<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended DECEMBER 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________ to ___________
Commission File Number 0-22195
AHL SERVICES, INC.
(Exact name of registrant as specified in governing instrument)
Georgia 58-2277249
(State of organization) (IRS Employer Identification No.)
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:
Title of each class Name of each exchange on which registered
Common Stock, $.01 per share The Nasdaq Stock Market
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 17, 2000 was approximately $94,900,000. As of March 17, 2000, there were
16,474,292 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 9, 2000 are incorporated by reference in
Part III.
<PAGE> 2
AHL SERVICES, INC.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ITEM NO. PAGE NO.
- -------- --------
PART I .........................................................................................................1
ITEM 1. BUSINESS.................................................................................................1
Industry Overview................................................................................................1
Strategy ........................................................................................................2
Services Provided................................................................................................4
Acquisitions.....................................................................................................8
Contract Terms...................................................................................................9
Sales and Marketing..............................................................................................9
Workforce Management.............................................................................................9
Management Information Systems..................................................................................10
Competition.....................................................................................................11
Government Regulation...........................................................................................11
Risk Management and Safety......................................................................................14
ITEM 2 PROPERTIES..............................................................................................14
ITEM 3 LEGAL PROCEEDINGS.......................................................................................14
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.....................................................15
ITEM X. EXECUTIVE OFFICERS OF THE REGISTRANT....................................................................15
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS...................................17
ITEM 6. SELECTED FINANCIAL DATA.................................................................................18
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.....................................................................19
Overview .......................................................................................................19
Results of Operations...........................................................................................21
Fiscal 1999 Compared to Fiscal 1998.............................................................................21
Fiscal 1998 Compared to Fiscal 1997.............................................................................22
Quarterly Results and Seasonality...............................................................................24
Liquidity and Capital Resource..................................................................................25
Forward-Looking Statements......................................................................................26
Inflation .....................................................................................................27
Year 2000 Issues................................................................................................27
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK..............................................27
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.............................................................27
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE.....................................................................28
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT......................................................29
ITEM 11. EXECUTIVE COMPENSATION..................................................................................29
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT..........................................29
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS..........................................................29
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES, AND REPORTS ON FORM 8-K......................................30
</TABLE>
- 2 -
<PAGE> 3
PART I
ITEM 1. BUSINESS
AHL Services, Inc. ("AHL") is a leading multi-national provider of
outsourced business services. AHL provides management, processes, technology
and labor for operational, marketing and customer service functions. AHL's
clients are located throughout the United States and Europe. To service them,
AHL has 113 North American offices and 117 offices in Europe. AHL was founded
in 1979.
AHL provides outsourced services along four major business lines:
- Marketing Support Services, such as consumer and trade
fulfillment, in-store merchandising and customer service. AHL
provides fulfillment and customer service support for e-commerce
through its e-fulfillment.com business unit;
- Aviation Services, such as pre-departure screening, passenger
profiling, baggage and cargo handling, skycap and wheelchair
assistance;
- Facility Services, such as commercial security, access control
and shuttle bus transportation; and
- Operational Support Services, such as labor for assembly,
warehousing, shipping and electrical and mechanical tasks.
AHL professionally manages a large workforce that performs tasks that
its clients frequently regard as outside their core businesses. By assuming
responsibility for these tasks, AHL seeks to improve the quality of the
non-core operations of its clients and to reduce their costs. AHL's services
are generally performed under long-term contracts, which have provided a
significant source of predictable and recurring revenues. AHL focuses on
developing and maintaining long-term client relationships.
AHL has achieved significant growth in recent years, with its revenues
achieving a compound annual growth rate of over 48% from 1995 to 1999. AHL has
focused on internal growth and also made accretive acquisitions to provide
complementary higher margin services to its clients. These acquisitions have
substantially changed AHL's business mix, reducing its historical dependence on
the aviation industry, and improved its operating margins. Operating income for
fiscal 1999 increased 76% from fiscal 1998.
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. Outsourced business services
providers often are able to provide higher quality services at a lower cost
than these enterprises are able to provide themselves. Outsourcing these
functions shifts employment costs and responsibilities, 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 market for outsourced business services has evolved as companies
increasingly outsource non-core functions. The outsourcing company provides
on-site management of staff, assumes responsibility for a particular function
and shares in the economic benefits derived from improved execution of the
function. These functions can include designing and implementing a solution for
its client. 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. These trends, as well as the increasing
-1-
<PAGE> 4
need for capital and management depth for growth, are creating consolidation
opportunities in the highly fragmented contract staffing and outsourcing
services industry.
Marketing Support Services. Recent trends in the way marketers deliver
their marketing messages and sell and deliver their goods, especially in light
of the growth of Internet commerce, have resulted in growth in the outsourcing
of marketing execution and fulfillment services. Marketing messages are
delivered to more focused groups of customers through specialized point of
purchase, direct marketing and telemarketing programs. In addition, product
sales through the Internet and from catalogues are growing. Customers expect
reliable, rapid delivery of their purchases with minimal delivery costs.
Marketing execution and fulfillment companies specialize in managing the
complexities of implementing these sales and marketing programs, including the
receipt of orders, picking, packing and shipping of kits to retailers and
product orders to customers, customer service, credit card processing,
inventory management and database development. Due to the growing complexity of
efficiently performing these tasks, clients are increasingly seeking larger,
national vendors with capabilities to handle unique marketing programs,
multiple types of order taking and delivery methods, and both large and small
distribution volumes.
Aviation Services. While airlines have historically outsourced certain
functions, such as food service and pre-departure screening, they are
increasingly outsourcing other functions not directly related to flight
operations. Aviation service functions that are increasingly being outsourced
include passenger profiling, baggage claim and check, sky cap, aircraft clean
and search, wheelchair assistance, inter-gate cart, escorting of unaccompanied
minors, ticketing and check-in, cargo handling and into-plane fueling. While
the trend toward outsourcing labor management in Europe is not as developed as
it is in the United States, AHL expects two trends to continue to increase
demand for contract staffing of aviation services in Europe: (1) the
privatization of major airlines, which should increase their focus on improving
operating performance, and (2) the liberalization of airport authority
licensing, which currently restricts the number of vendors that may provide
services at a particular location.
Facility Services. In addition to the general trends that have
contributed to the growth of contract staffing and outsourcing services,
several developments have contributed to the increased demand for facility
support services in recent years. Increases in crime at commercial buildings,
the greater value of both business equipment and various types of inventory,
and growth in the size of many facilities have contributed to greater demand
for access control and commercial security services. Businesses, educational
institutions and governmental authorities are also adding fixed route,
dedicated shuttle bus services as the scale of their physical facilities grows
larger, the numbers of employees and students increase, and urban congestion
and sprawl increase the need for transportation solutions.
Operational Support Services. The trends toward outsourcing, increased
specialization and an emphasis on productivity have led many enterprises to
outsource task repetitive, labor intensive functions such as light assembly and
manufacturing, warehousing and shipping. Each of these functions involves
certain repetitive tasks, such as sorting, selecting, moving, packing and
labeling various items. Third party providers are increasingly developing "best
practices" for each of these functions in order to improve productivity and
efficiency. Additionally, enterprises are increasingly utilizing contract
staffing in order to manage their cost structures when faced with seasonality
or other factors causing fluctuations in their volume of production. German
companies have a tendency to outsource semi-skilled laborers, including
mechanics, plumbers and electricians. Outsourcing businesses are generally able
to charge higher billing rates for their semi-skilled workforce than for
unskilled laborers, and assignments in Germany often have longer terms than in
the United States and the United Kingdom.
STRATEGY
AHL believes that there are significant opportunities to expand its
business as existing clients and other large corporations and institutions
utilize contract staffing and outsourcing solutions that will enable them to
focus on their core competencies. Key elements of AHL's strategy include:
Cross-Sell Services and Pursue New Opportunities. Throughout its
history, AHL has focused on internal growth by offering high quality,
value-added services, introducing and cross-selling new services
-2-
<PAGE> 5
to existing clients and expanding into new geographic markets. During
fiscal 1999, AHL achieved an internal growth rate of 18 percent,
continuing its strong historical trend. Maintaining this growth rate
is a strong indicator of AHL's focus as an operating company. Each of
AHL's business lines contributed to last year's strong performance.
Aviation Services and Facility Services each grew by approximately 20
percent, thanks to expanded relationships with several airline
customers and international delivery services carriers. Operational
Support Services and Marketing Support Services also contributed to
AHL's strong internal growth rate, demonstrating AHL's ability to
integrate and grow its acquisitions effectively. AHL believes that its
reputation for quality service has been critical in attracting new
clients and retaining existing clients, as well as in securing
contract renewals. Once AHL begins to provide a client with a
particular service in a local market, it seeks to capitalize on its
ability to provide that service in additional markets and to provide
new services to the client. AHL believes there are substantial
opportunities to expand relationships with existing clients by
cross-selling the full range of its services. In addition, AHL
believes its multinational capabilities and breadth of services allow
it to compete effectively against companies that provide a more
limited range of services.
Develop Long-Term Client Relationships. AHL targets large
corporations and institutions that have significant needs for
outsourced business services. AHL has established long-term
relationships with most of its large clients through preferred
outsourcing vendor relationships. In addition, AHL has achieved an
average annual retention rate of over 90% of contract billable hours
over the last three fiscal years. These long-term relationships have
provided AHL with a significant source of predictable and recurring
revenues. Building and maintaining relationships with its clients'
senior executives and local operating personnel is an important
operating philosophy of AHL.
Expand Margins by Changing its Business Mix and Leveraging its
Density. Since its March 1997 initial public offering, AHL has added
two lines of business -- Operational Support Services and Marketing
Support Services. These higher margin businesses utilize AHL's core
competency of workforce retention and management, and also include
"value-added" elements such as e-fulfillment, program management and
administration, advanced information systems and facilities for the
storage and distribution of materials. By offering these value-added
services, AHL believes it can better serve the needs of its clients
and expand its operating margins. AHL has also expanded its operating
margins by increasing the "density" in its existing lines of business
in order to achieve economies of scale and leverage its corporate and
field operating infrastructure.
Focus on E-Commerce Initiatives. AHL's Marketing Support Services
business has served the e-commerce marketplace since 1996, providing
e-fulfillment and traditional fulfillment services. Taking advantage
of this existing expertise and its extensive fulfillment and customer
service infrastructure, AHL launched e-fulfillment.com, a new business
unit supported by a brand and web site, during the fall of 1999. This
integrated Internet fulfillment and customer service initiative is
designed to assist companies by ensuring that their products get to
customers quickly and seamlessly. Management believes e-fulfillment
will grow into an extremely large market in a very short time. AHL's
strategy is to move quickly in this segment to develop a leadership
position. To execute the strategy, AHL formed a number of alliances
with other companies. The alliances fall into two categories:
strategic alliances that expand the capabilities to offer more
complete solutions for clients and marketing alliances that enhance
AHL's selling proposition. These existing and new alliances will allow
AHL to substantially accelerate the development of its
e-fulfillment.com business.
Capitalize on Multinational Capabilities. Companies are
increasingly centralizing purchasing decisions and seeking to reduce
the number of vendors with whom they do business. As a result, the
ability of outsourced business services providers to offer national
and international coverage is growing in importance. Through its
operations in 113 offices in North America and 117 offices in three
European countries, AHL is able to service the multinational needs of
its clients. AHL's multinational presence also reduces its reliance on
the economic conditions in any single country. For example, AHL's
three largest clients utilize AHL's services in both their United
States and European operations. AHL believes its ability
-3-
<PAGE> 6
to provide a consistently high level of service at numerous locations
worldwide provides it with a significant competitive advantage while
strengthening and diversifying its economic base.
Continue to Focus on Core Competency. AHL's core competency is
its ability to recruit, hire, train, motivate and manage a large
workforce to provide the non-core support services needed by its
clients. AHL believes that it has achieved lower employee turnover
rates than are typical in its lines of business, enabling it to
provide higher levels of service while expanding its business. AHL
believes its core labor management competencies can be leveraged
across a wide range of contract staffing and outsourcing functions.
Continue to Seek Strategic Acquisitions. AHL continues to
seek selective accretive acquisitions in an effort to further develop
its service offerings and geographic coverage. Since May 1997, AHL has
completed 20 acquisitions, including nine acquisitions in 1999.
Specifically, AHL has pursued acquisitions in the Operational Support
Services and Marketing Support Services businesses, which represent a
natural extension of AHL's previous lines of business and an
opportunity to achieve higher operating margins. AHL believes that a
disciplined acquisition program and an effective integration process
allow it to leverage its existing infrastructure and capitalize on the
fragmented nature of outsourced business services.
SERVICES PROVIDED
The following table presents information with respect to the
percentage of AHL's revenues by business line for the periods shown:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
----------------------------------------
BUSINESS LINE 1999 1998 1997
------------- ----------------------------------------
<S> <C> <C> <C>
Aviation Services............................................ 26% 39% 58%
Facility Services............................................ 28% 29% 39%
Operational Support Services................................. 26% 20% 3%
Marketing Support Services................................... 20% 12% *
--- --- ---
Total............................................... 100% 100% 100%
=== === ===
</TABLE>
* Less than 1%.
AVIATION SERVICES. AHL's performance during 1999 fueled continued
growth in the Aviation Services business. AHL's 12,500 employees served more
than 350 million passengers and nearly all of the world's largest airlines at
16 of the world's 20 busiest airports. AHL expanded its services into the
Columbus (OH), Dallas, Miami, Newark, Ronald Reagan (Washington, D.C.), and
Salt Lake City airports in the United States and in Liverpool in the United
Kingdom. In addition, AHL renewed its contracts with British Airways in the
United Kingdom for three additional years. At a time when airport security is
increasingly an issue, AHL has invested in additional field personnel to ensure
the quality of its services. Going forward, AHL will focus on new ways of
improving the services for aviation clients as AHL works to build density at
major airports.
AHL is one of the largest providers of pre-departure screening and
passenger profiling services in the United States and Europe. Pre-departure
screening is a security procedure performed at all commercial airports in the
United States and the United Kingdom under mandates of the Federal Aviation
Administration ("FAA") and the United Kingdom Department of Transport 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 AHL provides pre-departure
-4-
<PAGE> 7
screening services in the United States include Los Angeles International, New
York - Kennedy and LaGuardia, Washington, D.C. - Ronald Reagan and Dulles,
Denver International, Chicago - O'Hare, San Francisco, Orlando, Boston, Dallas,
Miami and Salt Lake City.
AHL provides profiling services in Europe. 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. Management believes that
if the FAA were to mandate profiling in the United States, AHL would be
well-positioned to quickly implement profiling procedures for its U.S. clients.
AHL prepares cargo and mail for flight by sorting, packaging and
transporting the cargo and mail to and from airplanes. In some cases, AHL
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 certain markets pursuant to outsourcing arrangements,
under which AHL manages the entire process for its clients. AHL processes air
cargo for several of its major aviation clients, including Delta Air Lines,
United Airlines and Lufthansa Airlines. AHL also provides cargo services to Air
China and SwissAir in New York and Cathay Pacific and Vanguard in Seattle
pursuant to subcontracts from Delta Air Lines. In addition to cargo handling,
AHL provides U.S. Postal Service mail handling for Delta Air Lines in selected
locations.
AHL 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.
Furthermore, AHL provides a variety of other aviation services to its airline
clients, including baggage claim and check, aircraft clean and search, lost
baggage delivery or replacement services, sky cap, wheelchair assistance,
escorting of unaccompanied minors, inter-gate cart services and into-plane
fueling.
FACILITY SERVICES. AHL grew its Facilities Services business during
1999 by adding major new accounts in high-growth sectors, such as technology
centers, communication companies, office towers and other commercial
properties. The integration of UNICCO, a commercial security company acquired
at the end of 1998, allowed AHL to improve operating efficiencies and
strengthen its coverage in the Chicago, New York and Boston markets. In total
more than 6,000 employees provide access control, security and shuttle bus
transportation services at client facilities throughout the United States.
During 2000, AHL will be focused on growing these services by adding operations
for large global accounts, especially in major metropolitan areas where it
already has a significant presence.
AHL provides business and facility access control, special event
security and uniformed security officer services to a broad range of commercial
and governmental clients. AHL's access control personnel are used at office and
government buildings, airports, hospitals, distribution centers, sports arenas,
museums and other facilities.
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. AHL'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. Fewer than one percent of AHL's security personnel are armed.
AHL provides fixed route, dedicated shuttle bus services within the
United States. The vehicles generally seat between 15 and 50 passengers. Under
its shuttle bus contracts, AHL provides the shuttle bus and the driver. AHL
currently provides:
- campus shuttle services at The Georgia Institute of Technology,
Emory University, and S.W. Texas State University;
- corporate shuttle services between various facilities of The
Coca-Cola Company, Georgia Power and Federal Express;
-5-
<PAGE> 8
- public parking shuttle services for the Memphis/Shelby County
Airport Authority and the Nashville Airport Authority; and
- employee transportation services from employee parking lots for
Federal Express and Delta Air Lines.
OPERATIONAL SUPPORT SERVICES. AHL provides staffing for Operational
Support Services, which includes providing labor for assembly, warehousing,
shipping, electrical and mechanical functions. Providing specialty staffing
primarily to industrial companies in Germany and the United Kingdom continues
to be an excellent opportunity for AHL. While outsourcing has been accepted in
the United Kingdom for some time, it is a new and rapidly growing trend in
Germany.
During 1998, AHL began to make strategic acquisitions that established
a presence in the United Kingdom and Germany. During 1999, AHL acquired five
additional light industrial companies in Europe to increase its density in
those markets.
In the future, AHL will remain focused on light industrial staffing in
both Germany and the United Kingdom. AHL believes continuing to increase its
density will help to build additional business and revenues and improve
operating efficiencies.
MARKETING SUPPORT SERVICES. AHL's Marketing Support Services business
unit grew rapidly during 1999 through new sales in fulfillment and customer
service and through the addition of in-store merchandising services. By adding
in-store services, AHL now has an end-to-end solution for promotional services.
AHL provides traditional kit assembly, fulfillment and customer support
services to get promotional materials to a store, and it provides a 17,000
person network of trained part time specialists who can effectively set up the
promotional displays.
In addition, AHL emerges from 1999 well positioned to capture future
growth from the emerging demand for fulfillment and customer services created
by e-commerce. AHL was one of the first companies to provide fulfillment and
customer services for the e-commerce marketplace. During 1999, AHL announced a
new initiative designed to enhance its position in this important growth
market.
e-fulfillment.com is the new website and brand name for AHL's
e-services, which include business-to-business and business-to-consumer
applications. AHL's extensive experience in the e-commerce market and its
infrastructure of warehouses, customer service facilities and personnel enable
e-fulfillment.com to provide accurate, timely fulfillment and quality
Internet-enabled customer service.
AHL continues to invest in technologies and new processes which build
productivity and service quality for its clients. AHL has expanded use of radio
frequency systems, added pick-to-light technology for its production lines and
is adding more websites that allow clients to order and get information online.
AHL has added e-mail, e-chat and voice-over Internet protocol features to its
customer service systems. In addition, AHL is upgrading its warehouse systems
to ensure real time tracking of inventory and orders.
AHL's focus on quality was evident during 1999 as it continued to
improve its performance regarding accuracy and timeliness. AHL received ISO
9000 certification for two additional facilities and successfully completed
re-certification audits in three other facilities that had been previously
certified. Certification of remaining facilities is expected to be completed
over the next few months.
AHL provides a comprehensive array of marketing support services,
enabling it to execute and administer complex, multifaceted marketing programs
for its clients. These programs include consumer and trade fulfillment, trade
support services, e-commerce fulfillment and customer support services.
Consumer and Trade Fulfillment Programs. AHL's execution and
administration of consumer promotion programs and direct response fulfillment
services typically involves:
-6-
<PAGE> 9
- receiving consumer orders (via mail, telephone or the Internet);
- processing the order to check for compliance and validate materials
submitted;
- fulfilling the order by developing or selecting from inventory the
refund, coupon, premium, sample or merchandise and packing, labeling
and shipping it to the consumer;
- reporting program results to the client, either by mail or
electronically;
- providing customer service regarding the product, promotion or order
status; and
- providing related data entry services, including information from
warranty cards, credit cards and promotion media.
Similarly, corporations use AHL's fulfillment services to distribute
point-of-purchase displays, new product introduction literature, posters,
banners, demonstration kits, signs, samples and other sales and marketing
materials to distributors, retailers and other trade channels. In providing
these services, AHL:
- receives, stores, controls and manages inventory owned by the client;
- prints and personalizes trade materials;
- manages and coordinates shipment of materials;
- provides database management and information processing services;
and
- operates call centers to process requests for information.
In providing trade materials and trade promotion fulfillment, AHL provides many
of the same services it provides to clients utilizing its consumer promotion or
direct response fulfillment services, including order receipt, processing,
fulfillment, reporting and customer services.
Trade Support Services. AHL executes trade support services for its
clients that have extensive distribution or franchise networks. Services
include:
- the collection and sorting of memoranda and informational mailings,
training and support materials, and other communications;
- packaging and shipping the information; and
- in-bound teleservices support to answer questions and solve problems
for the client's trade channels.
E-Commerce Fulfillment. AHL executes fulfillment services for clients
who sell products over the Internet's World Wide Web. The services include:
- receipt and tracking of client inventory;
- storage of inventory in secured areas;
- receipt of customer orders via the Internet;
- fulfillment of orders by selecting from inventory the merchandise
ordered and packing, labeling and shipping the merchandise to the
consumer within 24 hours; and
- production of reports, files, and transaction records transmitted to
the client via the Internet.
Products fulfilled by AHL include personal computers, consumer electronics,
housewares, sports and fitness equipment, vacation packages and specialty
foods.
Customer Support Services. AHL receives orders from consumers and also
provides inbound customer service focusing on business-to-consumer
applications, with increasing activity in business-to-business applications.
AHL receives and processes orders from consumers and handles inquiries relating
to billing, product information, product uses, product problems or concerns,
and client services. AHL has particular expertise in utilities, housewares,
electronics, publishing and packaged goods.
In-Store Merchandising Services. AHL provides in-store merchandising
and fulfillment services to major consumer products manufacturers and large
retail chains. These services strengthen AHL's in-store presence at the
-7-
<PAGE> 10
point of purchase, increasing its opportunities with retailers and
manufacturers who seek to outsource their in-store merchandising requirements.
In-store merchandising is a logical extension of AHL's traditional
business-to-business fulfillment activities. For example, not only can AHL pack
and ship promotional materials, it can also fully execute the promotions at the
store level. AHL now offers a more complete solution to its clients.
ACQUISITIONS
AHL's management has extensive experience in identifying acquisition
candidates, completing acquisitions and integrating acquired companies into its
operating infrastructure. Since the completion of its initial public offering
in March 1997, AHL has completed 20 acquisitions. Each acquired company had
operating margins in excess of AHL's operating margin at the time of
acquisition and was immediately accretive to earnings. Together these
acquisitions have significantly increased AHL's presence in Europe, added new
lines of business to AHL's operations and increased density in AHL's existing
lines of business.
The table on page 20 (Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Overview) provides certain
information with respect to the acquisitions that AHL has completed
during the three year period ended December 31, 1999.
-8-
<PAGE> 11
CONTRACT TERMS
A substantial portion of AHL's services are provided under long-term
contracts, typically having terms of one to five years, which have provided AHL
with a significant source of predictable recurring revenues. Although the terms
of AHL's contracts vary significantly, AHL's Aviation Services and Facility
Services businesses generally agree to provide a stated service level and
clients generally agree to pay AHL an hourly rate for services provided.
Certain of AHL's clients, especially in the cargo services area, are billed a
fixed dollar amount per month for services performed. Under some contracts, AHL
is entitled to rate increases when there are increases in the Federal minimum
wage, notwithstanding that most of AHL's employees are paid at rates in excess
of the Federal minimum wage. In the Marketing Support Services business, AHL
generally enters into three year contracts with its clients, pursuant to which
it agrees to provide services for a fixed number of programs per year. The
scope and magnitude of the programs are determined by the client.
Most contracts have multi-year terms and they are generally terminable
by either party upon 30 to 90 days written notice. Most of the contracts
entered into by AHL have been renewed or extended upon the expiration of their
original terms. AHL has experienced an average annual retention rate of over
90% of its contracts over the last three fiscal years, excluding the United
Kingdom transportation operations sold during 1999.
