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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
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(MARK ONE)
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/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended September 30, 1997
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number: 0-23159
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VARI-LITE INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 75-2239444
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
201 REGAL ROW
DALLAS, TEXAS 75247
(Address of principal executive (Zip Code)
offices)
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Registrant's telephone number, including area code: (214) 630-1963
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $0.10 par value
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 __ No X
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. [X]
The aggregate market value of the voting stock held by non-affiliates of the
registrant, as of December 18, 1997 was $61,281,435. As of that date, 7,800,003
shares of the Company's Common Stock were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
None
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PRELIMINARY NOTE
All information in this Annual Report on Form 10-K gives pro forma effect to
the reincorporation (the "Reincorporation") of Vari-Lite International, Inc., a
Delaware corporation (the "Company"), as a Delaware corporation pursuant to a
merger of Vari-Lite International, Inc., a Texas corporation ("Vari-Lite
Texas"), into the Company which was effected on October 15, 1997 and in which
shares of Class A and Class B Common Stock of Vari-Lite Texas were converted
into shares of the Company's Common Stock, $0.10 par value ("Common Stock"), on
a 3.76368-for-one basis.
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PART I
ITEM 1. BUSINESS
GENERAL
The Company is a leading international provider of proprietary automated
lighting systems and related services to the entertainment industry, servicing
markets such as concert touring, theatre, television and film and corporate
events. The Company is also a leader in providing complementary products and
services to the entertainment industry, including concert sound systems,
conventional lighting equipment, custom stage construction and stage set design
services, and design and production management services for conventions,
business meetings and special events.
The Company's predecessor, Vari-Lite Texas, was incorporated in 1988 in the
State of Texas as a holding company to own Showco, Inc. ("Showco"), which began
operations in 1970, and Vari-Lite, Inc. ("Vari-Lite"), which began operations in
1981. On October 15, 1997, the Company was reincorporated in the State of
Delaware. The Company's principal executive offices are located at 201 Regal
Row, Dallas, Texas 75247 and its telephone number is (214) 630-1963.
PRODUCTS AND SERVICES
AUTOMATED LIGHTING--VARI*LITE-REGISTERED TRADEMARK- PRODUCTS.
The Company designs, manufactures and markets an extensive line of
integrated automated lighting systems, including light fixtures, or
"luminaires," control consoles and support equipment, and provides system
operators and maintenance services. To accommodate users who prefer to operate
the Company's lighting systems independently, the Company also conducts
extensive training programs. The Company rents rather than sells its
VARI*LITE-Registered Trademark- automated lighting systems.
VL1-TM- LUMINAIRE. The Company's initial product, the revolutionary VL1-TM-
luminaire, was the first automated luminaire using a dichroic filter color
changing system, thereby becoming the first compact, easily transportable light
capable of the real-time, computerized, remote control of light beam features
such as color, size, shape, position and intensity. The VL1-TM- luminaire was
introduced in 1981 and remained in service until 1996.
SERIES 200-TM- SYSTEM. The Company's VL2C-Registered Trademark- spot
luminaire, VL4-Registered Trademark- wash luminaire and
Artisan-Registered Trademark- Plus and mini-Artisan-Registered Trademark- 2
control consoles constitute the Company's Series 200-TM- system. Spot luminaires
create a hard-edged, crisp beam which can be used for precisely focused
illumination and visual effects, as well as for projecting custom light images
such as faces and designs through the use of "gobos", designs etched into a
piece of glass or cut into a piece of metal through which a light beam is
directed to create an image. The VL2C-Registered Trademark- spot luminaire can
change light color in one-tenth of a second and can produce more than 120
separate light colors through the use of the Company's patented color changing
system. In designing the Series 200-TM- system, the Company patented a number of
features which it believes makes the Company's light systems superior to those
of its competitors. The Company is the only industry participant which combines
patented dichroic filter color changing systems, advanced heat removal
techniques and a computer control systems that utilize distributed processing
and resident cue memory in each luminaire. By using such technology to execute a
lighting effect (or cue), an operator can transmit a single command to up to
1,000 luminaires simultaneously, each of which stores its own set of cues. As a
result, customers using the Company's systems can create lighting presentations
with greater flexibility, complexity, speed and precision than with competing
products.
The VL4-Registered Trademark- wash luminaire projects a dispersed soft-edge
light beam for even illumination of objects and areas. The
VL4-Registered Trademark- luminaire's patented color changing system allows the
user to select 30 preset and 160 programmable colors from thousands of available
colors and to change these colors in less than three-tenths of a second, or
program the system for timed color cross-fades. In addition, the
VL4-Registered Trademark- luminaire
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features precisely timed control of light intensity, including the ability to
instantaneously turn the light fixture on and off. Continuous adjustment of
diffusion and beam angle provides enhanced control of the beam shape.
SERIES 300-TM- SYSTEM. The Company developed its Series 300-TM- automated
lighting system principally to satisfy the demands of the theatre and television
and film markets for virtually silent, light weight automated lighting products
with sophisticated color changing features. The Company's Series 300-TM- system,
including the VL5-Registered Trademark- wash luminaire (including the VL5Arc-TM-
and VL5B-TM- luminaires), the VL6-Registered Trademark- spot luminaire and the
VLM-TM- automated moving mirror, as well as the Artisan-Registered Trademark-
Plus and mini-Artisan-Registered Trademark- 2 control consoles, also appeals to
major concert touring clients who want to rent large systems. The
VL5-Registered Trademark- luminaire is lighter than the
VL4-Registered Trademark- luminaire, and its cold-mirror reflector both
eliminates the need for noisy cooling fans and reduces the amount of heat the
lights emit onto the stage. Color changes for the VL5-Registered Trademark- are
controlled by a system that allows color cross-fades in as little as
seven-tenths of a second and interchangeable lenses work with an internal
diffusing mechanism to provide a wide variety of beam sizes and shapes. The
VL6-Registered Trademark- spot luminaire is the companion to the
VL5-Registered Trademark- wash luminaire, and has two interchangeable
12-position wheels of dichroic color filters and gobos for split second color
and image changes and multi-color beams. The VL5Arc-TM- luminaire has a brighter
bulb than the VL5-Registered Trademark- luminaire and an innovative fluid-filled
variable lens (patent pending) which allows beam size control. The VLM-TM-
automated moving mirror is a dual-sided highly reflective
Lexan-Registered Trademark- polycarbonate mirror panel. With its ability to both
pan and tilt 360 degrees, the VLM-TM- automated moving mirror can be used to
augment the effects produced by VARI*LITE-Registered Trademark- wash and spot
luminaires, or it can be used with conventional lights to create limited beam
motion at a very low cost.
The Company's VL5-Registered Trademark- wash luminaires and
VL6-Registered Trademark- spot luminaires are compatible with the industry-
standard DMX 512 digital protocol and, as such, can be operated by DMX 512
control consoles, unlike the Company's other products which require the more
sophisticated, higher performance of the Company's proprietary control consoles
which use a high speed, bi-directional communications protocol.
ARTISAN-REGISTERED TRADEMARK- CONTROL SYSTEMS. The Company's primary
control console, the Artisan-Registered Trademark- Plus, is used to operate all
of the Company's VARI*LITE-Registered Trademark- products. It provides control
of up to 1,000 luminaires, dimmers and other equipment with up to 1,000 cues per
channel, allowing the operator to control each luminaire or to store and play
back preset cues. The Company also rents the smaller, less expensive mini-
Artisan-Registered Trademark- 2 control console which has substantially the same
capabilities as the Artisan-Registered Trademark- Plus control console, but
requires longer programming time. Accordingly, the
mini-Artisan-Registered Trademark- 2 control console is often used either where
space is limited or as a back-up system to the Artisan-Registered Trademark-
Plus control console.
OTHER PRODUCTS AND SERVICES. The Company provides trained personnel to
operate its automated lighting systems and offers training courses, maintenance
and other support services to customers. The Company considers these services to
be of critical importance to its business. The Company maintains extensive,
custom-designed training facilities in its Dallas, Texas and London, England
offices, where it trains both its own personnel and customers who find it more
efficient to have their own personnel operate and maintain the
VARI*LITE-Registered Trademark- equipment. The Company also provides smaller
training facilities in its New York, Los Angeles and Tokyo offices.
In addition to luminaires and control consoles, the Company rents related
equipment required to operate the Company's systems, such as power and control
signal distribution equipment, dimmers and cables. The Company has also
developed a unique stackable, plastic injection-molded storage case for
transporting its equipment. The Company's cases are custom-designed to protect
VARI*LITE-Registered Trademark- equipment and last longer than the
industry-standard carpet covered wood or laminate cases. These cases are also
significantly lighter than other cases, thereby reducing transportation costs.
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AUTOMATED LIGHTING--IRIDEON-REGISTERED TRADEMARK- PRODUCTS.
In 1993, the Company began to apply its existing automated lighting
technologies to create its Irideon-Registered Trademark- products for the
architectural lighting industry. Through its subsidiary Irideon, Inc.
("Irideon"), the Company sells Irideon-Registered Trademark- automated lighting
products, even though it continues to rent all of its non-architectural
products.
AR500 LUMINAIRE-TM-. The AR500-TM- weather-proof wash luminaire is the
Company's first product designed specifically for exterior illumination of
objects such as monuments, bridges and commercial buildings. Like the Company's
other products, the AR500-TM- luminaire uses the Company's patented color
changing system to produce smooth color cross-fades through virtually the entire
color spectrum. Various lenses permit the light beam size to be altered and a
douser provides the ability to dim beam intensity.
AR5-TM- LUMINAIRE. In 1996, the Company began selling interior
architectural automated lights for use in permanent architectural installations.
The AR5-TM- wash luminaire, which is the first product in a planned family of
products for interior applications, uses new dichroic filter coatings, many
plastic components and a newly-developed light source. These features make this
product attractive to lighting and interior designers because it is less
expensive than the Company's VARI*LITE-Registered Trademark- products and does
not require trained operators after the initial set-up.
COMPOSER-REGISTERED TRADEMARK- CONTROL SYSTEM. The AR500-TM- and AR5-TM-
luminaires both are operated with the Composer-Registered Trademark- control
system. The Composer-Registered Trademark- is a Windows-Registered Trademark-
95-based system that is programmable using a standard personal computer. After
programming has been completed, the personal computer can be removed and
lighting cues or sequences can be activated via an internal clock or from wall
switches. The Composer-Registered Trademark- control system is DMX compatible
which, among other things, allows it to operate products manufactured by others.
COMPLEMENTARY BUSINESSES
The Company is a leader in providing complementary products and services to
the entertainment industry, including concert sound systems, conventional
lighting equipment, custom stage construction and stage set design services, and
design and production management services for conventions, business meetings and
special events.
CONCERT SOUND SYSTEMS. The Company's Showco subsidiary rents concert sound
systems and provides related services almost exclusively to the worldwide
concert touring market. The Company's PRISM-Registered Trademark- sound system
was introduced in 1986 as the first large scale concert sound system engineered
as a totally integrated system specifically for use in concert touring. The
proprietary, scalable PRISM-Registered Trademark- system can be used in any
venue from smaller theatres to stadiums and is easier to assemble, disassemble
and transport than competitive sound systems.
CONVENTIONAL LIGHTING PRODUCTS. Through its subsidiaries, Theatre Projects
Lighting Services Limited ("Theatre Projects"), which was acquired in 1994, and
Vari-Lite, the Company offers conventional lighting equipment, including
numerous types of luminaires and control consoles, large search lights,
automatic gel scrollers, trusses, dimmers and smoke machines, to London's West
End theatre market and the United Kingdom and European theatre touring markets,
as well as to concert touring artists worldwide and to businesses for corporate
events. The Company is also very active in the special events market, providing
services to numerous events for the British royalty. In the corporate event
market, the Company has provided its conventional lighting products to numerous
annual shareholder meetings and new product launches.
STAGES AND STAGE SETS. Through its Brilliant Stages Limited ("Brilliant
Stages") subsidiary, which was acquired in 1994, the Company sells custom stage
and stage set design and construction services to the international concert
touring, theatre and industrial trade show and corporate events markets. The
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Company's welded aluminum stages are designed using CAD software and are
constructed to facilitate rapid assembly, disassembly and loading in a
semi-trailer for efficient transportation. The Company is noted for high-tech
stages and stage sets that include distinctive hydraulic components and
sophisticated electronic effects.
CORPORATE MEETINGS AND SPECIAL EVENTS. The Company, through its IGNITION!
Creative Group, Inc. ("Ignition") subsidiary, provides design and production
management services to businesses for conventions, business meetings, new
product launches and special events. The Company provides concept development,
scenery, lighting, sound, special effects, scripting, media production, sound
and entertainment production for such events.
MARKETING, SALES AND DISTRIBUTION
The Company markets its products and services to the entertainment industry,
including concert touring, theatre, television and film and corporate events
markets, as well as to the architectural market. Depending on the circumstances,
the Company solicits business from lighting and set designers and consultants,
sound engineers, artist managers, producers, production managers and production
companies, promoters, architects, corporations and business associations. The
Company believes that its customer relationships, reputation for innovative,
quality products, worldwide distribution and excellent service are the keys to
its success. The Rolling Stones represented 11.9% of the Company's revenues in
fiscal 1995. No other customer has accounted for more than 10% of the Company's
revenues for at least the last three fiscal years.
AUTOMATED LIGHTING--VARI*LITE-REGISTERED TRADEMARK- PRODUCTS. The Company
rents rather than sells its VARI*LITE-Registered Trademark- automated lighting
products. In addition to providing the Company with a higher level of quality
control over its rental products, which require trained operators and
maintenance personnel, the Company believes renting has enabled it to better
protect its intellectual property and generate revenues from each product over
an extended time period. In order to compete effectively, the Company relies
heavily on its reputation as an innovative industry leader and strives to
develop strong relationships with lighting designers and other individuals who
recommend lighting products to end-users.
The Company markets its automated lighting systems and services in the
United States through Company-owned offices in Dallas, New York, Los Angeles,
Nashville, Orlando, Las Vegas and Chicago and an independent distributor system.
Each Company-owned office targets a specific market segment. For example, the
New York office targets the theatre market, the Nashville office targets the
country music, television and concert markets, the Los Angeles office targets
the television and film market and the Orlando, Las Vegas and Chicago offices
target the corporate events market. The independent distributors focus on
specific geographic markets and tend to rent to all market segments. The
Company's international distribution system comprises Company-owned locations in
London, Tokyo, Hong Kong and Madrid, as well as, at September 30, 1997,
independent distributors in Australia, Austria, Belgium, France, Germany, Korea,
Singapore and Sweden and 26 independent dealers in 35 cities in the United
States, Puerto Rico, Mexico, Canada, the United Kingdom and five other countries
in Europe.
The Company has two types of distribution arrangements: independent
distributors and independent dealers. Under the first arrangement, the
distributor advances the Company the funds needed to build the lighting systems
to be rented by that distributor. Although the distributor is solely responsible
for renting the equipment and providing support services to end-users, rental
revenues are split on a predetermined basis between the Company and the
distributor, with the distributor retaining the Company's share until the
distributor's advances to the Company have been repaid. Distributors are
required to undergo four weeks of intensive training in operation and
maintenance of the Company's lighting systems. Under the second arrangement,
independent dealers rent the Series 300-TM- systems from the Company generally
for fixed lease payments over a five-year term and bear the entire risk of
renting the lighting systems to end-users in regional markets.
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In order to satisfy customers who wanted to purchase the Company's lighting
systems, the Company offers sales-type leases. Under the typical sales-type
lease, the customer rents the Company's equipment for either a five- or a
ten-year term, with unlimited one-year renewal options, for a lump sum payment
at the commencement of the term, plus a nominal renewal option exercise price.
The customer is normally responsible for maintaining the equipment under these
arrangements, but often enters into a maintenance agreement with the Company.
The Company has begun to further emphasize its full-service strategy by
expanding the products and services it offers to include a more extensive
selection of conventional lighting products and related services. This effort is
designed to accommodate the comprehensive lighting needs of the Company's
customers and, by offering "one-stop" shopping, increase revenues from the
rental of VARI*LITE-Registered Trademark- products. In October 1997, the Company
implemented this expanded approach in its Las Vegas, Orlando and Chicago
offices, which now operate under the name VARI*LITE-Registered Trademark-
Production Services. The Company intends to convert its other existing offices
to, and open future offices as, VARI*LITE-Registered Trademark- Production
Services offices.
AUTOMATED LIGHTING--IRIDEON-REGISTERED TRADEMARK- PRODUCTS. The Company
sells its architectural lighting products primarily through a worldwide network
of independent sales representatives and distributors, but also directly, to
lighting designers who recommend lighting equipment for architectural
applications such as restaurants, casinos, retail stores, corporate showrooms,
shopping malls, building exteriors and landmarks.
CONVENTIONAL LIGHTING PRODUCTS. The Company's conventional lighting
operations, which have historically operated independently from the
VARI*LITE-Registered Trademark- product operations, maintain internal marketing
and distribution departments and rely heavily on the Company's established
reputation for quality and service, which is enhanced by its high visibility
projects and customers. The Company reinforces this reputation by advertising in
trade and specialty magazines. Although most of the Company's conventional
lighting contracts are procured through a bidding process, the Company believes
that competition in this industry is based on expertise, quality and price. The
Company has recently begun to integrate these operations with those of its
VARI*LITE-Registered Trademark- products in order to improve its position as a
full-service provider.
CONCERT SOUND SYSTEMS. The Company markets its concert sound equipment
directly to end-users worldwide. Showco develops personal relationships with
artist managers, sound engineers, production managers and event producers and
relies on its reputation for superior quality and service to attract customers.
STAGES AND STAGE SETS. The Company markets its custom stage construction
and stage set design services principally to production companies and set and
lighting designers. The Company relies on a bidding process to award almost all
contracts, but the Company believes its reputation for quickly producing quality
products with sophisticated high technology motion and other features is the key
element to its marketing success. Although the Company relies to some degree on
the trade press for publicity, it engages in very little advertising.
CORPORATE MEETINGS AND SPECIAL EVENTS. The Company sells its design and
production management services to corporate meeting planners and sales and
marketing executives. In-house salespeople seek requests for proposals through
cold calls, sales letters and professional mailings and, to a lesser extent,
through advertising in trade publications. Upon receiving an invitation to
submit a proposal, the Company assembles a project team which develops concepts
and designs for a multi-media presentation to the potential client.
RESEARCH AND DEVELOPMENT; INTELLECTUAL PROPERTY
The Company's proprietary technology and development of innovative products
that meet the needs of its customers have enabled it to expand the applications
for its technology to new products and markets.
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From time to time, the Company collaborates with unaffiliated entities to
supplement and complement its internal research and development activities.
As of September 30, 1997, the Company's research and development group
consisted of over 60 engineers. These internal capabilities enable the Company
to continually improve existing products, design new products and develop new
technology to meet the needs of its customers. In the fiscal years ended
September 30, 1995, 1996 and 1997, the Company's research and development
expenditures totaled $3.3 million, $4.4 million and $6.7 million, respectively.
The Company's extensive research and development efforts have produced a
number of leading-edge technological developments in the automated lighting
industry. When appropriate, the Company seeks patent protection for its
products, particularly in its automated lighting business. As of September 30,
1997, the Company had registered and received more than 25 domestic patents and
more than 110 foreign patents in several different countries and territories. In
addition, the Company had more than 10 patent applications pending in the United
States on automated lighting technology and more than 100 patent applications
pending worldwide. The Company's patents cover the basic concepts, control
software, control hardware and features unique to each of the Company's
VARI*LITE-Registered Trademark- luminaire models. The Company believes that its
patents provide it with a substantial competitive advantage in the automated
lighting industry, and the Company's ability to compete in the future will
depend in part on maintaining its technological advantage over its competitors.
The Company has obtained trademark protection in the United States and
numerous foreign countries on various names, including, among others,
VARI*LITE-Registered Trademark-, Artisan-Registered Trademark- Plus,
Mini-Artisan-Registered Trademark- 2, Series 100-TM-, Series 200-TM-, VL1-TM-,
VL2C-Registered Trademark-, VL4-Registered Trademark-,
VL5-Registered Trademark-, VL5Arc-TM-, VL5B-TM-, VL6-Registered Trademark-,
Showco-TM-, PRISM-Registered Trademark-, Irideon-Registered Trademark-,
AR500-TM-, AR5-TM- and Composer-Registered Trademark-.
