INC. CONSOLIDATED BALANCE SHEET AT DECEMBER 31, 1997 AND THE
CONSOLIDATED STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1997, AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH CONSOLIDATED FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 15,456
<SECURITIES> 0
<RECEIVABLES> 51,779
<ALLOWANCES> 532
<INVENTORY> 0
<CURRENT-ASSETS> 71,551
<PP&E> 21,258
<DEPRECIATION> 10,373
<TOTAL-ASSETS> 109,794
<CURRENT-LIABILITIES> 28,728
<BONDS> 3,495
0
0
<COMMON> 136
<OTHER-SE> 74,395
<TOTAL-LIABILITY-AND-EQUITY> 109,794
<SALES> 276,013
<TOTAL-REVENUES> 276,013
<CGS> 204,512
<TOTAL-COSTS> 204,512
<OTHER-EXPENSES> 60,796
<LOSS-PROVISION> 200
<INTEREST-EXPENSE> 1,159
<INCOME-PRETAX> 10,269
<INCOME-TAX> 3,850
<INCOME-CONTINUING> 6,419
<DISCONTINUED> 0
<EXTRAORDINARY> 385
<CHANGES> 0
<NET-INCOME> 6,034
<EPS-PRIMARY> 0.56<F1>
<EPS-DILUTED> 0.55
<FN>
<F1> TAG (EPS - PRIMARY) DENOTES BASIC EPS.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM AHL
SERVICES, INC. CONSOLIDATED BALANCE SHEET AT DECEMBER 31, 1996 AND THE
CONSOLIDATED STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1996, AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH CONSOLIDATED FINANCIAL
STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 1,842
<SECURITIES> 0
<RECEIVABLES> 35,033
<ALLOWANCES> 341
<INVENTORY> 0
<CURRENT-ASSETS> 40,875
<PP&E> 13,982
<DEPRECIATION> 8,308
<TOTAL-ASSETS> 51,953
<CURRENT-LIABILITIES> 23,522
<BONDS> 19,178
0
0
<COMMON> 1
<OTHER-SE> 5,408
<TOTAL-LIABILITY-AND-EQUITY> 51,953
<SALES> 210,153
<TOTAL-REVENUES> 210,153
<CGS> 155,926
<TOTAL-COSTS> 155,926
<OTHER-EXPENSES> 49,184
<LOSS-PROVISION> 150
<INTEREST-EXPENSE> 1,726
<INCOME-PRETAX> 3,618
<INCOME-TAX> 1,447
<INCOME-CONTINUING> 2,171
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,171
<EPS-PRIMARY> 0.26<F1>
<EPS-DILUTED> 0.26
<FN>
<F1>TAG (EPS - PRIMARY) DENOTES BASIC EPS.
</FN>
</TABLE>