SALES AND MARKETING
AHL targets large corporations and institutions that have significant
contract staffing and outsourcing needs, marketing its services to potential
clients through senior management, regional and district managers and a local
sales force. As part of its operating philosophy, AHL emphasizes building and
maintaining relationships with personnel at various levels of its clients'
organizations, including relationships with both senior executives and local
operating personnel.
AHL is developing a national sales and marketing strategy, under which
AHL will focus on cross-selling its services to its primarily Fortune 1000
clients. Furthermore, AHL has designated certain senior managers as responsible
for specific national account relationships and is in the process of adding
national account sales representatives.
WORKFORCE MANAGEMENT
AHL's core competency includes recruiting, hiring, training,
motivating and managing the large numbers of personnel required to provide many
of the support services needed by its clients. AHL's district managers and
their human resources staff have ongoing responsibility for hiring, recruiting
and training AHL's local workforce.
Recruiting. AHL 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
-9-
<PAGE> 12
fairs, trade journals, local advertising, and interviewing at vocational
schools. After analyzing the demographics of each market, AHL seeks to
establish relationships with community groups and leaders. For example, in a
number of markets, AHL 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. AHL leverages these community
relationships to provide a feeder into its employment pool and believes that
current employees serve as effective recruiters for it. AHL believes these
methods are more effective than more traditional recruiting methods.
Hiring. Within the United States, every employee hired by AHL must
complete a written application and provide proof of citizenship or resident
alien status. Further, most employees are subject to a 10-year employment and
criminal background check. Unlike many of its competitors, AHL requires
mandatory pre-employment drug testing for all Aviation Services and Facility
Services employees.
In Europe, AHL screens potential applicants through a telephone
interview, and each potential employee must complete a written application and
undergo an examination 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. AHL 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 AHL's major district locations. AHL is ISO
9002-certified in certain of its Marketing Support Services operations in the
United States. AHL is the only organization approved by the United Kingdom
Department of Transport (the "United Kingdom DOT") to provide aviation security
training to personnel of the United Kingdom DOT, the agency that regulates
aviation security matters in the United Kingdom.
Retention. AHL believes that employee retention is critical to
lowering operating costs and providing high quality service to its clients.
Accordingly, AHL places significant emphasis on programs to motivate its
employees and reduce employee turnover. Since inception, AHL 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. AHL's "110%
Club" recognizes employees for superior attendance, attitude, appearance and
performance. Members receive quarterly bonuses and other rewards, and are
recognized throughout AHL. AHL believes its historical retention rates are
significantly higher than industry averages.
Field Management. AHL 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.
AHL's bonus system for regional and district managers is based upon achievement
of specific performance objectives, including revenue, profitability, new
business and client retention. Regional and district managers can earn bonuses
of up to 35% of their base compensation by achieving all their objectives
established annually by AHL. AHL has a stock option plan for key corporate and
field management employees.
Employees. As of December 31, 1999, AHL had 36,952 employees.
Approximately 2,000 of its employees are covered by collective bargaining
agreements. Each of these agreements was assumed by AHL in connection with an
acquisition or an outsourcing contract previously held by another vendor. AHL
considers its relations with its employees to be good. There currently is an
effort by a union to organize 450 of AHL's Aviation Services employees at Los
Angeles International Airport. The outcome of this effort is not known, but is
not expected to have a material impact on operations.
MANAGEMENT INFORMATION SYSTEMS
AHL's management information systems contribute significantly to its
daily operations, financial performance and customer service. AHL has invested,
and will continue to invest, resources in the development of systems to grow
and support the business needs of its clients.
-10-
<PAGE> 13
In Aviation Services, AHL has implemented an application to help
manage its large workforce effectively through integrated employee tracking,
time recording and reporting. In Facility Services, AHL has implemented at
certain locations an automated time capture application which confirms an
employee is serving the customer as required. In Operational Support Services,
AHL acquired several integrated scheduling and accounting systems through its
acquisitions. In Marketing Support Services, AHL uses technology extensively.
The state-of-the-art marketing and sales support applications and related
infrastructure provide the business with order entry and inventory control
automation, organized distribution facilities, efficient out-bound logistics,
and valuable management database and reporting systems. Across all its business
lines, AHL has utilized technology to simplify, automate and integrate the
administrative and management reporting processes that serve its business
units.
COMPETITION
The contract staffing and outsourcing industry is extremely
competitive and highly fragmented, with limited barriers to entry. Companies
within the contract staffing and outsourcing industry compete on the basis of
the quality of service provided, their ability to provide national and
international services, the range of services offered, and price. AHL 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 AHL's competitors offer a more limited range of services and focus on a
few specific industries.
AHL 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 national competitors include:
- Aviation Services -- ICTS International N.V. and International Total
Services, Inc.;
- Facility Services -- Burns International Services Corporation and The
Wackenhut Corporation;
- Operational Support Services -- Manpower, Inc., Kelly Services, Inc.
and Adecco SA; and
- Marketing Support Services -- Young America Corporation, StarTek,
Inc., PSFweb, Inc., ClientLogic Corporation and DAMARK
International, Inc.
AHL also competes with numerous local and regional companies as well
as divisions of several major staffing companies. Certain of AHL's competitors
and potential competitors have significantly greater financial resources and
larger operations than AHL.
GOVERNMENT REGULATION
Current Regulations Relating to Aviation Security. AHL's business,
particularly its aviation services line of business, is significantly affected
by government regulation. The aviation security services provided by AHL are
subject to extensive regulation by the FAA in the United States and comparable
regulatory authorities in Europe. 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 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. Any change in the FAA's directives relating to aviation security could
affect AHL's operations in the aviation services business.
Under FAA regulations, which the FAA has proposed to revise through
rulemaking proceedings, 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
-11-
<PAGE> 14
maintaining a secure environment on airport grounds and for providing law
enforcement support and training. Each security program adopted by an airline
must include:
- 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;
- controlling access to aircraft, checked baggage and cargo;
- appropriate controls on shipping of cargo; and
- security inspection of any aircraft left unattended.
Airlines may utilize either their own employees or third-party
contractors to carry out their security programs. Screeners operating X-ray
systems must receive initial and recurrent training in the detection of weapons
and other dangerous articles. Certain of these requirements are currently the
subject of an FAA rulemaking proceeding, which has been delayed until more data
becomes available, and may be modified upon adoption of final rules.
Current FAA regulations require pre-departure screeners and their
supervisors to undergo a 10-year criminal and employment background check and a
five-year employment verification, and a fingerprint based criminal record
background check if warranted, with the employer required to maintain records
of these investigations throughout the term of employment. Airport operations
and air carriers are required to audit employment history investigations. AHL
believes that it complies with these standards.
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 passenger profiling for specified types of flights,
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. AHL's business can be negatively or
positively affected by any such directives.
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.
AHL is subject to random periodic testing by the FAA with regard to
adherence to regulations relating to pre-departure screening and passenger
profiling, hiring practices (including background checks, drug testing,
training and individual employee file maintenance) and baggage handling. In the
United Kingdom, the U.K. DOT also conducts testing relating to passenger and
baggage handling, aircraft security, document verification and employee
background checks. Any failure to meet these performance standards or to pass
these tests may result in the loss of a contract or AHL's license to perform
services, either of which is likely to have a material adverse effect on AHL's
reputation, business, results of operations and financial condition.
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 in February 1997; and the
Aviation Security Advisory Committee ("ASAC"), a committee of government,
industry, and consumer advocacy representatives that issued its recommendations
in December 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.
-12-
<PAGE> 15
The Gore Commission 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 in February 1997 and
included among its recommendations:
- development of uniform performance standards for the selection,
training and certification of pre-departure screening companies;
- implementation of procedures for matching of passengers and checked
baggage on a nationwide basis;
- the continued development and implementation of an automated
passenger profiling system; and
- utilization of U.S. Customs Service personnel and computer systems
to complement the efforts of the FAA and other federal agencies.
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, AHL 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.
On January 5, 2000, the FAA issued a Notice of Proposed Rulemaking
addressing the certification of pre-departure screening companies, one of the
recommendations of the Gore Commission. The proposed rule would require FAA
certification for companies the airlines hire to perform security screening at
airports to meet enhanced requirements. It would establish uniform standards
for security screening company performance, strengthen training and testing
standards for screeners, and impose more stringent experience and training
requirements on screening company managers and instructors. The proposed rule
would make screening companies accountable, along with air carriers, for
screener performance and screener training. As discussed in the proposed rule,
the FAA is currently developing and deploying threat image projection and
computer based training. Threat image projection is an automated screener
testing system that is installed onto existing X-ray machines and is used to
project artificial threat images onto X-ray screens. Screeners' ability to
detect these images is then used to evaluate individual performance and
identify areas for additional training. It also gives the FAA objective data
needed to achieve compliance with certification standards. The threat image
projection system is a component of the Screener Proficiency Evaluation and
Reporting System, a system that the FAA has been working with airlines to
deploy, which aims to improve the training and monitoring of skills of
screeners through computer-based training aids. The proposed rule would require
that screening companies adopt and implement FAA-approved screening company
security programs that would include threat image projection standards. The
proposed rule also notes that the FAA anticipates making computer based
training available for use, but does not anticipate requiring its use at this
time. The comment period for the proposed rule ends April 4, 2000. The proposed
rule does not identify a target date for implementing the new program.
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"). 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. On January 1, 1998, several air carriers voluntarily implemented CAPS,
and most other carriers have since opted to implement it as well.
On April 19, 1999, the FAA issued a Notice of Proposed Rulemaking that
would require additional security checks to the checked baggage of certain
passengers on domestic flights carrying over 60 people. The proposed rule
encourages the use of the CAPS system to select passengers whose checked
luggage would be subject to additional
-13-
<PAGE> 16
security screenings. The proposed rule also permits alternatives, such as
checking all baggage or matching each piece of checked luggage to its owner on
a particular flight. The comment period for the proposed rule was extended to
August 17, 1999. No final rule has been adopted.
AHL cannot accurately predict the outcome of these or any future
aviation security initiatives. However, any such initiatives could have a
positive or an adverse effect on AHL.
Other Applicable Regulations. In many European airports in which AHL
operates, a license is required from the airport authority in order to perform
services at the airport. Some airport authorities limit the number of licenses
they issue. AHL 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 AHL's business is labor intensive, workers' compensation is a
significant operating expense for AHL in the United States. In addition, AHL is
exposed to possible claims by its clients' customers or employees, alleging
discrimination or harassment by AHL's employees. AHL 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. AHL has adopted policies
and procedures intended to reduce its exposure to these risks.
AHL 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, AHL maintains aviation liability insurance of
$500 million per incident. AHL 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. AHL's reserves are periodically revised, as
necessary, based on developments related to pending claims. AHL's reserve for
workers' compensation and automobile claims was $6.5 million as of December 31,
1999.
AHL's risk management specialists, with the assistance of AHL's
regional managers, are responsible for claims management and the establishment
of appropriate reserves for the portion of claims not covered by insurance. AHL
has a risk allocation program which provides local managers with financial
incentives to improve safety performance by decreasing the number of workplace
accidents. AHL has periodic safety committee meetings with its local managers
and field employees, conducts defensive driving training sessions for its
transportation employees, conducts routine safety inspections of local work
sites and instructs personnel in proper lifting techniques in an effort to
reduce the number of preventable accidents.
ITEM 2 PROPERTIES
AHL maintains 230 offices in various metropolitan areas in North
America and Europe. AHL's executive headquarters (9,700 square feet) and
corporate operations (19,500 square feet) are located in Atlanta, Georgia in
leased facilities. The initial term of the executive headquarters lease expires
in November 2001.
ITEM 3 LEGAL PROCEEDINGS
As initially reported in the Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999, AHL learned that the U.S. Attorney's Office for the
Eastern District of Pennsylvania is investigating prior recruiting and training
practices and other matters at the Philadelphia location of Argenbright
Security, Inc. ("Argenbright Security"), a subsidiary of AHL, and that
Argenbright Security is a target of this investigation. AHL believes that
certain employees, who have since been terminated, may have violated FAA
regulations, as well as company policies and procedures in these matters. The
FAA has reviewed other major airport locations of Argenbright Security and has
not identified any similar situations. AHL has been informed that the matters
being investigated are limited to the
-14-
<PAGE> 17
operations of the Philadelphia office, and AHL does not believe that the
matters under review represent a systemic problem. Since learning of the
issues, AHL has taken the necessary actions to ensure compliance with all FAA
regulations and company policies and procedures in Philadelphia. Additionally,
management has reviewed this investigation with the major clients of its
Philadelphia operations and AHL does not believe that this investigation has
had any adverse affect on its relationship with these clients. AHL is
cooperating with the U.S. Attorneys' Office in this investigation and believes
this investigation will be concluded in the first six months of 2000.
AHL is involved in various routine litigation, disputes and claims in
the ordinary course of business, primarily employee and customer contract
issues. While an unfavorable outcome is possible, management is of the opinion
that the resolution of these matters will not have a material effect on the
results of operations or financial condition of AHL.
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM X. EXECUTIVE OFFICERS OF THE REGISTRANT
AHL's executive officers and key employees are as follows:
<TABLE>
<CAPTION>
EXECUTIVE OFFICERS: AGE POSITION
- ------------------ --- --------
<S> <C> <C>
Frank A. Argenbright, Jr.................. 52 Chairman and Co-Chief Executive Officer
Edwin R. Mellett.......................... 61 Vice-Chairman and Co-Chief Executive Officer
Ronald F. Clarke........................... 44 President and Chief Operating Officer, United States
Outsourced Services
Thomas J. Marano.......................... 49 President and Chief Operating Officer, Marketing Services
Ernest Patterson........................... 53 Chief Executive, European Operations
David L. Gamsey........................... 42 Chief Financial Officer
</TABLE>
Mr. Argenbright founded AHL in 1979 and has been its Chairman since
that time. He has been Co-Chief Executive Officer since 1994. From 1979 to
1994, he was the Chief Executive Officer.
Mr. Mellett has been Vice Chairman and Co-Chief Executive Officer of
AHL since December 1994 and served on AHL'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. Clarke has been President and Chief Operating Officer, United
States Outsourced Services of AHL since May 1999. From October 1998 to April
1999, Mr. Clarke was a private consultant. From 1995 to September 1998, Mr.
Clarke was President of the Electronic Services Division of Automatic Data
Processing, Inc. ("ADP"). From 1990 to 1995, he was Senior Vice President of
Marketing for ADP.
Mr. Marano has been President and Chief Operating Officer, Marketing
Services of AHL since May 1999. From July 1997 to April 1999, he was President
and Chief Operating Officer - United States Operations of AHL. 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.
-15-
<PAGE> 18
Mr. Patterson has been Chief Executive, European Operations of AHL
since June 1997. From 1996 to 1997, Mr. Patterson was a 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 AHL since September
1995. From 1988 to September 1995, Mr. Gamsey was a Managing Director of
Investment Banking of PricewaterhouseCoopers LLP (formerly 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.
-16-
<PAGE> 19
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
AHL completed its initial public offering on March 27, 1997 at $10.00
per share and, since that date, its common stock has traded on the Nasdaq
National Market under the symbol "AHLS." The following table sets forth the
high and low 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>
1999:
First Quarter............................. $37.375 $18.000
Second Quarter............................ 30.563 19.938
Third Quarter............................. 31.625 23.750
Fourth Quarter............................ 28.250 16.000
1998:
First Quarter............................. 32.625 $21.000
Second Quarter............................ 39.375 29.969
Third Quarter............................. 42.125 27.438
Fourth Quarter............................ 33.750 21.750
</TABLE>
On March 17, 2000, the last sale price of the common stock as reported
on the Nasdaq National Market was $11.375 per share, and there were 33 holders
of record of the common stock.
AHL has never paid any cash dividends on its common stock, and the
board of directors currently intends to retain all earnings for use in AHL's
business for the foreseeable future. AHL's credit facility prohibits the
payment of dividends. Any future payment of dividends will depend upon AHL's
results of operations, financial condition, cash requirements and other factors
deemed relevant by the board of directors.
-17-
<PAGE> 20
ITEM 6. SELECTED FINANCIAL DATA
The following selected financial data of AHL 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 AHL's
Consolidated 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, 1999 have been
derived from AHL's financial statements which have been audited by Arthur
Andersen LLP, independent public accountants (in thousands, except per share
data).
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31,(1)
-------------------------------------------------------------------------------
1999 1998 1997 1996 1995
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues ............................. $ 814,488 $ 476,357 $ 276,013 $ 210,153 $ 168,601
Cost of services ..................... 570,195 340,341 204,512 155,926 124,491
--------- --------- --------- --------- ---------
Gross margin .................... 244,293 136,016 71,501 54,227 44,110
Operating expenses:
Field operating ................... 158,315 81,396 40,722 33,334 26,431
Corporate general and
administrative ................ 22,982 19,590 14,840 11,692 10,938
Depreciation and
amortization .................. 18,435 9,665 5,234 4,158 3,897
--------- --------- --------- --------- ---------
Operating income .................. 44,561 25,365 10,705 5,043 2,844
Interest expense ..................... 12,557 3,837 1,159 1,726 1,309
Other income, net .................... (385) (304) (723) (301) (820)
--------- --------- --------- --------- ---------
Income before income taxes
and extraordinary charges ..... 32,389 21,832 10,269 3,618 2,355
Income tax provision ................. 12,795 8,709 3,850 1,447 917
--------- --------- --------- --------- ---------
Income before extraordinary
charges ....................... 19,594 13,123 6,419 2,171 1,438
Extraordinary charges, net of
taxes (2) ......................... -- -- (385) -- --
--------- --------- --------- --------- ---------
Net income ........................ $ 19,594 $ 13,123 $ 6,034 $ 2,171 $ 1,438
========= ========= ========= ========= =========
Net income per share - diluted ....... $ 1.11 $ 0.91 $ 0.55 (3) $ 0.26 (4) $ 0.17 (4)
========= ========= ========= ========= =========
Weighted average common and
common equivalent shares -
diluted ........................... 17,710 14,419 10,960 8,433 (4) 8,353 (4)
========= ========= ========= ========= =========
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------------------------------------------------------
1999 1998 1997 1996 1995
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital ...................... $ 104,706 $ 60,583 $ 42,823 $ 17,353 $ 13,216
Total assets ......................... 538,545 360,546 109,794 51,953 40,687
Long-term debt, net of current
portion ........................... 216,148 169,338 3,495 19,706 14,609
Shareholders' equity ................. 220,356 105,688 74,531 5,409 3,577
</TABLE>
- ---------
(1) AHL's United States operations fiscal year ends on the last Friday in
December. Each of the fiscal years 1995 through 1998 consists of 52
weeks. Fiscal year 1999 consists of 53 weeks.
-18-
<PAGE> 21
(2) In the second quarter of 1997, AHL recorded extraordinary charges
resulting from the early extinguishment of debt associated with its
initial public offering.
(3) Excluding the extraordinary charges, net income would have been $0.59
per share.
(4) Pro forma to give effect to the reorganization completed in February
1997. The reorganization included the contribution by Mr. Frank A.
Argenbright, Jr. to AHL of all of the outstanding shares of common
stock of Argenbright Holdings Limited, a holding company for AHL's
United States operations, and The ADI Group Limited, a holding company
for AHL's European operations.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
AHL Services, Inc. is a leading provider of contract staffing and
outsourcing solutions, through which it professionally manages a large
workforce that performs tasks that its clients frequently regard as outside
their core businesses. Through its 113 offices in North America and 117 offices
in Europe, AHL services the multinational needs of its primarily Fortune 1000
client base. AHL's services are generally performed under long-term contracts,
which have provided it with a significant source of predictable recurring
revenues.
During the five years ended December 31, 1999, AHL has experienced
significant growth. Revenues have grown from $168.6 million in 1995 to $814.5
million in 1999, representing a compound annual growth rate of 48%. AHL has
focused on internal growth and made acquisitions of companies that have
operating margins in excess of its operating margin at the time of acquisition
and that were immediately accretive to earnings. These acquisitions have
substantially changed AHL's product mix, reducing its dependence on the
aviation industry and adding new lines of business. AHL intends to continue to
seek selective, strategic accretive acquisitions in an effort to further
develop its service offerings within its current lines of business, to add
density within these lines of business, and to expand its geographic coverage.
Specifically, AHL intends to further expand its Operational Support and
Marketing Support Services businesses, which represent a natural extension of
AHL's existing core lines of business and an opportunity to achieve higher
operating margins.
During the three years ended December 31, 1999, AHL completed 20
acquisitions. These acquisitions were financed with borrowings under AHL's
five-year bank revolving credit facility (the "Credit Facility") and proceeds
from its public offerings in March and October 1997 and January 1999.
-19-
<PAGE> 22
The table below provides certain information with respect to the
acquisitions that AHL has completed for the years ended December 31, 1999, 1998
and 1997:
<TABLE>
<CAPTION>
REVENUES
FOR THE
CALENDAR YEAR
PRIOR TO
DATE OF ACQUISITION
ACQUISITION COMPANY (IN MILLIONS) HEADQUARTERS SERVICES PROVIDED
- ----------- ------- ------------- ------------ -----------------
1999:
-----
<S> <C> <C> <C> <C>
December 1999 ServiceAdvantage.............. $15.0 Taylorville, IL Marketing Support Services
October 1999 BMP........................... 5.0 Hanover, Germany Operational Support Services
September 1999 Jobspot....................... 6.0 Southeast England Operational Support Services
September 1999 CDI........................... 4.4 Minneapolis, MN Marketing Support Services
July 1999 Draefern...................... 30.0 Midlands England Operational Support Services
June 1999 Excel......................... 7.0 Southeast England Operational Support Services
April 1999 PIMMS......................... 40.0 Minneapolis, MN Marketing Support Services
April 1999 MM............................ 3.0 Munich, Germany Operational Support Services
December 1998(1) UNICCO........................ 50.0 Boston, MA Facility Services
1998:
-----
December 1998 Verfurth...................... 20.0 Munster, Germany Operational Support Services
August 1998 Right Associates.............. 17.0 Southeast England Operational Support Services
August 1998 EMD........................... 50.0 Frankfurt, Germany Operational Support Services
July 1998 Gage Marketing ............... 80.0 Minneapolis, MN Marketing Support Services
April 1998 TUJA.......................... 16.0 Munich, Germany Operational Support Services
February 1998 SES Staffing Solutions........ 16.0 Baltimore, MD Operational Support Services
1997:
-----
December 1997 Midwest Staffing.............. 8.0 Chicago, IL Operational Support Services
October 1997 RightSide Up.................. 6.4(2) Los Angeles, CA Marketing Support Services
September 1997 Lloyd Creative Staffing....... 14.0 Chicago, IL Operational Support Services
May 1997 USA Security.................. 8.6 Hackensack, NJ Facility Services
May 1997 Executive Aircraft Services... 2.4 London, England Aviation Services
</TABLE>
- ---------
(1) The UNICCO acquisition was completed on December 28, 1998, subsequent
to the year end of AHL's United States operations. As such, the
acquisition has been excluded from all fiscal 1998 financial statement
information.
(2) For the twelve months ended August 31, 1997.
-20-
<PAGE> 23
RESULTS OF OPERATIONS
The following table sets forth Consolidated Statement of Operations
data as a percentage of revenues for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------
1999 1998 1997
----- ----- -----
<S> <C> <C> <C>
Revenues ............................................. 100.0% 100.0% 100.0%
Cost of services ..................................... 70.0 71.5 74.1
----- ----- -----
Gross margin ...................................... 30.0 28.5 25.9
Operating expenses:
Field operating ................................... 19.4 17.1 14.7
Corporate general and administrative .............. 2.8 4.1 5.4
Depreciation and amortization ..................... 2.3 2.0 1.9
----- ----- -----
Operating income ................................ 5.5 5.3 3.9
Interest expense ..................................... 1.5 0.8 0.4
Other income, net .................................... (0.0) (0.1) (0.2)
----- ----- -----
Income before income taxes and extraordinary
charges ...................................... 4.0 4.6 3.7
Income tax provision ................................. 1.6 1.8 1.4
----- ----- -----
Income before extraordinary charges ............. 2.4 2.8 2.3
Extraordinary charges, net of taxes .................. -- -- (0.1)
----- ----- -----
Net income ...................................... 2.4% 2.8% 2.2%
===== ===== =====
</TABLE>
FISCAL 1999 COMPARED TO FISCAL 1998
Revenues increased $338.1 million, or 71%, to $814.5 million for
fiscal 1999 from $476.4 million for fiscal 1998. Revenues for fiscal 1999
included approximately $258.2 million attributable to acquisitions owned less
than one year and approximately $2.9 million attributable to the United Kingdom
transportation business sold on June 30, 1999. Revenues for fiscal 1998
included approximately $6.2 million related to the United Kingdom
transportation business. The remaining increase was a result of providing
additional services to existing clients, entering into contracts to provide
services to new clients and rate increases on existing contracts.