MANUFACTURING
With the exception of the Company's stage construction business, which is
based in London, England, the Company's manufacturing facilities are located in
Dallas, Texas. The Company's manufacturing process principally consists of
procuring, inspecting and assembling components custom-made by others to the
Company's specifications. The Company generally provides its suppliers with
specifications for its components and pays for all tooling used in their
production. The Company emphasizes the quality and reliability of its products
and, accordingly, submits all finished products to rigorous testing both at the
time they are manufactured and when they are returned to the Company at the
termination of each rental agreement. In North America, compliance is certified
by Underwriters Laboratories, Inc.-Registered Trademark- and the Canadian
Standards Association. In the European Union, the CE mark signifies compliance
with standards for Electromagnetic Compatibility and Low Voltage Directives and
the TUV Rheinland GS Safety Mark signifies safety compliance. The Company builds
all new equipment and is retrofitting certain existing equipment to be in
compliance with these standards and marks.
The Company has frequently worked in concert with certain of its key
suppliers to design and develop new technologies which have been incorporated
into the Company's products specifically to meet its requirements. As a result,
although most components and raw materials used by the Company are available
from more than one supplier, many important components for the Company's
lighting systems are provided by one vendor and are custom-designed (often
jointly by the Company and its vendors). The Company attempts to maintain
adequate inventories of these components and, based on its experience, does not
anticipate problems obtaining sufficient supplies in the foreseeable future. The
loss of any supplier that is the sole vendor of a component would delay the
Company's manufacturing schedules and
possibly force the Company to purchase new tooling, but the Company believes
substitute suppliers can be found for all components of all of its products.
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EQUIPMENT INVENTORY MANAGEMENT
The Company uses an inventory control and management system to locate its
rental equipment at all times anywhere in the world. Each piece of equipment is
serialized for identification purposes. Equipment utilization is centrally
monitored at the Company's headquarters to determine (i) which products are in
highest demand in various geographic markets and whether certain equipment
should be relocated to increase utilization and revenue, (ii) whether product
shortages that require the production of additional units exist and (iii)
whether current pricing is at the appropriate level.
The maximum utilization rates of the Company equipment are affected by
production scheduling requirements of the concert touring, theatre, television
and film and corporate events markets. Utilization rates are also limited by the
need for maintenance, service and shipping time. The Company's inventory control
system helps the Company optimize its utilization rates in light of these
factors in order to satisfy customer requirements and maximize revenue.
COMPETITION
Each of the Company's businesses is highly competitive. In its automated
lighting business, the Company primarily competes with Coemar SPA, Clay Paky
SPA, High End Systems, Inc. ("High End"), Light & Sound Design, Ltd. and Martin
Gruppen A/S. Of these competitors, only Light & Sound Design, Ltd. manufactures
and rents equipment, while the others sell equipment to other rental companies.
In the theatre, television and film, concert touring and corporate event
markets, the Company competes with a number of conventional lighting rental
companies, who also purchase automated lighting equipment from others. The
Company competes primarily on the basis of product capabilities, quality and
reliability, price, worldwide distribution capabilities, brand name recognition
and reputation and customer service and support. The
VARI*LITE-Registered Trademark- brand name has been recognized for years as the
preeminent brand name for automated lighting.
The Company has several national concert sound competitors, the most
significant of which is Clair Brothers Audio. However, other companies such as
Maryland Sound Industries, Inc., Audio Analysts USA, Inc., dB Sound, Inc. and
Southern California Sound Image, Inc. compete effectively by offering less
sophisticated equipment at lower prices. The Company competes in this business
principally on product capabilities, quality and reliability, price, brand name
recognition, reputation and customer service.
The Company's custom stage construction and stage set design business
competes principally in the United Kingdom and to a lesser extent in the United
States. The primary factors affecting competition in this market include
reputation for quality and the ability to quickly design and build sophisticated
state-of-the-art stages and stage sets. The market for design and production
management services is highly competitive and fragmented, including hundreds of
free lance producers and designers. Competition in this industry is based
primarily on personal relationships and creativity.
EMPLOYEES
As of September 30, 1997, the Company had 489 full-time employees. In
addition, the Company had 227 part-time and temporary employees. None of the
Company's employees is a party to any collective bargaining agreement and the
Company has never experienced a work stoppage. The Company considers its
relations with its employees to be good.
ITEM 2. PROPERTIES
The Company leases all of its facilities, including five facilities
comprising approximately 153,000 square feet in Dallas, Texas under leases that
expire in April 1999, but can be extended until at least April 2000. The Dallas
facilities contain the Company's executive offices, manufacturing, warehouse,
maintenance, advanced technologies and research and development facilities and
training center. The
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executive offices, warehouse and manufacturing space of Vari-Lite Europe Limited
("Vari-Lite Europe"), Theatre Projects and Brilliant Stages are located in
London, England in two facilities with approximately 71,500 square feet that are
leased through January 1998, which is anticipated to be extended for three
years, and March 2010. The executive offices of Vari-Lite Asia, Inc. ("Vari-Lite
Asia"), as well as its Technical Center, are located in Tokyo in two leased
facilities aggregating approximately 10,300 square feet, the terms of which
expire in February 1999 and October 2000. In addition, the Company leases sales
offices in Chicago, Hong Kong, Madrid, Las Vegas, Los Angeles, Nashville, New
York and Orlando. The Company believes it maintains generally adequate insurance
with respect to its properties.
In December 1995, the Company entered into a lease with an unaffiliated
developer which purchased a 32-acre site in the Dallas, Texas area for
approximately $3.6 million. The Company is leasing this land for an initial term
of five years, with six five-year renewal options. If the lease is not renewed
or is otherwise terminated, the Company may be required to make a residual
termination payment equal to 85% of the $3.6 million paid by the developer to
acquire the land. The Company has the right to obligate the developer to
construct a building on the land that the Company would lease for a term that
would be identical to the land lease. The Company has an option to purchase the
property at the end of the initial term or at any time during the renewal terms
for its original cost. The Company intends to cause the developer to construct a
233,000 square foot facility where it will consolidate all of its Dallas, Texas
operations in fiscal 2000. The land lease is, and the facility lease (if any)
will be, accounted for as operating leases for financial reporting purposes. See
Note G of the "Notes to Consolidated Financial Statements."
ITEM 3. LEGAL PROCEEDINGS
In the ordinary course of its business, the Company is from time to time
threatened with or named as a defendant in various lawsuits, including patent
infringement claims. Additionally, the Company has filed lawsuits claiming
infringements of its patents by third parties for which the Company has been
subject to counterclaims.
In August 1995, the Company brought suit asserting a number of claims of
infringement of several of its patents by High End in the Northern District of
Texas seeking monetary damages and injunctive relief to prevent future patent
infringement (the "High End Lawsuit"). The Company also sought a temporary
restraining order for alleged trade secrets violations, which the court denied.
High End has denied the Company's claims and has counterclaimed seeking to have
certain of the Company's patents declared invalid and alleging that the
Company's claims are frivolous and that the Company has violated federal
antitrust laws. The Company believes High End's counterclaims are without merit.
Discovery in this matter is proceeding and trial is currently scheduled for
September 1998. The Company has capitalized and expects to continue to
capitalize its costs relating to this lawsuit ($3.3 million as of September 30,
1997 and an estimated additional $2.2 million through consummation of the
trial). Unless the Company receives a judgment in this litigation that High End
has infringed at least one of its patents and the Company concludes, based on
all of the facts and circumstances, that such a judgment will allow it to
maintain its competitive advantage provided by the infringed patents, all costs
incurred by the Company relating to the High End Lawsuit (including those
previously capitalized) will be required to be recorded as a non-cash expense in
the period that the judgment is rendered.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On September 16, 1997, Vari-Lite Texas held a special meeting of its
shareholders (the "Meeting") to approve the Reincorporation. Approval of the
Reincorporation required the affirmative vote of at least two-thirds of the
outstanding shares of Class A Common Stock, voting separately as a class, and
the approval of at least two-thirds of the outstanding shares of Class B Common
Stock of Vari-Lite Texas, voting separately as a class. As of the record date
for the Meeting there were 200,000 shares of Class A
10
<PAGE>
Common Stock of Vari-Lite Texas outstanding and 1,341,045 shares of Class B
Common Stock of Vari-Lite Texas outstanding. The results of the vote to approve
the Reincorporation at the Meeting were as follows:
<TABLE>
<CAPTION>
HOLDERS OF CLASS A COMMON STOCK HOLDERS OF CLASS B COMMON STOCK
------------------------------- -------------------------------
<S> <C> <C>
Votes FOR the Reincorporation.................. 200,000 1,315,471
Votes AGAINST the Reincorporation.............. 0 0
Abstentions from Voting........................ 0 0
</TABLE>
Also on August 27, 1997 the holders of the Class A Common Stock of Vari-Lite
Texas approved by written consent the Vari-Lite International, Inc. 1997 Omnibus
Plan and the Vari-Lite International, Inc. Annual Incentive Plan. Pursuant to
the Articles of Incorporation of Vari-Lite Texas, the holders of the Class B
Common Stock did not have any voting rights except to the extent provided by
applicable law and, accordingly, did not vote on these matters.
On August 27, 1997, the sole stockholder of the Company approved by written
consent the Reincorporation.
11
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Common Stock trades on the Nasdaq National Market under the symbol
"LITE." The Company consummated its initial public offering of Common Stock on
October 16, 1997, and, accordingly, there was no trading during either of the
two prior fiscal years. There were 67 stockholders of record of Common Stock on
December 18, 1997.
The Company paid dividends of approximately $0.6 million with respect to
each of the 1995, 1996 and 1997 fiscal years. The Company does not anticipate
paying any other cash dividends on the Common Stock in the foreseeable future
and anticipates that future earnings will be retained to finance operations and
expansion. The payment of cash dividends in the future will be at the discretion
of the Board of Directors and will depend upon the Company's earnings levels,
capital requirements and financial condition and such other factors the Board of
Directors deems relevant.
12
<PAGE>
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data for the Company as of and
for each of the five fiscal years in the period ended September 30, 1997 have
been derived from the audited consolidated financial statements of the Company.
This data should be read in conjunction with the information set forth in
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the Financial Statements and related notes thereto included
elsewhere in this report.
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
----------------------------------------------------------
1993 1994 1995 1996 1997
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenue:
Rental revenues................................... $ 31,869 $ 47,625 $ 65,864 $ 65,741 $ 75,529
Product sales and service revenues................ 3,384 6,187 9,046 11,397 15,129
---------- ---------- ---------- ---------- ----------
Total revenues.................................. 35,253 53,812 74,910 77,138 90,658
Rental costs........................................ 12,320 18,775 26,288 26,425 29,371
Product sales and service costs..................... 2,288 4,284 6,637 7,783 10,676
---------- ---------- ---------- ---------- ----------
Gross profit........................................ 20,645 30,753 41,985 42,930 50,611
Selling, general and administrative expense......... 13,170 19,181 28,163 30,077 32,983
Research and development expense.................... 2,347 3,033 3,283 4,404 6,657
---------- ---------- ---------- ---------- ----------
Operating income.................................... 5,128 8,539 10,539 8,449 10,971
Interest expense (net).............................. 1,606 1,805 2,788 3,092 3,726
---------- ---------- ---------- ---------- ----------
Income before taxes and extraordinary loss.......... 3,522 6,734 7,751 5,357 7,245
Income taxes........................................ 1,253 2,400 3,037 2,238 2,916
---------- ---------- ---------- ---------- ----------
Income before extraordinary loss.................... 2,269 4,334 4,714 3,119 4,329
Extraordinary loss from early extinguishment of debt
(net of tax of $389).............................. -- 756 -- -- --
---------- ---------- ---------- ---------- ----------
Net income.......................................... $ 2,269 $ 3,578 $ 4,714 $ 3,119 $ 4,329
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Net income per share................................ $ 0.39 $ 0.62 $ 0.81 $ 0.53 $ 0.74
Cash dividends per share(1)......................... $ 0.05 $ 0.05 $ 0.10 $ 0.11 $ 0.18
Weighted average shares outstanding................. 5,773 5,772 5,814 5,912 5,819
OTHER DATA:
EBITDA(2)........................................... $ 10,230 $ 14,620 $ 19,161 $ 18,517 $ 22,634
Net cash provided by operations..................... 7,879 10,937 14,513 8,531 17,029
Net cash used in investing activities............... (10,789) (18,924) (20,641) (12,432) (24,863)
Net cash provided by (used in) financing
activities........................................ 2,094 9,355 7,307 2,564 8,346
Capital expenditures................................ 11,050 13,566 20,748 12,587 25,004
</TABLE>
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30,
-----------------------------------------------------
1993 1994 1995 1996 1997
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Total assets............................................. $ 37,626 $ 57,223 $ 73,465 $ 78,581 $ 96,704
Total debt............................................... 16,648 27,497 34,870 37,349 46,242
Stockholders' equity..................................... 13,302 16,631 21,329 24,538 27,541
</TABLE>
- ------------------------
(1) The Company does not anticipate paying any cash dividends on the Common
Stock for the foreseeable future and anticipates that future earnings will
be retained to finance future operations and expansion. See "Market for
Registrant's Common Equity and Related Stockholder Matters."
13
<PAGE>
(2) EBITDA is calculated herein as income before income taxes plus depreciation,
amortization and net interest expense. The Company believes that EBITDA
serves as an important financial analysis tool for measuring and comparing
financial information such as liquidity, operating performance and leverage.
EBITDA should not be considered an alternative to net income or other cash
flow measures determined under generally accepted accounting principals as
an indicator of the Company's performance or liquidity. EBITDA as disclosed
herein may not be comparable to EBITDA as disclosed by other companies.
14
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
GENERAL
The Company is a leading designer and manufacturer of automated lighting
systems and products which are marketed exclusively through its domestic and
international facilities and an independent distributor network. The Company
rents its VARI*LITE-Registered Trademark- automated lighting systems and other
products and provides services to the entertainment industry, including markets
such as concert touring, theatre, television and film and corporate events. In
addition, the Company sells its Irideon-Registered Trademark- automated lighting
systems for use in a wide variety of architectural applications.
The Company's revenues are generated through the rental of lighting and
sound systems and
equipment, and through sales of related products and services and architectural
lighting systems. Rental revenues include revenues generated from leases of
VARI*LITE-Registered Trademark- automated lighting systems, concert sound
systems and conventional lighting equipment. Revenues from product sales and
services include custom stage construction and stage set design services, design
and production management services and the sale of Irideon-Registered Trademark-
automated lighting systems and related products.
Rental revenues were $65.9 million, $65.7 million and $75.5 million or
87.9%, 85.2% and 83.3% of total revenues during fiscal 1995, 1996 and 1997,
respectively. The majority of the Company's rental revenues are earned from the
rental of VARI*LITE-Registered Trademark- automated lighting systems, with the
remainder from the rental of concert sound systems and conventional lighting
equipment. The Company's rental revenues are recorded as earned over the term of
each contract except for revenues from sales-type leases which are recorded and
typically paid at the inception of the lease. Sales-type leases are long-term
leases for the Company's VARI*LITE-Registered Trademark- automated lighting
systems and are accounted for as sales for financial accounting purposes.
Revenues from sales-type leases were $9.9 million, $4.5 million and $8.7 million
during fiscal 1995, 1996 and 1997, respectively. Because sales-type lease
revenues are recorded in their entirety at the inception of the lease, wide
variations in revenues and earnings in any given quarter can occur. Rental costs
consist of direct costs of maintaining, supporting and delivering the rental
equipment and the depreciation costs of the capital expenditures incurred to
manufacture or purchase the rental equipment. The Company depreciates rental
equipment over periods of five to ten years. The direct costs associated with
sales-type leases include the net book value of the equipment rented which is
expensed in its entirety at the inception of the lease.
The Company generates sales revenue from its custom stage construction and
stage set design services, design and production management services to
corporations and business associations for conventions, business meetings and
special events and sales of Irideon-Registered Trademark- automated lighting
systems. The Company first introduced its Irideon-Registered Trademark- lighting
system in 1993 and revenues from the Irideon-Registered Trademark- product line
have increased from $0.8 million in fiscal 1994 to $4.4 million in fiscal 1997.
During fiscal 1995, 1996 and 1997, the Company's Irideon-Registered Trademark-
product line experienced operating losses of $0.9 million, $1.2 million and $1.3
million, respectively, due to product development and start-up costs. To date,
the gross margin percentage of Irideon-Registered Trademark- products has been
lower than those of the Company's rental business. Although the gross margin
percentage of Irideon-Registered Trademark- products is expected to improve, it
is expected to remain below that of the Company's rental business.
15
<PAGE>
The following table reflects the percentages of total revenues by market:
<TABLE>
<CAPTION>
YEARS ENDED SEPTEMBER 30,
-------------------------------------
1995 1996 1997
----------- ----------- -----------
<S> <C> <C> <C>
Concert Touring............................................... 38.2% 33.0% 32.1%
Theatre....................................................... 20.6 22.7 24.4
Television and Film........................................... 12.9 16.3 14.7
Corporate Events.............................................. 14.0 12.2 12.4
Other......................................................... 14.3 15.8 16.4
----- ----- -----
Total Revenue............................................... 100.0% 100.0% 100.0%
----- ----- -----
----- ----- -----
</TABLE>
Although the Company expects revenues earned from concert touring (primarily
rental revenues) to continue to represent a significant percentage of the
Company's total revenues, during the past three fiscal years, concert touring
revenues have decreased as a percentage of the Company's total revenues due to
an increase in rental revenues generated from the Company's other customer
markets. The Company has experienced fluctuations in its concert touring
revenues because of the unpredictable nature of the timing and duration of such
tours and expects such fluctuations to continue in the future.
The following table reflects the Company's geographic region revenues as a
percentage of total revenues (see Note J of the "Notes to Consolidated Financial
Statements"):
<TABLE>
<CAPTION>
YEARS ENDED SEPTEMBER 30,
-------------------------------------
1995 1996 1997
----------- ----------- -----------
<S> <C> <C> <C>
North America................................................. 53.1% 50.7% 50.3%
Europe........................................................ 33.8 34.5 36.3
Asia.......................................................... 13.1 14.8 13.4
----- ----- -----
Total Revenue............................................... 100.0% 100.0% 100.0%
----- ----- -----
----- ----- -----
</TABLE>
The majority of European and Asian revenues are denominated in British
pounds sterling and Japanese yen, respectively. The Company has offices in
London, Tokyo, Hong Kong and Madrid. The Company anticipates that foreign
revenues will remain a significant part of the Company's total revenues as the
demand for entertainment in foreign markets continues to increase. Fluctuations
in foreign currencies have impacted, and will continue to impact, the Company's
consolidated results of operations due to the translation of foreign currencies
into U.S. dollars. The Company maintains foreign currency borrowings to act as
an economic hedge against fluctuations in British pounds sterling and Japanese
yen. "Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
16
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth the percentages of total revenues represented
by certain income statement data and other data for the indicated periods:
<TABLE>
<CAPTION>
YEARS ENDED SEPTEMBER 30,
-------------------------------
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Income Statement Data:
Rental revenues.................................................... 87.9% 85.2% 83.3%
Product sales and service revenues................................. 12.1 14.8 16.7
--------- --------- ---------
Total revenues................................................... 100.0 100.0 100.0
Rental costs....................................................... 35.1 34.3 32.4
Product sales and service costs.................................... 8.9 10.1 11.8
--------- --------- ---------
Gross margin....................................................... 56.0 55.6 55.8
Selling, general and administrative expense........................ 37.5 39.0 36.4
Research and development expense................................... 4.4 5.7 7.3
--------- --------- ---------
Operating income................................................... 14.1 10.9 12.1
Interest expense................................................... 3.7 4.0 4.1
--------- --------- ---------
Income before taxes................................................ 10.4 6.9 8.0
Incomes taxes...................................................... 4.1 2.9 3.2
--------- --------- ---------
Net income......................................................... 6.3% 4.0% 4.8%
--------- --------- ---------
--------- --------- ---------
Other Data:
Rental revenues.................................................... 100.0% 100.0% 100.0%
Rental costs....................................................... 39.9 40.2 38.9
--------- --------- ---------
Rental gross margin................................................ 60.1% 59.8% 61.1%
Product sales and service revenues................................. 100.0% 100.0% 100.0%
Product sales and service costs.................................... 73.4 68.3 70.6
--------- --------- ---------
Product sales and service gross margin............................. 26.6% 31.7% 29.4%
EBITDA............................................................. 25.6% 24.0% 25.0%
</TABLE>
FISCAL YEAR ENDED SEPTEMBER 30, 1997 COMPARED TO FISCAL YEAR ENDED SEPTEMBER 30,
1996
REVENUES. Total revenues increased 17.5%, or $13.5 million, to $90.6
million in fiscal 1997, compared to $77.1 million in fiscal 1996. The revenue
increase was attributable primarily to the factors set forth below.
Rental revenues increased 14.9%, or $9.8 million, to $75.5 million in fiscal
1997, compared to $65.7 million in fiscal 1996. This increase was primarily the
result of an overall increase in concert touring revenues due to an improved
concert touring market during fiscal 1997 compared to fiscal 1996. As a result,
the Company experienced increased rental revenues from both automated lighting
systems and sound systems, as well as from other related products and services.
Rental revenues from sales-type leases accounted for approximately 42.4%, or
$4.2 million, of the increase in rental revenues in fiscal 1997, compared with
fiscal 1996. The increase in sales-type lease revenues was primarily due to
significant leases with new theatrical productions and an amusement park.
Product sales and service revenues increased 32.7%, or $3.7 million, to
$15.1 million in fiscal 1997, compared to $11.4 million in fiscal 1996. This
increase was primarily due to sales of the Company's
Irideon-Registered Trademark- automated lighting products which increased 68.7%,
or $1.8 million, to $4.4 million in fiscal 1997,
17
<PAGE>
compared to $2.6 million in fiscal 1996. The remainder of the increase was
primarily attributable to the increase in revenues from stage construction
services as a result of increased concert touring activity.
RENTAL COSTS. Rental costs increased 11.1%, or $2.9 million, to $29.3
million in fiscal 1997, compared to $26.4 million in fiscal 1996. Rental costs
as a percentage of rental revenues decreased to 38.9% in fiscal 1997, from 40.2%
in fiscal 1996. The decrease in rental costs as a percentage of total rental
revenues was primarily due to a decrease in sales-type lease costs as a
percentage of sales-type lease rental revenues in fiscal 1997, compared to
fiscal 1996. The decrease in sales-type lease costs was due to the leasing of
older equipment during fiscal 1997, compared to fiscal 1996.
PRODUCT SALES AND SERVICE COSTS. Product sales and service costs increased
37.2%, or $2.9 million, to $10.7 million in fiscal 1997, compared to $7.8
million in fiscal 1996. Product sales and service costs as a percentage of
product sales and service revenues increased to 70.6% in fiscal 1997, from 68.3%
in fiscal 1996. The increase in product sales and service costs as a percentage
of the related revenues was primarily due to an increase in product sales and
service costs for the Company's custom stage construction business that was
subcontracted to others by the Company during fiscal 1997, compared to fiscal
1996. Product sales and service costs associated with subcontracted services are
generally higher than costs associated with services provided directly by the
Company. Partially offsetting this increase was a decrease in product sales and
service costs as a percentage of the related revenues for the Company's
Irideon-Registered Trademark- product line, which experienced improved
production efficiencies and an increase in direct sales.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE. Selling, general and
administrative expense increased 9.7%, or $2.9 million, to $33.0 million in
fiscal 1997, compared to $30.1 million in fiscal 1996. This increase resulted
primarily from payroll and related costs to support the Company's continued
growth. This expense as a percentage of total revenues decreased to 36.4% in
fiscal 1997, from 39.0% in fiscal 1996, due to costs incurred during fiscal year
1996 resulting from increases in personnel and improvements in information
systems in anticipation of growth which occurred in fiscal 1997.
RESEARCH AND DEVELOPMENT EXPENSE. Research and development expense
increased 51.2%, or $2.3 million, to $6.7 million in fiscal 1997, compared to
$4.4 million in fiscal 1996. This expense as a percentage of total revenues
increased to 7.3% in fiscal 1997, from 5.7% in fiscal 1996. These increases were
primarily the result of an increase in the employee-related costs associated
with adding research and development engineers during fiscal 1996 and fiscal
1997.
INTEREST EXPENSE. Interest expense increased 20.5%, or $0.6 million, to
$3.7 million in fiscal 1997, compared to $3.1 million in fiscal 1996. This
increase was attributable to additional long-term borrowings incurred by the
Company to fund capital expenditures.
INCOME TAXES. Effective tax rates in fiscal 1997 and 1996 were 40.2% and
41.7%, respectively.
FISCAL YEAR ENDED SEPTEMBER 30, 1996 COMPARED TO FISCAL YEAR ENDED SEPTEMBER 30,
1995
REVENUES. Total revenues increased 3.0%, or $2.2 million, to $77.1 million
in fiscal 1996, compared to $74.9 million in fiscal 1995. The revenue increase
was attributable primarily to the factors set forth below.
Rental revenues decreased $0.2 million to $65.7 million in fiscal 1996,
compared to $65.9 million in fiscal 1995. This decrease was primarily the result
of a 54.2%, or $5.4 million, decrease in rental revenues from sales-type leases,
which decreased to $4.5 million in fiscal 1996, compared to $9.9 million in
fiscal 1995, primarily due to large, one-time sales-type leases to one major
casino and to several major cloned touring theatrical productions in fiscal
1995. Additionally, the Company experienced an overall decrease in concert
touring revenues in fiscal 1996 as a result of a downturn in the concert touring
market compared with fiscal 1995. These decreases were offset by increased
rental revenues earned from the Company's VARI*LITE-Registered Trademark-
automated lighting systems as more of these products were available for rental
as a result of fiscal 1995 capital expenditures, and an increase in automated
lighting rental revenues in Japan.
18
<PAGE>
Product sales and service revenues increased 26.0%, or $2.4 million, to
$11.4 million in fiscal 1996, compared to $9.0 million in fiscal 1995. Product
sales and service revenues increased as a percentage of total revenues to 14.8%
in fiscal 1996, from 12.1% in fiscal 1995. This increase in revenue was
primarily due to sales of Irideon-Registered Trademark- automated lighting
products which increased 180.9%, or $1.7 million, to $2.6 million in fiscal
1996, compared to $0.9 million in fiscal 1995.
RENTAL COSTS. Rental costs increased 0.5%, or $0.1 million, to $26.4
million in fiscal 1996, compared to $26.3 million in fiscal 1995. Rental costs
as a percentage of rental revenues increased to 40.2% in fiscal 1996, from 39.9%
in fiscal 1995. This increase was primarily the result of increased sales-type
lease costs as a percentage of sales-type lease rental revenues in fiscal 1996,
compared to fiscal 1995, due to the leasing of newer equipment during fiscal
1996, compared to fiscal 1995.
PRODUCT SALES AND SERVICE COSTS. Product sales and service costs increased
17.3%, or $1.2 million, to $7.8 million in fiscal 1996 compared to $6.6 million
in fiscal 1995. Product sales and service costs as a percentage of product sales
and service revenues decreased from 73.4% in fiscal 1995 to 68.3% in fiscal
1996. The decrease in these costs as a percentage of their related revenues was
primarily the result of operating improvements in the Company's custom stage
construction business.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE. Selling, general and
administrative expense increased 6.8%, or $1.9 million, to $30.1 million in
fiscal 1996, compared to $28.2 million in fiscal 1995. This expense as a
percentage of total revenues increased to 39.0% in fiscal 1996 from 37.5% in
fiscal 1995. These increases primarily resulted from increased payroll and
related costs and depreciation expense associated with increases in personnel
and improvements in information systems necessitated by the Company's continued
growth.
RESEARCH AND DEVELOPMENT EXPENSE. Research and development expense
increased 34.1%, or $1.1 million, to $4.4 million in fiscal 1996, compared to
$3.3 million in fiscal 1995. This expense as a percentage of total revenues
increased to 5.7% in fiscal 1996, from 4.4% in fiscal 1995. These increases were
primarily the result of an increase in the employee-related costs associated
with adding 16 research and development engineers during fiscal 1996.
INTEREST EXPENSE. Interest expense increased 10.9%, or $0.3 million, to
$3.1 million in fiscal 1996, compared to $2.8 million in fiscal 1995. This
increase was attributable to additional long-term borrowings incurred by the
Company to fund capital expenditures in fiscal 1995 and 1996.
INCOME TAXES. Effective tax rates in fiscal 1996 and 1995 were 41.7% and
39.2%, respectively.
19
<PAGE>
QUARTERLY FLUCTUATIONS AND SEASONALITY
The following table sets forth certain income statement data and EBITDA for
each of the Company's last three fiscal years, which were derived from unaudited
financial statements of the Company. In the opinion of the Company's management,
this income statement data contains all adjustments, consisting only of normal
recurring adjustments, necessary for a fair presentation thereof.
<TABLE>
<CAPTION>
QUARTERS ENDED
--------------------------------------------------
DECEMBER 31 MARCH 31 JUNE 30 SEPTEMBER 30
------------ ----------- --------- ------------ FISCAL YEAR
(IN THOUSANDS) -----------
<S> <C> <C> <C> <C> <C>
FISCAL 1995
Total Revenues................ $ 18,648 $ 17,234 $ 19,314 $ 19,714 $ 74,910
EBITDA........................ 6,224 4,027 4,495 4,415 19,161
Operating income.............. 4,267 1,951 2,284 2,037 10,539
FISCAL 1996
Total Revenues................ $ 16,791 $ 16,995 $ 19,645 $ 23,707 $ 77,138
EBITDA........................ 3,648 3,436 4,845 6,588 18,517
Operating income.............. 1,186 915 2,285 4,063 8,449
FISCAL 1997
Total Revenues................ $ 22,326 $ 22,384 $ 22,185 23,763 90,658
EBITDA........................ 5,215 5,083 5,989 6,347 22,634
Operating income.............. 2,424 2,265 2,954 3,328 10,971
</TABLE>
The Company has experienced and is expected to continue to experience
fluctuations in quarterly operating results, both between different quarters
within the same fiscal year and with respect to the same quarter between
different fiscal years. These fluctuations arise from several factors, including
the timing and dollar value of sales-type leases with customers, the dependence
of the Company on concert tours, which are unpredictable in timing and duration,
the introduction of new products and general economic conditions both
domestically and internationally. In addition, the Company's business is subject
to seasonal fluctuations with the highest percentage of its revenues being
generated in the summer months and the lowest percentage being generated in
winter months. Because of the possibilities of significant fluctuations, results
for any quarter may not be indicative of results that may be achieved in a full
year. While the Company expects to experience growth in its revenues and
profits, there can be no assurance that the Company's historical levels of
revenues or profits will be sustained, particularly on a quarterly basis.
LIQUIDITY AND CAPITAL RESOURCES
Historically, the Company has financed its operations and capital
expenditures with cash flow from operations, bank borrowings and advances from
distributors and customers. The Company's operating activities generated cash
flow of approximately $14.5 million, $8.5 million and $17.0 million during
fiscal 1995, 1996 and 1997, respectively.
During fiscal 1997, the Company borrowed under a multicurrency credit
agreement (the "Old Credit Agreement") to partially finance its operations and
capital expenditures. On October 21, 1997, the Company consummated the initial
public offering of its Common Stock and used the net proceeds thereof,
approximately $21.4 million, to repay indebtedness under the Old Credit
Agreement. In December 1997, the Company entered into a new multicurrency credit
agreement, with SunTrust Bank, Atlanta ("SunTrust"), as agent for the lenders
thereunder (the "New Credit Agreement"), which replaced the Old Credit
Agreement. The New Credit Agreement has a five-year term and provides the
Company with a $50 million revolving credit facility, which is secured by the
pledge of 65% of the capital stock of the Company's foreign subsidiaries. The
commitment fee on the unused portion of the facility and the interest charged on
the outstanding balance of the facility are determined by pricing grid based on
the Company's ratio of
20
<PAGE>
Adjusted Funded Debt (as defined in the New Credit Agreement) to EBITDA (as
defined in the New Credit Agreement). The commitment fee ranges from 0.2% to
0.375% and the interest rate ranges from 1.0% to 2.5% above the London interbank
offering rate ("LIBOR") or SunTrust's base rate. The initial commitment fee and
margin above LIBOR are fixed through March 31, 1998, at 0.25% and 1.5%,
respectively, and can be fixed through June 30, 1998 by payment of a $25,000
fee. The New Credit Agreement includes customary negative covenants such as
restrictions on the Company's ability to incur debt, make acquisitions or
investments or sell assets. Also, the New Credit Agreement includes financial
covenants regarding the Company's net worth, ratio of Adjusted Funded Debt to
total capitalization, the ratio of Adjusted Funded Debt to EBITDA and the ratio
of EBITR (as defined in the New Credit Agreement) to interest and rent expenses.
As of December 24, 1997, $26.5 million was outstanding under the New Credit
Agreement (based on currency exchange rates as of that date).
The Company has hedged a portion of its currency fluctuation risk by
borrowing in British pounds sterling and Japanese yen under the both the Old
Credit Agreement and the New Credit Agreement. Cash generated from the Company's
England and Japan offices is typically denominated in British pounds sterling
and Japanese yen, respectively, and is used to pay expenses incurred in these
currencies and service the foreign currency borrowings. The Company is a party
to two interest rate swap agreements which fixed the Company's effective
interest costs under a portion of the Old Credit Agreement and will fix the
Company's effective interest costs under a portion of the New Credit Agreement.
See Note E of "Notes to Consolidated Financial Statements."
The Company has funded the costs to manufacture automated lighting equipment
to be rented to certain distributors with advances made by the distributors
under the terms of the Company's distributorship agreements. The distributors
typically advance to the Company an amount equal to the cost to manufacture the
equipment, and enter into agreements whereby the distributors have the exclusive
right to sublease the lighting equipment within defined territories. Borrowings
by the Company under these agreements, which are secured by liens against the
applicable equipment, are repaid by the Company through future rentals due from
the distributors under the terms of their distributorship agreements and bear
interest at various rates ranging up to 10.25% annually. Proceeds received under
these distributorship agreements were approximately $2.2 million, $1.7 million
and $1.2 million for fiscal 1995, 1996 and 1997, respectively, and outstanding
borrowings from distributors at September 30, 1995, 1996 and 1997 were
approximately $2.9 million, $2.8 million and $2.3 million, respectively. All
amounts advanced by distributors are accounted for by the Company as short-term
debt. See "Business--Marketing, Sales and Distribution."
The Company has borrowed money to purchase computer equipment and office
furniture and fixtures. These loans typically amortize over three years and bear
interest at various rates ranging from 8.25% to 10.40%. Proceeds received under
this type of financing were approximately $1.6 million, $1.8 million and $1.1
million for fiscal 1995, 1996 and 1997, respectively, and borrowings outstanding
at September 30, 1995, 1996 and 1997 were approximately $1.7 million, $2.8
million and $2.6 million, respectively.
The Company has also used customer advances to fund short-term working
capital and immediate capital expenditure needs for specific contracts. As of
September 30, 1995, 1996 and 1997, the Company had unearned revenue related to
customer advances of approximately $1.6 million, $2.2 million and $3.0 million,
respectively.
Dividends paid to stockholders totaled approximately $0.6 million with
respect to each of fiscal 1995, 1996 and 1997. The Company does not anticipate
paying any additional cash dividends for the foreseeable future. See "Market for
Registrant's Common Equity and Related Stockholder Matters."
The Company's business requires significant capital expenditures. Capital
expenditures for fiscal 1995, 1996 and 1997 were approximately $20.7 million,
$12.6 million and $25.0 million, respectively, of which approximately $18.0
million, $10.2 million and $19.2 million were for rental equipment inventories.
The
21
<PAGE>
majority of the Company's revenues are generated through the rental of automated
lighting and concert sound systems and, as such, the Company must maintain a
significant amount of rental equipment to meet customer demands. Total rental
equipment inventories increased from approximately $61.6 million at the
beginning of fiscal 1995 to $102.5 million at September 30, 1997. This increase
primarily consisted of automated lighting equipment, including new products,
additional inventory of existing products and the replacement of equipment
leased under sales-type leases. The Company's management anticipates capital
expenditures of approximately $25.0 million during fiscal 1998, primarily for
expansion of rental inventories.
Inventory included in current assets consists primarily of raw materials and
finished goods for the Company's Irideon-Registered Trademark- products and
spare parts inventory for the Company's VARI*LITE-Registered Trademark-
automated lighting equipment. Raw materials represented 83.4%, and 86% of total
inventory at September 30, 1996 and 1997, respectively. The fluctuation in raw
materials as a percentage of total inventory was caused primarily by changes in
the timing of the manufacturing of Irideon-Registered Trademark- products which
are manufactured as orders are received.
The Company had a working capital deficit of approximately $4.8 million,
$0.6 million and $0.8 million at September 30, 1995, 1996 and 1997,
respectively. The Company has historically maintained working capital deficits
since the bulk of its revenue generating assets are classified as long-term
assets rather than current assets.
In December 1995, the Company entered into a lease with an unaffiliated
developer which purchased a 32-acre site in the Dallas, Texas area for
approximately $3.6 million. The Company is leasing this land for an initial term
of five years, with six five-year renewal options. If the lease is not renewed
or is otherwise terminated, the Company may be required to make a residual
termination payment equal to 85% of the $3.6 million paid by the developer to
acquire the land. The Company has the right to obligate the developer to
construct a building on the land that the Company would lease for a term that
would be identical to the land lease. The Company has an option to purchase the
property at the end of the initial lease term or at any time during the renewal
terms for its original cost. The Company intends to cause the developer to
construct a 233,000 square foot facility where it will consolidate all of its
Dallas, Texas operations in fiscal 2000. The land lease is, and the facility
lease (if any) will be, accounted for as operating leases for financial
reporting purposes. See "Business--Properties" and Note G of the "Notes to
Consolidated Financial Statements."
The Company has capitalized and expects to continue to capitalize its costs
relating to the High End Lawsuit (approximately $3.3 million as of September 30,
1997, and an estimated additional $2.2 million through consummation of the
trial). Unless the Company receives a judgment in this litigation that at least
one of its patents has been infringed and the Company concludes, based on all of
the facts and circumstances, that such a judgment will allow it to maintain its
competitive advantage provided by the infringed patents, all costs incurred by
the Company relating to the High End Lawsuit (including those previously
capitalized) will be required to be recorded as a non-cash expense in the period
that the judgment is rendered. See "Legal Proceedings."
Management believes that cash flow generated from operations and borrowing
capacity under the New Credit Agreement should be sufficient to fund its
anticipated operating needs and capital expenditures for at least the next
twelve months. However, because the Company's future operating results will
depend on a number of factors, including the demand for the Company's products
and services, the level of competition, the success of the Company's research
and development programs, the ability to achieve competitive and technological
advances and general and economic conditions and other factors beyond the
Company's control, there can be no assurance that sufficient capital resources
will be available to fund the expected expansion of its business beyond such
period.
22
<PAGE>
INFLATION
The Company has generally been able to offset cost increases with increases
in the rental rates and sales prices charged for its products and services.
Accordingly, the Company does not believe that inflation has had a material
effect on its results of operations to date. However, there can be no assurance
that the Company's business will not be adversely affected by inflation in the
future.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This report includes "forward-looking statements" as that phrase is defined
in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. When used in this report, the words
"anticipate," "believe," "estimate," "expect," "will," "could," "may" and
similar expressions, as they relate to management or the Company, are intended
to identify forward-looking statements. Such statements reflect the current
views of management with respect to future events and are subject to certain
risks, uncertainties and assumptions, including without limitation the following
as they relate to the Company: fluctuations in operating results and
seasonality; ability to introduce new products; technological changes; reliance
on intellectual property; capitalized litigation costs; dependence on
entertainment industry; competition; dependence on management; foreign exchange
risk; international trade risk; dependence on key suppliers and dependence on
manufacturing facility. Should one or more of these risks or uncertainties
materialize, or should underlying assumptions prove incorrect, actual results
may vary materially from those described herein.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated financial statements of the Company and its subsidiaries
which are required by this Item 8 are listed in Part IV, Item 14(a) of this
report. Such consolidated financial statements are included herein beginning on
page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not Applicable.