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 $229.9 million, or 68%, to $570.2 million
for fiscal 1999 from $340.3 million for fiscal 1998. As a percentage of
revenues, cost of services decreased to 70.0% for fiscal 1999 from 71.5% for
fiscal 1998. This decrease was primarily due to the effect of the growth in
revenues of AHL's higher margin Marketing Support Services business unit.
Gross margin increased $108.3 million, or 80%, to $244.3 million for
fiscal 1999 from $136.0 million for fiscal 1998. As a percentage of revenues,
gross margin improved to 30.0% for fiscal 1999 from 28.5% for fiscal 1998.
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,
maintenance, local sales and marketing activities. Field operating expenses
increased $76.9 million, or 95%, to $158.3 million for fiscal 1999 from $81.4
million for fiscal 1998. As a percentage of revenues, field operating expenses
increased to 19.4% for fiscal 1999 from 17.1% for fiscal 1998. This percentage
increase was primarily attributable to the facility expenses of AHL's Marketing
Support Services business unit.
-21-
<PAGE> 24
Corporate general and administrative expenses include the cost of
services AHL provides to support and manage its field activities. These
expenses include corporate management, accounting and payroll, general
administration, human resources management, professional fees, headquarters
occupancy, marketing and management information services. Corporate general and
administrative expenses increased $3.4 million, or 17%, to $23.0 million for
fiscal 1999 from $19.6 million for fiscal 1998. As a percentage of revenues,
these expenses decreased to 2.8% for fiscal 1999 from 4.1% for fiscal 1998.
This percentage decrease was primarily due to better leveraging of corporate
personnel.
Depreciation and amortization increased $8.7 million, or 91%, to $18.4
million for fiscal 1999 from $9.7 million for fiscal 1998. As a percentage of
revenues, these expenses increased to 2.3% for fiscal 1999 from 2.0% for fiscal
1998. This increase was primarily due to the depreciation and amortization
expense of acquisition-related fixed and intangible assets.
Operating income increased $19.2 million, or 76%, to $44.6 million for
fiscal 1999 from $25.4 million for fiscal 1998. As a percentage of revenues,
operating income improved to 5.5% for fiscal 1999 from 5.3% for fiscal 1998.
Interest expense increased $8.8 million, or 227%, to $12.6 million for
fiscal 1999 from $3.8 million for fiscal 1998. As a percentage of revenues,
interest expense increased to 1.5% for fiscal 1999 from 0.8% for fiscal 1998
due to the use of AHL's Credit Facility to fund acquisitions and the increase
in interest rates during 1999.
Income tax provision increased $4.1 million, or 47%, to $12.8 million
for fiscal 1999 from $8.7 million for fiscal 1998. AHL provided income taxes at
a rate of 39.5% in fiscal 1999 and 39.9% in fiscal 1998. The decrease in the
effective tax rate for fiscal 1999 as compared to fiscal 1998 is due to the
change in business mix by country as a result of the acquisitions made during
fiscal 1999 and 1998.
Net income increased $6.5 million, or 49%, to $19.6 million, or 2.4%
of revenues, for fiscal 1999 from net income of $13.1 million, or 2.8% of
revenues, for fiscal 1998.
FISCAL 1998 COMPARED TO FISCAL 1997
Revenues increased $200.4 million, or 73%, to $476.4 million for
fiscal 1998 from $276.0 million for fiscal 1997. Of this increase,
approximately $146.2 million was attributable to the acquisitions owned less
than one year. The remaining increase was a result of providing additional
services to existing clients, entering into contracts to provide services to
new clients and rate increases on existing contracts.
Cost of services increased $135.8 million, or 66%, to $340.3 million
for fiscal 1998 from $204.5 million for fiscal 1997. As a percentage of
revenues, cost of services decreased to 71.5% for fiscal 1998 from 74.1% for
fiscal 1997. This decrease was primarily due to the effect of the growth in
revenues of AHL's higher margin Marketing Support Services and Operational
Support Services business units.
Gross margin increased $64.5 million, or 90%, to $136.0 million for
fiscal 1998 from $71.5 million for fiscal 1997. As a percentage of revenues,
gross margin improved to 28.5% for fiscal 1998 from 25.9% for fiscal 1997.
Field operating expenses increased $40.7 million, or 100%, to $81.4
million for fiscal 1998 from $40.7 million for fiscal 1997. As a percentage of
revenues, field operating expenses increased to 17.1% for fiscal 1998 from
14.7% for fiscal 1997. This percentage increase was primarily attributable to
the facility expenses of the Gage Marketing Support Services business acquired
in July 1998.
Corporate general and administrative expenses increased $4.8 million,
or 32%, to $19.6 million for fiscal 1998 from $14.8 million for fiscal 1997. As
a percentage of revenues, these expenses decreased to 4.1% for fiscal
-22-
<PAGE> 25
1998 from 5.4% for fiscal 1997. This percentage decrease was primarily due to
the better leveraging of corporate personnel.
Depreciation and amortization increased $4.4 million, or 85%, to $9.7
million for fiscal 1998 from $5.2 million for fiscal 1997. As a percentage of
revenues, these expenses increased to 2.0% for fiscal 1998 from 1.9% for fiscal
1997. This increase was primarily due to depreciation and amortization expense
of acquisition-related fixed and intangible assets.
Operating income increased $14.7 million, or 137%, to $25.4 million
for fiscal 1998 from $10.7 million for fiscal 1997. As a percentage of
revenues, operating income improved to 5.3% for fiscal 1998 from 3.9% for
fiscal 1997.
Interest expense increased $2.6 million, or 231%, to $3.8 million for
fiscal 1998 from $1.2 million for fiscal 1997. Interest expense increased for
1998 due to the use of AHL's Credit Facility to fund acquisitions made in 1998,
the most significant being the Gage Marketing Support Services and EMD
acquisitions made in July 1998 and August 1998, respectively.
Income tax provision increased $4.8 million, or 126%, to $8.7 million
for fiscal 1998 from $3.9 million for fiscal 1997. AHL provided income taxes at
a rate of 39.9% for fiscal 1998 and 37.5% for fiscal 1997. The increase for
1998 is due to the EMD and TUJA acquisitions in Germany, which has a higher
corporate income tax rate than AHL's operations in the United States or the
United Kingdom.
AHL expensed extraordinary charges associated with its initial public
offering during the second quarter of 1997 of $642,000, before income tax
benefit of $257,000. The extraordinary charges consisted of the write-off of
unamortized loan origination costs and debt discount.
Net income increased $7.1 million, or 118%, to $13.1 million, or 2.8%
of revenues, for fiscal 1998 from net income of $6.0 million, or 2.2% of
revenues, for fiscal 1997.
-23-
<PAGE> 26
QUARTERLY RESULTS AND SEASONALITY
The following table sets forth consolidated statements of operations
data for the four quarters of fiscal 1999 and 1998. This quarterly information
is unaudited but has been prepared on a basis consistent with AHL's audited
consolidated financial statements presented elsewhere herein and, in AHL'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,
1999 1999 1999 1999
--------- --------- ------------- -----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Revenues ..................................... $ 170,638 $ 189,559 $ 217,357 $ 236,934
Cost of services ............................. 119,728 131,835 150,369 168,263
--------- --------- --------- ---------
Gross margin .............................. 50,910 57,724 66,988 68,671
Operating Expenses:
Field operating ........................... 33,751 38,379 40,300 45,885
Corporate general and administrative ...... 5,139 4,563 5,650 7,630
Depreciation and amortization ............. 4,003 4,298 4,994 5,140
--------- --------- --------- ---------
Operating income ........................ 8,017 10,484 16,044 10,016
Interest expense ............................. 2,126 2,239 3,425 4,767
Other (income) expense ....................... (30) (335) (62) 42
--------- --------- --------- ---------
Income before income taxes .............. 5,921 8,580 12,681 5,207
Income tax provision ......................... 2,190 3,248 4,992 2,365
--------- --------- --------- ---------
Net income .............................. $ 3,731 $ 5,332 $ 7,689 $ 2,842
========= ========= ========= =========
Earnings per share-diluted .............. $ 0.22 $ 0.30 $ 0.43 $ 0.16
========= ========= ========= =========
</TABLE>
<TABLE>
<CAPTION>
QUARTER ENDED
--------------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1998 1998 1998 1998
--------- --------- ------------- -----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Revenues ..................................... $ 84,500 $ 98,871 $ 135,813 $ 157,173
Cost of services ............................. 62,842 72,755 94,505 110,239
--------- --------- --------- ---------
Gross margin .............................. 21,658 26,116 41,308 46,934
Operating expenses:
Field operating ........................... 12,764 15,057 25,538 28,037
Corporate general and administrative ...... 4,449 4,598 4,858 5,685
Depreciation and amortization ............. 1,656 2,017 2,022 3,970
--------- --------- --------- ---------
Operating income ....................... 2,789 4,444 8,890 9,242
Interest expense ............................. 37 177 1,472 2,151
Other (income) expense ....................... (282) (17) 7 (12)
--------- --------- --------- ---------
Income before income taxes ............. 3,034 4,284 7,411 7,103
Income tax provision ......................... 1,210 1,717 3,043 2,739
--------- --------- --------- ---------
Net income ............................. $ 1,824 $ 2,567 $ 4,368 $ 4,364
========= ========= ========= =========
Earnings per share-diluted ............. $ 0.13 $ 0.18 $ 0.30 $ 0.30
========= ========= ========= =========
</TABLE>
While the effects of seasonality on AHL's business often are less
apparent due to the timing of the addition of new clients, the performance of
new services for existing clients or the completion of acquisitions, AHL's
-24-
<PAGE> 27
revenues and operating margins tend to be lower in the first and fourth
quarters of the fiscal year and highest in the third quarter of the fiscal
year.
LIQUIDITY AND CAPITAL RESOURCES
Cash used in operating activities was $18.0 million for fiscal 1999
compared to cash provided by operating activities of $7.3 million for fiscal
1998. This change was primarily the result of an increase of $15.2 million in
net income before depreciation and amortization offset by $40.6 million of
changes in working capital due to the timing of billings of accounts
receivable, which are slower for the acquired Marketing Support Services
businesses, the growth in revenues and therefore accounts receivable, and the
timing of payments of accounts payable and accrued expenses. Cash used in
investing activities for fiscal 1999 was $136.6 million compared to $160.0
million for fiscal 1998. The use of cash for investing activities was
principally the acquisitions made during those periods. Cash provided by
financing activities for fiscal 1999 was $147.5 million compared to $155.2
million for fiscal 1998. In January 1999, AHL completed a follow-on public
offering of its common stock. AHL issued 3,255,570 shares at an offering price
of $31 per share. The total proceeds, net of underwriting discounts and
offering expenses, were approximately $95.6 million, of which AHL used a
portion to repay a $10.0 million subordinated convertible debenture. The
remaining $85.6 million was used to reduce the outstanding balance under the
Credit Facility.
Cash provided by operating activities was $7.3 million for fiscal 1998
compared to cash used in operating activities of $2.6 million for fiscal 1997.
This increase in cash from operating activities was primarily the result of an
increase of $11.5 million in net income before depreciation and amortization
offset by $1.0 million of changes in working capital. Cash used in investing
activities for fiscal 1998 was $160.0 million compared to $26.8 million for
fiscal 1997. The increased use of cash was principally the acquisitions made in
1998, which were larger than the acquisitions in 1997, and additional purchases
of equipment for AHL's acquired Marketing Support Services businesses. Cash
provided by financing activities for fiscal 1998 was $155.2 million compared to
$43.1 million for fiscal 1997. The increase in cash provided by financing
activities for 1998 was principally the result of additional borrowings under
the Credit Facility in 1998 to fund the acquisitions.
Capital expenditures were $14.5 million, $10.2 million and $4.7
million in fiscal 1999, 1998 and 1997, respectively. Historically, capital
expenditures have been, and future expenditures are anticipated to be,
primarily to support expansion of AHL's operations and management information
systems. AHL's capital expenditures over the next several years, as a
percentage of its revenues, are expected to be generally consistent with those
of the most recent fiscal year.
In connection with certain acquisitions, AHL has agreed to pay
additional consideration based on operating results of the acquired entity. The
payment of any such earnouts could result in an increase in the purchase prices
for such acquisitions and, as a result, additional goodwill.
AHL completed its initial public offering of common stock in March
1997, raising net proceeds of approximately $22.0 million. These proceeds were
used to repay all outstanding amounts under AHL's Credit Facility, to
repurchase an outstanding warrant, and to retire other outstanding
acquisition-related debt. AHL completed a follow-on public offering in October
1997, raising net proceeds of approximately $41.0 million. These proceeds were
used to repay outstanding debt used to fund acquisitions of approximately $16.0
million, with the balance used for general corporate purposes, including
working capital to support AHL's growth and acquisitions. AHL completed another
follow-on public offering in January 1999, raising net proceeds of
approximately $95.6 million. These proceeds were used to repay outstanding
indebtedness.
Effective October 15, 1999, AHL expanded its Credit Facility from
$250.0 million to $375.0 million with a syndicate of banks led by First Union
National Bank and Citibank. At December 31, 1999, there was approximately
$161.4 million of availability remaining under the Credit Facility.
The amended Credit Facility allows AHL to repurchase up to $20.0
million of its common stock. AHL had not repurchased any common stock as of
December 31, 1999. For the period January 1, 2000 through March 17, 2000, AHL
had repurchased 935,600 shares at an average price of $10.79 per share.
-25-
<PAGE> 28
AHL 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, share
repurchases and internal growth for at least the next several years. If AHL
were to make a significant acquisition for cash, it may be necessary for AHL to
obtain additional debt or equity financing.
FORWARD-LOOKING STATEMENTS
Certain statements made in this report, and other written or oral
statements made by or on behalf of AHL, may constitute "forward-looking
statements" within the meaning of the federal securities laws. When used in
this report, the words "believes," "expects," "estimates" and similar
expressions are intended to identify forward-looking statements. Statements
regarding future events and developments and AHL's future performance, as well
as its expectations, beliefs, plans, estimates or projections relating to the
future, are forward-looking statements within the meaning of these laws.
Examples of such statements in this report include descriptions of its plans
with respect to developing the four business lines, its plans to continue to
change its business mix, expectations relating to future acquisitions and its
continuing growth. All forward-looking statements are subject to certain risks
and uncertainties that could cause actual events to differ materially from
those projected. Management believes that these forward-looking statements are
reasonable; however, you should not place undue reliance on such statements.
These statements are based on current expectations and speak only as of the
date of such statements. AHL undertakes no obligation to publicly update or
revise any forward-looking statement, whether as a result of future events, new
information or otherwise.
The following are some of the factors that could cause AHL's actual
results to differ materially from the expected results described in AHL's
forward-looking statements:
- AHL's historical reliance on certain major clients and the
aviation industry, and the consolidation, financial
difficulties, and cyclicality of the airline industry;
- AHL's ability to manage a business that has been growing both
internally and through acquisitions, and management's ability
to identify acceptable acquisition candidates, finance or
complete acquisitions on favorable terms and integrate
acquired businesses;
- the high rates of personnel turnover and periodic shortages
of personnel that affect the contract staffing and
outsourcing industry. AHL may be required to increase the
wages that it pays and the benefits that it provides in order
to attract and retain a sufficient number of qualified
employees;
- the exposure of AHL's international operations to special
risks, including trade barriers; risks of increases in
duties, taxes and governmental royalties; social and
severance costs; exchange controls; changes in laws and
policies governing operations of foreign-based companies;
national and regional labor strikes; political risks and
risks of the new single European currency;
- the impact of competition, including competition for labor
and in other important aspects of AHL's business. AHL's
primary competitors include outsourcing companies,
specialized contract service providers and in-house
organizations that provide services to potential clients and
third parties. AHL's business is extremely competitive and
highly fragmented;
- the unfavorable outcome of any possible pending litigation,
disputes or claims against AHL;
- AHL's exposure to increasing unemployment insurance premiums
and workers' compensation costs; and
- general economic conditions which affect the overall level of
economic activity, outsourcing and the availability of labor.
-26-
<PAGE> 29
INFLATION
AHL 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
AHL's business will not be affected by inflation in the future.
YEAR 2000 ISSUES
AHL previously recognized the material nature of the business issues
surrounding computer processing of dates into and beyond the Year 2000 and
began taking corrective action. AHL's efforts included replacing and testing
three basic aspects of its business operations: internal information technology
("IT") systems, including sales order processing, contract management,
financial systems and service management; internal non-IT systems, including
office and other equipment products; and material third-party relationships.
Management believes AHL has completed all of the activities within its control
to ensure that AHL's systems are Year 2000 compliant and AHL has experienced no
interruptions to normal operations due to the start of the Year 2000.
AHL's Year 2000 readiness capital costs were approximately $3.0
million. AHL funded these costs through its Credit Facility and such costs were
generally not incremental to existing IT budgets; internal resources were
re-deployed and timetables for implementation of replacement systems were
accelerated. AHL does not currently expect to apply any further funds to
address Year 2000 issues.
As of March 17, 2000, AHL has not experienced any material disruptions
of its internal computer systems or software applications, and has not
experienced any problems with the computer systems or software applications of
its third party vendors, suppliers or service providers. AHL will continue to
monitor these third parties to determine the impact, if any, on the business of
AHL and the actions AHL must take, if any, in the event of non-compliance by
any of these third parties. Based upon AHL's assessment of compliance by third
parties, there appears to be no material business risk posed by any such
noncompliance.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Foreign Currency Risk. A substantial amount of AHL'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 being derived from operations in the United Kingdom and
Germany. The denomination of foreign subsidiaries' account balances in their
local currency exposes AHL to certain foreign exchange rate risks. AHL
addresses the exposure by financing most working capital needs in the
applicable foreign currencies. AHL does not engage in hedging transactions to
reduce exposure to fluctuations in foreign currency exchange rates.
Historically, the impact of foreign currency fluctuations on AHL has been
insignificant.
Interest Rate Risk. AHL maintains a Credit Facility, two interest rate
swap agreements and other long-term debt which subjects AHL to the risk of loss
associated with movements in market interest rates. AHL's five-year Credit
Facility had a balance outstanding at December 31, 1999 of $209.3 million,
which was at a variable rate of interest. In order to hedge against increasing
interest rates, effective October 6, 1998, AHL entered into a four-year
interest rate swap agreement in the notional amount of approximately $30.0
million to offset a portion of the floating interest rate risk. On May 14,
1999, this swap agreement was replaced with a three-year interest rate swap
agreement with a notional amount of approximately $45.0 million. On January 31,
2000, AHL entered into an additional interest rate swap agreement in the
notional amount of approximately $15.0 million which terminates on May 1, 2003.
The fair value of the $45.0 million swap agreement at December 31, 1999
approximates $45.6 million. Thus, if AHL were to unwind the swap agreement, AHL
would recognize a cash gain of approximately $600,000 at December 31, 1999. A
change in the prevailing interest rates of 10% would result in a change in the
total fair value of long-term debt of approximately $5.4 million. Fair values
were determined from discounted cash flows.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
-27-
<PAGE> 30
AHL's 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.
-28-
<PAGE> 31
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The sections under the heading "Election of Director" entitled
"Nominee for Election -- Term Expiring 2003," "Incumbent Directors -- Term
Expiring 2001," and "Incumbent Directors -- Term Expiring 2002" of the Proxy
Statement for the Annual Meeting of Shareholders to be held May 9, 2000 (the
"Proxy Statement") are incorporated herein by reference. 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 Director" entitled
"Compensation of Directors" of the Proxy Statement and the sections under the
heading "Executive Compensation" entitled "Summary Compensation Table",
"Option Grants Table", "Fiscal Year-End Option Value", "Noncompetition and
Employment Contracts" 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.
-29-
<PAGE> 32
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES, AND REPORTS ON FORM 8-K
(a) Financial Statements and Schedules
1. The following financial statements and schedule are filed with this
report on the pages indicated:
<TABLE>
<CAPTION>
PAGE
----
AHL SERVICES, INC.:
<S> <C>
Report of Independent Public Accountants................................................................32
Consolidated Balance Sheets at December 31, 1999 and 1998...............................................33
Consolidated Statements of Operations for the years ended December 31, 1999, 1998
and 1997................................................................................................34
Consolidated Statements of Shareholders' Equity for the years ended December 31, 1999,
1998 and 1997...........................................................................................35
Consolidated Statements of Cash Flows for the years ended December 31, 1999, 1998
and 1997................................................................................................36
Notes to Consolidated Financial Statements..............................................................38
Schedule II--Valuation and Qualifying Accounts..........................................................53
</TABLE>
2. Exhibits
See Item 14(c) below.
(b) None.
(c) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C> <C>
3.1 -- Restated and Amended Articles of Incorporation of
AHL (incorporated by reference to the Registration
Statement on Form 8-A dated March 25, 1997)
3.2 -- Bylaws of AHL (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 AHL's Registration Statement on Form S-1
(File No. 333-20315))
4.2 -- 1997 Stock Incentive Plan (incorporated by reference
to AHL's Registration Statement on Form S-1 (File No.
333-20315))
4.3 -- AHL Services, Inc. 1997 Non-Qualified Employee
Stock Purchase Plan USA (incorporated by reference to
AHL's Annual Report on Form 10-K for the year ended
December 31, 1997)
10.1 -- Restated Employment Agreement between AHL and
Edwin R. Mellett dated as of February 1, 1997, as
amended on February 28, 1997 (incorporated by
reference to AHL's Registration Statement on Form S-1
(File No. 333-20315))
</TABLE>
-30-
<PAGE> 33
<TABLE>
<S> <C> <C>
10.2 -- Restated Employment Agreement between AHL and
Thomas J. Marano dated as of February 1, 1997, as
amended on February 28, 1997 (incorporated by
reference to AHL's Registration Statement on Form S-1
(File No.
333-20315))
10.3 -- Restated Employment Agreement between AHL and
David L. Gamsey dated as of February 1, 1997, as
amended on February 28, 1997 (incorporated by
reference to AHL's Registration Statement on Form S-1
(File No. 333-20315))
10.4 -- Letter Agreement between AHL and Ernest Patterson
dated as of May 23, 1997 (incorporated by reference
to AHL's Registration Statement on Form S-1 (File No.
333-37327))
10.5* -- Letter Agreement between AHL and Ronald F. Clarke
dated as of April 1, 1999.
10.6* -- Second Amended and Restated Credit Agreement dated as
of October 15, 1999 by and among AHL Services, Inc.,
Argenbright Security, Inc., Argenbright, Inc., ADI
U.K. Limited, Aviation Defense International Germany
Limited, Argenbright Holdings Limited, The ADI Group
Limited, and ADI Alpha Holding GMBH as borrowers, the
Lenders referred to therein, First Union National
Bank (London Branch), as European Swingline Lender,
First Union National Bank, as Administrative Agent,
First Union Capital Markets Corp. and Salomon Smith
Barney Inc., as Co-Arrangers, Salomon Brothers
Holding Company Inc., as Syndication Agent, and Bank
of America, N.A. and Wachovia Bank N.A., as Managing
Agents.
10.7 -- Registration Rights Agreement, dated July 24,
1998, by and between AHL Services, Inc. and Gage
Marketing Group, LLC (incorporated by reference to
AHL's Current Report on Form 8-K dated July 24,
1998).
11.1* -- Statement of Computation of Earnings Per Share
21.1* -- List of subsidiaries
23.1* -- Consent of Arthur Andersen LLP
27.1* -- 1999 Financial data schedule (for SEC filing purposes
only)
</TABLE>
* Included herewith
-31-
<PAGE> 34
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders of AHL Services, Inc.:
We have audited the accompanying consolidated balance sheets of AHL SERVICES,
INC. (a Georgia corporation) AND SUBSIDIARIES as of December 31, 1999 and 1998
and the related consolidated statements of operations, shareholders' equity, and
cash flows for each of the three years in the period ended December 31, 1999.