23
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information concerning the executive
officers and directors of the Company.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ------------------------------------ --- ---------------------------------------------------------------------
<S> <C> <C>
H. R. Brutsche III(1)............... 52 Chairman of the Board, President and Chief Executive Officer of the
Company
Michael P. Herman................... 54 Vice President--Finance, Chief Financial Officer and Secretary of the
Company
James H. Clark, Jr.(1)(2)........... 61 Director of the Company
John D. Maxson(1)................... 57 Director of the Company and Chairman of the Board of Showco and
Ignition
J. Anthony Smith(3)................. 52 Director of the Company
C. Vincent Prothro(2)(3)(4)......... 55 Director of the Company
John R. Rettberg(2)(3)(4)........... 60 Director of the Company
Keizo Akimoto....................... 63 President and Representative Director of Vari-Lite Asia
James P. Bates...................... 51 Vice President--Information Technology and Chief Information Officer
of the Company
James M. Bornhorst.................. 52 Vice President and Chief Science Officer of the Company and Vice
President--Advanced Technology and Director of Vari-Lite
Richard W. Bratcher, Jr............. 37 President, Chief Executive Officer and Director of Showco
Brian L. Croft...................... 59 Managing Director of Vari-Lite Europe Holdings Ltd. ("VLEH")
Robert V. Dungan.................... 45 Vice President, General Manager and Director of Irideon
Loren J. Haas....................... 39 Executive Vice President--VARI*LITE-Registered Trademark- Production
Services of Vari-Lite
Janis C. Pestinger.................. 46 Vice President--Administration and Assistant Secretary of the Company
T. Clay Powers...................... 38 Vice President--Product Development and Manufacturing of Vari-Lite
and Director of Showco
J. Scott Thompson................... 45 President, Chief Executive Officer and Director of Ignition
</TABLE>
- ------------------------
(1) Member of the Executive Committee
(2) Member of the Audit Committee
(3) Member of the Compensation Committee
(4) Member of the Omnibus Plan Committee
H.R. Brutsche III is one of the founders of the Company and its subsidiaries
and has served as a director of the Company and its subsidiaries since their
inception. Mr. Brutsche has served as Chairman of the Board, President and Chief
Executive Officer of the Company and its predecessors since 1980. Mr. Brutsche
also serves as Chairman of the Board of VLEH, Vari-Lite Europe, Brilliant Stages
and Theatre Projects and as President and Chief Executive Officer of Vari-Lite
and Irideon.
Michael P. Herman joined the Company in June 1993 as Vice
President--Finance, Chief Financial Officer, Secretary and Treasurer. In January
1997, Mr. Herman ceased acting as Treasurer of the Company. Mr. Herman also
serves as Vice President--Finance, Chief Financial Officer, Secretary and
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<PAGE>
Treasurer of Vari-Lite, Irideon, Showco and Ignition. From May 1991 to May 1993,
Mr. Herman was the Vice President--Finance and Chief Financial Officer of
Barry's Cameras, Inc., a chain of retail camera and video stores.
James H. Clark, Jr. has been a director of the Company and its predecessors
since 1978. Mr. Clark serves as Chairman of the Company's Executive Committee
and Audit Committee and is a director of all of the Company's subsidiaries. Mr.
Clark has been the Managing General Partner of Clark Partnership, Ltd., an
investment and venture capital partnership, since 1988, and serves as Chairman
of the Board of Texas Freezer Co. Mr. Clark's son is married to Mr. Prothro's
daughter.
John D. Maxson is one of the founders of the Company and its subsidiaries
and has served as a director of the Company and its subsidiaries since their
inception. Mr. Maxson has served as Chairman of the Board of Showco for
approximately 25 years and as Chairman of Ignition since its inception in
September 1994.
J. Anthony Smith has been a director of the Company and its predecessors
since 1981. Mr. Smith also serves as a director of all of the Company's
subsidiaries. Mr. Smith has been the Managing Director of each of Hit & Run
Music (Publishing) Limited, an international independent music publisher, and
Hit & Run Music Limited, a professional manager of musicians, for over 20 years,
and the Managing Director of Ives Street Developments Limited, a property
management company, for six years.
C. Vincent Prothro has been a director of the Company since April 1996. Mr.
Prothro has been Chairman of the Board of Dallas Semiconductor Corporation, a
manufacturer of electronic chips and chip-based subsystems, since 1984 and its
Chief Executive Officer and President since 1989. Mr. Prothro is also a general
partner of Southwest Enterprise Associates, L.P., a venture capital fund. Mr.
Prothro's daughter is married to Mr. Clark's son.
John R. Rettberg has been a director of the Company since April 1996 and
serves as Chairman of the Company's Compensation Committee and Omnibus
Committee. Mr. Rettberg currently serves as a consultant to the Northrop Grumman
Corporation ("Northrop Grumman"), an advanced technology company operating
primarily in the fields of aircraft and military electronics design, development
and manufacturing. Mr. Rettberg has served in this capacity since his retirement
from Northrop Grumman on January 1, 1995. Mr. Rettberg joined Northrop Grumman
in 1962 and, prior to his retirement, was Corporate Vice President and
Treasurer. Mr. Rettberg is also a director of J.P. Morgan Investment Mgmt., a
manager of mutual funds.
Keizo Akimoto joined Vari-Lite Asia at its inception in 1984 and has been
its Representative Director (equivalent of chief executive officer) since 1985
and its President since 1992.
James P. Bates has been the Vice President--Information Technology and Chief
Information Officer of the Company since September 1996. Prior to that time
since 1989, Mr. Bates held various positions with DSC Communications Corp., most
recently serving as Director of Applications Systems Implementation.
James M. Bornhorst has been the Vice President and Chief Science Officer of
the Company and the Vice President--Advanced Technology of Vari-Lite since
October 1995 and a director of Vari-Lite since its inception. Prior to October
1995, Mr. Bornhorst served as Vice President--Engineering of Vari-Lite since
1983 and has been employed since 1972 in various other capacities with Showco
and Vari-Lite.
Richard W. Bratcher, Jr. has been the President and Chief Executive Officer
and a director of Showco since July 1996. He served as Vice President and
General Manager of Showco from August 1993 until July 1996 and as its shop
manager of Showco from August 1987 until August 1993. Mr. Bratcher has also
served in various other capacities with Showco since 1983.
Brian L. Croft has been the Managing Director of VLEH and Vari-Lite Europe
since the formation of VLEH and its acquisition of Vari-Lite Europe in March
1994. From 1989 until its acquisition by the
25
<PAGE>
Company in March 1994, Mr. Croft was the General Manager and a director of
Vari-Lite Europe, Ltd., which was then an independent
VARI*LITE-Registered Trademark- distributor and a subsidiary of the Samuelson
Group plc.
Robert V. Dungan has served as Vice President and General Manager of Irideon
since its inception in September 1994 and as a director of Irideon since January
1996. From January 1993 to September 1994, Mr. Dungan served as Vice
President--Products Group of Vari-Lite and served as its Operations Manager from
1988 until January 1993. He has also served in various other capacities with
Vari-Lite since 1983.
Loren J. Haas has been the Executive Vice
President--VARI*LITE-Registered Trademark- Production Services of Vari-Lite
since December 1997. From February 1995 until December 1997, Mr. Haas was
Executive Vice President--North American Operations of Vari-Lite. Prior to that
from October 1992 until February 1995, he was General Manager--Dallas of
Vari-Lite and was its Marketing Manager from December 1990 until October 1992.
Mr. Haas has served in various other capacities with Vari-Lite since 1987.
Janis C. Pestinger has been Vice President--Administration and Assistant
Secretary of the Company since November 1996 and May 1993, respectively. Ms.
Pestinger also has served as Vice President-- Administration of Vari-Lite since
December 1993 and for more than three years prior to that as its Risk and
Benefits Manager. Ms. Pestinger has served in various other positions with
Vari-Lite and Showco since 1979.
T. Clay Powers has been the Vice President--Product Development and
Manufacturing of Vari-Lite since July 1996. Prior to that he served as the
President and Chief Executive Officer of Showco since April 1992. Mr. Powers
also has served as a director of Showco since December 1990. From January 1991
to April 1992, Mr. Powers served as Vice President and General Manager of Showco
and from January 1990 to January 1991 Mr. Powers served as its Vice
President--Internal Operations. Mr. Powers has served in various other
capacities with Showco since 1982.
J. Scott Thompson has served as President and Chief Executive Officer of
Ignition since October 1994 and as a director of Ignition and its predecessor
since January 1992. Prior to October 1994, Mr. Thompson was a Vice President of
Showco since 1987 and served in various capacities with Showco since 1978.
Except for Mr. Brutsche, all executive officers serve at the discretion of
the Board of Directors. See "Management--Employment Agreements."
DIRECTOR CLASSES. The Board of Directors is comprised of two Class I
Directors (Messrs. Maxson and Prothro), two Class II Directors (Messrs. Clark
and Rettberg) and two Class III Directors (Messrs. Brutsche and Smith). The
terms of the Class I, Class II and Class III directors will expire at the annual
meetings of stockholders of the Company held in 1998, 1999 and 2000,
respectively. At each of those annual meetings and thereafter, directors will be
elected for a three-year term to succeed the directors of the class whose terms
are then to expire.
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
Section 16(a) of the Securities and Exchange Act of 1934 requires the
Company's officers and directors and persons who own more than 10% of the Common
Stock or securities convertible into or exercisable for Common Stock, to file
with the Securities and Exchange Commission reports of ownership and reports of
changes in ownership in the Common Stock, securities convertible into or
exercisable for Common Stock and any other equity securities of the Company.
Because the Company's initial public offering of its Common Stock did not occur
until fiscal 1998, no Section 16(a) reports were required in fiscal 1997.
26
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
EXECUTIVE COMPENSATION
The following table summarizes the compensation paid to the Company's chief
executive officer and its four other most highly compensated executive officers
as of the end of the fiscal year ended September 30, 1997 for services rendered
to the Company during the fiscal years ended September 30, 1997 and 1996
(collectively, the "Named Executive Officers").
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL COMPENSATION
------------------------------------------------------------------------
OTHER
ANNUAL ALL OTHER
NAME AND PRINCIPAL POSITION FISCAL YEAR SALARY($) BONUS($) COMPENSATION COMPENSATION($)
- ---------------------------------------------- ----------- ------------ ------------ ------------- ----------------
<S> <C> <C> <C> <C> <C>
H.R. Brutsche III, ........................... 1997 466,014 51,864 167,000(1) 48,348(2)
Chairman of the Board, Chief Executive 1996 433,008 48,713 167,000(1) 45,259(2)
Officer and President
of the Company
Keizo Akimoto, ............................... 1997 181,343(3) 18,564(3) -- 2,805(4)
Representative Director of 1996 199,737(3) 19,495(3) -- 2,805(4)
Vari-Lite Asia
James M. Bornhorst, .......................... 1997 154,995 10,464 -- 6,618(5)
Vice President and Chief Science Officer of 1996 136,299 9,449 -- 6,374(5)
the Company and Vice President--Advanced
Technology
of Vari-Lite
T. Clay Powers, .............................. 1997 150,000 26,250 -- 6,368(6)
Vice President--Product 1996 127,267 10,500 -- 6,849(6)
Development and Manufacturing of Vari-Lite
David Alley(7) ............................... 1997 163,506 10,209 -- 6,955(8)
1996 154,500 11,513 -- 6,660(8)
</TABLE>
- ------------------------
(1) These amounts were paid to Mr. Brutsche pursuant to the Deferred
Compensation Agreement (as hereinafter defined). See "Executive
Compensation--Directors Compensation."
(2) These amounts include $3,542 and $22,525 and $3,292 and $20,725 which were
paid on behalf of Mr. Brutsche for the Policies (as hereinafter defined)
pursuant to the Split-Dollar Agreements (as hereinafter defined) and for a
term life insurance policy, respectively, maintained on the life of Mr.
Brutsche for fiscal 1997 and 1996, respectively; $14,866 and $13,817 which
were paid to reimburse Mr. Brutsche for taxable income incurred with respect
to the premiums paid on his behalf on the term life insurance policy in
fiscal 1997 and 1996, respectively; $4,610 and $4,620 which were contributed
by the Company on behalf of Mr. Brutsche to the Company's 401(k) plan in
fiscal 1997 and 1996, respectively; and $2,805 and $2,805 worth of Common
Stock held in the ESOP which was allocated to Mr. Brutsche in fiscal 1997
and 1996, respectively. See "Executive Compensation--Employment Agreements."
(3) Calculated by applying the conversion rate of Japanese yen to U.S. dollars
based on the exchange rate in effect at the end of each month during the
fiscal years presented.
(4) These amounts were contributed by the Company on behalf of Mr. Akimoto to
the Equivalence Plan (as hereinafter defined).
27
<PAGE>
(5) These amounts include $4,000 and $3,756 which were contributed by the
Company on behalf of Mr. Bornhorst to the Company's 401(k) plan in fiscal
1997 and 1996, respectively, and $2,618 and $2,618 worth of Common Stock
held in the ESOP which was allocated to Mr. Bornhorst in fiscal 1997 and
1996, respectively.
(6) These amounts include $3,750 and $4,231 which were contributed by the
Company on behalf of Mr. Powers to the Company's 401(k) plan in fiscal 1997
and 1996, respectively, and $2,618 and $2,618 worth of Common Stock held in
the ESOP which was allocated to Mr. Powers in fiscal 1997 and 1996,
respectively.
(7) Prior to his departure during fiscal 1998, Mr. Alley served as Executive
Vice President--International Operations of Vari-Lite.
(8) These amounts include $4,150 and $3,855 which were contributed by the
Company on behalf of Mr. Alley to the Company's 401(k) plan in fiscal 1997
and 1996, respectively, and $2,805 and $2,805 worth of Common Stock held in
the ESOP which was allocated to Mr. Alley in fiscal 1997 and 1996,
respectively.
EMPLOYMENT AGREEMENT
As of July 1, 1995, the Company entered into an Employment Agreement (the
"Employment Agreement") with H. R. Brutsche III, Chairman of the Board,
President and Chief Executive Officer of the Company. The initial term of the
Employment Agreement is for five years, with an automatic extension of one year
for each completed year of service by Mr. Brutsche thereunder. Pursuant to the
Employment Agreement, Mr. Brutsche receives an annual salary of $433,000,
subject to annual review by the Compensation Committee, which may increase but
not reduce his annual salary, and is eligible to receive an annual bonus,
long-term incentive compensation and deferred compensation in accordance with
plans established for officers and directors of the Company. Mr. Brutsche is
also entitled to receive various life, medical and disability insurance
benefits. Mr. Brutsche may be terminated in the event of his death or permanent
disability, for cause (as defined in the Employment Agreement) or upon the
occurrence of a change of control (as defined in the Employment Agreement). If
Mr. Brutsche is terminated because of his death, his estate will receive his
salary through the end of the month in which his death occurs plus the prorated
portion of any bonus due to him pursuant to the Annual Incentive Plan (as
hereinafter defined). If Mr. Brutsche is terminated because of his permanent
disability, Mr. Brutsche will continue to receive his base salary through the
remainder of the five-year term of the Employment Agreement, less any disability
benefits he receives. If Mr. Brutsche is terminated without cause, through an
action by the Company that constitutes constructive termination (as defined in
the Employment Agreement) or as the result of a change of control, the Company
is obligated to continue to pay Mr. Brutsche his base salary in effect at the
time of termination through the remainder of the five-year term. In addition to
those provided for under the Employment Agreement, Mr. Brutsche is eligible to
receive certain other benefits. See "Executive Compensation--Director
Compensation."
EMPLOYEE BENEFIT PLANS
OMNIBUS PLAN. In August 1997, the Company adopted the Vari-Lite
International, Inc. 1997 Omnibus Plan (the "Omnibus Plan") to attract and retain
qualified employees and non-employee directors. An aggregate of 800,000 shares
of Common Stock, subject to adjustment for stock splits, stock dividends and
certain other types of reclassifications, has been authorized for issuance upon
exercise of options or as bonus stock. In addition, stock appreciation rights
("SARs"), phantom stock, dividend equivalents or restricted or performance
awards ("Awards") may be granted under the Omnibus Plan. The Omnibus Committee
administers the Omnibus Plan and determines to whom Awards are to be granted and
the terms and conditions, including the number of shares and the period of
exercisability thereof. Awards may be granted to officers, management, other key
employees and to non-employee directors of the Company
28
<PAGE>
or any of its present or future subsidiaries as determined by the Omnibus
Committee, provided that any options to be granted to non-employee directors who
are members of the Omnibus Committee must be granted by the entire Board of
Directors of the Company.
The Omnibus Plan authorizes the grant or issuance of both nonqualified stock
options and incentive stock options, with the terms of each such option set
forth in separate agreements. The Omnibus Plan requires that the exercise price
for each stock option must be not less than 100% of the fair market value of the
Common Stock at the time the option is granted. No incentive stock option,
however, may be granted to either a non-employee director or to an employee who
owns more than 10% of the total combined voting power of all classes of
outstanding stock of the Company unless the option price is at least 110% of the
fair market value of the Common Stock at the date of grant. The fair market
value of stock options that may be granted to an employee in any calendar year
is not limited, but no employee may be granted incentive stock options that
first become exercisable during a calendar year to purchase Common Stock with an
aggregate fair market value (determined at the time of grant) in excess of
$100,000. In addition, no grantee may be granted more than an aggregate of
800,000 shares of Common Stock, subject to adjustment for stock splits, stock
dividends and certain other types of reclassifications. SARs may be granted
separately or in tandem with the grant of an option. Any performance awards may
be denominated or payable in cash, Common Stock, other securities or other
Awards and shall confer on the holder thereof the right to receive payments
based upon the achievement of such performance goals and for such periods as the
Omnibus Committee may establish. Bonus stock may be sold to the grantees at
various prices (but not below par value) and made subject to such restrictions
as may be determined by the Omnibus Committee. The Omnibus Committee may grant
other Awards that provide the grantee with the right to purchase Common Stock or
that are valued by reference to the fair market value of the Common Stock
including, but not limited to, phantom securities or dividend equivalents.
The exercise or purchase price for all options, restricted stock and other
rights to acquire Common Stock, together with any applicable tax required to be
withheld, may be paid in cash or, at the discretion of the Omnibus Committee,
with shares of Common Stock owned by the grantee (or issuable upon exercise of
the option), execution of a promissory note by the grantee or with other lawful
consideration.
The dates on which options or other Awards first become exercisable and on
which they expire will be set forth in individual stock options or other
agreements setting forth the terms of the Awards. Such agreements may provide
that options and other awards expire upon termination of the grantee's status as
an employee or director or for any other reason and may provide that such
options continue to be exercisable following the grantee's death or disability
by the grantee's estate or by the person who acquired the right to exercise the
option by bequest or inheritance, or by the grantee or his representative in the
event of the grantee's disability, provided the option is exercised prior to the
earlier of the date of its expiration or six months after the date of the
grantee's death or disability. In the event of a change of control (as defined
in the Omnibus Plan) of the Company, all Awards that have not expired will
become fully and immediately vested and exercisable and may be exercised for the
remaining term of such Awards.
No Award may be assigned or transferred by the grantee, except by will or
the laws of intestate succession, although shares of Common Stock issued under
the Omnibus Plan may be transferred if all applicable restrictions have lapsed.
Amendments of the Omnibus Plan to change the class of persons eligible to be
granted awards or increase the number of shares as to which options or bonus
stock may be granted (except for adjustments resulting from stock splits and the
like) require the approval of the Company's stockholders. In all other respects
the Omnibus Plan can be amended, modified, suspended or terminated by the
Omnibus Committee, unless such action would otherwise require stockholder
approval as a matter of applicable law, regulation or rule. Amendments of the
Omnibus Plan may not, without the consent of the grantee, affect such grantee's
rights under an Award previously granted, unless the Award itself otherwise
expressly so
29
<PAGE>
provides. The Omnibus Plan terminates 10 years from the date of its adoption by
the Company's Board of Directors.
On October 16, 1997, options to purchase 552,400 shares of Common Stock were
granted, with an exercise price of $12.00 to $13.20 per share, to directors,
officers, employees and Named Executive Officers of the Company, including
options to purchase 75,000, 15,000, 20,000, 25,000, 25,000, 12,000, 12,000,
10,000, 4,800 and 4,800 shares of Common Stock granted to Messrs. Brutsche,
Akimoto, Alley, Bornhorst, Powers, Clark, Maxson, Smith, Prothro and Rettberg,
respectively. Subsequent to October 16, 1997, the Company granted additional
options to purchase 11,600 shares of Common Stock with an exercise price of
$11.88 per share to certain other employees of the Company.
ESOP. The Company adopted the Vari-Lite International, Inc. Employees'
Stock Ownership Plan (the "ESOP"), effective as of January 1, 1995, for the
benefit of its employees and the employees of its participating subsidiaries
(the Company and its participating subsidiaries are referred to herein as the
"Employers") who are at least 21 years of age, have completed at least one "year
of service" (as defined in the ESOP) and are actively contributing to the
Company's 401(k) plan. The ESOP is intended to be an eligible individual account
stock bonus plan that qualifies under Section 401(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and, subject to certain maximum
provisions, allocates the Employers' discretionary contributions to each
participating employee according to the ratio of such employee's total
compensation to the aggregate amount of compensation received by all
participants in the ESOP. The term "compensation" includes base salary paid
during a plan year and cafeteria deferrals under Section 125 of the Code, but
does not include reimbursements or other expenses, allowances, fringe benefits
(cash or non-cash), moving expenses, deferred compensation, welfare benefits,
bonuses, overtime pay or amounts deferred under a salary deferral arrangement
under Section 401(k) of the Code.
The Company intends, but is not required, to make annual contributions to
the ESOP in the form of nonelective contributions and qualified matching
contributions (as each is defined in the ESOP) consisting of shares of Common
Stock, cash or a combination thereof. The ESOP provides for full distributions
of employee account balances for normal and late retirements, disability and
death and distributions of vested portions of employee accounts upon a
separation of service (as defined in the ESOP). Generally, a participant's
benefits under the ESOP will become vested 20% per year commencing upon
completion of three years of service and be fully vested upon completion of
seven years of service.
The assets of the ESOP are held by Overton Bank and Trust, N.A., as trustee
of The Vari-Lite International, Inc. Employees' Stock Ownership Trust, which
Trust is intended to be exempt from taxation under Section 501(a) of the Code.
The Company acts as Plan Administrator of the ESOP.
EQUIVALENCE PLAN. The Company adopted The Vari-Lite International, Inc.
Employees' Stock Equivalence Plan (the "Equivalence Plan"), effective as of
January 1, 1995, for the benefit of certain employees of subsidiaries of the
Company domiciled outside of the United States who are at least 21 years of age
and have completed at least one "year of service" (as defined in the Equivalence
Plan). The Equivalence Plan is intended to be a nonqualified employee retirement
plan known as a phantom stock plan under United States tax laws. Employees
participating in the Equivalence Plan are eligible to receive stock equivalence
units ("Units") credited to their accounts along with the contractual right to
receive the cash value of such Units in the future. No shares of stock will be
distributed under the Equivalence Plan. The value of each Unit is equal to the
fair market value of one share of Common Stock on the date such Unit is credited
to a participant's account. Upon conversion of the Units in accordance with the
terms of the Equivalence Plan, participants shall be entitled to receive, for
each Unit converted, an amount equal to the fair market value of one share of
Common Stock on the date of conversion. A holder of Units shall not have any
dividend or voting rights or any other rights as a stockholder of the Company,
unless otherwise provided by the Board of Directors of the Company.
The number of Units awarded under the Equivalence Plan, if any, will be
determined each year by the Compensation Committee. The Company's awards of
Units under the Equivalence Plan shall be made,
30
<PAGE>
subject to certain maximum provisions, according to the ratio of each eligible
employee's total compensation to the amount of total compensation received by
all participants in the Equivalence Plan. The Equivalence Plan provides for full
distributions of employee account balances upon the retirement, disability or
death of an employee and distributions of vested percentages of employee
accounts upon termination of employment for any other reason. Generally, a
participant's benefits under the Equivalence Plan will fully vest upon his or
her completion of seven years of service.
The Company established an irrevocable grantor trust within the meaning of
the Code (commonly referred to as a rabbi trust) to provide funding for benefit
payments from the Equivalence Plan. Although the employers' contributions to the
rabbi trust are generally irrevocable, the assets placed in the trust must
remain subject to the claims of the employers' creditors. The rabbi trust
provides the participants in the Equivalence Plan with additional security that
they will receive benefits in the event of a change in the management of the
Company.
The assets of the Equivalence Plan are held by Bank of Butterfield
International (Cayman) Ltd., as trustee of The Vari-Lite International, Inc.
Equivalence Plan Trust, and the Company acts as Plan Administrator.
ANNUAL INCENTIVE PLAN. On June 13, 1995, the Company adopted the Vari-Lite
International, Inc. Annual Incentive Plan (the "Annual Incentive Plan"),
effective October 1, 1994, to provide annual bonuses to eligible employees. The
Annual Incentive Plan has been amended and restated effective October 1, 1997.
Any full-time employee who is employed by the Company or one of its subsidiaries
(approved by the Omnibus Committee) on March 31 of a year shall be considered an
eligible employee for that year. For purposes of the Annual Incentive Plan, an
employee is considered a full-time employee (i) if he is scheduled to work a
minimum of 30 hours per week throughout the year and (ii) in the case of an
individual who is an employee of the Company or a United States subsidiary of
the Company, he is entitled to coverage under the Showco/Vari-Lite Welfare
Benefit Plan. Bonus amounts for a year may be granted based on predetermined
targets ("formula derived awards") or in the discretion of the Omnibus Committee
("discretionary awards"), or a combination of both. The targets for each year
are established by the Omnibus Committee and may be based solely on the
Company's attaining its operating income goal for that year (as established by
the Omnibus Committee) or may be based in part on the level of attainment by the
Company of that operating income goal and in part on the level of attainment of
performance measures established by the Omnibus Committee for that year based on
subsidiary, department, team or individual performance, or a combination thereof
as determined by the Omnibus Committee. The relative weight placed on each
performance measure by the Omnibus Committee may vary for each eligible employee
based on his position with the Company, or its subsidiaries, departments or
teams. Each year each eligible employee shall have the opportunity to earn a
specified percentage of his base salary (excluding any bonus, commission or
overtime) for that year as a formula derived award. The range of percentage of
base salary that a participant may earn as a formula derived award is specified
in the Annual Incentive Plan and is determined by each eligible employee's level
of responsibility and potential impact on the Company's performance. With
respect to years that commenced prior to October 1, 1997, no eligible employee
shall be deemed to have earned a formula derived award for a year unless the
Company attains the threshold level (specified in the Annual Incentive Plan) of
operating income established for that year. Discretionary awards are not
limited.
The Company shall make payment of all bonus amounts for a year, if any, to
each eligible employee in cash no later than 90 days after the end of that year
(the "Payout Date"). Unless an eligible employee's full-time employment
terminates due to death, total disability or retirement at or after age 65, the
employee must be employed by the Company or one of its subsidiaries as a
full-time employee on the Payout Date for a year to be entitled to receive
payment of his bonus, if any, for that year. If an eligible employee becomes
eligible after the first day of the year or dies, retires at or after age 65 or
becomes totally disabled during the year, after being employed by the Company
for at least six months during that
31
<PAGE>
year, the bonus amount, if any, payable to him for that year shall be prorated
to reflect the actual length of his service with the Company and its
subsidiaries during that year.
DIRECTOR COMPENSATION
Each director who is not an employee of the Company or any of its
subsidiaries is paid an annual fee of $20,000, plus $1,000 for each meeting of
the Board of Directors or a Committee of the Board of Directors attended. The
Company also pays all transportation and lodging costs for directors to attend
meetings of the Board of Directors and its Committees. Each of Messrs. Clark,
Maxson and Smith also receives $10,000 annually plus $250 per meeting for
serving as a director of Vari-Lite, $5,000 annually plus $62.50 per meeting for
serving as a director of VLEH, $4,000 annually plus $125 per meeting for serving
as a director of Showco, $4,000 annually plus $62.50 per meeting for serving as
a director of each of Vari-Lite Europe and Theatre Projects, $3,000 annually
plus $125 per meeting for serving as a director of each of Vari-Lite Asia,
Ignition and Irideon and $3,000 annually plus $62.50 per meeting for serving as
a director of Brilliant Stages.
As of July 1, 1995, the Company entered into a Deferred Compensation
Agreement ("Deferred Compensation Agreement") with each of Messrs. Brutsche,
Clark, Maxson and Smith pursuant to which each of them receives $167,000
annually for six years, payable monthly. Also, as of March 31, 1994, the
Company, Vari-Lite and Showco entered into Compensation Continuation Agreements
with each of Messrs. Brutsche, Clark and Maxson pursuant to which the Company,
Vari-Lite and Showco each agreed to continue paying for 60 days after the death
of any such individual the cash compensation that the deceased was receiving
from the companies at the time of his death.
Each of Messrs. Clark, Maxson and Smith (each a "Consultant") also has
entered into a Consulting Agreement with the Company, dated as of July 1, 1995,
providing that the Consultant will be available to provide consulting services
to the Company in consideration for the Company's payment to the Consultant of
an annual consulting fee. Pursuant to their Consulting Agreements, Messrs. Clark
and Maxson each receives an annual consulting fee of $100,000, payable monthly,
and Mr. Smith receives an annual consulting fee of $20,000, payable monthly.
Each Consulting Agreement has an initial term of three years with an automatic
extension of one year for each completed year of service by the Consultant
thereunder and may be terminated in the event of death, upon permanent
disability, for cause (as defined in the Consulting Agreement) or upon the
occurrence of a change of control (as defined in the Consulting Agreement). If a
Consulting Agreement is terminated without cause, because of permanent
disability or through an action by the Company that constitutes constructive
termination, or as a result of a change of control, the Consultant will receive
the full consulting fee he would have received through the remainder of the
three-year term.
In addition, each of Messrs. Brutsche, Clark and Maxson is eligible to
receive benefits under one or more life insurance policies (collectively
"Policies" and individually "Policy") pursuant to split-dollar agreements (the
"Split-Dollar Agreements") with the Company. The Split-Dollar Agreements each
provides for sharing the costs and benefits of the Policy between the Company
and Mr. Brutsche, Mr. Clark or Mr. Maxson, as the case may be. The Company pays
the entire premium on each Policy to the insurer. An irrevocable trust created
or an individual designated by Mr. Brutsche, Mr. Clark or Mr. Maxson, as the
case may be, who is the owner of the Policy (the "Owner") reimburses the Company
for the portion of the premium attributable to the death benefit protection of
each Policy (the "P.S. 58 Cost"). The Company pays the amount of the P.S. 58
Cost to Mr. Brutsche, Mr. Clark or Mr. Maxson, as the case may be, as additional
compensation and such person then gifts such amount to the Owner to use to
reimburse the Company. Except under certain circumstances, upon the termination
of each Split-Dollar Agreement, the Company will be reimbursed for the premiums
it has paid under the Policy that is subject to such Split-Dollar Agreement. All
of the Split-Dollar Agreements utilize the collateral assignment method to
secure the Company's right to repayment of the premiums it has paid under the
Policies. Under this method, the Owner owns the Policy, and a collateral
assignment (establishing the Company's right to
32
<PAGE>
such premium reimbursement from the cash surrender value or death benefits
payable under the Policies) is filed with the insurer. The Owner has the right
to designate the beneficiaries of the Policies and may borrow and make
withdrawals from the cash surrender value, to the extent such cash surrender
value exceeds the amount of premiums owed to the Company. The Owner may cancel
or surrender the Policies at any time, subject to any applicable obligation to
repay the premiums paid by the Company.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During the fiscal year ended September 30, 1997, the Compensation Committee
of the Board of Directors of the Company consisted of Messrs. Smith, Prothro and
Rettberg. Each of Messrs. Prothro and Rettberg is an independent director.
Mr. Smith has entered into a Consulting Agreement with the Company, dated as
of July 1, 1995, providing that Mr. Smith will be available to provide
consulting services to the Company in consideration for the Company's payment to
Mr. Smith of an annual consulting fee of $20,000, payable monthly. The
Consulting Agreement has an initial term of three years with an automatic
extension of one year for each completed year of service by Mr. Smith thereunder
and may be terminated in the event of death, upon permanent disability, for
cause (as defined in the Consulting Agreement) or upon the occurrence of a
change of control (as defined in the Consulting Agreement). If the Consulting
Agreement is terminated without cause, because of permanent disability or
through an action by the Company that constitutes constructive termination, or
as a result of a change of control, Mr. Smith will receive the full consulting
fee he would have received through the remainder of the three-year term.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information concerning the beneficial
ownership of Common Stock, as of December 18, 1997, by (a) each person known by
the Company to own beneficially more than 5% of the outstanding Common Stock,
(b) each director of the Company, (c) each Named Executive Officer and (d) all
executive officers and directors as a group. The Company believes that each of
such stockholders has the sole voting and dispositive power over the shares held
by such stockholder except as otherwise indicated.
<TABLE>
<CAPTION>
SHARES OWNED
-----------------------
NAME NUMBER PERCENTAGE
- --------------------------------------------------------------------- ---------- -----------
<S> <C> <C>
H. R. Brutsche III(1)................................................ 712,358 9.1%
James H. Clark, Jr.(2)(3)............................................ 614,968 7.9
John D. Maxson(2)(4)................................................. 700,840 9.0
C. Vincent Prothro................................................... 5,000 *
John R. Rettberg..................................................... -- --
J. Anthony Smith(5).................................................. 758,944 9.7
Anthony G. Banks(5).................................................. 758,936 9.7
Philip D.C. Collins(5)............................................... 758,940 9.7
Michael J.C.C. Rutherford(5)......................................... 758,936 9.7
Alice Spradley(6).................................................... 428,926 5.5
Keizo Akimoto........................................................ 1,000 *
James M. Bornhorst(7)................................................ 221,636 2.8
T. Clay Powers(8).................................................... 10,740 *
David W. Alley(9).................................................... 36,471 *
All officers and directors as a group (17 persons)(10)............... 3,138,452 40.2
</TABLE>
- ------------------------
* less than one percent
33
<PAGE>
(1) Includes 45,164 shares held by Brutsche Family Trust, a trust of which Brown
Brothers Harriman & Co. ("BBH") serves as trustee, 810 shares held by the
ESOP for the benefit of Mr. Brutsche and 8,333 shares issuable upon exercise
of stock options exercisable within 60 days. Mr. Brutsche disclaims
beneficial ownership of the shares held by Brutsche Family Trust. Mr.
Brutsche's address is 201 Regal Row, Dallas, Texas 75247.
(2) The address of Messrs. Clark and Maxson is 8117 Preston Road, Suite 220,
Dallas, Texas 75225.
(3) Includes 587,389 shares held by Clark Partnership, Ltd., a limited
partnership of which Mr. Clark is the managing general partner, and 3,764
shares held by Mr. Clark's wife. Mr. Clark disclaims beneficial ownership of
the shares owned by his wife.
(4) Includes 50,731 shares held by Peggy Maxson 1996 Irrevocable Trust, a trust
of which BBH serves as trustee. Mr. Maxson disclaims beneficial ownership of
such shares.
(5) The shares beneficially owned by Messrs. Banks, Collins, Rutherford and
Smith include 392,584 shares, 392,584 shares, 392,584 shares and 392,588
shares held by Walbrook Trustees (Jersey) Ltd., Re: G45 ("G45"), Walbrook
Trustees (Jersey) Ltd., Re: G46 ("G46"), Walbrook Trustees (Jersey) Ltd.,
Re: G47 ("G47") and Walbrook Trustees (Jersey) Ltd., Re: G48 ("G48"),
respectively. G45, G46, G47 and G48 are the stockholders of Ashtray Music
Ltd., a United Kingdom limited company. The 292,059 shares held by Ashtray
Music Ltd. are included in the shares owned beneficially by each of Messrs.
Banks, Collins, Rutherford and Smith. Except for 74,293 shares, 74,297
shares, 74,293 shares and 74,297 shares, which are owned by Messrs. Banks,
Collins, Rutherford and Smith, respectively, Messrs. Banks, Collins,
Rutherford and Smith disclaim beneficial ownership of all such shares.
(6) Includes 56,192 shares held by The Walter & Alice Spradley Family Trust,
176,767 shares held by The Walter & Alice Spradley Living Trust--Marital
Trust #1, 56,192 shares held by The Walter & Alice Spradley Living
Trust--Marital Trust #2A and 139,775 shares held by The Walter & Alice
Spradley Living Trust--Marital Trust #2b,lead=4. Alice Spradley is the
trustee of all of such trusts. Mrs. Spradley's address is 3131 McKinney
Avenue, Suite 490, Dallas, Texas 75204.
(7) Includes 693 shares held by the ESOP for the benefit of Mr. Bornhorst.
(8) Includes 650 shares held by the ESOP for the benefit of Mr. Powers.
(9) Prior to his departure in fiscal 1998, Mr. Alley served as Executive Vice
President--International Operations of Vari-Lite. Includes 810 shares held
by the ESOP for the benefit of Mr. Alley.
(10) Includes 5,102 shares held by the ESOP for the benefit of some of such
persons and 8,333 shares issuable upon exercise of stock options exercisable
within 60 days.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During fiscal 1997, Philip D.C. Collins, who beneficially owns more than
five percent of the Common Stock of the Company, paid the Company, $2.6 million
for the rental of automated lighting products and other services for use in his
concert tours. Hit & Run Music Limited, a corporation owned by J. Anthony Smith,
manages Mr. Collins. The Company believes that the terms of the above
transactions were at least as favorable to the Company as those which could have
been obtained in an arm's length transaction with an unaffiliated third party.
In addition, certain directors of the Company receive deferred compensation
and consulting payments. See "Executive Compensation--Director Compensation."
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) Financial Statements
The Financial Statements listed below are filed as part of this Annual
Report on Form 10-K.
34
<PAGE>
(b) Reports on Form 8-K
None
(c) Exhibits
<TABLE>
<C> <C> <S>
3.1 -- Certificate of Incorporation of the Company (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-1 No.
333-33559)
3.2 -- By-Laws of the Company (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 No. 333-33559)
4.1 -- Form of certificate representing shares of the Company's Common Stock
(incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 No. 333-33559)
4.2 -- Warrant Agreement, dated as of July 31, 1996, among the Company, Brown
Brothers Harriman & Co., NBD Bank, SunTrust Bank, Atlanta (formerly known as
Trust Company Bank) and Comerica Bank--Texas (incorporated by reference to
Exhibit 4.2 to the Company's Registration Statement on Form S-1 No.
333-33559)
10.1 -- Employment Agreement, dated as of July 1, 1995, between the Company and H.R.
Brutsche III (incorporated by reference to Exhibit 10.1 to the Company's
Registration Statement on Form S-1 No. 333-33559)
10.2 -- Amendment No. 1, dated as of August 11, 1997, to the Employment Agreement,
dated as of July 1, 1995, between the Company and H.R. Brutsche III
(incorporated by reference to Exhibit 10.2 to the Company's Registration
Statement on Form S-1 No. 333-33559)
10.3 -- Consulting Agreement, dated as of July 1, 1995, between the Company and J.