These financial statements and the schedule referred to below are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements and the schedule referred to below based
on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. 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, 1999 and 1998 and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1999 in conformity with accounting principles generally accepted in
the United States.
Our audit was made for the purpose of forming an opinion on the basic financial
statements taken as a whole. The schedule listed in the index of financial
statements is presented for purposes of complying with the Securities and
Exchange Commission's rules and is not part of the basic financial statements.
This schedule has been subjected to the auditing procedures applied in the audit
of the basic financial statements and, in our opinion, fairly states in all
material respects the financial data required to be set forth therein in
relation to the basic financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 17, 2000
-32-
<PAGE> 35
AHL SERVICES, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
ASSETS
DECEMBER 31
-------------------------
1999 1998
---------- --------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 9,527 $ 18,239
Accounts receivable, less allowance for doubtful accounts of $4,040 and $1,952 in
1999 and 1998 149,816 103,570
Reimbursable customer expenses 13,280 4,184
Work in process 11,109 4,711
Uniforms in service, net 2,760 2,457
Prepaid expenses and other 8,464 6,086
Income taxes receivable 886 --
Deferred income taxes -- 563
--------- --------
Total current assets 195,842 139,810
PROPERTY AND EQUIPMENT, NET 35,775 26,489
INTANGIBLES, NET 305,791 193,196
OTHER ASSETS 1,137 1,051
--------- --------
$ 538,545 $360,546
========= ========
</TABLE>
<TABLE>
<CAPTION>
LIABILITIES AND SHAREHOLDERS' EQUITY
<S> <C> <C>
CURRENT LIABILITIES:
Accounts payable $ 10,265 $ 16,159
Accrued payroll and other current liabilities 78,867 58,654
Current portion of self-insurance reserves 1,300 980
Current portion of long-term debt 216 388
Deferred income taxes 488 --
Income taxes payable -- 3,046
--------- --------
Total current liabilities 91,136 79,227
--------- --------
LONG-TERM DEBT, LESS CURRENT PORTION 216,148 169,338
--------- --------
SELF-INSURANCE RESERVES, LESS CURRENT PORTION 5,200 3,920
--------- --------
DEFERRED INCOME TAXES 4,933 1,139
--------- --------
OTHER NONCURRENT LIABILITIES 772 1,234
--------- --------
COMMITMENTS AND CONTINGENCIES (NOTES 3, 6, AND 9) -- --
--------- --------
SHAREHOLDERS' EQUITY:
Common stock, $.01 par value; 50,000,000 shares authorized, 17,409,892 and
14,119,922 shares issued and outstanding 175 142
Preferred stock, no par value; 5,000,000 shares authorized, no shares outstanding -- --
Paid-in capital 176,836 80,827
Retained earnings 44,287 24,693
Foreign currency translation adjustment (942) 26
--------- --------
Total shareholders' equity 220,356 105,688
--------- --------
$ 538,545 $360,546
========= ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
-33-
<PAGE> 36
AHL SERVICES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
-----------------------------------------
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
REVENUES $ 814,488 $ 476,357 $ 276,013
COST OF SERVICES 570,195 340,341 204,512
--------- --------- ---------
GROSS MARGIN 244,293 136,016 71,501
OPERATING EXPENSES:
Field operating 158,315 81,396 40,722
Corporate general and administrative 22,982 19,590 14,840
Depreciation and amortization 18,435 9,665 5,234
--------- --------- ---------
OPERATING INCOME 44,561 25,365 10,705
INTEREST EXPENSE 12,557 3,837 1,159
OTHER INCOME, NET (385) (304) (723)
--------- --------- ---------
INCOME BEFORE INCOME TAXES AND EXTRAORDINARY CHARGES 32,389 21,832 10,269
INCOME TAX PROVISION 12,795 8,709 3,850
--------- --------- ---------
INCOME BEFORE EXTRAORDINARY CHARGES 19,594 13,123 6,419
EXTRAORDINARY CHARGES--LOSS ON EARLY EXTINGUISHMENT OF DEBT, NET OF
TAX BENEFIT OF $257 -- -- (385)
--------- --------- ---------
NET INCOME $ 19,594 $ 13,123 $ 6,034
========= ========= =========
EARNINGS PER SHARE:
Basic:
Income before extraordinary charges per common and common
equivalent share $ 1.14 $ 0.95 $ 0.60
Extraordinary charges per common and common equivalent share -- -- (0.04)
--------- --------- ---------
Net income per common and common equivalent share $ 1.14 $ 0.95 $ 0.56
========= ========= =========
Diluted:
Income before extraordinary charges per common and common
equivalent share $ 1.11 $ 0.91 $ 0.59
Extraordinary charges per common and common equivalent share -- -- (0.04)
--------- --------- ---------
Net income per common and common equivalent share $ 1.11 $ 0.91 $ 0.55
========= ========= =========
Weighted average common and common equivalent shares:
Basic 17,173 13,820 10,707
========= ========= =========
Diluted 17,710 14,419 10,960
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
-34-
<PAGE> 37
AHL SERVICES, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
AHL SERVICES, INC. ARGENBRIGHT ADI
COMMON STOCK COMMON STOCK COMMON STOCK
------------------- -------------- -------------------
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT
--------- ------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1996 -- $ -- 500 $ 1 296,868 $ --
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 -- -- -- -- -- --
Foreign currency translation
adjustment, net of tax benefit of $100 -- -- -- -- -- --
Net income -- -- -- -- -- --
---------- ---- ---- --- ------- --
BALANCE, DECEMBER 31, 1997 13,605,000 136 -- -- -- --
Issuance of common stock--Gage
acquisition 461,172 5 -- -- -- --
Exercise of stock options 53,750 1 -- -- -- --
Foreign currency translation
adjustment, net of tax of $73 -- -- -- -- -- --
Net income -- -- -- -- -- --
---------- ---- ---- --- ------- --
BALANCE, DECEMBER 31, 1998 14,119,922 142 -- -- -- --
Issuance of common stock 3,255,570 33 -- -- -- --
Exercise of stock options 34,400 -- -- -- -- --
Foreign currency translation
adjustment, net of tax benefit of $64 -- -- -- -- -- --
Net income -- -- -- -- -- --
---------- ---- ---- --- ------- --
BALANCE, DECEMBER 31, 1999 17,409,892 $175 -- $-- -- $ --
========== ==== ==== === ======= =====
<CAPTION>
ACCUMULATED OTHER
COMPREHENSIVE INCOME
-------------------------------
FOREIGN CURRENCY
PAID-IN DUE FROM RETAINED TRANSLATION COMPREHENSIVE
CAPITAL SHAREHOLDER EARNINGS ADJUSTMENT INCOME
------- ----------- -------- ----------- -------------
<S> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1996 $ -- $ (618) $ 5,952 $ 74
Reorganization (Note 1) -- -- (372) --
Issuance of common stock, net 62,908 -- -- --
Accretion of redeemable warrant -- -- (44) --
Decrease in due from shareholder -- 618 -- --
Foreign currency translation
adjustment, net of tax benefit of $100 -- -- -- (157) $ (157)
Net income -- -- 6,034 -- 6,034
--------- ------ ------- -------- --------
BALANCE, DECEMBER 31, 1997 62,908 -- 11,570 (83) $ 5,877
========
Issuance of common stock--Gage
acquisition 16,995 -- -- --
Exercise of stock options 924 -- -- --
Foreign currency translation
adjustment, net of tax of $73 -- -- -- 109 $ 109
Net income -- -- 13,123 -- 13,123
--------- ------ ------- -------- --------
BALANCE, DECEMBER 31, 1998 80,827 -- 24,693 26 $ 13,232
========
Issuance of common stock 95,534 -- -- --
Exercise of stock options 475 -- -- --
Foreign currency translation
adjustment, net of tax benefit of $645 -- -- -- (968) $ (968)
Net income -- -- 19,594 -- 19,594
--------- ------ ------- -------- --------
BALANCE, DECEMBER 31, 1999 $ 176,836 $ -- $44,287 $ (942) $ 18,626
========= ====== ======= ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
-35-
<PAGE> 38
Page 1 of 2
AHL SERVICES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
------------------------------------
1999 1998 1997
---------- --------- ---------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 19,594 $ 13,123 $ 6,034
Adjustments to reconcile net income to net cash provided by (used in)
operating activities:
Extraordinary charges - - 385
Depreciation and amortization 18,435 9,665 5,234
Gain on sales of property and equipment (418) (297) (119)
Amortization of debt discount - - 93
Changes in assets and liabilities, net of assets of acquired
businesses:
Accounts receivable, net (29,372) (30,360) (16,859)
Reimbursable customer expenses (8,550) (684) -
Work in process (6,398) 560 -
Uniforms in service, net (3,647) (3,213) (2,582)
Prepaid expenses and other (3,169) (1,407) (1,422)
Accounts payable (11,760) 6,252 (1,334)
Accrued payroll and other current liabilities 4,305 9,465 6,856
Self-insurance reserves 1,600 1,100 600
Income taxes receivable/payable (3,829) 2,207 413
Deferred income taxes 5,195 1,224 (157)
Other, net - (288) 242
---------- --------- ---------
Net cash provided by (used in) operating activities (18,014) 7,347 (2,616)
---------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment, net of assets of acquired
businesses (14,512) (10,185) (4,653)
Proceeds from sales of property and equipment 1,558 1,654 440
Purchase of businesses (121,322) (149,055) (22,420)
Other (2,292) (2,402) (172)
---------- --------- ---------
Net cash used in investing activities (136,568) (159,988) (26,805)
---------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayments of Credit Facility (149,480) (95,248) (114,102)
Borrowings under Credit Facility 210,933 249,897 101,925
Repayment of long-term debt - - (8,346)
Repayment of subordinated convertible debenture (10,000) - -
Proceeds from issuance of common stock 96,171 - 64,854
Expenses from issuance of common stock (604) - (1,467)
Proceeds from exercise of stock options 475 538 -
Repurchase of outstanding warrant - - (750)
Decrease in due from shareholder - - 618
Repayment of note from shareholder - - 346
---------- --------- ---------
Net cash provided by financing activities 147,495 155,187 43,078
---------- --------- ---------
EFFECT OF EXCHANGE RATES ON CASH (1,625) 237 (43)
---------- --------- ---------
NET CHANGE IN CASH AND CASH EQUIVALENTS (8,712) 2,783 13,614
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 18,239 15,456 1,842
---------- --------- ---------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 9,527 $ 18,239 $ 15,456
========== ========= =========
</TABLE>
-36-
<PAGE> 39
<TABLE>
<CAPTION>
Page 2 of 2
YEAR ENDED DECEMBER 31
----------------------------------
1999 1998 1997
------- ------- ------
<S> <C> <C> <C>
CASH PAID DURING THE YEAR FOR:
Interest $13,124 $ 3,030 $1,159
======= ======= ======
Income taxes $16,727 $ 6,704 $3,710
======= ======= ======
NONCASH INVESTING AND FINANCING ACTIVITIES:
Notes issued for the Draefern acquisition $ 6,000 $ -- $ --
======= ======= ======
Assignment of capital lease obligations from sale of United Kingdom
transportation business $ 4,001 $ -- $ --
======= ======= ======
Subordinated convertible debenture issued for the Gage acquisition $ -- $10,000 $ --
======= ======= ======
Common stock issued for the Gage acquisition $ -- $17,000 $ --
======= ======= ======
Equipment purchases under capital lease obligations $ -- $ -- $ 472
======= ======= ======
Contribution of real estate (Note 1) $ -- $ -- $1,637
======= ======= ======
Forgiveness of note payable to shareholder (Note 1) $ -- $ -- $ 528
======= ======= ======
Assumption of real estate debt (Note 1) $ -- $ -- $2,532
======= ======= ======
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
-37-
<PAGE> 40
AHL SERVICES, INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999 AND 1998
1. DESCRIPTION OF THE BUSINESS
ORGANIZATION AND BUSINESS
AHL Services, Inc. ("AHL" or the "Company") provides aviation services,
facility services, operational support services, and marketing support
services, primarily throughout the United States, the United Kingdom,
and Germany.
BASIS OF PRESENTATION
On February 1, 1997, Frank A. Argenbright, Jr. contributed all of the
outstanding shares of common stock of Argenbright Holdings Limited
("Argenbright") and The ADI Group Limited and its predecessor entities
("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. As of the date of 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.
PUBLIC OFFERINGS
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 per share. The total proceeds of the initial
public offering, net of underwriting discounts and offering expenses,
were approximately $22.0 million. Subsequent to the public offering of
common stock, the Company repaid outstanding debt of approximately
$19.0 million and repurchased an 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 were
reported as extraordinary charges.
In October 1997, the Company completed a follow-on public offering of
2,751,570 shares of its common stock at an offering price of $16 per
share. The total proceeds, net of underwriting discounts and offering
expenses, were approximately $41.0 million. The proceeds were used to
repay outstanding debt of approximately $16.0 million, with the balance
used for general corporate purposes, including working capital to
support the Company's growth and acquisitions.
In January 1999, the Company completed a follow-on public offering of
3,255,570 shares of its common stock at an offering price of $31 per
share. The total proceeds, net of underwriting discounts and offering
expenses, were approximately $95.6 million. The proceeds were used to
repay the $10.0 million subordinated convertible debenture and the
remaining $85.6 million was used to reduce the outstanding balance
under the Credit Facility.
-38-
<PAGE> 41
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 fiscal year-end is December 31. 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.
Argenbright's fiscal years ended on December 31, 1999, December 25,
1998, and December 31, 1997, respectively. Fiscal year 1999 includes 53
weeks. Fiscal years 1998 and 1997 include 52 weeks. Management believes
that the impact of the use of different year-ends is immaterial to the
Company's consolidated financial statements taken as a whole.
USE OF ESTIMATES
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.
RECLASSIFICATIONS
Certain prior period amounts have been reclassified to conform with
current year presentation.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents include highly liquid investments with
original purchase maturities of three months or less.
REIMBURSABLE CUSTOMER EXPENSES
Reimbursable customer expenses consist of amounts billed to customers
for freight and postage related to fulfillment services and travel
expenses related to in-store services provided to marketing support
services customers.
REVENUE RECOGNITION
For aviation services, facility services, and operational support
services customers, the Company recognizes revenues as services are
performed. For certain marketing support services customers, the
Company recognizes revenues as programs are completed, services are
rendered, and/or as products are shipped.
WORK IN PROCESS
Work in process consists of labor and material costs for promotional
programs and in-store merchandising support services provided to
marketing support services customers that have not been completed.
-39-
<PAGE> 42
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
two to ten years for furniture and equipment and transportation
equipment. 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
---------------------
1999 1998
-------- --------
(In Thousands)
<S> <C> <C>
Leasehold improvements $ 6,197 $ 4,733
Furniture and equipment 42,364 26,391
Transportation equipment 6,195 9,190
-------- --------
54,756 40,314
Less accumulated depreciation (18,981) (13,825)
-------- --------
$ 35,775 $ 26,489
======== ========
</TABLE>
Depreciation expense was $7.9 million, $4.1 million, and $2.2 million
for the years ended December 31, 1999, 1998, and 1997, respectively.
INTANGIBLES
Intangibles were comprised of the following:
<TABLE>
<CAPTION>
DECEMBER 31
---------------------
1999 1998
-------- --------
(In Thousands)
<S> <C> <C>
Goodwill $296,521 $192,428
Other intangibles 18,548 4,277
-------- --------
315,069 196,705
Less accumulated amortization (9,278) (3,509)
-------- --------
$305,791 $193,196
======== ========
</TABLE>
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 $7.2 million, $2.7 million, and
$522,000 for the years ended December 31, 1999, 1998, and 1997,
respectively.
Subsequent to acquisition, the Company continually evaluates whether
later events and circumstances have occurred that indicate the
remaining estimated useful life of goodwill might warrant revision or
that the remaining balance of goodwill may not be recoverable. When
factors indicate that goodwill should be evaluated for possible
impairment, the Company uses an estimate of the related business
segment's undiscounted net income or other methods of determining fair
value, if more readily determinable, over the remaining life of the
goodwill in measuring whether the goodwill is recoverable.
-40-
<PAGE> 43
LONG-LIVED ASSETS
The Company reviews its long-lived assets including goodwill and
identifiable intangibles for impairment whenever events or changes in
circumstances indicate that the carrying amounts of such assets may not
be recoverable. Based on the review, which entails assessing future
cash flows on an undiscounted basis, the Company believes that the
carrying amounts of long-lived assets are recoverable.
EARNINGS PER SHARE
Basic earnings per share is based on the weighted average number of
shares outstanding during the period. Diluted earnings per share is
based on the weighted average number of shares outstanding and the
dilutive effect of common stock equivalent shares issuable upon the
conversion of stock options (using the treasury stock method).
The following table reconciles the denominator of the basic and diluted
earnings per share computations (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
--------------------------------
1999 1998 1997
------ ------ ------
<S> <C> <C> <C>
Weighted average common shares 17,173 13,820 10,707
Incremental shares from assumed conversion of stock
options granted 537 599 253
------ ------ ------
Weighted average common shares outstanding and
dilutive potential common shares 17,710 14,419 10,960
====== ====== ======
</TABLE>
FOREIGN CURRENCY TRANSLATION AND EXPOSURE
In the accompanying consolidated balance sheets, all asset and
liability accounts of foreign subsidiaries are translated into United
States dollars at the rate of exchange in effect at the balance sheet
date. Shareholders' equity is translated 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 accumulated other comprehensive income. 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.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's carrying value of long-term debt approximated fair value
since most of the debt matures within 30-90 days of incurrence and is
renewed at current interest rates. The carrying value of all other
financial instruments approximated fair value due to their short-term
nature.
-41-
<PAGE> 44
NEW ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued SFAS No.
133, "Accounting for Derivative Instruments and Hedging Activities."
The Company is required to adopt SFAS No. 133 (as amended by SFAS No.
137) in fiscal year 2001. The Company does not believe that the new
standard will have a material impact on the Company's financial
position or results of operations.
3. ACQUISITIONS
The table below provides certain information with respect to the
acquisitions that the Company has completed during the years ended
December 31, 1999, 1998, and 1997:
<TABLE>
<CAPTION>
ACQUISITION
DATE COMPANY PRICE HEADQUARTERS SERVICES PROVIDED
- ---------------- ---------------------- ------------- --------------------- -------------------------------
(In Millions)
<S> <C> <C> <C> <C>
1999:
December 1999 ServiceAdvantage $7.0 Taylorville, IL Marketing support services
October 1999 BMP 2.7 Hanover, Germany Operational support services
September 1999 Jobspot 3.9 Southeast England Operational support services
September 1999 CDI 5.2 Minneapolis, MN Marketing support services
July 1999 Draefern 18.0 Midlands England Operational support services
June 1999 Excel 3.0 Southeast England Operational support services
April 1999 PIMMS 65.0 Minneapolis, MN Marketing support services
April 1999 MM 1.8 Munich, Germany Operational support services
December 1998(1) UNICCO 12.0 Boston, MA Facility services
1998:
December 1998 Verfurth 12.5 Munster, Germany Operational support services
August 1998 Right Associates 6.0 Portsmouth, England Operational support services
August 1998 EMD 42.0 Frankfurt, Germany Operational support services
July 1998 Gage Marketing 81.1(2) Minneapolis, MN Marketing support services
April 1998 TUJA 6.0 Munich, Germany Operational support services
February 1998 SES Staffing Solutions 12.6 Baltimore, MD Operational support services
1997:
December 1997 Midwest Staffing 5.0 Chicago, IL Operational support services
October 1997 RightSide Up 16.5(3) Los Angeles, CA Marketing support services
September 1997 Lloyd Creative Staffing 5.0 Chicago, IL Operational support services
May 1997 USA Security Services 2.6 Hackensack, NJ Facility services
May 1997 Executive Aircraft Services 2.8 London, England Aviation services
</TABLE>
(1) The Unicco acquisition was completed on December 28, 1998,
subsequent to the year-end of AHL's United States operations.
As such, the acquisition has been excluded from all fiscal
1998 financial statement information.
(2) Purchase price includes $17.0 million in common stock issued
and a $10.0 million subordinated convertible debenture issued
to the seller.
(3) Purchase price includes a $10.5 million contingent
consideration payment in 1998.
The aforementioned acquisitions 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 estimated fair values. The purchase price for the 1999
acquisitions has been allocated on a preliminary basis, and management
does not believe that the final purchase price allocation will differ
materially from the original allocation. Certain purchase agreements
may require additional payments based upon future operating results.
Any contingent consideration amounts, when earned, will be applied to
goodwill of the respective acquisition and amortized over the remaining
life of the goodwill.
-42-
<PAGE> 45
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>
YEAR ENDED
DECEMBER 31
-----------------------
1999 1998
-------- ---------
(In Thousands,
Except Per Share Data)
<S> <C> <C>
Pro forma revenue $881,716 $706,378
-------- --------
Pro forma net income $ 20,996 $ 16,002
-------- --------
Pro forma earnings per share, diluted $ 1.19 $ 1.09
-------- --------
Pro forma diluted weighted average shares 17,710 14,678
-------- --------
</TABLE>
Pro forma adjustments were recorded to include (i) increased interest
expense to reflect interest on long-term debt borrowed to effect the
acquisitions; (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. Pro forma diluted weighted average
shares reflect the incremental shares issued as part of the acquisition
of Gage Marketing Support Services ("Gage").
4. DIVESTITURES
On June 30, 1999, the Company sold its United Kingdom bus
transportation business to National Express Group, PLC. The shuttle bus
business generated approximately $6.0 million in 1998 revenues. As a
result of this divestiture, AHL recorded a gain of approximately
$400,000 and assigned approximately $4.0 million in lease obligations
to the purchaser.
-43-
<PAGE> 46
5. INCOME TAXES
The income tax provision (benefit) consists of the following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
---------------------------------------
1999 1998 1997
-------- -------- --------
(In Thousands)
<S> <C> <C> <C>
Current:
Federal $ 2,540 $ 3,376 $ 2,033
State 989 1,082 592
Foreign 4,071 3,027 1,382
-------- -------- --------
7,600 7,485 4,007
-------- -------- --------
Deferred:
United States 3,874 850 (149)
Foreign 1,321 374 (8)
-------- -------- --------
5,195 1,224 (157)
-------- -------- --------
Total $ 12,795 $ 8,709 $ 3,850
======== ======== ========
</TABLE>
The reconciliation of the federal statutory rate to the Company's effective
tax provision is as follows:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31
--------------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Statutory federal tax rate 35.0% 34.2% 34.0%
State income taxes, net of federal benefit 2.0 3.3 3.8
Effect of foreign taxes greater (less) than U.S. statutory
federal rate 2.1 0.2 (1.6)
Permanent items 0.4 2.2 1.3
---- ---- ----
Total 39.5% 39.9% 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:
-44-
<PAGE> 47
<TABLE>
<CAPTION>
DECEMBER 31
---------------------------
1999 1998
-------- --------
(In Thousands)
<S> <C> <C>
Deferred tax assets:
Allowance for doubtful accounts $ 310 $ 256
Self-insurance reserves 2,535 2,058
Accruals 448 491
Other 132 394
-------- --------
3,425 3,199
-------- --------
Deferred tax liabilities:
Tax depreciation in excess of book (3,423) (1,409)
Tax amortization in excess of book (4,177) (1,788)
Prepaid expenses currently deductible (830) (530)
Other (416) (48)
-------- --------
(8,846) (3,775)
-------- --------
Net deferred tax liability $ (5,421) $ (576)
======== ========
</TABLE>
The Company has not recognized deferred tax liabilities for cumulative
earnings from its foreign subsidiaries as it is the Company's policy to
permanently reinvest such earnings, rather than repatriate them to the
United States.
6. LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31
----------------------------
1999 1998
--------- ---------
(In Thousands)
<S> <C> <C>
Credit Facility, interest at prime (8.25% at December 31,
1999) with a LIBOR option at LIBOR plus 1.625% (7.75% at
December 31, 1999) $ 209,298 $ 154,242
Seller note issued for Draefern acquisition, interest at
LIBOR plus 1.375% (7.5% at December 31, 1999) payable in
quarterly installments, principal due in full in July 2007 6,000 --
Subordinated convertible debenture issued for the Gage
acquisition, interest at 4.5%, interest payable in
quarterly installments, repaid in full in January 1999 -- 10,000
</TABLE>
-45-
<PAGE> 48
<TABLE>
<CAPTION>
DECEMBER 31
----------------------------
1999 1998
--------- ---------
(In Thousands)
<S> <C> <C>
Transportation and other equipment notes payable 1,066 5,484
--------- ---------
216,364 169,726
Less current portion 216 388
--------- ---------
$216,148 $169,338
======== ========
</TABLE>
Future aggregate annual maturities of long-term debt are as follows as of
December 31, 1999 (in thousands):
<TABLE>
<S> <C>
2000 $ 216
2001 324
2002 365
2003 209,459
2004 --
Thereafter 6,000
---------
$ 216,364
=========
</TABLE>
In October 1999, the Company amended its five-year credit facility (the
"Credit Facility") to provide for an increase in aggregate commitments from
its lenders from $250.0 million to $375.0 million. Of the $375 million in
aggregate commitments, the United States dollar equivalent of $187.5 million
is available in certain foreign currencies. The interest rate under the
Credit Facility is based, at the Company's option, upon LIBOR plus an
applicable margin or the domestic base rate (in the case of United States
dollar borrowings) or the foreign base rate (in the case of borrowings
denominated in pounds sterling). The domestic base rate is the greater of
the rate publicly announced by First Union National Bank as its prime rate
or the federal funds rate plus 50 basis points. The foreign base rate is the
domestic prime rate. The applicable margin for LIBOR borrowings is based on
a matrix ranging from 87.5 basis points to 175 basis points, based on the
ratio of the Company's most recently reported total indebtedness to pro
forma adjusted EBITDA.
In order to hedge against increasing interest rates, effective October 6,
1998, the Company entered into a four-year interest rate swap agreement with
a notional amount of approximately $30.0 million to offset a portion of the
floating interest rate risk. On May 14, 1999, this swap agreement was
replaced with a three-year interest rate swap agreement with a notional
amount of approximately $45.0 million. On January 31, 2000, the Company
entered into an additional interest rate swap agreement in the notional
amount of approximately $15.0 million which terminates on May 1, 2003. The
fair value of the $45.0 million swap agreement at December 31, 1999
approximates $45.6 million. Thus, if the Company were to unwind the swap
agreement, the Company would recognize a cash gain of $600,000 at December
31, 1999.
The Credit Facility is secured by substantially all the assets of the
Company and its domestic subsidiaries, and borrowings under the Credit
Facility made by foreign subsidiaries of the Company are secured by the
assets of the foreign subsidiaries. The Credit Facility is subject to
certain restrictive covenants. At December 31, 1999, $209.3 million was
outstanding, ($59.3 million in foreign currencies, primarily Euros), $4.3
million was utilized under standby letters of credit, and $161.4 million
was available under the Credit Facility. Any unpaid balance on the Credit
Facility is due upon the expiration of the amended agreement in November
2003. The carrying value of the Credit Facility approximates its fair
value.
-46-
<PAGE> 49
7. RELATED-PARTY TRANSACTIONS
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 1999, 1998, and
1997 financial statements. The Company sold its 20% interest in ASAP on
September 24, 1999. The Company made payments of $2.3 million, $2.1
million, and $1.8 million to ASAP for the period January 1, 1999 through
September 24, 1999 and the years ended December 31, 1998 and 1997,
respectively, for uniforms. The Company made payments of $925,000, $1.3
million, and $1.2 million to PSM for services performed for the years ended
December 31, 1999, 1998, and 1997, respectively.
In the normal course of business, the Company records revenues from a
customer, which is controlled by a member of the board of directors of the
Company. Approximately $306,000 was due from this customer as of December
31, 1999, and revenues recognized from this customer for the year ended
December 31, 1999 and the period July 24, 1998 (date of Gage acquisition)
through December 31, 1998 totaled $1.3 million and $1.1 million,
respectively.
8. 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
ratably over five years. Effective February 28, 1997, the Company amended
its employment agreements with three officers (Note 9). The amendment
provided for 16,250 additional options to purchase shares of common stock
at $10.75 per share, exercisable ratably over periods up to five years. The
amendment also reduced 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 per share.
STOCK OPTION PLAN
The Company's stock option plan (the "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, the Company reserved 385,000
shares of common stock for issuance under the Plan. The Company expanded
the Plan in May 1998 by approving the reservation of 3,115,000 additional
shares. As of December 31, 1999, 2,830,550 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 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.
-47-
<PAGE> 50
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, 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
Granted 1,659,000 27.65
Exercised (53,750) 10.00
Forfeited (46,500) 12.74
Canceled (809,500) 33.25
--------- --------
Balance at December 31, 1998 2,283,250 16.17
Granted 1,330,500 25.70
Exercised (34,400) 10.73
Forfeited (78,500) 20.63
--------- --------
Balance at December 31, 1999 3,500,850 $ 19.75
========= ========
Exercisable at December 31, 1999 1,138,850 $ 13.48
========= ========
Reserved for issuance under the Plan 626,000
=========
</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-Based Compensation," the Company's net income
and earnings per share would have been reduced to the following pro forma
amounts during 1999, 1998, and 1997 (in thousands, except per share data):
<TABLE>
<CAPTION>
1999 1998 1997
---------- ---------- ---------
<S> <C> <C> <C>
Net income As reported $ 19,594 $ 13,123 $ 6,034
Pro forma 12,152 9,322 4,867
Earnings per share:
Basic As reported $ 1.14 $ 0.95 $ 0.56
Pro forma 0.71 0.67 0.45
Diluted As reported 1.11 0.91 0.55
Pro forma 0.69 0.65 0.44
</TABLE>
The weighted average fair value of options granted was $13.74, $10.34, and
$3.80 for fiscal years 1999, 1998, 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 1999, 1998, and 1997:
-48-
<PAGE> 51
<TABLE>
<CAPTION>
1999 1998 1997
------ ------ ------
<S> <C> <C> <C>
Risk-free interest rate 5.53% 5.11% 6.37%
Dividend yield 0.00% 0.00% 0.00%
Volatility factor 65.00% 64.00% 41.00%
Average expected life (years) 4.0 4.0 3.2
Forfeiture rate 3.00% 3.00% 0.45%
</TABLE>
EMPLOYEE STOCK PURCHASE PLAN
The Company 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 has historically
purchased such shares of common stock on the open market.
9. COMMITMENTS AND CONTINGENCIES
LEASES
The Company leases office space, transportation equipment, and office
equipment from unrelated parties under lease agreements expiring through
December 2004. Rental expense under these operating leases was $19.5
million, $9.3 million, and $6.5 million, in 1999, 1998, and 1997,
respectively.
Future minimum lease payments for noncancelable leases were as follows at
December 31, 1999 (in thousands):
<TABLE>
<S> <C>
2000 $ 16,439
2001 13,065
2002 8,794
2003 6,287
2004 3,908
</TABLE>
INSURANCE
The Company participates in partially self-insured, high-deductible
workers' compensation and auto insurance plans. 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 self-insurance reserves as of
December 31, 1999 and 1998 totaling $6.5 million and $4.9 million,
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 consolidated
balance sheets will not have a material impact on the consolidated
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.
-49-
<PAGE> 52
EMPLOYMENT AGREEMENTS
The Company has entered into employment agreements with five executive
officers which expire at various times through December 31, 2002. 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.
BENEFIT PLANS
The Company has various 401(k) plans covering salaried employees, excluding
highly compensated employees. These plans require the employee to complete
various service periods to become eligible. The plans require the Company
to match a certain percentage of the amounts contributed by the employees.
The Company expensed $479,000, $194,000, and $6,000 for the employer match
for the years ended December 31, 1999, 1998 and 1997, respectively.
LITIGATION, DISPUTES, AND CLAIMS
As initially reported in the Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999, AHL learned that the U.S. Attorney's Office for the
Eastern District of Pennsylvania is investigating prior recruiting and
training practices and other matters at the Philadelphia location of
Argenbright Security, Inc. ("Argenbright Security"), a subsidiary of the
Company, and that Argenbright Security is a target of this investigation.
The Company believes that certain employees, who have since been
terminated, may have violated FAA regulations, as well as Company policies
and procedures in these matters. The FAA has reviewed other major airport
locations of Argenbright Security and has not identified any similar
situations. The Company has been informed that the matters being
investigated are limited to the operations of the Philadelphia office, and
the Company does not believe that the matters under review represent a
systemic problem. Since learning of the issues, the Company has taken the
necessary actions to ensure compliance with all FAA regulations and Company
policies and procedures in Philadelphia. Additionally, management has
reviewed this investigation with the major clients of its Philadelphia
operations and the Company does not believe that this investigation has had
any adverse affect on its relationship with these clients.
The Company is cooperating with the U.S. Attorney's Office in this
investigation and believes this investigation will be concluded in the first
half of 2000.
The Company is involved in various routine litigation, disputes, and claims
arising in the ordinary course of business, primarily related to employee
and customer contract issues. While unfavorable outcomes are possible,
management is of the opinion that the resolution of these matters will not
have a material effect on the results of operations or financial condition
of the Company.
10. BUSINESS SEGMENT INFORMATION
The Company's business is organized into four distinct operating segments
all of which have separate management structures which then report to the
Company's senior level executives. A brief summary of each of these
segments is as follows:
- Aviation services include pre-departure screening, passenger
profiling, baggage claim and check, sky cap and wheelchair
assistance, cargo handling, and into-plane fueling services.
-50-
<PAGE> 53
- Facility services include access control, commercial security,
and fixed route dedicated shuttle bus services provided to
businesses, educational institutions, and governmental
authorities.
- Operational support services include labor for assembly,
warehousing, shipping, electrical, and mechanical services.
- Marketing support services include consumer and trade
fulfillment, trade support services, e-commerce fulfillment,
in-store merchandising, and customer support services.
The Company's corporate office provides functions such as treasury, risk
management, accounting, and finance, which are not included in the
operating segments' measure of operating income. There are also certain
assets such as integrated computer systems which are not reflected as
separate assets of operating segments.
The following table presents information regarding the Company's operating
segments (in thousands):
<TABLE>
<CAPTION>
DEPRECIATION CAPITAL
AND EXPENDITURES
OPERATING IDENTIFIABLE AMORTIZATION INCLUDING
REVENUES INCOME ASSETS EXPENSE ACQUISITIONS
---------- ---------- ---------- ---------- -----------
1999:
<S> <C> <C> <C> <C> <C>
Aviation services $ 216,105 $ 16,380 $ 50,537 $ 3,142 $ 1,925
Facility services 225,936 17,106 71,849 2,857 11,031
Operational support services 216,000 17,620 139,808 3,583 43,316
Marketing support services 156,447 16,437 228,723 7,027 81,614
Corporate and other -- (22,982) 47,628 1,826 3,948
---------- ---------- ---------- ---------- ----------
$ 814,488 $ 44,561 $ 538,545 $ 18,435 $ 141,834
========== ========== ========== ========== ==========
1998:
Aviation services $ 185,945 $ 15,709 $ 35,031 $ 2,568 $ 4,239
Facility services 138,163 12,513 46,652 3,554 7,402
Operational support services 93,983 8,362 122,914 1,885 81,448
Marketing support services 58,266 8,371 124,828 1,043 90,738
Corporate and other -- (19,590) 31,121 615 2,413
---------- ---------- ---------- ---------- ----------
$ 476,357 $ 25,365 $ 360,546 $ 9,665 $ 186,240
========== ========== ========== ========== ==========
1997:
Aviation services $ 160,195 $ 14,857 $ 26,179 $ 2,343 $ 2,277
Facility services 108,294 10,084 36,997 2,308 5,777
Operational support services 6,369 453 15,480 74 11,250
Marketing support services 1,155 151 8,896 60 6,205
Corporate and other -- (14,840) 22,242 449 2,036
---------- ---------- ---------- ---------- ----------
$ 276,013 $ 10,705 $ 109,794 $ 5,234 $ 27,545
========== ========== ========== ========== ==========
</TABLE>
-51-
<PAGE> 54
The following table presents information regarding the Company's different
geographical regions (in thousands):
<TABLE>
<CAPTION>
IDENTIFIABLE
REVENUES ASSETS
---------- ----------
<S> <C> <C>
1999:
United States $ 546,092 $ 381,174
United Kingdom 136,393 59,031
Germany 127,043 97,501
Other European 4,960 839
---------- ----------
$ 814,488 $ 538,545
========== ==========
1998:
United States $ 323,770 $ 223,039
United Kingdom 83,311 40,867
Germany 62,903 95,984
Other European 6,373 656
---------- ----------
$ 476,357 $ 360,546
========== ==========
1997:
United States $ 193,437 $ 83,287
United Kingdom 61,367 21,409
Germany 14,700 3,486
Other European 6,509 1,612
---------- ----------
$ 276,013 $ 109,794
========== ==========
</TABLE>
Revenues are attributed to specific geographic regions based on the
location of the wholly owned subsidiary which generates the revenues.
During the year ended December 31, 1999, due to the increase in the
Company's revenues as a result of acquisitions and internal growth, there
were no individual customers which accounted for more than 10% of the
Company's revenues. During the years ended December 31, 1998 and 1997, two
and three customers, respectively, individually accounted for more than 10%
of the Company's revenues. The revenues from each of these customers are
included in the aviation services segment.
-52-
<PAGE> 55
AHL Services, Inc.
Schedule II - Valuation and Qualifying Accounts
(in thousands)
<TABLE>
<CAPTION>
Allowance for
Doubtful
Balance at Charged to Accounts Accounts Balance at
Beginning Costs and Assumed in Written End of
Classification of Period Expenses Acquisitions Off Period
- -------------- --------- ---------- ------------ -------- ----------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1997:
Allowance for doubtful accounts $ 341 $ 388 $ -- $ (197) $ 532
---------------------------------------------------------------------------------
Year ended December 31, 1998:
Allowance for doubtful accounts $ 532 $ 852 $ 1,232 $ (664) $ 1,952
---------------------------------------------------------------------------------
Year ended December 31, 1999:
Allowance for doubtful accounts $ 1,952 $ 1,462 $ 2,177 $ (1,551) $ 4,040
---------------------------------------------------------------------------------
</TABLE>
-53-
<PAGE> 56
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
27th day of March, 2000.
AHL SERVICES, INC.
(Registrant)
By: /s/ Edwin R. Mellett
------------------------------------------
Edwin R. Mellett
Vice Chairman and Co-Chief Executive Officer
Principal 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 27, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/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
- -----------------------------
David L. Gamsey Officer)
/s/ Edwin C. Gage Director
- -----------------------------
Edwin C. "Skip" Gage
/s/ Robert F. McCullough Director
- -----------------------------
Robert F. McCullough
/s/ Hamish Leslie Melville Director
- -----------------------------
Hamish Leslie Melville
</TABLE>
-54-
<PAGE> 1
EXHIBIT 10.5
[AHL SERVICES, INC. LETTERHEAD]
April 1, 1999
Mr. Ronald F. Clarke
St. Ives Country Club
231 Southern Hills Drive
Duluth, GA 30097
Dear Ron:
On behalf of AHL Services, Inc., I am pleased to confirm our offer to you to
join us as President and COO, U.S. Outsourcing Services. This position will
report to the Co-Chief Executives. We are all convinced that our association
with you will yield substantial mutually beneficial results.
The specific aspects of our offer are:
1. Salary. Base salary will be $325,000 per annum. This salary level will
be performance reviewed at the end of 1999.
2. Bonus. Annual incentive target opportunity will be 50% of base salary.
Awards will be made based on company financial performance, as well as
your personal performance. For 1999, we will guarantee you a bonus of
$100,000 (payable in early 2000).
3. Stock Option Grants. Upon your employment, we will propose to the
Board an initial option grant of 250,000 shares, priced at the closing
level of the grant date. Under our program, vesting takes place over
four years (25% per annum) and the term of the grant is ten years.
Based upon continued employment, we will propose additional grants as
follows:
<TABLE>
<CAPTION>
Additional Share Option Grants
------------------------------
<S> <C>
May 2000 100,000
May 2001 100,000
May 2002 100,000
</TABLE>
As I mentioned to you, our Stock Option Program does have a "change of
control" provision.
<PAGE> 2
4. Severance. Should you be terminated without cause, you will be
provided a severance allowance equal to twelve months salary.
5. Car Allowance. A car allowance of $600 per month will be provided.
6. Other Benefits. You will be eligible for other benefits currently
provided to our senior managers in the United States.
7. "Non-compete" Agreement". As a condition of employment, we will
require you to execute our standard Confidentiality, Non-Competition
Agreement.
8. Call Center Opportunity. As discussed, we will authorize you to pursue
the Call Center Opportunity that you outlined, provided we jointly
agree that the base business is under control and growing; also, the
business case must fit without the AHL strategy.
We are very excited about you joining our team.
Sincerely,
/s/ Edwin R. Mellett
Edwin R. Mellett
Vice Chairman & Co-CEO
ACCEPTED AND AGREED TO THIS ____ DAY OF MARCH, 1999.
/s/ Ronald F. Clarke
Ronald F. Clarke
<PAGE> 1
EXHIBIT 10.6
- -------------------------------------------------------------------------------
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF OCTOBER 15, 1999
BY AND AMONG
AHL SERVICES, INC.
AND
CERTAIN OF ITS SUBSIDIARIES
AS BORROWERS,
THE LENDERS REFERRED TO HEREIN,
FIRST UNION NATIONAL BANK (LONDON BRANCH)
AS EUROPEAN SWINGLINE LENDER,
FIRST UNION NATIONAL BANK
AS ADMINISTRATIVE AGENT,
FIRST UNION CAPITAL MARKETS CORP. AND SALOMON SMITH BARNEY INC.,
AS CO-ARRANGERS,
SALOMON BROTHERS HOLDING COMPANY INC., AS SYNDICATION AGENT
AND
BANK OF AMERICA, N.A. AND WACHOVIA BANK N.A., AS MANAGING AGENTS
$375,000,000 CREDIT FACILITY
- -------------------------------------------------------------------------------
<PAGE> 2
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
DEFINITIONS.............................................................................................. 2
SECTION 1.1 Definitions................................................................................ 2
SECTION 1.2 General.................................................................................... 23
SECTION 1.3 Accounting Matters......................................................................... 23
SECTION 1.4 Other Definitions and Provisions........................................................... 23
ARTICLE II
CREDIT FACILITY.......................................................................................... 24
SECTION 2.1 Revolving Loans............................................................................ 24
SECTION 2.2 Procedure for Advances of Revolving Loans.................................................. 24
SECTION 2.3 Swingline Loan Subfacility................................................................. 25
SECTION 2.4 Repayment of Revolving Loans............................................................... 27
SECTION 2.5 Letters of Credit.......................................................................... 29
SECTION 2.6 Revolving Notes............................................................................ 34
SECTION 2.7 Termination of Revolving Facility.......................................................... 34
SECTION 2.8 Use of Proceeds............................................................................ 35
SECTION 2.9 Security; Trust; Covenant to Pay; Reaffirmation of Obligations, etc........................ 35
SECTION 2.10 Maximum Borrower Liability................................................................. 36
SECTION 2.11 Waiver of Subrogation...................................................................... 38
SECTION 2.12 European Swingline Loans................................................................... 38
SECTION 2.13 Liability Unconditional.................................................................... 40
ARTICLE III
GENERAL LOAN PROVISIONS.................................................................................. 41
SECTION 3.1 Interest................................................................................... 41
SECTION 3.2 Notice and Manner of Conversion or Continuation of Loans................................... 45
SECTION 3.3 Fees....................................................................................... 46
SECTION 3.4 Manner of Payment.......................................................................... 48
SECTION 3.5 Crediting of Payments and Proceeds......................................................... 48
SECTION 3.6 Nature of Obligations of Lenders Regarding Loans; Assumption by
Administrative Agent....................................................................... 49
SECTION 3.7 Changed Circumstances...................................................................... 49
SECTION 3.8 Indemnity.................................................................................. 51
SECTION 3.9 Capital Requirements....................................................................... 51
SECTION 3.10 Taxes; Currency............................................................................ 52
SECTION 3.11 Special Lenders............................................................................ 55
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE IV
CLOSING: CONDITIONS OF CLOSING AND BORROWING............................................................. 56
SECTION 4.1 Closing.................................................................................... 56
SECTION 4.2 Conditions to Closing and Initial Loan..................................................... 56
SECTION 4.3 Conditions to All Loans.................................................................... 60
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BORROWERS.............................................................. 60
SECTION 5.1 Representations and Warranties............................................................. 60
SECTION 5.2 Survival of Representations and Warranties, Etc............................................ 66
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES......................................................................... 67
SECTION 6.1 Financial Statements and Projections........................................................ 67
SECTION 6.2 Officer's Compliance Certificate............................................................ 68
SECTION 6.3 Other Reports............................................................................... 68
SECTION 6.4 Notice of Litigation and Other Matters...................................................... 68
SECTION 6.5 Accuracy of Information..................................................................... 69
ARTICLE VII
AFFIRMATIVE COVENANTS..................................................................................... 70
SECTION 7.1 Preservation of Corporate Existence and Related Matters..................................... 70
SECTION 7.2 Maintenance of Property..................................................................... 70
SECTION 7.3 Insurance................................................................................... 70
SECTION 7.4 Accounting Methods and Financial Records.................................................... 70
SECTION 7.5 Payment and Performance of Obligations...................................................... 71
SECTION 7.6 Compliance With Laws and Approvals.......................................................... 71
SECTION 7.7 Environmental Laws.......................................................................... 71
SECTION 7.8 Compliance with ERISA and the Code.......................................................... 71
SECTION 7.9 Compliance With Other Agreements............................................................ 72
SECTION 7.10 Conduct of Business........................................................................ 72
SECTION 7.11 Visits and Inspections..................................................................... 72
SECTION 7.12 Subsidiaries............................................................................... 72
SECTION 7.13 Further Assurances......................................................................... 73
SECTION 7.14 Year 2000 Compatibility.................................................................... 73
ARTICLE VIII
FINANCIAL COVENANTS...................................................................................... 73
SECTION 8.1 Capitalization Ratio....................................................................... 73
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 8.2 Consolidated Total Indebtedness to Consolidated Pro Forma EBITDA .......................... 74
SECTION 8.3 Interest Coverage Ratio.................................................................... 74
SECTION 8.4 Current Ratio.............................................................................. 74
ARTICLE IX
NEGATIVE COVENANTS...................................................................................... 74
SECTION 9.1 Limitations on Debt....................................................................... 74
SECTION 9.2 Limitations on Contingent Obligations..................................................... 75
SECTION 9.3 Limitations on Liens...................................................................... 75
SECTION 9.4 Limitations on Loans, Advances, Investments and Acquisitions.............................. 75
SECTION 9.5 Limitations on Mergers and Liquidation.................................................... 79
SECTION 9.6 Limitations on Sale of Assets............................................................. 79
SECTION 9.7 Limitations on Dividends and Distributions................................................ 79
SECTION 9.8 Transactions with Affiliates.............................................................. 80
SECTION 9.9 Certain Accounting Changes................................................................ 80
SECTION 9.10 Licenses.................................................................................. 80
SECTION 9.11 Restrictive Agreements.................................................................... 80
ARTICLE X
DEFAULT AND REMEDIES.................................................................................... 80
SECTION 10.1 Events of Default......................................................................... 80
SECTION 10.2 Remedies.................................................................................. 83
SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver; etc........................................... 83
SECTION 10.4 Set-off................................................................................... 83
SECTION 10.5 Adjustments............................................................................... 84
SECTION 10.6 Consents.................................................................................. 84
ARTICLE XI
THE ADMINISTRATIVE AGENT................................................................................ 84
SECTION 11.1 Appointment............................................................................... 84
SECTION 11.2 Nature of Duties.......................................................................... 85
SECTION 11.3 Exculpatory Provisions.................................................................... 85
SECTION 11.4 Reliance by Administrative Agent.......................................................... 86
SECTION 11.5 Non-Reliance on Administrative Agent and Other Lenders.................................... 86
SECTION 11.6 Notice of Default......................................................................... 87
SECTION 11.7 Indemnification........................................................................... 87
SECTION 11.8 The Administrative Agent in its Individual Capacity....................................... 87
SECTION 11.9 Successor Administrative Agent............................................................ 88
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE XII
MISCELLANEOUS........................................................................................... 88
SECTION 12.1 Notices.................................................................................. 88
SECTION 12.2 Expenses................................................................................. 90
SECTION 12.3 Governing Law............................................................................ 90
SECTION 12.4 Consent to Jurisdiction.................................................................. 90
SECTION 12.5 WAIVER OF JURY TRIAL..................................................................... 91
SECTION 12.6 Reversal of Payment...................................................................... 91
SECTION 12.7 Successors and Assigns; Participations................................................... 91
SECTION 12.8 Amendments, Waivers and Consents: Renewal................................................ 94
SECTION 12.9 Performance of Duties.................................................................... 95
SECTION 12.10 Indemnification.......................................................................... 95
SECTION 12.11 All Powers Coupled with Interest......................................................... 95
SECTION 12.12 Survival of Indemnities.................................................................. 95
SECTION 12.13 Provision of Loan Documents.............................................................. 95
SECTION 12.14 Titles and Captions...................................................................... 95
SECTION 12.15 Severability of Provisions............................................................... 95
SECTION 12.16 Counterparts............................................................................. 96
SECTION 12.17 AHL as Agent for Other Borrowers......................................................... 96
SECTION 12.18 Term of Agreement........................................................................ 96
SECTION 12.19 EMU; Continuity of Contract, Etc......................................................... 96
SECTION 12.20 Entire Agreement......................................................................... 99
SECTION 12.21 Transitional Provisions.................................................................. 100
SECTION 12.22 Acknowledgments.......................................................................... 101
</TABLE>
iv
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
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 - Copy of Pledge Agreement - AHL
Exhibit F-2 - Copy of Pledge Agreement - U.S.Holdings
Exhibit G-1 - Copy of German Assignment of Accounts Receivable Agreements
Exhibit G-2 - Form of German Confirmation Agreement
Exhibit G-3 - Copy of German Guaranty Agreements
Exhibit G-4 - Copy of German Pledge Agreements
Exhibit H-1 - Copies of Prior UK Security Documents
Exhibit H-2 - Form of Composite Debenture
Exhibit H-3 - Form of Mortgage of Shares (AHL)
Exhibit H-4 - Form of Mortgage of Shares (European Holdings)
Exhibit I - Copy of Security Agreement
Exhibit J - Form of Confirmation Agreement
Exhibit K - Form of Intercompany Subordination Agreement
Exhibit L - Form of Joinder Agreement
<CAPTION>
SCHEDULES
<S> <C>
Schedule 1.1 - Lenders and Commitments
Schedule 1.1
(Existing Loans) - Existing Loans
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
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 15,
1999, by and among AHL SERVICES, INC., a Georgia corporation ("AHL"),
ARGENBRIGHT SECURITY, INC., a Georgia corporation ("Argenbright Security"),
ARGENBRIGHT, INC., a Georgia corporation ("Argenbright Transportation"), ADI
U.K. LIMITED, a company organized under the laws of the United Kingdom ("ADI
U.K."), AVIATION DEFENCE INTERNATIONAL GERMANY LIMITED, a company organized
under the laws of the United Kingdom ("ADI Germany"), ARGENBRIGHT HOLDINGS
LIMITED, a Georgia corporation ("U.S. Holdings"), THE ADI GROUP LIMITED, a
company organized under the laws of the United Kingdom ("European Holdings"),
and ADI ALPHA HOLDING GMBH, a limited liability company organized under the
laws of the Federal Republic of Germany ("ADI Alpha Holding") (each of AHL,
Argenbright Security, Argenbright Transportation, ADI U.K., ADI Germany, U.S.