Anthony Smith (incorporated by reference to Exhibit 10.3 to the Company's
Registration Statement on Form S-1 No. 333-33559)
10.4 -- Consulting Agreement, dated as of July 1, 1995, between the Company and John
D. Maxson (incorporated by reference to Exhibit 10.4 to the Company's
Registration Statement on Form S-1 No. 333-33559)
10.5 -- Amendment No. 1, dated as of August 11, 1997, to the Consulting Agreement,
dated as of July 1, 1995, between the Company and John D. Maxson
(incorporated by reference to Exhibit 10.5 to the Company's Registration
Statement on Form S-1 No. 333-33559)
10.6 -- Consulting Agreement, dated as of July 1, 1995, between the Company and James
H. Clark, Jr. (incorporated by reference to Exhibit 10.6 to the Company's
Registration Statement on Form S-1 No. 333-33559)
10.7 -- Deferred Compensation Agreement, dated as of July 1, 1995, between the
Company and H. R. Brutsche III (incorporated by reference to Exhibit 10.7 to
the Company's Registration Statement on Form S-1 No. 333-33559)
10.8 -- Deferred Compensation Agreement, dated as of July 1, 1995, between the
Company and John D. Maxson (incorporated by reference to Exhibit 10.8 to the
Company's Registration Statement on Form S-1 No. 333-33559)
10.9 -- Deferred Compensation Agreement, dated as of July 1, 1995, between the
Company and James H. Clark, Jr. (incorporated by reference to Exhibit 10.9
to the Company's Registration Statement on Form S-1 No. 333-33559)
10.10 -- Deferred Compensation Agreement, dated as of July 1, 1995, between the
Company and J. Anthony Smith (incorporated by reference to Exhibit 10.10 to
the Company's Registration Statement on Form S-1 No. 333-33559)
</TABLE>
35
<PAGE>
<TABLE>
<C> <C> <S>
10.11 -- Compensation Continuation Agreement, dated as of March 31, 1994, among the
Company, Vari-Lite, Inc., Showco, Inc. and H. R. Brutsche III (incorporated
by reference to Exhibit 10.11 to the Company's Registration Statement on
Form S-1 No. 333-33559)
10.12 -- Compensation Continuation Agreement, dated as of March 31, 1994, among the
Company, Vari-Lite, Inc., Showco, Inc. and John D. Maxson (incorporated by
reference to Exhibit 10.12 to the Company's Registration Statement on Form
S-1 No. 333-33559)
10.13 -- Compensation Continuation Agreement, dated as of March 31, 1994, among the
Company, Vari-Lite, Inc., Showco, Inc. and James H. Clark, Jr. (incorporated
by reference to Exhibit 10.13 to the Company's Registration Statement on
Form S-1 No. 333-33559)
10.14 -- Statement and Terms of Employment, dated as of April 1, 1994, between
Vari-Lite Europe Ltd. and Brian L. Croft (incorporated by reference to
Exhibit 10.14 to the Company's Registration Statement on Form S-1 No.
333-33559)
10.15 -- Split-Dollar Agreement, dated as of October 12, 1995, among the Company,
Brown Brothers Harriman Trust Company of Texas, trustee of the H.R. Brutsche
III Insurance Trust, and H. R. Brutsche III (incorporated by reference to
Exhibit 10.15 to the Company's Registration Statement on Form S-1 No.
333-33559)
10.16 -- Amended and Restated Split-Dollar Agreement, dated as of October 12, 1995,
among the Company, Brown Brothers Harriman Trust Company of Texas, trustee
of the H.R. Brutsche III Insurance Trust, and H. R. Brutsche III
(incorporated by reference to Exhibit 10.16 to the Company's Registration
Statement on Form S-1 No. 333-33559)
10.17 -- Amended and Restated Split-Dollar Agreement, dated as of October 12, 1997,
among the Company, Brown Brothers Harriman Trust Company of Texas, trustee
of the John D. Maxson 1995 Irrevocable Trust, and John D. Maxson
(incorporated by reference to Exhibit 10.17 to the Company's Registration
Statement on Form S-1 No. 333-33559)
10.18 -- Split-Dollar Life Insurance Agreement, dated as of October 12, 1995, among
the Company, James Howard Cullum Clark and James H. Clark, Jr. (incorporated
by reference to Exhibit 10.18 to the Company's Registration Statement on
Form S-1 No. 333-33559)
10.19 -- Amended and Restated Split-Dollar Agreement, dated as of October 12, 1995,
between the Company, James Howard Cullum Clark and James H. Clark, Jr.
(incorporated by reference to Exhibit 10.19 to the Company's Registration
Statement on Form S-1 No. 333-33559)
10.20 -- Vari-Lite International, Inc. 1997 Omnibus Plan (including forms of Incentive
Stock Option Agreement and Nonqualified Stock Option Agreement)
(incorporated by reference to Exhibit 10.20 to the Company's Registration
Statement on Form S-1 No. 333-33559)
10.21 -- Vari-Lite International, Inc. Employees' Stock Ownership Plan (incorporated
by reference to Exhibit 10.21 to the Company's Registration Statement on
Form S-1 No. 333-33559)
10.22 -- Vari-Lite International, Inc. Employees' Stock Equivalence Plan (incorporated
by reference to Exhibit 10.22 to the Company's Registration Statement on
Form S-1 No. 333-33559)
10.23 -- Vari-Lite International, Inc. Annual Incentive Plan (as amended and restated)
(incorporated by reference to Exhibit 10.23 to the Company's Registration
Statement on Form S-1 No. 333-33559)
</TABLE>
36
<PAGE>
<TABLE>
<C> <C> <S>
10.24 -- Employment Agreement, dated as of August 28, 1995, by and between the Company
and James E. Kinnu (incorporated by reference to Exhibit 10.34 to the
Company's Registration Statement on Form S-1 No. 333-33559)
10.25 -- Severance Agreement, dated as of September 30, 1996, by and between the
Company and James E. Kinnu (incorporated by reference to Exhibit 10.35 to
the Company's Registration Statement on Form S-1 No. 333-33559)
10.26 -- Ground Lease, dated as of December 21, 1995, among Brazos Beltline
Development, Inc. and Vari-Lite, Inc., Showco, Inc., IGNITION! Creative
Services, Inc., Concert Production Lighting, Inc. and Irideon, Inc.
(incorporated by reference to Exhibit 10.36 to the Company's Registration
Statement on Form S-1 No. 333-33559)
10.27 -- Guaranty, dated as of December 21, 1995, by the Company (incorporated by
reference to Exhibit 10.37 to the Company's Registration Statement on Form
S-1 No. 333-33559)
10.28 -- Form of Indemnification Agreement with Directors and Officers (incorporated
by reference to Exhibit 10.38 to the Company's Registration Statement on
Form S-1 No. 333-33559)
10.29 -- Agreement and Plan of Merger, dated as of August 27, 1997, between the
Company and Vari-Lite Texas (incorporated by reference to Exhibit 10.39 to
the Company's Registration Statement on Form S-1 No. 333-33559)
10.30 -- International Swap Dealers Association, Inc. Master Agreement, dated as of
November 23, 1993, between the Company and Brown Brothers, Harriman & Co.
(along with confirmation of Interest Rate Swap Transaction) (incorporated by
reference to Exhibit 10.40 to the Company's Registration Statement on Form
S-1 No. 333-33559)
10.31 -- International Swap Dealers Association, Inc. Master Agreement, dated as of
September 13, 1996, between Vari-Lite, Inc. and SunTrust Bank, Atlanta
(along with confirmations of Interest Rate Transactions) (incorporated by
reference to Exhibit 10.41 to the Company's Registration Statement on Form
S-1 No. 333-33559)
*10.32 -- Multicurrency Credit Agreement, dated as of December 19, 1997, among the
Company and SunTrust Bank, Atlanta, as agent for the other banks thereunder
*11.1 -- Statements re computation of per share earnings.
21.1 -- List of Company's Subsidiaries (incorporated by reference to Exhibit 21.1 to
the Company's Registration Statement on Form S-1 No. 333-33559)
*27.1 -- Financial Data Schedule
</TABLE>
- ------------------------
* Filed herewith
37
<PAGE>
SIGNATURES
Pursuant to the requirements of the Section 13 or 15(d) of Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Dallas
and State of Texas on the 24th day of December, 1997.
<TABLE>
<S> <C> <C>
VARI-LITE INTERNATIONAL, INC.
By: /s/ H.R. BRUTSCHE, III
-----------------------------------------
H.R. Brutsche, III
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities on the 24th day of December, 1997.
NAME TITLE
- ------------------------------ --------------------------
Vice President--Finance,
/s/ MICHAEL P. HERMAN Chief Financial Officer
- ------------------------------ and Secretary (Principal
Michael P. Herman Financial and Accounting
Officer) Inc.
/s/ JAMES H. CLARK, JR.
- ------------------------------ Director
James H. Clark, Jr.
/s/ JOHN D. MAXSON
- ------------------------------ Director
John D. Maxson
/s/ C. VINCENT PROTHRO
- ------------------------------ Director
C. Vincent Prothro
/s/ JOHN R. RETTBERG
- ------------------------------ Director
John R. Rettberg
/s/ J. ANTHONY SMITH
- ------------------------------ Director
J. Anthony Smith
38
<PAGE>
INDEX TO FINANCIAL STATEMENTS
CONSOLIDATED FINANCIAL STATEMENTS OF
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
<TABLE>
<S> <C>
Independent Auditors' Report.......................................................... F-2
Consolidated Balance Sheets as of September 30, 1996 and 1997......................... F-3
Consolidated Statements of Income for the Years Ended September 30, 1995, 1996 and
1997................................................................................ F-4
Consolidated Statements of Stockholders' Equity for the Years Ended September 30,
1995, 1996 and 1997................................................................. F-5
Consolidated Statements of Cash Flows for the Years Ended September 30, 1995, 1996 and
1997................................................................................ F-6
Notes to Consolidated Financial Statements............................................ F-7
</TABLE>
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Stockholders of
Vari-Lite International, Inc.
Dallas, Texas
We have audited the accompanying consolidated balance sheets of Vari-Lite
International, Inc. and subsidiaries (herein referred to as "the Company") as of
September 30, 1996 and 1997, and the related consolidated statements of income,
stockholders' equity and cash flows for each of the three years in the period
ended September 30, 1997. These financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the financial position of the Company as of September 30,
1996 and 1997, and the results of their operations and their cash flows for each
of the three years in the period ended September 30, 1997, in conformity with
generally accepted accounting principles.
/s/ DELOITTE & TOUCHE LLP
Dallas, Texas
November 7, 1997 (December 19, 1997, as to
the fifth paragraph of Note E)
F-2
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
SEPTEMBER 30, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
1996 1997
---------- ----------
<S> <C> <C>
CURRENT ASSETS:
Cash.................................................................................... $ 2,633 $ 1,862
Receivables, less allowance for doubtful accounts of $348 and $450...................... 12,078 14,445
Inventory............................................................................... 2,395 4,050
Prepaid expense and other current assets................................................ 816 2,536
---------- ----------
TOTAL CURRENT ASSETS.................................................................. 17,922 22,893
EQUIPMENT AND OTHER PROPERTY:
Lighting and sound equipment............................................................ 87,932 102,487
Machinery and tools..................................................................... 2,179 2,929
Furniture and fixtures.................................................................. 3,728 3,945
Office and computer equipment........................................................... 7,593 9,189
Work in progress and raw materials inventory............................................ 3,259 5,343
---------- ----------
104,691 123,893
Less accumulated depreciation and amortization........................................ 47,982 55,248
---------- ----------
56,709 68,645
OTHER ASSETS.............................................................................. 3,950 5,166
---------- ----------
TOTAL ASSETS.......................................................................... $ 78,581 $ 96,704
---------- ----------
---------- ----------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable and accrued expenses................................................... $ 8,596 $ 12,086
Unearned revenue........................................................................ 2,195 2,992
Income taxes payable.................................................................... 350 820
Current portion of long-term obligations................................................ 7,427 7,824
---------- ----------
TOTAL CURRENT LIABILITIES............................................................. 18,568 23,722
LONG-TERM OBLIGATIONS..................................................................... 29,922 38,418
DEFERRED INCOME TAXES..................................................................... 5,553 7,023
---------- ----------
TOTAL LIABILITIES..................................................................... 54,043 69,163
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred Stock, $0.10 par value (10,000,000 shares authorized; no shares
outstanding).......................................................................... -- --
Common Stock, $0.10 par value (40,000,000 shares authorized; 5,822,675 and 5,800,003
shares outstanding)................................................................... 583 585
Treasury Stock.......................................................................... (28) (186)
Additional paid-in capital.............................................................. 3,096 3,344
Stockholder notes receivable............................................................ (353) (176)
Stock purchase warrants................................................................. 600 600
Cumulative foreign currency translation adjustment...................................... 905 361
Retained earnings....................................................................... 19,735 23,013
---------- ----------
TOTAL STOCKHOLDERS' EQUITY............................................................ 24,538 27,541
---------- ----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY............................................ $ 78,581 $ 96,704
---------- ----------
---------- ----------
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
1995 1996 1997
---------- ---------- ----------
<S> <C> <C> <C>
Rental revenues............................................................ $ 65,864 $ 65,741 $ 75,529
Product sales and services revenues........................................ 9,046 11,397 15,129
---------- ---------- ----------
TOTAL REVENUES........................................................... 74,910 77,138 90,658
Rental cost................................................................ 26,288 26,425 29,371
Product sales and services cost............................................ 6,637 7,783 10,676
---------- ---------- ----------
TOTAL COST OF SALES...................................................... 32,925 34,208 40,047
---------- ---------- ----------
GROSS PROFIT............................................................. 41,985 42,930 50,611
Selling, general and administrative expense................................ 28,163 30,077 32,983
Research and development expense........................................... 3,283 4,404 6,657
---------- ---------- ----------
TOTAL OPERATING EXPENSES................................................. 31,446 34,481 39,640
---------- ---------- ----------
OPERATING INCOME........................................................... 10,539 8,449 10,971
Interest expense (net)..................................................... 2,788 3,092 3,726
---------- ---------- ----------
INCOME BEFORE INCOME TAXES................................................. 7,751 5,357 7,245
Income taxes............................................................... 3,037 2,238 2,916
---------- ---------- ----------
NET INCOME................................................................. $ 4,714 $ 3,119 $ 4,329
---------- ---------- ----------
---------- ---------- ----------
WEIGHTED AVERAGE SHARES OUTSTANDING........................................ 5,814,014 5,911,983 5,818,799
---------- ---------- ----------
---------- ---------- ----------
NET INCOME PER SHARE....................................................... $ 0.81 $ 0.53 $ 0.74
---------- ---------- ----------
---------- ---------- ----------
</TABLE>
See notes to consolidated financial statements.
F-4
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
PREFERRED STOCK COMMON STOCK TREASURY STOCK ADDITIONAL
---------------------- ---------------------- ---------------------- PAID-IN
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT CAPITAL
--------- ----------- --------- ----------- --------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, OCTOBER 1, 1994................... -- $ -- 5,691,304 $ 569 -- $ -- $ 2,029
Dividends declared.........................
Shares issued.............................. 90,328 9 322
Payments on stockholder notes receivable...
Issuance of stock to the ESOP and ESEP..... 32,055 3 492
Net effect of translation adjustment.......
Adjust warrant valuation allowance.........
Net income.................................
--------- ----------- --------- ----- --------- ----- -----------
BALANCE, SEPTEMBER 30, 1995................ -- -- 5,813,687 581 -- -- 2,843
Dividends declared.........................
Purchase of treasury stock................. (7,527) (28)
Purchases of stock warrants................
Issuance of stock warrants.................
Payments on stockholder notes receivable...
Issuance of stock to the ESOP and ESEP..... 16,515 2 253
Net effect of translation adjustment.......
Net income.................................
--------- ----------- --------- ----- --------- ----- -----------
BALANCE, SEPTEMBER 30, 1996................ -- -- 5,830,202 583 (7,527) (28) 3,096
Dividends declared.........................
Purchase of treasury stock................. (37,637) (158)
Payments on stockholder notes receivable...
Issuance of stock to the ESOP and ESEP..... 14,965 2 248
Net effect of translation adjustment.......
Net income.................................
--------- ----------- --------- ----- --------- ----- -----------
BALANCE, SEPTEMBER 30, 1997................ $ 5,845,167 $ 585 (45,164) $ (186) $ 3,344
--------- ----------- --------- ----- --------- ----- -----------
--------- ----------- --------- ----- --------- ----- -----------
See notes to consolidated financial statements.
<CAPTION>
CUMULATIVE
STOCK- FOREIGN
HOLDER STOCK CURRENCY
NOTES PURCHASE TRANSLATION RETAINED
RECEIVABLE WARRANTS ADJUSTMENT EARNINGS TOTAL
------------- ----------- ------------- ----------- ---------
<S> <C> <C> <C> <C> <C>
BALANCE, OCTOBER 1, 1994................... $ (99) $ 547 $ 718 $ 12,867 $ 16,631
Dividends declared......................... (604) (604)
Shares issued.............................. (323) 8
Payments on stockholder notes receivable... 23 23
Issuance of stock to the ESOP and ESEP..... 495
Net effect of translation adjustment....... 62 62
Adjust warrant valuation allowance......... 116 (116) --
Net income................................. 4,714 4,714
----- ----- ----- ----------- ---------
BALANCE, SEPTEMBER 30, 1995................ (399) 663 780 16,861 21,329
Dividends declared......................... (648) (648)
Purchase of treasury stock................. (28)
Purchases of stock warrants................ (663) 403 (260)
Issuance of stock warrants................. 600 600
Payments on stockholder notes receivable... 46 46
Issuance of stock to the ESOP and ESEP..... 255
Net effect of translation adjustment....... 125 125
Net income................................. 3,119 3,119
----- ----- ----- ----------- ---------
BALANCE, SEPTEMBER 30, 1996................ (353) 600 905 19,735 24,538
Dividends declared......................... (1,051) (1,051)
Purchase of treasury stock................. (158)
Payments on stockholder notes receivable... 177 177
Issuance of stock to the ESOP and ESEP..... 250
Net effect of translation adjustment....... (544) (544)
Net income................................. 4,329 4,329
----- ----- ----- ----------- ---------
BALANCE, SEPTEMBER 30, 1997................ $ (176) $ 600 $ 361 $ 23,013 $ 27,541
----- ----- ----- ----------- ---------
----- ----- ----- ----------- ---------
See
</TABLE>
F-5
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income................................................................... $ 4,714 $ 3,119 $ 4,329
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization.............................................. 8,436 9,869 11,459
Amortization of note discount and deferred loan fees....................... 186 199 346
Provision for doubtful accounts............................................ 334 348 134
Deferred income taxes...................................................... 702 1,127 1,470
Loss (gain) on sale of equipment and other property........................ (15) 42 (171)
Cost of rental equipment rented under sales-type leases.................... 353 606 1,792
Provisions for ESOP and ESEP contributions................................. 750 250 250
Net change in assets and liabilities:
Accounts receivable...................................................... (2,896) (3,396) (2,500)
Prepaid expenses......................................................... (15) 1,060 (1,720)
Inventory................................................................ (1,031) (382) (1,655)
Other assets............................................................. (370) (2,616) (1,462)
Accounts payable, accrued liabilities and income taxes payable........... 3,079 (2,726) 3,960
Unearned revenue......................................................... 286 1,031 797
--------- --------- ---------
Net cash provided by operating activities................................ 14,513 8,531 17,029
Cash flows from investing activities:
Capital expenditures, including rental equipment............................. (20,748) (12,587) (25,004)
Proceeds from sale of equipment.............................................. 107 155 141
--------- --------- ---------
Net cash used in investing activities.................................... (20,641) (12,432) (24,863)
Cash flows from financing activities:
Proceeds from issuance of debt............................................... 10,998 28,204 21,997
Principal payments on debt................................................... (3,926) (24,601) (12,189)
Proceeds from issuance of distributor advances............................... 2,168 1,745 1,237
Principal payments on distributor advances................................... (1,362) (1,894) (1,667)
Proceeds from payments on stockholder notes receivable....................... 33 46 177
Purchase of treasury stock................................................... -- (28) (158)
Purchase of stock warrant.................................................... -- (260) --
Dividends paid............................................................... (604) (648) (1,051)
--------- --------- ---------
Net cash provided by financing activities................................ 7,307 2,564 8,346
Effect on cash from foreign currency translation adjustment.................... (624) (3) (1,283)
--------- --------- ---------
Net increase (decrease) during the year........................................ 555 (1,340) (771)
Cash, beginning of year........................................................ 3,418 3,973 2,633
--------- --------- ---------
Cash, end of year.............................................................. $ 3,973 $ 2,633 $ 1,862
--------- --------- ---------
--------- --------- ---------
SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid for interest expense............................................... $ 2,905 $ 3,234 $ 4,102
Cash paid for income taxes................................................... $ 1,752 $ 1,528 $ 1,787
Non-cash transactions:
Warrants issued............................................................ $ -- $ 600 $ --
Warrant retired............................................................ $ -- $ (403) $ --
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE A--ORGANIZATION:
Vari-Lite International, Inc. and subsidiaries (herein referred to as the
"Company") is a leading international provider of proprietary automated lighting
systems and related services to the entertainment industry, service markets such
as concert touring, theatre, television and film and corporate events.