Holdings, European Holdings and ADI Alpha Holding is sometimes individually
referred to as a "Borrower" and collectively are referred to as the
"Borrowers"), the financial institutions who are or may become party hereto
(the "Lenders"), FIRST UNION NATIONAL BANK, LONDON BRANCH (the "European
Swingline Lender"), FIRST UNION NATIONAL BANK, a national banking association
("First Union"), as Administrative Agent for the Lenders and individually a
Lender, FIRST UNION CAPITAL MARKETS CORP. and SALOMON SMITH BARNEY INC., as
co-arrangers (in such capacity, the "Co-Arrangers"), SALOMON BROTHERS HOLDING
COMPANY INC., as syndication agent (in such capacity, the "Syndication Agent"),
and Bank of America, N.A. and Wachovia Bank N.A., as Managing Agents.
RECITALS
WHEREAS, Borrowers, First Union, as administrative agent, and the
Existing Lenders are parties to that certain Amended and Restated Credit
Agreement, dated as of February 10, 1998, as amended by that certain (i) First
Amendment to Amended and Restated Credit Agreement dated as of July 9, 1998,
(ii) Second Amendment to Amended and Restated Credit Agreement dated as of
November 18, 1998, (iii) Third Amendment to Amended and Restated Credit
Agreement dated as of March 17, 1999, and (iv) Fourth Amendment to Amended and
Restated Credit Agreement dated as of April 23, 1999 (as so amended prior to
the date hereof, the "Prior Credit Agreement"), pursuant to which the Existing
Lenders have extended to Borrowers a revolving credit facility in the original
principal amount of up to Two Hundred Fifty Million Dollars ($250,000,000); and
WHEREAS, Borrowers, Lenders and Administrative Agent desire to enter
into this Agreement to (i) amend and restate the Prior Credit Agreement so that
the terms and conditions of the Prior Credit Agreement are the terms and
conditions set forth herein, (ii) to increase the amount of the revolving
credit facility available to the Borrowers from $250,000,000 to $375,000,000
upon the terms and subject to the conditions set forth herein, (iii) finance
permitted Acquisitions, and (iv) 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,
<PAGE> 8
jointly and severally, the Lenders and First Union hereby agree that the Prior
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:
"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.
"Acquired Company" shall have the meaning assigned thereto in Section
7.12.
"ADI Germany" shall have the meaning assigned thereto in the preamble
hereof.
"ADI U.K." shall have the meaning assigned thereto in the preamble
hereof.
"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
-2-
<PAGE> 9
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.
"Agents" means, collectively, the Administrative Agent and the
Syndication Agent.
"Aggregate Commitment" means Three Hundred Seventy-Five Million
Dollars ($375,000,000).
"Agreement" means this Second Amended and Restated Credit Agreement,
as amended, restated, supplemented or otherwise modified 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.
"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 or Letter of Credit payable in an Alternative Currency, the Dollar
equivalent thereof determined based upon the applicable Spot Exchange Rate as
of the Denomination Date for such Loan or Letter of Credit.
"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 plus the Assigned Dollar Value of the undrawn amount of any Letters of
Credit payable in an Alternative Currency exceeds the applicable Foreign
Currency Sublimit.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 12.7(a).
"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
-3-
<PAGE> 10
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.
"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.
"Co-Arrangers" shall have the meaning assigned thereto in the preamble
hereof.
-4-
<PAGE> 11
"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 12.8.
"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.
"Composite Debenture" means the Composite Guarantee and Debenture
dated as of the Closing Date, substantially in the form of Exhibit H-2,
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.
"Confirmation Agreement" means the Confirmation and Omnibus Amendment
Agreement dated as of the date hereof, substantially in the form of Exhibit J,
by and among the domestic Borrowers, the Administrative Agent 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
-5-
<PAGE> 12
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.
"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
-6-
<PAGE> 13
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
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 12.7, 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.
-7-
<PAGE> 14
"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 Holdings" shall have the meaning assigned thereto in the
preamble hereof.
"European Swingline Committed Amount" means the Assigned Dollar Value
of Fifteen Million Dollars ($15,000,000).
"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.
-8-
<PAGE> 15
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Lenders" means, collectively, First Union, First Union
National Bank, London Branch, Wachovia Bank, N.A., SunTrust Bank, Atlanta, Bank
of America, N.A. (formerly NationsBank, N.A.), Fleet National Bank, Dresdner
Bank AG, New York and Grand Cayman Branches, DG Bank Deutsche
Genossenschaftsbank AG Cayman Island Branch, The Bank of Nova Scotia,
Scotiabank Europe plc and Salomon Brothers Holding Company Inc.
"Existing Letters of Credit" means the letters of credit issued by the
Issuing Bank under the Prior Credit Agreement and outstanding immediately prior
to the Closing Date and identified on Schedule 5.1(t).
"Existing LIBOR Rate Loans" means the "LIBOR Rate Loans" (as such term
is defined in the Prior Credit Agreement) made by the Existing Lenders to the
Borrowers under the Prior Credit Agreement, as described on Schedule 1.1
(Existing Loans), which on the Closing Date shall be repaid in accordance with
Section 12.21 of this Agreement.
"Existing Security Documents" means, collectively, the Security
Agreement, the Pledge Agreements and the Prior UK Security Documents.
"Expiration Date" means November 18, 2003.
"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.
"FUCM" means First Union Capital Markets Corp.
"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.
-9-
<PAGE> 16
"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, European
Holdings and ADI Alpha Holding.
"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 an amount equal to fifty percent (50%)
of the Aggregate Commitment, and with respect to the European Swingline
Facility, the Assigned Dollar Value of $15,000,000, being the maximum aggregate
Loans to be made in the Alternative Currency under the respective Credit
Facilities.
"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.
"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.
"German Assignment of Accounts Receivable Agreements" means,
collectively, (a) the Assignment of Accounts Receivable dated May 2, 1997,
executed by ADI Germany, as supplemented by that certain Supplemental
Assignment dated February 10, 1998, and (b) all of the Assignment of Accounts
Receivable agreements executed by certain (direct and indirect) German
Subsidiaries of AHL, in each case, in favor of the Administrative Agent and the
Existing Lenders party thereto, copies of which are attached hereto as Exhibit
G-1, in each case, as amended and supplemented by the German Confirmation
Agreement and as further amended, modified or supplemented from time to time.
"German Confirmation Agreement" means the Confirmation and Omnibus
Amendment Agreement dated the date hereof, substantially in the form of Exhibit
G-2, executed by Argenbright Transportation and certain (direct and indirect)
German Subsidiaries of AHL in favor of the
-10-
<PAGE> 17
Administrative Agent and each of the Lenders, as further amended, modified or
supplemented from time to time.
"German Guaranty Agreements" means, collectively, all of the Guaranty
agreements executed by certain (direct and indirect) German Subsidiaries of
AHL, copies of which are attached hereto as Exhibit G-3, in each case, as
amended and supplemented by the German Confirmation Agreement and as further
amended, modified or supplemented from time to time.
"German Pledge Agreements" means, collectively, all of the Pledge
Agreements executed by Argenbright Transportation and certain subsidiaries of
Argenbright Transportation, in each case, in favor of the Administrative Agent
and the Existing Lenders party thereto, copies of which are attached hereto as
Exhibit G-4, in each case, as amended and supplemented by the German
Confirmation Agreement and as further amended, modified or supplemented from
time to time.
"German Security Documents" means, collectively, (a) the German
Assignment of Accounts Receivable Agreements, (b) the German Guaranty
Agreements, (c) the German Pledge Agreements, (d) the German Confirmation
Agreement, and (e) each other agreement, deed, instrument or writing governed
by the laws of the Federal Republic of Germany to which AHL or any Subsidiary
thereof pledges, charges or grants a security interest in the Collateral or
such Person guarantees payment and performance of the Obligations, in each
case, as amended, restated, modified or supplemented from time to time.
"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.
-11-
<PAGE> 18
"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 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 K 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 L 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 12.7.
-12-
<PAGE> 19
"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.
"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;
-13-
<PAGE> 20
"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;
"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.
-14-
<PAGE> 21
"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 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, the Confirmation Agreement 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 the Assigned Dollar Value of Fifteen
Million Dollars ($15,000,000).
"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
-15-
<PAGE> 22
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.
"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).
"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
-16-
<PAGE> 23
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.
"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 and the
Security Trustee for the benefit of the Administrative Agent, the Security
Trustee and the Lenders and Liens in favor of the Lenders granted pursuant to
the Security Documents, (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).
"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.
-17-
<PAGE> 24
"Pledge Agreements" means, collectively, (a) the Pledge Agreement
dated as of February 10, 1998, executed by AHL, a copy of which is attached
hereto as Exhibit F-1, pursuant to which, among other things, AHL has granted a
pledge to the Administrative Agent in respect of all of the outstanding shares
of capital stock owned by AHL, and (b) the Pledge Agreement dated as of
February 10, 1998, executed by U.S. Holdings, a copy of which is attached
hereto as Exhibit F-2, pursuant to which, among other things, U.S. Holdings has
granted a pledge to the Administrative Agent in respect of all of the
outstanding shares of capital stock of Argenbright Security and Argenbright
Transportation owned by U.S. Holdings, in each case as amended by the
Confirmation Agreement and as further amended, restated, modified or
supplemented from time to time.
"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 HSBC Plc (formerly named 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 Credit Agreement" shall have the meaning assigned thereto in
the first paragraph of the recitals hereto.
"Prior UK Security Documents" means, collectively, (a) 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, (b) the Mortgage of Shares dated May 2, 1997 executed by AHL, and
(c) the Mortgage of Shares dated May 2, 1997 executed by European Holdings,
copies of which are attached hereto as Exhibit H-1, 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, in each case as amended,
modified or supplemented from time to time.
"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,
-18-
<PAGE> 25
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 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 12.7(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.
-19-
<PAGE> 26
"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.
"Schulbert" means Schulbert GmbH & Co. KG (formerly Schulbert Personal
Service GmbH), a limited partnership organized under the laws of the Federal
Republic of Germany.
"SEC" means the Securities and Exchange Commission.
"Security Agreement" means the Security Agreement dated as of February
10, 1998, a copy of which is attached hereto as Exhibit I, executed by the
Borrowers in favor of the Administrative Agent for the benefit of itself and
the Lenders, as amended by the Confirmation Agreement and as further amended,
restated, modified or supplemented from time to time.
"Security Documents" means the collective reference to the Existing
Security Documents, the German Security Documents, the UK Security Documents,
and each other agreement or writing pursuant to which AHL or any Subsidiary
thereof heretofore, now or hereafter pledges or grants a security interest in
the Collateral or such Person guaranties the payment or performance of the
Obligations.
"Security Trustee" shall have the meaning assigned thereto in Section
11.1.
"Senior Indebtedness" means, at any date of determination thereof, the
Total Indebtedness, less all Subordinated Indebtedness, of AHL and its
Subsidiaries.
"Share Mortgage" means, collectively, (a) the Mortgage of Shares dated
the Closing Date, substantially in the form of Exhibit H-3, executed by AHL,
pursuant to which, among other things, AHL grants a mortgage to the
Administrative Agent and the Lenders in the shares of European Holdings
representing 65% of the outstanding shares of stock of European Holdings, and
(b) the Mortgage of Shares dated the Closing Date, substantially in the form of
Exhibit H-4, executed by European Holdings, pursuant to which, among other
things, European Holdings grants a mortgage to the Administrative Agent and the
Lenders in (i) the shares of ADI U.K., representing 100% of the outstanding
shares of stock of ADI U.K. and the shares of ADI Germany, representing 100% of
the outstanding shares of stock of ADI Germany, in each case, as amended,
modified or supplemented from time to time.
"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.
-20-
<PAGE> 27
"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).
"Swingline Committed Amount" means Ten Million Dollars ($10,000,000).
"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).
"Syndication Agent" shall have the meaning assigned thereto in the
preamble hereof.
"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
-21-
<PAGE> 28
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.
"UK Security Documents" means, collectively, (a) the Prior UK Security
Documents, (b) the Composite Guarantee and Debenture, (c) Share Mortgage, and
(d) each other agreement, deed, instrument or writing governed by the laws of
the United Kingdom to which AHL or any Subsidiary thereof pledges, charges or
grants a security interest in the Collateral or such Person guarantees payment
or performance of the Obligations, in each case, as amended, restated, modified
or supplemented from time to time.
"United States" means the United States of America.
"U.S. Holdings" shall have the meaning assigned thereto in the
preamble hereof.
"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 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.
"Verfurth Baumer" means Baumer Personalberatung GmbH, a limited
liability company organized under the laws of the Federal Republic of Germany,
which is registered in department B of the Commercial Register of the Lower
Court of Verfurth Munster under registration number HRB 5210 and has its head
office in Verfurth Munster, Germany.
"Verfurth Dortmund" means Verfurth Personal Leasing GmbH, a limited
liability company organized under the laws of the Federal Republic of Germany,
which is registered in department B of the Commercial Register of the Lower
Court of Dortmund under registration number HRB 1057 and has its head office in
Dortmund, Germany.
-22-
<PAGE> 29
"Verfurth Osnabruck" means Verfurth Personal Leasing GmbH, a limited
liability company organized under the laws of the Federal Republic of Germany,
which is registered in department B of the Commercial Register of the Lower
Court of Osnabruck under registration number HRB 16463 and has its head office
in Osnabruck, Germany.
"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.
-23-
<PAGE> 30
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 sum of the principal amount of any
drawings not reimbursed pursuant to Section 2.5(d) and the undrawn amount of
outstanding Letters of Credit (reflecting the Assigned Dollar Value of such
unreimbursed drawings made in an Alternative Currency or such undrawn amount of
any Letters of Credit payable in an Alternative Currency), (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 Letters of Credit (reflecting the Assigned Dollar Value of such
unreimbursed drawings made in an Alternative Currency or such undrawn amount of
any Letters of Credit payable in an Alternative Currency), 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 the
Foreign Currency Sublimit for the Revolving Facility. 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
-24-
<PAGE> 31
principal amount of $3,000,000 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 $2,000,000 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 $50,000 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) 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 (including, without limitation, satisfaction (or proper waiver) of
the applicable conditions precedent in Article IV hereof), 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
-25-
<PAGE> 32
(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 (reflecting the Assigned Dollar Value
of any Letters of Credit payable in an Alternative Currency) plus the aggregate
principal amount of outstanding Swingline Loans plus the sum of the principal
amount of any drawings not reimbursed pursuant to Section 2.5(d) and the
undrawn amount of outstanding Letters of Credit (reflecting the Assigned Dollar
Value of such unreimbursed drawings made in an Alternative Currency or such
undrawn amount of any Letters of Credit payable in an Alternative Currency)
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.
(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
-26-
<PAGE> 33
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 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 sum of the principal amount of any drawings not reimbursed
pursuant to Section 2.5(d) and the undrawn amount of outstanding Letters
-27-
<PAGE> 34
of Credit (reflecting the Assigned Dollar Value of such unreimbursed drawings
made in an Alternative Currency or such undrawn amount of any Letters of Credit
payable in an Alternative Currency) 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 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 $3,000,000 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), $2,000,000 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 $50,000 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
-28-
<PAGE> 35
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.
SECTION 2.5 Letters of Credit.
(a) Issuance of Letters of Credit. Issuing Bank shall from time to
time, upon satisfaction (or proper waiver) of the applicable conditions
precedent in Article IV hereof, issue, extend or renew Letters of Credit that
are payable in Dollars or Alternative Currency for the account of each of the
Borrowers, upon such terms and conditions as Issuing Bank may then require;
provided that (i) the sum of the principal amount of any drawings not
reimbursed pursuant to Section 2.5(d) and the undrawn amount of outstanding
Letters of Credit (reflecting the Assigned Dollar Value of such unreimbursed
drawings made in an Alternative Currency or such undrawn amount of any Letters
of Credit payable in an Alternative Currency) 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 sum of the principal amount of any drawings
not reimbursed pursuant to Section 2.5(d) and the undrawn amount of outstanding
Letters of Credit (reflecting the Assigned Dollar Value of such unreimbursed
drawings made in an Alternative Currency or such undrawn amount of any Letters
of Credit payable in an Alternative Currency), 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 by the
Issuing Bank, 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. Without limiting any other provisions in this Agreement,
including the restrictions on the issuance, extension
-29-
<PAGE> 36
or renewal of Letters of Credit set forth in Section 2.5(a) hereof, the parties
hereto hereby agree that if at any time the sum of the undrawn amount
(reflecting the Assigned Dollar Value of any Letters of Credit payable in an
Alternative Currency) of outstanding Letters of Credit exceeds the LOC
Committed Amount, Borrowers, on demand by the Issuing Bank, are to deliver to
the Administrative Agent good funds equal to 100% of the amount of such excess,
which funds are to be deposited in 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 September 30, 1999, 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 September 30, 1999, 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 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 (and in the case of any such Letter of Credit
payable in an Alternative Currency, reflecting the Assigned Dollar Value of
such drawing) of such drawing as provided in
-30-
<PAGE> 37
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 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
-31-
<PAGE> 38
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.
(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.
-32-
<PAGE> 39
(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 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
-33-
<PAGE> 40
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 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).
-34-
<PAGE> 41
SECTION 2.8 Use of Proceeds. The Borrowers shall use the proceeds of
the Loans 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 12.7 AHL, provided that such assignment is made
within 90 days after the public announcement of such acquisition.
SECTION 2.9 Security; Trust; Covenant to Pay; Reaffirmation of
Obligations, etc.
(a) Security. The Obligations of each Borrower shall be secured in
accordance with the terms of the applicable Security Documents.
(b) Trust. All assets, rights, interests and benefits which are
now or in future granted to or conferred upon the Security Trustee pursuant to
the German Security Documents, the UK Security Documents or otherwise
mortgaged, charged, assigned or granted to it under any German Security
Documents, UK Security Documents (or any other document required in connection
with the German Security Documents or the UK Security Documents) and all other
rights, powers and discretions granted to or conferred upon the Security
Trustee under the German Security Documents, the UK Security Documents (or any
other document required in connection with the German Security Documents or UK
Security Documents) shall be held by the Security Trustee in trust for the
Administrative Agent, the Issuing Bank and the Lenders from time to time in
accordance with the provisions of the relevant German Security Documents and UK
Security Documents and this Agreement. The trusts constituted by this clause
(b) shall come into existence on the date of this Agreement and shall remain in
full force and effect until:
(i) all Obligations under this Agreement or any other Loan
Document have been fully and finally discharged; and
(ii) neither Issuing Bank nor any Lender is under any
commitment, obligation or liability (whether actual or contingent) to
make advances or provide any other financial accommodation under this
Agreement or any other Loan Document, provided that, for the purpose
of the rule against perpetuities, the perpetuity period applicable to
the trusts constituted by clause (b) above of this Agreement shall be
the period of 80 years less one day from the date of this Agreement.
-35-
<PAGE> 42
(c) Covenant to Pay. Without prejudice to its respective
obligations to the Administrative Agent, the Issuing Bank and the Lenders under
this Agreement and the other Loan Documents, each Borrower undertakes to the
Security Trustee to pay to the Security Trustee on behalf of the Administrative
Agent, the Issuing Bank and the Lenders all amounts from time to time due and
payable by it for the account of the Administrative Agent, the Issuing Bank and
any Lender under any Loan Document to the extent not already paid and duly and
punctually to observe and perform all its obligations contained in each Loan
Document to which it is a party. Any payment made by the Borrowers to the
Security Trustee pursuant to the immediately preceding sentence, shall, to the
extent of such payment, also discharge such Borrowers' obligation to make such
payment to the Administrative Agent, the Issuing Bank or the Lender concerned.
(d) 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 Existing 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 Existing 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.
(e) Continued Effectiveness of Existing Security Documents. On the
Closing Date, each of the domestic Borrowers shall enter into the Confirmation
Agreement, pursuant to which, among other things, (i) each Borrower shall
confirm and agree that each of the Existing 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, (A) remain in full force
and effect, (B) guarantee or secure (as the case may be) all Obligations which
may now exist or hereafter arise, and (ii) certain provisions of the Existing
Security Documents shall be amended.
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
-36-
<PAGE> 43
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 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 Agreements, 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
-37-
<PAGE> 44
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.
(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
-38-
<PAGE> 45
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 sum of the
principal amount of any drawings not reimbursed pursuant to Section 2.5(d) and
the undrawn amount of outstanding Letters of Credit (reflecting the Assigned
Dollar Value of such unreimbursed drawings made in an Alternative Currency or
such undrawn amount of any Letters of Credit payable in an Alternative
Currency) 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 the European Swingline
Committed Amount. 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 of their intention to borrow (A) not later
than 11:00 a.m. (London time) at least three (3) Business Days before each
European Swingline Loan in the case of European Swingline Loans to be made as
LIBOR Rate Loans and (B) not later than 12:00 p.m. (London time) on the date of
the borrowing in the case of European Swingline Loans to be made as Base Rate
Loans, and such notice shall be in the form 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.
Each European Swingline Loan shall be made as a Base Rate Loan or
LIBOR Rate Loans as provided in Section 3.1, shall bear interest as Base Rate
Loans 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 $100,000 and in integral multiples of
$50,000 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 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
-39-
<PAGE> 46
expiration of the last day of the 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 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
-40-
<PAGE> 47
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 of the
Obligations before proceeding against, or as a condition to proceeding against,
such Domestic 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
-41-
<PAGE> 48
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 or as otherwise acceptable to the European Swingline Lender, 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 an
Interest Period of one month or as otherwise acceptable to the European
Swingline Lender.
(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;
-42-
<PAGE> 49
(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 ten Tranches of
LIBOR Rate Loans (excluding European Swingline Loans made as LIBOR
Rate Loans) under the Revolving Facility, no more than five 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) European Swingline Loans made as LIBOR Rate Loans shall
have an interest period of one month or as otherwise acceptable to the
European Swingline Lender; and
(viii) at any time there shall be no more than six (6)
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. The Applicable Margin provided for
in Section 3.1(a) shall initially be set at 1.625% for the period commencing on
the Closing Date through (but not including) the earlier of: (i) the date which
is five (5) Business Days after receipt by the Administrative Agent of the
financial statements for the third fiscal quarter of AHL and its Subsidiaries
ending on September 30, 1999, required to be delivered by Borrowers pursuant to
Section 6.1(a) hereof, together with the Officer's Compliance Certificate
required to be delivered pursuant to Section 6.2 hereof in connection with such
financial statements; and (ii) the date which is five (5) Business Days after
receipt by the Administrative Agent of an officer's certificate setting forth
the 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).
(d) 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 which, as
defined, represents a margin over the base rate quoted publicly by HSBC Plc
(formerly named Midland Bank, plc), and (B) if made as LIBOR Rate Loans, at the
LIBOR Rate plus the Applicable Margin. Except as provided in Section 3.1(c)
above, the Applicable Margin with respect to such LIBOR Rate Loans shall be
determined on the earlier of (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
-43-
<PAGE> 50
the period of four (4) 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) in connection with the
consummation of an acquisition, by reference to the ratio of Consolidated Total
Indebtedness of AHL and its Subsidiaries as of the most recently ended fiscal
quarter to Consolidated Pro Forma Adjusted EBITDA for AHL and its Subsidiaries
for the period of four (4) consecutive fiscal quarters ending on the last day
of such fiscal quarter (calculated on a pro forma basis in accordance with said
Section), in each case, as follows:
<TABLE>
<CAPTION>
Total Indebtedness/Pro LIBOR Margin
- ---------------------- ------------
Forma Adjusted EBITDA
- ---------------------
<S> <C>
Greater than or equal to 3.50 1.750%
to 1.00
Greater than or equal to 3.00 1.625%
to 1.00 but less than 3.50 to
1.00
Greater than or equal to 2.50 1.375%
to 1.00 but less than 3.00 to
1.00
Greater than or equal to 1.50 1.125%
to 1.00 but less than 2.50 to
1.00
Less than 1.50 to 1.00 0.875%
</TABLE>
All adjustments to the Applicable Margin shall be made by the
Administrative Agent as provided in Section 3.1(e) below.
(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
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, Swingline
-44-
<PAGE> 51
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.
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
-45-
<PAGE> 52
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.
(i) Payment of 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). The Facility Fee shall be payable quarterly in arrears
on the last Business Day of each calendar quarter commencing September
30, 1999, 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.
(ii) Initial Facility Fee Percentage. The Facility Fee
Percentage shall initially be set at 0.375% for the period commencing
on the Closing Date through (but not including) the date which is five
(5) Business Days after receipt by the Administrative Agent of the
financial statements for the third fiscal quarter of AHL and its
Subsidiaries ending on September 30, 1999, required to be delivered by
Borrowers pursuant to Section 6.1(a) hereof, together with the
Officer's Compliance Certificate required to be delivered pursuant to
Section 6.2 hereof in connection with such financial statements.
(iii) Determination of Facility Fee Percentage. Except as
provided in clause (ii) of this Section 3.1(a), the Facility Fee
Percentage shall be determined on the earlier of (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 (4)
-46-
<PAGE> 53
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) in connection with the
consummation of an acquisition, by reference to the ratio of
Consolidated Total Indebtedness of AHL and its Subsidiaries as of the
most recently ended fiscal quarter to Consolidated Pro Forma Adjusted
EBITDA for AHL and its Subsidiaries for the period of four (4)
consecutive fiscal quarters ending on the last day of such fiscal
quarter (calculated on a pro forma basis in accordance with said
Section), in each case, as follows:
<TABLE>
<CAPTION>
Total Indebtedness/Pro Facility Fee
- ---------------------- ------------
Forma Adjusted EBITDA Percentage
- ---------------------- ----------
<S> <C>
Greater than or equal to .500%
3.50 to 1.00
Greater than or equal to .375%
3.00 to 1.00 but less than
3.50 to 1.00
Greater than or equal to .375%
2.50 to 1.00 but less than
3.00 to 1.00
Greater than or equal to .375%
1.50 to 1.00 but less than
2.5 to 1.00
Less than 1.50 to 1.00 .375%
</TABLE>
All adjustments to the Facility Fee Percentage shall be made
by the Administrative Agent as provided in Section 3.3(a)(iv)
below.
(iv) Adjustments to Facility Fee Percentage. Adjustments, if
any, in the Facility Fee Percentage 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 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). If
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.
-47-
<PAGE> 54
(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, FUCM and AHL dated September ____, 1999 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.
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
-48-
<PAGE> 55
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.
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,
-49-
<PAGE> 56
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 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
-50-
<PAGE> 57
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 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
-51-
<PAGE> 58
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 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
-52-
<PAGE> 59
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 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.
-53-
<PAGE> 60
(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, Issuing Bank, 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, Issuing Bank, any Lender, or the European Swingline Lender harmless from
any loss incurred by the Administrative Agent, Issuing Bank, 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 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 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
-54-
<PAGE> 61
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 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
-55-
<PAGE> 62
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;
(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, (iv) the Security Documents,
including, without limitation, the Confirmation Agreement and the German
Confirmation Agreement, in each case, 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 the
-56-
<PAGE> 63
covenants 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 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
copies of 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, the Security Trustee and the Lenders in the Collateral
described in the Security Documents (including, without limitation, the UK
Security Documents and the German Security
-57-
<PAGE> 64
Documents) 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 Agreements, 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 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 31, 1998,
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.
-58-
<PAGE> 65
(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 for AHL and its Subsidiaries for the Fiscal Year ended December 31,
1998 and unaudited financial statements for AHL and its Subsidiaries for the
fiscal quarters ending March 31, 1999 and June 30, 1999.
(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) 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.
(ii) 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.
(iii) 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.
-59-
<PAGE> 66
(iv) Payments at Closing. There shall have been paid by the
Borrowers to the Administrative Agent, FUCM 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, upfront fees, legal
fees and expenses), and to any other Person such amount as may be due thereto
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. Prior to the Closing Date,
Verfurth Dortmund and Verfurth Osnabruck merged with and into Munster, with
Munster being the surviving entity of such merger. Prior to the Closing Date,
Schulbert merged with and into Bocholt with Bocholt being the surviving entity
of such merger. Set
-60-
<PAGE> 67
forth on Schedule 5.1(a) is a complete and correct organizational chart for AHL
and each of its domestic and foreign Subsidiaries.
(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), (v) there are no outstanding stock 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), and (vi) Schedule 5.1(b) identifies
each Material Subsidiary of AHL.
(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
-61-
<PAGE> 68
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 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;
-62-
<PAGE> 69
(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;
(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 Regulation 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 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
-63-
<PAGE> 70
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 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.
-64-
<PAGE> 71
(p) No Material Adverse Change. Since December 31, 1998, 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 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.
-65-
<PAGE> 72
(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 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 Agents 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.
(y) Year 2000. The Borrowers have (i) undertaken a sufficient
inventory, review and assessment of all areas within their business and
operations that could be adversely affected by the failure of the Borrowers to
be Year 2000 Compliant on a timely basis, (ii) developed a plan and timeline
for becoming Year 2000 Compliant on a timely basis, (iii) to date, implemented
that plan in accordance with that timeline in all material respects, and (iv)
made inquiry of its key suppliers, vendors and customers as to whether such
person(s) will, on a timely basis, be Year 2000 Compliant in all material
respects and on the basis of such inquiry reasonably believes that all such
person(s) will be Year 2000 Compliant. "Year 2000 Compliant" shall means that,
in all material respects, all computer and software related applications shall
be able to recognize and perform properly, date sensitive functions involving
dates prior to and after December 31, 1999. The Borrowers shall take all action
necessary to ensure that the Borrowers shall be Year 2000 Compliant and that no
material adverse change will arise in the Borrowers' financial condition as a
result of its efforts or failure to be Year 2000 Compliant.
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
-66-
<PAGE> 73
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 12.12) and the Commitments terminated, unless consent has been obtained
in the manner set forth in Section 12.8 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 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
-67-
<PAGE> 74
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 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:
-68-
<PAGE> 75
(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;
(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
-69-
<PAGE> 76
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 12.12) and the Commitments terminated, unless consent has been
obtained in the manner provided for in Section 12.8, 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.
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.
-70-
<PAGE> 77
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 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.
-71-
<PAGE> 78
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, on or prior to the date of the consummation of such acquisition
transaction: (a) cause each new domestic and foreign Subsidiary that is a
Material Subsidiary (the "Acquired Company"), to execute and deliver to the
Administrative Agent a Joinder Agreement and the documents referred to therein,
(b) cause each Acquired Company that is a domestic Subsidiary to execute and
deliver to the Administrative Agent the supplement substantially in the form
attached to the Security Agreement, (c) cause such Acquired Company that is a
domestic Subsidiary and cause the Borrower or its Subsidiary which is the owner
of such Acquired Company, to execute and deliver to the Administrative Agent
the supplement substantially in the form attached to the Pledge Agreements, or
if the owner of such Acquired Company is not AHL or U.S. Holdings, a pledge
agreement substantially in the form of the Pledge Agreements executed by such
owner with such modifications thereto as requested by the Administrative Agent,
(d) in the case of any Acquired Company that is a foreign Subsidiary, cause
such Acquired Company and the Borrower or its Subsidiary which is the owner of
such Acquired Company, to execute and deliver to the Administrative Agent a
pledge agreement or mortgage of shares (or equivalent deed, instrument or
agreement), in form and substance satisfactory to the Administrative Agent,
pursuant to which the Administrative Agent, the Security Trustee and the
Lenders shall have been granted a pledge or mortgage over all of the
outstanding shares or ownership interests of such Acquired Company now or from
time to time owned by Borrower or its Subsidiary to secure the Obligations,
provided, however, that the pledge by AHL or any domestic Subsidiary of any
shares or ownership interests of any Acquired Company that is a foreign
Subsidiary shall be limited to not more than sixty-five (65%) of the
outstanding shares or ownership interests of such Acquired Company, (e) such
other documents reasonably requested by the Administrative Agent consistent
with the terms of this Agreement which provide that such Acquired Company shall
become a Borrower hereunder bound by all of the terms, covenants and agreements
contained in the Loan Documents and that the assets
-72-
<PAGE> 79
of such Acquired Company shall become Collateral for the Obligations, and (f)
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
12.12) in full and the Commitments terminated, unless consent has been obtained
in the manner set forth in Section 12.8 hereof, AHL and its Subsidiaries on a
Consolidated basis will not:
SECTION 8.1 Capitalization Ratio. At any date (a) on or prior to
December 31, 1999, permit the ratio of Consolidated Total Indebtedness to Total
Capitalization to be more than 0.70 to 1.00, (b) after December 31, 1999 and on
or prior to December 31, 2000, permit the ratio of Consolidated Total
Indebtedness to Total Capitalization to be more than 0.65 to 1.00, and (c)
after December 31, 2000, permit the ratio of Consolidated Total Indebtedness to
Total Capitalization to be more than 0.60 to 1.00
-73-
<PAGE> 80
SECTION 8.2 Consolidated Total Indebtedness to Consolidated 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) 3.75 to 1.00, at each fiscal quarter end during the period
commencing on the Closing Date through and including March 31, 2000, and (ii)
3.50 to 1.00, at each fiscal quarter end thereafter.
SECTION 8.3 Interest Coverage Ratio. As of any fiscal quarter end,
permit the Interest Coverage Ratio to be less than 2.00 to 1.00.
SECTION 8.4 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 12.12) and the Commitments terminated, unless consent has been obtained
in the manner set forth in Section 12.8 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, (h) Debt constituting seller
financing incurred in connection with a purchase or acquisition permitted by
Section 9.4(g), and unsecured Debt for borrowed money of any Foreign Borrower
so long as the proceeds of which are used solely for working capital and
general corporate purposes by such Foreign Borrower, provided that the
aggregate principal amount of all such Debt referred to above in this clause
(h) outstanding at any time does not to exceed the Assigned Dollar Value of
$10,000,000, and (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 clause (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
clause (i) during the current Fiscal Year, does not exceed $1,000,000 in total.
-74-
<PAGE> 81
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
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;
-75-
<PAGE> 82
(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, and 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 the last day
of such fiscal quarter end will not exceed 3.50 to 1.00,
(iii) either
(A) the aggregate consideration (including
any indebtedness assumed by AHL or any of its
Subsidiaries in connection with such acquisition) in
any single acquisition does not exceed $35,000,000,
and after giving effect to any such acquisition, the
aggregate consideration (including any indebtedness
assumed by AHL or any of its Subsidiaries in
connection with such acquisition) paid by AHL and
its Subsidiaries for all such acquisitions during
any Fiscal Year commencing with Borrowers' 1999
Fiscal Year (which begins on January 1, 1999),
together with aggregate consideration (including any
indebtedness assumed by AHL or any of its
Subsidiaries in connection with such acquisition)
for the acquisition, does not exceed $110,000,000,
or
(B) the aggregate consideration (including
any indebtedness assumed by AHL or any of its
Subsidiaries in connection with such acquisition) in
any single acquisition does not exceed $15,000,000,
(iv) on or prior to the consummation of such acquisition,
AHL, on behalf of the Borrowers, shall (A) deliver to the
Administrative Agent and the Lenders a certificate of its chief
executive officer and chief financial officer, describing the
principal terms of the acquisition and the business or assets to be
acquired (including, without limitation, a description of the Person
or assets to be acquired, the purchase price, the manner of
acquisition, the payment structure and any other terms and conditions
reasonably required by the Administrative Agent), (B) deliver to the
Administrative Agent and the Lenders an
-76-
<PAGE> 83
Officer's Compliance Certificate dated as of the closing date of the
acquisition demonstrating, in form and substance reasonably
satisfactory thereto of pro forma compliance with each covenant
contained in Articles VIII and IX of this Agreement, (C) deliver to
the Administrative Agent and the Lenders copies of any certificates,
resolutions, representations or other documents to the extent received
by AHL and its Subsidiaries from target company evidencing that 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 (D) deliver to the
Administrative Agent such other documents reasonably requested by the
Administrative Agent in connection with such acquisition; provided,
however, that in the case of any acquisition where the aggregate
consideration (including any indebtedness assumed by AHL or any of its
Subsidiaries in connection with such acquisition) does not exceed
$15,000,000, Borrowers may deliver the items required under clauses
(A) through (D) above of this paragraph to the Administrative Agent
and the Lenders within thirty (30) days following the consummation of
such acquisition;
(v) within thirty (30) days following the consummation of
such acquisition, AHL, on behalf of the Borrowers, shall (A) deliver
to the Administrative Agent copies of the final governing
documentation (including, without limitation, the purchase agreement
and all opinions of counsel to the seller and/or the Person to be
acquired) with respect to the acquisition, (B) deliver to the
Administrative Agent in form and substance satisfactory thereto, the
historical financial statements of the Person to be acquired, if
applicable, for the most recent two (2) year period and the most
recent interim financial statements of the Person to be acquired, (C)
deliver to the Administrative Agent the Joinder Agreement and Security
Documents required pursuant to Section 7.12 hereof if the Person being
acquired in connection with such acquisition will constitute a
Material Subsidiary, and (D) deliver to the Administrative Agent such
other documents reasonably requested by the Administrative Agent in
connection with such acquisition,
(vi) 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
(i) AHL, on behalf of the Borrowers, shall deliver to the
Administrative Agent and the Lenders not less than fifteen (15) days
prior to the proposed closing date of the acquisition, a description
of the acquisition (including, without limitation, a description of
the Person or assets to be acquired, the purchase price, the manner of
acquisition, the payment structure and any other terms and conditions
reasonably required by the Administrative
-77-
<PAGE> 84
Agent) and draft copies of the governing documentation (including,
without limitation, the purchase agreement) with respect to the
acquisition,
(ii) AHL, on behalf of the Borrowers, shall deliver to the
Administrative Agent and the Lenders not less than fifteen (15) days
prior to the proposed closing date of the acquisition, the historical
financial statements of the Person to be acquired (or, in the case of
any asset acquisition, the business or line of business to be
acquired), if applicable, for the most recent two (2) year period and
the most recent interim financial statements of the Person to be
acquired (or, in the case of any asset acquisition, the business or
line of business to be acquired),
(iii) AHL, on behalf of the Borrowers, shall deliver to the
Administrative Agent and the Lenders not less than fifteen (15) days
prior to the proposed closing date of the acquisition, a projected
income statement, statement of cash flows and balance sheet
(including, without limitation, a summary of assumptions and pro forma
adjustments made in connection therewith) of the Person to be acquired
(or, in the case of any asset acquisition, the business or line of
business to be acquired), if applicable, prepared on a quarterly basis
for the ensuing one-year period, and annually for the following two
years,
(iv) AHL, on behalf of the Borrowers, shall deliver to the
Administrative Agent and the Lenders not less than fifteen (15) days
prior to the proposed closing date of the acquisition, an Officer's
Compliance Certificate demonstrating, in form and substance reasonably
satisfactory thereto of pro forma compliance with each covenant
contained in Articles VIII and IX,
(v) AHL, on behalf of the Borrowers, within thirty (30) days
following the consummation of such acquisition, shall (A) deliver to
the Administrative Agent copies of the final governing documentation
(including, without limitation, the purchase agreement and all
opinions of counsel to the seller and/or the Person to be acquired
(or, in the case of any asset acquisition, the business or line of
business to be acquired)) with respect to the acquisition, (B) deliver
to the Administrative Agent the Joinder Agreement and Security
Documents required pursuant to Section 7.12 hereof if the Person being
acquired in connection with such acquisition will constitute a
Material Subsidiary, and (C) deliver to the Administrative Agent such
other documents reasonably requested by the Administrative Agent in
connection with such acquisition,
(vi) AHL, on behalf of the Borrowers, on or prior to the
consummation of such acquisition, shall deliver to the Administrative
Agent and the Lenders evidence that 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
(vii) AHL, on behalf of the Borrowers, on or prior to the
closing date of the acquisition, shall deliver to the Administrative
Agent the officer's certificate described in
-78-
<PAGE> 85
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 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) sales of other assets in the aggregate not producing in excess of
$5,000,000 in Net Cash Proceeds in any Fiscal Year;
(c) the sale of obsolete assets no longer used or usable in the
business of AHL or any of its Subsidiaries;
(d) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof; or
(e) 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.
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
-79-
<PAGE> 86
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 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, including, without limitation, any
-80-
<PAGE> 87
payment of any Obligation of any Borrower or Subsidiary thereof to the
Administrative Agent, the Security Trustee or any Lender under any of the
Security Documents or other Loan Documents.
(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 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), any
Security Document 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
-81-
<PAGE> 88
appropriate manner, the appointment of, or the taking of possession by, a
receiver, administrator, administrative receiver, custodian, trustee, manager,
liquidator or similar officer, 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 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 this Agreement,
any Security Document or 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 Security 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.
-82-
<PAGE> 89
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.
(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 12.7 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
-83-
<PAGE> 90
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 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
-84-
<PAGE> 91
thereto. Additionally, each Lender hereby appoints the Administrative Agent to
act as its agent and trustee in relation to the German Security Documents and
the UK Security Documents (in such capacity, the "Security Trustee") and
authorizes the Administrative Agent to enter into the German Security Documents
and the UK Security Documents on its behalf and to take such action on its
behalf and to exercise and enforce such rights, powers and discretions as are
expressly or by implication delegated to the Administrative Agent by the terms
of this Agreement, the German Security Documents and the UK Security Documents
and such rights and discretions as are reasonably incidental thereto. The
duties and functions of the Administrative Agent and the Security Trustee shall
be of an administrative nature only. Neither the Administrative Agent nor the
Security Trustee shall be deemed to be a trustee of any Lender except as
specified in this Agreement, the German Security Documents and the UK Security
Documents, nor shall the Administrative Agent or the Security Trustee be deemed
to be an agent or trustee of the Borrowers for any purpose. The Security
Trustee shall have no duties or obligations except those expressly set out in
this Agreement, the German Security Documents and the UK Security Documents.
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 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
-85-
<PAGE> 92
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 the instructions of the Required Lenders
(or, where a higher percentage of the Lenders is expressly required hereunder,
such Lenders), and such instructions and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders (including all
subsequent Lenders).
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, 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,
-86-
<PAGE> 93
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 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
-87-
<PAGE> 94
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 or delayed), 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, 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
-88-
<PAGE> 95
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
NC 0737
301 South College Street, DC-5
Charlotte, North Carolina 28288-0737
Attention: Mark B. Felker
Telephone No.: (704) 374-7074
Telecopy No.: (704) 374-4793
and
First Union National Bank
999 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Louis K. Beasley III
Telephone No.: (404) 225-4145
Telecopy No.: (404) 225-4286
and
First Union Capital Markets Corp.
One First Union Center, DC-4
Charlotte, North Carolina 28288-0680
Attention: Syndications Agency Services
Telephone No.: (704) 383-6591
Telecopy No.: (704) 383-0288
-89-
<PAGE> 96
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. The Loan Office for the
Administrative Agent shall be its office at One First Union Center, 301 South
College Street, DC-5, Charlotte, North Carolina 28288-0737, 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 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 accordance 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
-90-
<PAGE> 97
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 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 12.6 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 12.7 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 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
-91-
<PAGE> 98
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, except in the case of an assignment
to a Lender or an Affiliate of a Lender, 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 Notes to the order of such Assignee in an aggregate principal amount
equal to the principal amount
-92-
<PAGE> 99
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 (other than a participation by Bank Leumi Le-Israel, B.M.,
Miami Agency to its subsidiary Bank Leumi USA) 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 12.12), (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;
-93-
<PAGE> 100
provided 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 or as requested by regulatory authorities or
pursuant to legal process. The Administrative Agent and any Lender may, in
connection with any assignment, proposed assignment, participation or proposed
participation pursuant to this Section 12.7, 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 12.8 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, provided,
however, that the Required Lenders may at any time, in their sole discretion
(but shall be under no obligation to), approve any increases requested by
Borrowers in the amount of the Aggregate Commitment above Three Hundred
Seventy-Five Million Dollars ($375,000,000) without the approval of any other
Lender or Lenders (but in no event will any Lender's Commitment be increased
without the prior written consent of such Lender) so long as after giving
effect to any such proposed increase no Default or Event of Default has
occurred and shall be continuing, (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 to any other Debt, (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
12.12), (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 12.8 or the definition of Required Lenders, (g)
amend the provisions
-94-
<PAGE> 101
of Section 3.5, (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, or (i) amend the definition of Alternative
Currency, in each case, 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.
SECTION 12.9 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 12.10 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 12.11 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 12.12 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 12.13 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 12.14 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 12.15 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,
-95-
<PAGE> 102
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 12.16 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 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 12.17 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 12.18 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 12.12) 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 12.19 EMU; Continuity of Contract, Etc.