NOTE B--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
PRINCIPLES OF CONSOLIDATION AND USE OF ESTIMATES
The consolidated financial statements of Vari-Lite International, Inc.
includes the accounts of its wholly-owned subsidiaries Vari-Lite, Inc., Showco,
Inc., Irideon, Inc., IGNITION! Creative Group, Inc., Concert Production
Lighting, Inc., Vari-Lite Asia, Inc., Vari-Lite Hong Kong Limited and Vari-Lite
Europe Holdings Limited ("VLEH") and its subsidiaries. All material intercompany
transactions and balances have been eliminated.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent liabilities at the date of the financial statements.
Actual results could differ from these estimates.
INTEREST RATE SWAP AGREEMENTS
The Company uses interest rate swap agreements to reduce risks associated
with variable interest rates and does not enter into such transactions for
speculative or trading purposes. The net interest received or paid on interest
rate swap agreements is reflected as income or expense of the relevant hedged
position. Gains and losses resulting from the termination of interest rate swap
agreements are recognized in the period of sale.
INVENTORY
Inventories are stated at the lower of cost (first-in, first-out method) or
market. Market for raw materials is based on replacement cost and for other
inventory classifications on net realizable value. Appropriate consideration is
given to deterioration, obsolescence and other factors in evaluating net
realizable value.
EQUIPMENT AND OTHER PROPERTY
Equipment and other property are stated at cost or, in the case of
capitalized leases, at the lower of the present value of future lease payments
or the fair value of the equipment. Depreciation and amortization are provided
on the straight-line method over the estimated useful lives of the various
classes of equipment and other property. In 1996, management reevaluated the
estimated useful lives of the Company's lighting equipment and accordingly
lengthened the lives of certain lighting equipment to correspond with the period
of anticipated revenue generation of the equipment.
F-7
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE B--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: (CONTINUED)
LONG-LIVED ASSETS
As required by Statement of Financial Accounting Standards ("SFAS") No. 121,
"Accounting for Long-Lived Assets," the Company assesses potential impairments
to its long-lived assets when there is evidence that events or changes in
circumstances have made recovery of the assets' carrying value unlikely. An
impairment loss would be recognized when the sum of the expected future net cash
flows is less than the carrying amount of the asset. No such impairment losses
have been identified by the Company.
OTHER ASSETS
The Company capitalizes and includes in other assets deferred financing
costs and the costs of acquiring patents and trademarks on its products.
Deferred financing costs are amortized over the term of the related debt.
Amortization on patents and trademarks is computed on the straight-line basis
over the lives of the patents or trademarks or the period of expected benefit.
In addition, the Company capitalizes legal costs associated with the pursuit of
third parties for infringement of certain of the Company's patents, copyrights
and trademarks when the Company is successful, or management believes it will be
successful, and that these costs will be recovered pursuant to SFAS No. 121.
These costs are amortized over the lives of the applicable patents, copyrights
and trademarks.
REVENUE RECOGNITION
Revenues related to equipment rental and services are recognized as earned
over the terms of the contracts. Revenues from long-term leases classified as
sales-type leases are recognized upon delivery and installation of the
equipment. Revenues related to the sale of architectural products are recognized
upon shipment of the equipment. In 1995, one customer accounted for 11.9% of the
Company's revenues. No other customer accounted for more than 10% of the
Company's revenues during any of the three years in the period ended September
30, 1997.
RESEARCH AND DEVELOPMENT
Costs incurred in connection with the development of new products are
considered research and development costs and are charged to operations as
incurred.
INCOME TAXES
The Company accounts for income taxes under the provisions of SFAS No. 109,
"Accounting for Income Taxes," and files a consolidated federal income tax
return. Deferred tax assets and liabilities are recorded based on the difference
between the tax basis of assets and liabilities and their carrying amounts for
financial reporting purposes, referred to as temporary differences. Provision is
made for deferred taxes relating to temporary differences in the recognition of
income and expense for financial reporting and for income tax purposes.
FOREIGN CURRENCY TRANSLATION
In accordance with SFAS No. 52, "Foreign Currency Translation," the asset
and liability accounts of the Company's non-U.S. subsidiaries are translated
into U.S. dollars using rates of exchange in effect at the
F-8
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE B--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: (CONTINUED)
balance sheet date. Revenues and expenses are translated at exchange rates which
approximate the average rates prevailing during the year. The cumulative
translation gains and losses are included in stockholders' equity.
NET INCOME PER SHARE
Net income per share is calculated by dividing net income by the weighted
average shares outstanding for the applicable period. Common stock equivalents,
including warrants and options, are included, to the extent considered dilutive,
using the treasury stock method and are assumed to be outstanding for the full
period in the period of issuance.
NEW ACCOUNTING PRONOUNCEMENTS
In October 1995, the Financial Accounting Standards Board ("the FASB")
issued SFAS No. 123, "Accounting for Stock-Based Compensation," which is
effective for fiscal years ending after December 15, 1995. The accounting
provisions of this statement will be required to be implemented upon the future
issuance of non-employee stock-based compensation. The Company does not believe
that there will be a material impact to the historically reported net income per
share as a result of the implementation of this statement.
In February 1997, the FASB issued SFAS No. 128, "Earnings Per Share," which
is effective for financial statements for both interim and annual periods ending
after December 15, 1997. Implementation of SFAS No. 128 will have no effect on
the Company's results of operations, financial position or cash flows but will
require a change in the calculation of earnings per share. The Company does not
believe that there will be a material impact to the reported amount of earnings
per share upon the implementation of this statement.
In February 1997, the FASB issued SFAS No. 129, "Capital Structure," which
is effective for financial statements for periods ending after December 15,
1997. Implementation of SFAS No. 129 will have no effect on the Company's
results of operations, financial position or cash flows.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income," which is effective for fiscal years beginning after December 15, 1997.
Comprehensive income is the change in equity of a business enterprise during a
period from transactions and other events from nonowner sources. SFAS No. 130
will require that changes in the balances of items that are reported directly in
a separate component of stockholders' equity (such as unrealized gains and
losses and minimum pension liability adjustments) be added to/substracted from
net income to arrive at comprehensive income. Implementation of SFAS No. 130
will have no effect on the Company's results of operations, financial position
or cash flows, but will require separate financial statement presentation.
In June 1997, the FASB issued SFAS No. 131, "Disclosure about Segments of an
Enterprise and Related Information," which is effective for financial statements
for periods beginning after December 15, 1997. Implementation of SFAS No. 131
will have no effect on the Company's results of operations, financial position
or cash flows, but may require a change in the disclosures regarding the
Company's operating segments.
F-9
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE C--INVENTORY:
Inventory consists of the following:
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Raw materials.................................................... $ 766 $ 1,998 $ 3,483
Work in progress................................................. 216 294 350
Finished goods................................................... 1,031 103 217
--------- --------- ---------
$ 2,013 $ 2,395 $ 4,050
--------- --------- ---------
--------- --------- ---------
</TABLE>
NOTE D--OTHER ASSETS:
Other assets consist of the following:
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Patents and trademarks........................................... $ 263 $ 2,355 $ 3,524
Deferred financing costs......................................... 947 1,432 1,469
Other, including sales-type lease receivables.................... 1,239 865 1,121
--------- --------- ---------
2,449 4,652 6,114
Less accumulated amortization.................................... (485) (702) (948)
--------- --------- ---------
$ 1,964 $ 3,950 $ 5,166
--------- --------- ---------
--------- --------- ---------
</TABLE>
Included in the amount of patents and trademarks are amounts capitalized by
the Company relating to a patent infringement suit in which the Company is the
plaintiff (the "High End Lawsuit"). Unless the Company receives a judgment in
this litigation that the defendant has infringed at least one of its patents and
the Company concludes, based on all of the facts and circumstances that such a
judgment will allow it to maintain its competitive advantage provided by the
infringed patents, all costs incurred by the Company related to the High End
Lawsuit (including those previously capitalized) will be required to be recorded
as a non-cash expense in the period that the judgment is rendered.
F-10
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE E--LONG-TERM OBLIGATIONS:
Long-term obligations expressed in U.S. dollars consist of the following:
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Credit Facility:
Term loans:
U.S. dollars............................................... $ 12,600 $ 20,000 $ 17,750
British pounds sterling.................................... 7,408 5,830 4,896
Japanese yen............................................... 1,805 1,284 956
Discount................................................... -- (600) (458)
--------- --------- ---------
Net term loans........................................... 21,813 26,514 23,144
Revolving lines of credit:
U.S. dollars............................................... 7,000 2,184 12,500
British pounds sterling.................................... 1,346 3,052 3,966
Japanese yen............................................... -- -- 1,809
--------- --------- ---------
Total revolving lines of credit.......................... 8,346 5,236 18,275
Advances from distributors................................... 2,943 2,810 2,264
Obligations under capital leases with interest at 8.6% to
10.4%, maturities through 1999............................. 530 348 140
Other........................................................ 1,238 2,441 2,419
--------- --------- ---------
34,870 37,349 46,242
Less current portion......................................... (8,477) (7,427) (7,824)
--------- --------- ---------
$ 26,393 $ 29,922 $ 38,418
--------- --------- ---------
--------- --------- ---------
</TABLE>
Based on the outstanding amounts under the Credit Facility as of September
30, 1996 and 1997, the weighted average interest rates were 8.69% and 8.88%,
respectively.
At September 30, 1996 and 1997, the Company had interest rate swap
agreements with two of its primary lenders relating to a notional principal
amount of $19,800 and $16,750, respectively, which effectively changes the
Company's variable LIBOR interest rate exposure on substantially all of its U.S.
dollar term borrowings to a fixed weighted average interest rate of 9.67%. The
interest rate swap agreements mature on or before the maturity date of the
related borrowings as follows:
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Year one................................................................ $ 3,050 $ 3,800
Year two................................................................ 3,800 5,450
Year three.............................................................. 5,450 1,000
Year four............................................................... 1,000 6,500
Year five............................................................... 6,500 --
--------- ---------
$ 19,800 $ 16,750
--------- ---------
--------- ---------
</TABLE>
F-11
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE E--LONG-TERM OBLIGATIONS: (CONTINUED)
The Company is exposed to credit loss in the event of nonperformance by the
other parties to the interest rate swap agreements. However, the Company does
not anticipate nonperformance by the other parties.
On December 19, 1997, the Company entered into a five-year $50,000,000
multicurrency revolving credit facility (the "New Credit Facility") and canceled
its existing Credit Facility. Borrowings under the New Credit Facility bear
interest at the lenders base rate or LIBOR plus a rate margin ranging from 1.00%
to 2.50% based upon the Company's ratio of Adjusted Funded Debt to EBITDA (as
defined in the credit agreement) and are secured by a pledge of 65% of the
capital stock of the Company's foreign subsidiaries. A commitment fee is charged
on the average daily unused portion of the New Credit Facility at a rate ranging
from 0.20% to 0.375% per annum based upon the ratio of Adjusted Funded Debt to
EBITDA. The New Credit Facility contains compliance covenants, including
requirements that the Company achieve certain financial ratios. In addition, the
New Credit Facility places limitations on the ability to incur additional
indebtedness, make certain loans or investments, sell assets or reacquire the
Company's stock.
In connection with certain distributor agreements, the Company has received
advances to provide the necessary funds for construction of the leased lighting
systems (see Note G). The remaining balances outstanding under such borrowings
at September 30, 1996 and 1997, were $2,810 and $2,264, respectively. Equipment
with a net book value of approximately $8,200 at September 30, 1997 ($7,500 at
September 30, 1996) has been pledged to the distributors as collateral for such
loans. The interest rate on substantially all the notes is variable and ranged
from 3% to 7% for the years ended September 30, 1996 and 1997. Substantially all
the advances are nonrecourse and are repaid from the Company's portion of the
rental revenue earned on the associated leases.
Maturities of long-term obligations, including capital lease obligations,
are approximately as follows:
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Year one................................................................ $ 7,427 $ 7,824
Year two................................................................ 5,204 5,224
Year three.............................................................. 4,872 4,506
Year four............................................................... 4,225 28,688
Year five............................................................... 15,621 --
--------- ---------
$ 37,349 $ 46,242
--------- ---------
--------- ---------
</TABLE>
NOTE F--STOCKHOLDERS' EQUITY:
On October 15, 1997, in conjunction with the Company's reincorporation in
Delaware and an initial public offering, the Board of Directors of the Company
created a new class of common stock and authorized 40,000,000 shares. As a
result of the reincorporation, stockholders received 3.76368 shares of common
stock for each share of the Company's Class A common stock and Class B common
stock held by the stockholders. Share amounts and the weighted average shares
outstanding for all periods presented give retroactive effect to the
recapitalization of the common stock. In addition, the Company authorized
10,000,000 shares of preferred stock which the Company's Board of Directors may
issue for such
F-12
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE F--STOCKHOLDERS' EQUITY: (CONTINUED)
consideration and on such terms as it deems desirable, including voting and
conversion rights that could adversely affect the holders of common stock.
The Company filed a Registration Statement (Commission file no. 333-33559)
for the public offering of 2,000,000 shares of common stock with the Securities
and Exchange Commission, which became effective October 16, 1997. The managing
underwriters were A.G. Edwards & Sons, Inc. and EVEREN Securities, Inc. The
shares were sold for $12.00 per share for an aggregate amount of $24,000. All of
the shares sold were offered by the Company.
Expenses incurred for the Company's account in connection with the issuance
and distribution of the common stock registered were as follows:
<TABLE>
<S> <C>
Underwriting discounts and commissions................... $ 1,680
Other Expenses (212 accrued as of September 30, 1997).... 922(1)
-----------
Total.................................................... $ 2,602
-----------
-----------
</TABLE>
- ------------------------
(1) There were no direct or indirect payments to directors, officers or persons
owning ten percent or more of the Company's securities, or their associates
or affiliates. However, out-of-pocket expenses (i.e., travel, lodging and
meals) directly in connection with the offering were reimbursed and are
included in other expenses.
The net offering proceeds to the Company were $21,398, all of which was used
to repay indebtedness under the Company's Credit Facility.
During October and November 1997, the Company granted options to purchase
564,000 shares of common stock to certain directors, officers and employees of
the Company. These options vest over three-to five-year periods and expire ten
years from the date of grant. The exercise price of these options ranges from
$11.88 to $13.20 per share and was equal to or greater than the fair market
value of the common stock at the time of grant.
In connection with a prior debt facility, the Company and a lender entered
into a warrant purchase agreement, which granted the lender a warrant to
purchase shares of Common Stock. The Company initially allocated $400 of the
proceeds under this facility to the warrant and in subsequent years increased
such warrant value to an amount equal to the warrant valuation (as defined).
During 1996, the Company repurchased the warrant from the holder for $260.
In July 1996, in connection with an amendment to the Company's Credit
Facility, the Company issued warrants to purchase up to 242,233 shares of Common
Stock at an exercise price based on the Company's earnings as defined in the
warrant agreement ($11.53 per share). The terms of the warrants also provide for
registration rights and adjustments to the price and number of shares in certain
circumstances. As of September 30, 1996 and 1997, no warrants had been
exercised.
F-13
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE G--LEASES:
AS LESSOR
As lessor, the Company has agreements whereby it has leased certain lighting
equipment to various distributors. These agreements are accounted for as
operating leases. Under the terms of these agreements, these distributors have
the exclusive right for a specified time period to market the lighting equipment
by subrental within defined territories. The distributors' lease payments to the
Company are based on a pre-determined percentage of the gross rental revenue
received by the distributors from their subrental of the lighting equipment and
amounted to approximately $3,797, $4,893 and $4,298 for the years ended
September 30, 1995, 1996, and 1997, respectively. The lighting equipment under
these leasing arrangements had a net book value of approximately $7,552, $7,473
and $8,231 at September 30, 1995, 1996 and 1997, respectively.
The Company is also the lessor under sales-type leases. Leases classified as
sales-type leases generally stipulate that all lease payments be made within 30
days of the commencement of the lease term; however, the Company has also
entered into certain sales-type leases that allow for periodic payment
throughout the term of the lease. The Company recorded revenues of $9,914,
$4,544 and $8,699 and cost of products and services of $3,422, $2,223 and $1,955
for the years ended September 30, 1995, 1996 and 1997, respectively, related to
sales-type leases.
Equipment under leases which do not qualify as sales-type leases, including
distributor leases and dealer leases, are accounted for as operating leases.
Under dealer leases, dealers receive exclusive rights to subrent the Company's
lighting equipment in certain geographic areas. The Company provides the
lighting equipment to the dealers, who pay a monthly rental fee to the Company.
Future minimum lease payments receivable, including those which relate to
sales-type leases and are included in other assets, are as follows:
<TABLE>
<CAPTION>
SALES-TYPE OPERATING
-------------------- --------------------
1996 1997 1996 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Year one........................................................... $ 344 $ 298 $ 929 $ 1,952
Year two........................................................... 303 151 920 1,618
Year three......................................................... 151 -- 785 1,383
Year four.......................................................... -- -- 519 1,044
Year five.......................................................... -- -- 209 793
Thereafter......................................................... -- -- 20 0
--------- --------- --------- ---------
Total minimum lease payments....................................... 798 449 $ 3,382 $ 6,790
--------- ---------
--------- ---------
Less amount representing interest.................................. (105) (41)
--------- ---------
Present value of net minimum lease payments........................ 693 408
Less current portion............................................... (279) (263)
--------- ---------
Long-term lease receivables........................................ $ 414 $ 145
--------- ---------
--------- ---------
</TABLE>
F-14
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE G--LEASES: (CONTINUED)
AS LESSEE
The Company leases certain computers and equipment. The following is a
summary of assets held under capital leases:
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Computers and equipment under capital leases............................. $ 2,563 $ 2,563
Less accumulated depreciation............................................ (2,144) (2,274)
--------- ---------
Property under capital leases, net....................................... $ 419 $ 289
--------- ---------
--------- ---------
</TABLE>
The Company also leases manufacturing facilities and office space. The
future minimum lease payments, including those which relate to capital leases
and are included in long-term obligations, are as follows:
<TABLE>
<CAPTION>
CAPITAL OPERATING
-------------------- --------------------
1996 1997 1996 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Year one.................................................. $ 223 $ 106 $ 1,109 $ 1,158
Year two.................................................. 99 44 897 823
Year three................................................ 44 -- 527 487
Year four................................................. -- -- 400 142
Year five................................................. -- -- -- 42
Thereafter................................................ -- -- -- 7
--------- --------- --------- ---------
Total minimum lease payments.............................. 366 150 $ 2,933 $ 2,659
--------- --------- --------- ---------
--------- ---------
Less amount representing interest......................... (18) (10)
--------- ---------
Present value of net minimum lease payments............... 348 140
Less current portion...................................... (200) (97)
--------- ---------
Long-term lease obligations............................... $ 148 $ 43
--------- ---------
--------- ---------
</TABLE>
Rental expense for the years ended September 30, 1995, 1996 and 1997 was
$1,957, $2,397 and $2,616, respectively.
In December 1995, the Company entered into a lease with an unaffiliated
developer ("Lessor") for land to be used as the site for a new corporate
facility. After the initial lease term ending in December 2000, the lease may be
renewed for up to six additional five-year terms by agreement of the parties. If
the lease is not renewed or is otherwise terminated, the Company may be required
to make a residual termination payment equal to 85% of the $3,600 paid by the
Lessor to acquire the land. In addition, the Company has an option to purchase
the land at the end of the initial term or at any time during the renewal terms
for a price equal to the Lessor's cost. Rent payable under the lease is based
upon the $3,600 spent by the Lessor to acquire the land and the Lessor's cost of
funds from time to time. At September 30, 1996 and 1997, the Company had an
interest rate swap agreement with one of its primary lenders relating to a
notional amount of $3,600, which effectively changes the Company's variable rent
exposure on this
F-15
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE G--LEASES: (CONTINUED)
lease to a fixed annual amount of $388. This interest rate swap agreement
matures in October 2000. The Company is exposed to credit loss in the event of
nonperformance by the other party to the interest rate swap agreement. However,
the Company does not anticipate nonperformance by the other party. Future
minimum rental commitments and rent expense for the years ended September 30,
1996 and 1997, have been included in the amounts above.