(a) Definitions. As used in this Section 12.19 the following terms
have the following meanings:
"beginning of the third stage of EMU" means the date the third stage
of EMU began or the date on which circumstances arise which, in the
opinion of the Administrative Agent, have substantially the same
effect and result in substantially the same consequences as the
beginning of the third stage of EMU as contemplated by the Treaty on
European Union.
"EMU" means economic and monetary union as contemplated in the Treaty
on European Union.
"EMU legislation" means legislative measures of the European Council
for the introduction of change over to or operation of a single or
unified European currency (whether known as the euro or otherwise),
being in part the implementation of the third stage of EMU.
"euro" means the single currency to which participating member states
of the European Union have converted and may from time to time in the
future convert.
"euro unit" means the currency unit of the euro.
-96-
<PAGE> 103
"fixed exchange rate" means the exchange rate for a national currency
unit into a euro unit set in accordance with EMU legislation in effect
from time to time.
"national currency unit" means the unit of currency (other than a euro
unit) of a participating member state.
"participating member state" means each state so described in any EMU
legislation that converts from its national currency unit to the euro.
"Treaty on European Union" means the treaty of Rome of March 25, 1957,
as amended by the Single European Act 1986 and the Maastricht Treaty
(signed February 7, 1992), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of clauses (c) through
(m) below, inclusive, shall be effective at and from the later of the execution
of this Agreement or the beginning of the third stage of EMU, provided, that if
and to the extent that any such provision relates to any state (or the currency
of such state) that is not a participating member state on the beginning of the
third stage of EMU, such provision shall become effective in relation to such
state (and the currency of such state) at and from the date on which such state
becomes a participating member state.
(c) Continuity of Contract. The parties to this Agreement agree that
the occurrence or non-occurrence of EMU, any event or events associated with
the EMU and/or the introduction of the euro in all or any part of the European
Union will not result in the discharge, cancellation, rescission or termination
in whole or in part of this Agreement or any other Loan Document or give the
Administrative Agent, the Lenders or the Borrowers the right to cancel,
rescind, terminate or vary this Agreement or any other Loan Document, other
than as specifically provided in this Agreement.
(d) Redenomination and Alternative Currencies. Each obligation of any
party under this Agreement which has been denominated in the national currency
unit of a participating member state shall be redenominated into the euro unit
at the fixed exchange rate, provided, that if and to the extent that any EMU
legislation provides that following the beginning of the third stage of EMU an
amount denominated either in the euro unit or in the national currency unit of
a member state and payable within the member state by crediting an account of a
creditor can be paid by a debtor either in the euro unit or in that national
currency unit, each party to this Agreement shall be entitled to pay or repay
any such amount either in the euro unit or in such national currency unit;
provided, however, any amount paid in a national currency unit shall equal, at
the fixed exchange rate for that national currency unit, the required amount
stated to be due in euro units.
(e) Loans. Any Loan in the currency of a participating member state
shall be made in the euro unit, provided that any Loan may, if so requested by
any Borrower, be made in the national currency unit (based upon the published
fixed exchange rate) of any participating member state so long as such national
currency unit continues to be available as legal tender for obligations of the
same type or character as the obligations set forth in this Agreement, is
freely convertible and is not subject to exchange controls.
-97-
<PAGE> 104
(f) Business Days. With respect to any amount denominated or to be
denominated in the euro unit or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in New York
City and prime banks in London generally provide quotations for deposits
denominated in the euro unit and such national currency unit.
(g) Payments to the Administrative Agent. Those Sections of this
Agreement providing for payment or repayment in a national currency unit shall
be construed so that, in relation to the payment of any amount of euro units or
national currency units, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to such account with each bank (in such principal financial center) as
the Administrative Agent may from time to time nominate for this purpose.
(h) Payment by the Administrative Agent to the Lenders. Any amount
payable by the Administrative Agent to the Lenders under this Agreement in the
national currency unit of a participating member state shall be paid in the
currency received by it from the Borrowers.
(i) Payments by the Administrative Agent or Lenders Generally. With
respect to the payment of any amount denominated in the euro unit or in a
national currency unit, the Administrative Agent shall not be liable to the
Borrowers or any of the Lenders, nor shall any Lender be liable to the Borrower
or the Administrative Agent, in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent or such
Lender, as the case may be, if the Administrative Agent or such Lender, as the
case may be, has made reasonable effort to effect all relevant steps to
achieve, on the date required by the Agreement, the payment of such amount in
immediately available, freely transferable, cleared funds (in the euro unit or,
as the case may be, in a national currency unit) to the account with the bank
in the principal financial center in the participating member state which the
Borrowers or, as the case may be, the Administrative Agent or any Lender shall
have specified for such purpose. In this paragraph, "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the
Administrative Agent or any Lender, as the case may be, may from time to time
reasonably believe to be in effect for the purpose of clearing or settling
payment of the euro.
(j) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of any state that
becomes a participating member state, in Administrative Agent's judgment, shall
not be available because interest rate quotes for a national currency unit are
no longer provided, or shall be inconsistent with any convention or practice in
the London Interbank Market for the basis of accrual of interest or fees in
respect of the euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such state becomes a
participating member state; provided, however, if any Loan in the currency of
such state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Loan, at the end of the then current
Interest Period.
(k) Rounding and Other Consequential Changes. Without prejudice and in
addition to any method of conversion or rounding prescribed by any EMU
legislation and without prejudice to
-98-
<PAGE> 105
the respective liabilities for indebtedness of the Borrowers to the
Administrative Agent and to the Lenders and the Administrative Agent and the
Lenders to the Borrowers under or pursuant to this Agreement:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency unit to be paid
to or by the Administrative Agent or Lenders shall be replaced by a
reference to such reasonably comparable amount (or an integral
multiple thereof) in the euro unit as the Administrative Agent may
from time to time specify; and
(ii) except as expressly provided in this Agreement, each
provision of this Agreement, including, without limitation, the right
to combine currencies to effect a set off, shall be subject to such
reasonable changes of interpretation as the Administrative Agent may
from time to time specify to be necessary or appropriate to reflect
the implementation of the EMU to place the parties hereto in
substantially the position they would have occupied had the EMU not
been implemented.
(l) Exchange Indemnification and Increased Costs. The Borrowers shall
upon demand from the Administrative Agent, pay to the Administrative Agent for
the account of each Lender the amount of (i) any loss or cost or increased cost
incurred by the Administrative Agent or such Lender in respect of any Loans
made hereunder as a result of the Borrowers' election to borrow in national
currency units and repay in euro units or to borrow in euro units and repay in
national currency units, (ii) any reduction in any amount payable to, or in the
effective return on its capital to, the Administrative Agent or such Lender in
respect of any Loans made hereunder as a result of the Borrowers' election to
borrow in national currency units and repay in euro units or to borrow in euro
units and repay in national currency units, (iii) any interest or other return
in respect of any Loans made hereunder, including principal, foregone by the
Administrative Agent or its holding company or any Lender or its holding
company, as a result of the introduction of, change over to or operation of the
euro in any participating member state, or (iv) any currency exchange loss that
the Administrative Agent or such Lender sustains in respect of any Loans made
hereunder as a result of the Borrowers' election to borrow in national currency
units and repay in euro units or to borrow in euro units and repay in national
currency units.
(m) Further Assurance. Each Borrower agrees, at the request of the
Administrative Agent, at the time of or at any time following the
implementation of the EMU, to enter into an agreement amending this Agreement
in such manner as the Administrative Agent reasonably shall request in order to
reflect the conversion of a participating member state's national currency unit
into the euro unit and to place the parties hereto in the position they would
have been in had the EMU not been implemented.
SECTION 12.20 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,
-99-
<PAGE> 106
contemporaneous, or subsequent oral agreements or discussions of the parties
hereto. There are no oral agreements among the parties hereto.
SECTION 12.21 Transitional Provisions.
(a) Prior Credit Agreement Superseded. This Agreement shall
on the Closing Date supersede the Prior Credit Agreement in its entirety,
except as provided in this Section 12.21. On the Closing Date, (i) the rights
and obligations of the parties evidenced by the Prior Credit Agreement shall be
evidenced by this Credit Agreement and the other Loan Documents, (ii) the
entire principal amount of all Existing LIBOR Rate Loans, together with all
accrued and unpaid interest thereon and any amounts required to be paid
pursuant to Section 3.8 of the Prior Credit Agreement, shall be paid to the
Administrative Agent on the Closing Date for allocation among the the Existing
Lenders in accordance with the terms of the Prior Credit Agreement, (iii) all
"Base Rate Loans" as defined in the Prior Credit Agreement (the "Existing Base
Rate Loans") shall be continued as Base Rate Loans hereunder and shall be
allocated among the Lenders in accordance with their Commitment Percentages as
of the Closing Date, provided, however, that all accrued and unpaid interest in
respect of such Existing Base Rate Loans through (but not including) the
Closing Date shall be paid to the Administrative Agent on the Closing Date for
allocation among the Existing Lenders in accordance with the terms of the Prior
Credit Agreement, (iv) all "Swingline Loans" as defined in the Prior Credit
Agreement (the "Existing Swingline Loans") shall be continued as Swingline
Loans hereunder, provided, however, that all accrued and unpaid interest on the
principal amount of the Existing Swingline Loans through (but not including)
the Closing Date shall be paid to the Administrative Agent for the account of
the Swingline Lender in accordance with the terms of the Prior Credit
Agreement, (v) all "European Swingline Loans" as defined in the Prior Credit
Agreement (the "Existing European Swingline Loans") shall be continued as
European Swingline Loans hereunder, provided, however, that all accrued and
unpaid interest on the principal amount of the Existing European Swingline
Loans through (but not including) the Closing Date shall be paid to the
Administrative Agent for the account of the European Swingline Lender in
accordance with the terms of the Prior Credit Agreement, (vi) all Existing
Letters of Credit shall, for purposes of this Credit Agreement, be Letters of
Credit hereunder, and (vii) all fees and expenses, if any, owing or accruing
under or in respect of the Prior Credit Agreement through (but not including)
the Closing Date shall be calculated as of the Closing Date (prorated in the
case of any fractional periods), and shall be paid on the Closing Date to the
Administrative Agent for the account of the Administrative Agent, the Issuing
Bank and the Existing Lenders in accordance with the terms of the Prior Credit
Agreement.
(b) Return of Notes. As soon as reasonably practicable after
its receipt, on the Closing Date, of its Notes hereunder and payment in full of
any "Obligations" owed to it under the Prior Credit Agreement (some or all of
which may be paid with the proceeds of Loans made in accordance with the terms
and conditions hereof), each of the Lenders that was, immediately prior to the
Closing Date, a party to the Prior Credit Agreement will promptly return to AHL
any promissory notes of the Borrowers that may be held by such Lender pursuant
to the Prior Credit Agreement. In addition, the Administrative Agent will
request that any "Lender" under the Prior Credit Agreement which is not a
Lender hereunder promptly return to AHL any promissory notes of the Borrowers
held by such Person pursuant to the Prior Credit Agreement upon receipt by it
of payment of all "Obligations" owed to it under the Prior Credit Agreement.
-100-
<PAGE> 107
SECTION 12.22 Acknowledgments. The Borrowers hereby acknowledge that:
(a) they have been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent, Syndication Agents,
Co-Arrangers, Issuing Bank nor any Lender has any fiduciary duty to the
Borrowers arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between the Administrative Agent,
Issuing Bank and the Lenders, on the one hand, and the Borrowers, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the parties hereto.
[Remainder of page intentionally blank; signatures appear on following pages]
-101-
<PAGE> 108
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.
BORROWERS:
[CORPORATE SEAL] AHL SERVICES, INC.
By: /s/ David L. Gamsey
------------------------------------
Title: CFO
---------------------------------
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404.267.2230
[CORPORATE SEAL] ARGENBRIGHT SECURITY, INC.
By: /s/ David L. Gamsey
------------------------------------
Title: CFO
---------------------------------
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404.267.2230
[Signature Page to second amended and restated Credit Agreement]
<PAGE> 109
[CORPORATE SEAL] ARGENBRIGHT, INC.
By: /s/ David L. Gamsey
------------------------------------
Title: CFO
---------------------------------
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404.267.2230
[CORPORATE SEAL] ADI U.K. LIMITED
By: /s/ David L. Gamsey
------------------------------------
Title: Director
---------------------------------
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404.267.2230
[Signature Page to second amended and restated Credit Agreement]
<PAGE> 110
[CORPORATE SEAL] AVIATION DEFENCE INTERNATIONAL
GERMANY LIMITED
By: /s/ David L. Gamsey
------------------------------------
Title: Director
---------------------------------
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404.267.2230
[CORPORATE SEAL] ARGENBRIGHT HOLDINGS LIMITED
By: /s/ David L. Gamsey
------------------------------------
Title: CFO
---------------------------------
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404.267.2230
[Signature Page to second amended and restated Credit Agreement]
<PAGE> 111
[CORPORATE SEAL] THE ADI GROUP LIMITED
By: /s/ David L. Gamsey
------------------------------------
Title: Director
---------------------------------
Address: 3353 Peachtree Road, N.E.
Atlanta, Georgia 30326
Telecopier: 404.267.2230
[CORPORATE SEAL] ADI ALPHA HOLDING GMBH
By: /s/ David L. Gamsey
------------------------------------
Title: Director
---------------------------------
Address:
---------------------------
---------------------------
Telecopier:
---------------------------
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 112
LENDERS AND AGENTS:
FIRST UNION NATIONAL BANK, as
Administrative Agent, Issuing Bank and Lender
By: /s/
------------------------------------------
Title: Senior Vice President
---------------------------------------
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 113
FIRST UNION NATIONAL BANK,
LONDON BRANCH, as European Swingline Lender
By: /s/
----------------------------------------
Title: Vice President
-------------------------------------
Address: 3 Bishopsgate
London
EC2N 3AB, U.K.
Telecopier: 011.44.171.929.4644
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 114
WACHOVIA BANK, N.A., as Lender
By: /s/ Gary C. Gaskill
--------------------------------------------
Title: Vice President
-----------------------------------------
Address: 191 Peachtree Street, N.E.
30th Floor, Mail Stop GA-212
Atlanta, GA 30303-1757
Telecopier: 404.332.6920
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 115
SUNTRUST BANK, ATLANTA, as Lender
By: /s/ Daniel S. Komitor
-------------------------------------------
Title: Vice President
----------------------------------------
By: /s/ Philip J. Potter III
-------------------------------------------
Title: Banking Officer
----------------------------------------
Address: 25 Park Place
23rd Floor
Atlanta, GA 30303
Telecopier: 404.588.8833
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 116
BANK OF AMERICA, N.A., as Lender
By: /s/
-------------------------------------------
Title: Sr. Vice President
----------------------------------------
Address: 600 Peachtree Street, N.E.
19th Floor
Atlanta, GA 30308
Telecopier: 404.607.6343
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 117
FLEET NATIONAL BANK, as Lender
By: /s/ Thomas Engels
-------------------------------------------
Title: Senior Vice President
----------------------------------------
Address: One Federal Street
MA OF DO 4J
Telecopier: 617.346.4667
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 118
DRESDNER BANK AG, New York and Grand
Cayman Branches, as Lender
By: /s/
-------------------------------------------
Title: VP
----------------------------------------
By: /s/
-------------------------------------------
Title: SVP
----------------------------------------
Address: 75 Wall Street
New York, NY 10005
Telecopier: 212.429.2244
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 119
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG CAYMAN
ISLAND BRANCH, as Lender
By: /s/ Kurt A. Morris
------------------------------------------
Title: Vice President
---------------------------------------
By: /s/ Eric K. Zimmerman
------------------------------------------
Title: Assistant Vice President
---------------------------------------
Address: 303 Peachtree Road
Atlanta, GA 30308
Telecopier: 404.524.4006
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 120
THE BANK OF NOVA SCOTIA, as Lender
By: /s/ W.J. Brown
-----------------------------------------
Title: Vice President
--------------------------------------
Address: 600 Peachtree Street
Suite 2700
Atlanta, GA 30308
Telecopier: 404.888.8998
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 121
SCOTIABANK EUROPE PLC, as Lender for
Revolving Loans made in Alternative Currencies, as
Lender
By: /s/
-----------------------------------------------
Title: Relationship Manager
--------------------------------------------
Address: 33 Finsbury Square
London EC2A 1BB
Telecopier: 44.171.826.5987
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 122
SALOMON BROTHERS HOLDING COMPANY
INC., as Lender and Syndication Agent
By: /s/ Timothy L. Freeman
---------------------------------------------
Title: Attorney-in-Fact
------------------------------------------
Address: 399 Park Avenue
New York, NY 10043
Attention:
--------------------
Telecopier: 212.793.3963
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 123
MERCANTILE BANK NATIONAL
ASSOCIATION, as Lender
By: /s/ Gerald P. Kirk
-------------------------------------------------
Title: Vice President
----------------------------------------------
Address: One Mercantile Center, 12th Floor
Saint Louis, MO 63101
Attention: Gerald Kirk
Telecopier: 314.418.2203
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 124
BANK ONE, NA, as Lender
By: /s/ David T. McNeela
-------------------------------------------------
Title: Vice President
----------------------------------------------
Address: 1 Bank One Plaza; Suite 0324/1-10
Chicago, IL 60670-0324
Attention: David T. McNeela
Telecopier: (312) 732-2991
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 125
SOVEREIGN BANK, as Lender
By: /s/ Joseph L. Becker
-------------------------------------------------
Title: V.P.
----------------------------------------------
Address: 50 Rowes Wharf, Suite 430
Boston, MA 02110
Attention: Joseph L. Becker
Telecopier: 617.478.6799
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 126
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC.,
as Lender
By: /s/ Thomas G. Pierce
------------------------------------------------
Title: Thomas G. Pierce, Senior Associate
---------------------------------------------
By: /s/ Carl S. Drake
------------------------------------------------
Title: Carl Drake, Vice President
---------------------------------------------
Address: Two Ravinia Drive, Suite 1680
Atlanta, Georgia 30346
Attention: Thomas G. Pierce
Telecopier: 770.390.1857
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 127
THE FUJI BANK AND TRUST COMPANY, as Lender
By: /s/ Ricky Simmons
-------------------------------------------------
Title: Vice President & Manager
----------------------------------------------
Address: Two World Trade Center
New York NY 10048
Attention: Ricky Simmons
Telecopier: (212) 321-9407
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 128
BANK LEUMI LE-ISRAEL, B.M.,
MIAMI AGENCY, as Lender
By: /s/ Stephen Hanas
-------------------------------------------------
Title: Vice President
----------------------------------------------
Address: 800 Brickell Ave, Suite 1400
Miami, FL 33131
Attention:
------------------------
Telecopier: 305-377-6544
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 129
CITY NATIONAL BANK, as Lender
By: /s/ James Benko
-------------------------------------------------
Title: Vice President
----------------------------------------------
Address: 400 N. Roxbury Dr, 3rd Floor
Beverly Hills, CA 90210
Attention: James Benko
Telecopier: 310-888-6564
[Signature Page to Second Amended and Restated Credit Agreement]
<PAGE> 130
SCHEDULE 1.1: LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
Commitment Commitment
Lenders (Dollars) Percentage
------- --------- ----------
<S> <C> <C>
First Union National $ 42,500,000 11.3333333333%
Bank and its Lender
Affiliates
Salomon Brothers $ 42,500,000 11.3333333333%
Holding Company Inc.
Bank of America, N.A $ 40,000,000 10.6666666667%
Wachovia Bank N.A $ 40,000,000 10.6666666667%
SunTrust Bank, Atlanta $ 35,000,000 9.3333333333%
Fleet National Bank $ 30,000,000 8.0000000000%
Dresdner Bank AG, New $ 25,000,000 6.6666666667%
York and Grand Cayman
Branches
Mercantile Bank National $ 20,000,000 5.3333333333%
Association
The Bank of Nova Scotia $ 20,000,000 5.3333333333%
and its Lender Affiliates
Bank One, NA $ 15,000,000 4.0000000000%
Sovereign Bank $ 15,000,000 4.0000000000%
Bank Austria $ 15,000,000 4.0000000000%
Creditanstalt Corporate
Finance Inc.
The Fuji Bank Limited $ 12,500,000 3.3333333333%
DG Bank Deutsche $ 10,000,000 2.6666666667%
Genossenschaftsbank
Cayman Islands Branch
Bank Leumi Le-Israel, $ 7,500,000 2.0000000000%
B.M., Miami Agency
City National Bank $ 5,000,000 1.3333333333%
TOTAL: $375,000,000 100.000%
</TABLE>
<PAGE> 1
EXHIBIT 11.1
AHL SERVICES, INC
COMPUTATION OF EARNINGS PER SHARE
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------------------
1999 1998 1997
------- ------- ------------
<S> <C> <C> <C>
Income Applicable to Common Stock
Income before extraordinary charges $19,594 $13,123 $ 6,419
Extraordinary charges, net of taxes -- -- (385)
------- ------- -------
Net income $19,594 $13,123 $ 6,034
======= ======= =======
Weighted Average Shares
Common shares 17,173 13,820 10,707
Common share equivalents applicable to
stock options outstanding 537 599 253
------- ------- -------
Weighted average common and common
equivalent shares outstanding during
the period 17,710 14,419 10,960
======= ======= =======
Per Share Amount
Basic
Income before extraordinary charges $ 1.14 $ 0.95 $ 0.60
Extraordinary charges, net of taxes -- -- (0.04)
------- ------- -------
Net income $ 1.14 $ 0.95 $ 0.56
======= ======= =======
Diluted
Income before extraordinary charges $ 1.11 $ 0.91 $ 0.59
Extraordinary charges. net of taxes -- -- (0.04)
------- ------- -------
Net income $ 1.11 $ 0.91 $ 0.55
======= ======= =======
</TABLE>
<PAGE> 1
SCHEDULE 21.1
SUBSIDIARIES
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION OTHER TRADE NAME
- --------------------- ---------------------- ----------------
<S> <C> <C>
Argenbright Holdings Georgia --
Limited
Argenbright, Inc. Georgia RightSide Up
Lloyd Creative Staffing
Midwest Staffing
Gage Marketing
SES Staffing
EMD
TUJA
Verfurth
PIMMS
Service Advantage
CDI
AHL Alpha, Inc. Illinois --
Argenbright Security Inc. Georgia Intersec
USA Security
UNICCO
AHL Beta, Inc. Illinois --
AHL Delta, Inc. Illinois --
Argenbright Motor Coach, Georgia --
Inc.
Argenbright Substance Georgia --
Testing, Inc.
The ADI Group Limited United Kingdom --
ADI U.K. Limited United Kingdom --
Aviation Defense United Kingdom --
International Germany
Limited
ADI Alpha Holdings Gmbh Germany --
Aviation Defense International United Kingdom --
France Limited
ADI Overseas, Ltd. United Kingdom --
Argenbright BV Netherlands --
AHL Services - Europe United Kingdom --
PIMMS Corporation Minnesota --
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our report dated February 17, 2000, included or incorporated by
reference in the AHL Services, Inc. Form 10-K for the year ended December 31,
1999, into the Company's previously filed Registration Statement File Nos.
333-64455 and 333-37627.
/s/ Arthur Andersen LLP
Atlanta, Georgia
March 27, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM AHL
SERVICES, INC. CONSOLIDATED BALANCED SHEET AT DECEMBER 31, 1999 AND THE
CONSOLIDATED STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1999, 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-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 9,527
<SECURITIES> 0
<RECEIVABLES> 153,856
<ALLOWANCES> 4,040
<INVENTORY> 0
<CURRENT-ASSETS> 195,842
<PP&E> 54,756
<DEPRECIATION> 18,981
<TOTAL-ASSETS> 538,545
<CURRENT-LIABILITIES> 91,136
<BONDS> 216,148
0
0
<COMMON> 175
<OTHER-SE> 220,181
<TOTAL-LIABILITY-AND-EQUITY> 538,545
<SALES> 814,488
<TOTAL-REVENUES> 814,488
<CGS> 570,195
<TOTAL-COSTS> 570,195
<OTHER-EXPENSES> 199,732
<LOSS-PROVISION> 1,462
<INTEREST-EXPENSE> 12,557
<INCOME-PRETAX> 32,389
<INCOME-TAX> 12,795
<INCOME-CONTINUING> 19,594
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 19,594
<EPS-BASIC> 1.14
<EPS-DILUTED> 1.11
</TABLE>