NOTE H--INCOME TAXES:
The provision for income taxes consists of the following:
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Current:
U.S. Federal................................................... $ 1,289 $ 100 $ 0
State.......................................................... 217 54 38
International.................................................. 829 957 1,408
Deferred:
U.S. Federal................................................... 906 992 927
State............................................................ 217 135 367
International.................................................... (421) -- 176
--------- --------- ---------
$ 3,037 $ 2,238 $ 2,916
--------- --------- ---------
--------- --------- ---------
</TABLE>
A reconciliation of income taxes computed at the U.S. Federal statutory tax
rate to the provision for income tax is as follows:
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Income tax expense at U.S. Federal statutory rate................ $ 2,635 $ 1,821 $ 2,463
International taxes.............................................. 153 255 287
State taxes...................................................... 434 189 267
Foreign and general business tax credits......................... (300) (100) --
Other - primarily permanent differences.......................... 115 73 (101)
--------- --------- ---------
$ 3,037 $ 2,238 $ 2,916
--------- --------- ---------
--------- --------- ---------
</TABLE>
Deferred income taxes have been provided for the temporary differences
between the financial reporting bases and the tax bases of the Company's assets
and liabilities. Deferred income taxes resulted principally from the use of
accelerated depreciation for tax purposes and straight-line depreciation for
financial reporting purposes.
In 1995, 1996 and 1997, there was no valuation allowance at the beginning or
end of the respective fiscal year.
For tax purposes, the Company has approximately $2,100 of foreign tax
credits that expire in 1998 through 2002. In addition, approximately $507 of
alternative minimum tax credits (which do not expire) is
F-16
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE H--INCOME TAXES: (CONTINUED)
available to offset future regular tax liability. The benefit of this tax credit
carryforward has been recognized for financial statement purposes as part of
deferred taxes.
International income taxes relate to the results of operations of the
Company's wholly-owned subsidiaries, Vari-Lite Asia, Inc., Vari-Lite Hong Kong
Limited and VLEH, as well as to withholding taxes on revenue generated by the
Company's foreign distributors.
NOTE I--EMPLOYEE BENEFIT PLANS:
The Company has a defined contribution 401(k) plan in which substantially
all its U.S. employees can elect to be participants. Under the terms of the
401(k) plan, employees can defer up to 20% of their earnings up to the permitted
maximum as defined by IRS regulations. The Company matches 50% of the employee's
contribution up to 5% of the employee's earnings during the plan year. During
the years ended September 30, 1995, 1996 and 1997, the Company's cost to match
employee contributions was approximately $300, $242 and $257, respectively.
Substantially all employees of VLEH may elect to be participants in the
Vari-Lite Europe Pension Plan. The plan is a defined contribution plan under
which employees may contribute up to 3% of their base salaries. The Company
makes contributions at a rate of 200% of the employee contributions, with
additional contributions made for certain key employees. The Company incurred
costs of $140, $156 and $203, representing matching contributions for the years
ended September 30, 1995, 1996 and 1997, respectively.
The Company adopted an employee stock ownership plan ("ESOP"), effective
January 1, 1995, in which its U.S. employees are eligible to participate after
completing one year of service, attaining age twenty-one and being a participant
making elective deferrals in the Company's 401(k) Plan. Each year the Company
may make discretionary contributions of stock to the ESOP as determined by the
Board of Directors or a committee thereof. Participants' interests in the ESOP
are distributed in the form of cash or stock upon normal retirement, disability,
death or at a specific time after any other termination of employment.
The Company adopted an employee stock equivalence plan ("ESEP") for the
non-U.S. subsidiaries, effective January 1, 1995, in which its employees are
eligible to participate after completing one year of service, attaining age
twenty-one and for London-based employees, participating in the VLEH Pension
Plan. Each year the Company may make discretionary contributions of stock to the
ESEP as determined by the Board of Directors or a committee thereof.
Participants' interests in the ESEP are distributed in the form of cash upon
normal retirement, disability, death or at a specific time after any other
termination of employment.
The Company contributed to the ESOP and ESEP an aggregate of 48,570 and
14,965 shares of Common Stock for fiscal 1995 and 1996, respectively, which were
valued at $750 and $250, respectively. Such shares are included as outstanding
for purposes of calculating net income per share. Dividends on these shares have
been recorded as a reduction to retained earnings. For contributions of Common
Stock to the ESOP and ESEP for fiscal 1997, the Company has accrued $250 through
September 30, 1997.
F-17
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE J--OPERATIONS BY GEOGRAPHIC AREA:
The income statement and balance sheet information by geographic area is
summarized in the following table:
<TABLE>
<CAPTION>
NORTH AMERICA ASIA EUROPE INTERCOMPANY TOTAL
-------------- --------- --------- ------------- ---------
<S> <C> <C> <C> <C> <C>
September 30, 1995
Net Revenues............................ $ 43,443 $ 9,779 $ 25,337 $ (3,649) $ 74,910
Net Income.............................. 3,381 773 560 -- 4,714
September 30, 1996
Net Revenues............................ $ 45,253 $ 11,401 $ 26,584 $ (6,100) $ 77,138
Net Income.............................. 1,590 1,153 376 -- 3,119
September 30, 1997
Net Revenues............................ $ 54,179 $ 12,124 $ 32,948 $ (8,593) $ 90,658
Net Income.............................. 2,097 1,242 990 -- 4,329
</TABLE>
<TABLE>
<CAPTION>
NORTH AMERICA ASIA EUROPE INTERCOMPANY TOTAL
-------------- --------- --------- ------------- ---------
<S> <C> <C> <C> <C> <C>
September 30, 1995
Assets.................................. $ 69,180 $ 5,698 $ 15,591 $ (17,004) $ 73,465
Liabilities............................. 46,462 3,191 13,522 (11,039) 52,136
September 30, 1996
Assets.................................. $ 70,060 $ 4,760 $ 13,529 $ (9,768) $ 78,581
Liabilities............................. 45,623 2,486 10,838 (4,904) 54,043
September 30, 1997
Assets.................................. $ 84,882 $ 5,716 $ 18,406 $ (12,300) $ 96,704
Liabilities............................. 59,350 2,102 15,147 (7,436) 69,163
</TABLE>
NOTE K--RELATED PARTY TRANSACTIONS:
Certain directors provided consulting services to the Company and received
fees totaling approximately $144, $220 and $234 for the years ended September
30, 1995, 1996 and 1997, respectively.
At September 30, 1996 and 1997, the Company had notes receivable from
stockholders totaling $353 and $176, respectively, related to common stock
purchases. The notes bear interest at various rates, mature at various times,
and are collateralized by 88,446 shares of common stock.
The Company received from certain stockholders of the Company $900, $0 and
$2,623 in the years ended September 30, 1995, 1996 and 1997, respectively, for
the rental of automated lighting products and other services.
F-18
<PAGE>
VARI-LITE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED SEPTEMBER 30, 1995, 1996 AND 1997
(IN THOUSANDS EXCEPT SHARE DATA)
NOTE L--QUARTERLY RESULTS OF OPERATIONS (UNAUDITED):
The following summarizes the unaudited quarterly results of operations for
the years ended September 30, 1995, 1996 and 1997:
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30, 1995
--------------------------------------------------
DECEMBER 31 MARCH 31 JUNE 30 SEPTEMBER 30
------------ ----------- --------- ------------
<S> <C> <C> <C> <C>
Revenues............................................. $ 18,648 $ 17,234 $ 19,314 $ 19,714
Income before income taxes........................... 3,670 1,277 1,533 1,271
Net income........................................... 2,232 777 932 773
Net income per share................................. 0.38 0.14 0.16 0.13
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30, 1996
--------------------------------------------------
DECEMBER 31 MARCH 31 JUNE 30 SEPTEMBER 30
------------ ----------- --------- ------------
<S> <C> <C> <C> <C>
Revenues............................................. $ 16,791 $ 16,995 $ 19,645 $ 23,707
Income before income taxes........................... 359 113 1,476 3,409
Net income........................................... 209 66 861 1,983
Net income per share................................. 0.03 0.01 0.15 0.34
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30, 1997
--------------------------------------------------
DECEMBER 31 MARCH 31 JUNE 30 SEPTEMBER 30
------------ ----------- --------- ------------
<S> <C> <C> <C> <C>
Revenues............................................. $ 22,326 $ 22,384 $ 22,185 $ 23,763
Income before income taxes........................... 1,551 1,372 2,026 2,296
Net income........................................... 926 820 1,210 1,373
Net income per share................................. 0.16 0.14 0.21 0.23
</TABLE>
During the fourth quarter, the Company recorded a reduction of cost of sales
of $675 related to a change in estimates related to cost of equipment sold under
a sales-type lease contract executed in the third quarter.
F-19
<PAGE>
EXECUTION COUNTERPART
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
MULTICURRENCY
CREDIT AGREEMENT
dated as of DECEMBER 19, 1997
among
VARI-LITE INTERNATIONAL, INC.,
THE LENDERS LISTED HEREIN,
BROWN BROTHERS HARRIMAN & CO., AS CO-AGENT
SUNTRUST BANK, ATLANTA,
AS AGENT AND COLLATERAL AGENT
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS; CONSTRUCTION . . . . . . . . . . . . . . . . . . . .1
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . .1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. . . . . . . 21
SECTION 1.03. OTHER DEFINITIONAL TERMS. . . . . . . . . . . . 21
SECTION 1.04. EXHIBITS AND SCHEDULES. . . . . . . . . . . . . 21
ARTICLE II. LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.01. DESCRIPTION OF FACILITIES . . . . . . . . . . . 22
SECTION 2.02. DOMESTIC SYNDICATED LOANS . . . . . . . . . . . 22
SECTION 2.03. SWING LINE LOANS. . . . . . . . . . . . . . . . 24
SECTION 2.04. MULTICURRENCY SYNDICATED LOANS. . . . . . . . . 26
SECTION 2.05. REDUCTIONS OF COMMITMENTS . . . . . . . . . . . 28
SECTION 2.06. MANDATORY PREPAYMENTS . . . . . . . . . . . . . 28
SECTION 2.07. USE OF PROCEEDS . . . . . . . . . . . . . . . . 29
ARTICLE III. GENERAL LOAN TERMS. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.01. FUNDING NOTICES . . . . . . . . . . . . . . . . 29
SECTION 3.02. DISBURSEMENT OF FUNDS . . . . . . . . . . . . . 29
SECTION 3.03. INTEREST. . . . . . . . . . . . . . . . . . . . 30
SECTION 3.04. INTEREST PERIODS. . . . . . . . . . . . . . . . 31
SECTION 3.05. FEES. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.06. VOLUNTARY PREPAYMENTS OF BORROWINGS . . . . . . 33
SECTION 3.07. PAYMENTS, ETC.. . . . . . . . . . . . . . . . . 34
SECTION 3.08. INTEREST RATE NOT ASCERTAINABLE, ETC. . . . . . 35
SECTION 3.09. ILLEGALITY. . . . . . . . . . . . . . . . . . . 36
SECTION 3.10. INCREASED COSTS . . . . . . . . . . . . . . . . 37
SECTION 3.11. LENDING OFFICES . . . . . . . . . . . . . . . . 38
SECTION 3.12. FUNDING LOSSES. . . . . . . . . . . . . . . . . 38
SECTION 3.13. FAILURE TO PAY IN APPROPRIATE CURRENCY. . . . . 39
SECTION 3.14. ASSUMPTIONS CONCERNING FUNDING OF
FIXED RATE ADVANCES . . . . . . . . . . . . . . 39
SECTION 3.15. APPORTIONMENT OF PAYMENTS . . . . . . . . . . . 39
SECTION 3.16. SHARING OF PAYMENTS, ETC. . . . . . . . . . . . 39
SECTION 3.17. CAPITAL ADEQUACY. . . . . . . . . . . . . . . . 40
SECTION 3.18. BENEFITS TO GUARANTORS. . . . . . . . . . . . . 40
SECTION 3.19. APPLICATION OF LOAN PROCEEDS TO MATURING
LOANS . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE IV. CONDITIONS TO BORROWINGS. . . . . . . . . . . . . . . . . . . . 41
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL ADVANCE . . . . 41
-i-
<PAGE>
SECTION 4.02. CONDITIONS TO ALL LOANS . . . . . . . . . . . . 43
ARTICLE V. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . 44
SECTION 5.01. ORGANIZATIONAL EXISTENCE; COMPLIANCE WITH
LAW . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.02. ORGANIZATIONAL POWER; AUTHORIZATION . . . . . . 44
SECTION 5.03. ENFORCEABLE OBLIGATIONS . . . . . . . . . . . . 44
SECTION 5.04. NO LEGAL BAR. . . . . . . . . . . . . . . . . . 45
SECTION 5.05. NO MATERIAL LITIGATION. . . . . . . . . . . . . 45
SECTION 5.06. INVESTMENT COMPANY ACT, ETC.. . . . . . . . . . 45
SECTION 5.07. MARGIN REGULATIONS. . . . . . . . . . . . . . . 45
SECTION 5.08. COMPLIANCE WITH ENVIRONMENTAL LAWS. . . . . . . 45
SECTION 5.09. INSURANCE . . . . . . . . . . . . . . . . . . . 46
SECTION 5.10. NO DEFAULT. . . . . . . . . . . . . . . . . . . 46
SECTION 5.11. NO BURDENSOME RESTRICTIONS. . . . . . . . . . . 46
SECTION 5.12. TAXES . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.13. SUBSIDIARIES. . . . . . . . . . . . . . . . . . 47
SECTION 5.14. FINANCIAL STATEMENTS. . . . . . . . . . . . . . 47
SECTION 5.15. ERISA . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.16. PATENTS, TRADEMARKS, LICENSES, ETC. . . . . . . 48
SECTION 5.17. OWNERSHIP OF PROPERTY . . . . . . . . . . . . . 49
SECTION 5.18. INDEBTEDNESS. . . . . . . . . . . . . . . . . . 49
SECTION 5.19. FINANCIAL CONDITION . . . . . . . . . . . . . . 49
SECTION 5.20. LABOR MATTERS . . . . . . . . . . . . . . . . . 50
SECTION 5.21. PAYMENT OR DIVIDEND RESTRICTIONS. . . . . . . . 50
SECTION 5.22. CAPITAL STOCK . . . . . . . . . . . . . . . . . 50
SECTION 5.23. DISCLOSURE. . . . . . . . . . . . . . . . . . . 50
ARTICLE VI. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.01. ORGANIZATIONAL EXISTENCE, ETC.. . . . . . . . . 51
SECTION 6.02. COMPLIANCE WITH LAWS, ETC.. . . . . . . . . . . 51
SECTION 6.03. PAYMENT OF TAXES AND CLAIMS, ETC. . . . . . . . 51
SECTION 6.04. KEEPING OF BOOKS. . . . . . . . . . . . . . . . 51
SECTION 6.05. VISITATION, INSPECTION, ETC.. . . . . . . . . . 52
SECTION 6.06. INSURANCE; MAINTENANCE OF PROPERTIES. . . . . . 52
SECTION 6.07. REPORTING COVENANTS . . . . . . . . . . . . . . 53
SECTION 6.08. FINANCIAL COVENANTS . . . . . . . . . . . . . . 57
SECTION 6.09. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS. . . . 58
SECTION 6.10. ADDITIONAL CREDIT PARTIES AND COLLATERAL. . . . 58
ARTICLE VII. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.01. INDEBTEDNESS. . . . . . . . . . . . . . . . . . 58
SECTION 7.02. LIENS . . . . . . . . . . . . . . . . . . . . . 60
SECTION 7.03. MERGERS, ACQUISITIONS, SALES, ETC.. . . . . . . 61
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SECTION 7.04. INVESTMENTS, LOANS, ETC.. . . . . . . . . . . . 62
SECTION 7.05. SALE AND LEASEBACK TRANSACTIONS . . . . . . . . 63
SECTION 7.06. TRANSACTIONS WITH AFFILIATES. . . . . . . . . . 63
SECTION 7.07. CHANGES IN BUSINESS . . . . . . . . . . . . . . 63
SECTION 7.08. ERISA . . . . . . . . . . . . . . . . . . . . . 64
SECTION 7.09. ADDITIONAL NEGATIVE PLEDGES . . . . . . . . . . 64
SECTION 7.10. LIMITATION ON PAYMENT RESTRICTIONS
AFFECTING CONSOLIDATED COMPANIES. . . . . . . . 64
SECTION 7.11. CHANGE IN FISCAL YEAR . . . . . . . . . . . . . 64
SECTION 7.12. AMENDMENT OF MASTER DISTRIBUTORSHIP
AGREEMENTS. . . . . . . . . . . . . . . . . . . 64
ARTICLE VIII. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.01. PAYMENTS. . . . . . . . . . . . . . . . . . . . 65
SECTION 8.02. COVENANTS WITHOUT NOTICE. . . . . . . . . . . . 65
SECTION 8.03. OTHER COVENANTS . . . . . . . . . . . . . . . . 65
SECTION 8.04. REPRESENTATIONS . . . . . . . . . . . . . . . . 65
SECTION 8.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. . . . . . . 65
SECTION 8.06. DEFAULTS UNDER OTHER AGREEMENTS . . . . . . . . 65
SECTION 8.07. BANKRUPTCY. . . . . . . . . . . . . . . . . . . 66
SECTION 8.08. ERISA . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.09. MONEY JUDGMENT. . . . . . . . . . . . . . . . . 67
SECTION 8.10. OWNERSHIP OF CREDIT PARTIES . . . . . . . . . . 67
SECTION 8.11. CHANGE IN CONTROL OF BORROWER . . . . . . . . . 67
SECTION 8.12. DEFAULT UNDER OTHER CREDIT DOCUMENTS. . . . . . 67
SECTION 8.13. DEFAULT UNDER INTEREST RATE CONTRACT
OR CURRENCY CONTRACT. . . . . . . . . . . . . . 67
SECTION 8.14. ATTACHMENTS . . . . . . . . . . . . . . . . . . 68
ARTICLE IX. THE AGENTS AND CO-AGENT . . . . . . . . . . . . . . . . . . . . 68
SECTION 9.01. APPOINTMENT OF AGENT. . . . . . . . . . . . . . 68
SECTION 9.02. APPOINTMENT OF COLLATERAL AGENT . . . . . . . . 68
SECTION 9.03. NATURE OF DUTIES OF AGENTS. . . . . . . . . . . 69
SECTION 9.04. LACK OF RELIANCE ON THE AGENTS. . . . . . . . . 69
SECTION 9.05. CERTAIN RIGHTS OF THE AGENTS. . . . . . . . . . 70
SECTION 9.06. RELIANCE BY AGENTS. . . . . . . . . . . . . . . 70
SECTION 9.07. INDEMNIFICATION OF AGENTS . . . . . . . . . . . 70
SECTION 9.08. THE AGENTS IN THEIR INDIVIDUAL CAPACITY . . . . 71
SECTION 9.09. HOLDERS OF NOTES. . . . . . . . . . . . . . . . 71
SECTION 9.10. SUCCESSOR AGENTS. . . . . . . . . . . . . . . . 71
SECTION 9.11. APPOINTMENT OF CO-AGENT . . . . . . . . . . . . 72
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ARTICLE X. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.01. NOTICES . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.02. AMENDMENTS, ETC.. . . . . . . . . . . . . . . . 72
SECTION 10.03. NO WAIVER; REMEDIES CUMULATIVE. . . . . . . . . 73
SECTION 10.04. PAYMENT OF EXPENSES, ETC. . . . . . . . . . . . 73
SECTION 10.05. RIGHT OF SETOFF . . . . . . . . . . . . . . . . 75
SECTION 10.06. BENEFIT OF AGREEMENT. . . . . . . . . . . . . . 75
SECTION 10.07. GOVERNING LAW; SUBMISSION TO JURISDICTION . . . 77
SECTION 10.08. INDEPENDENT NATURE OF LENDERS' RIGHTS . . . . . 78
SECTION 10.09. COUNTERPARTS. . . . . . . . . . . . . . . . . . 78
SECTION 10.10. SURVIVAL. . . . . . . . . . . . . . . . . . . . 78
SECTION 10.11. SEVERABILITY. . . . . . . . . . . . . . . . . . 78
SECTION 10.12. INDEPENDENCE OF COVENANTS . . . . . . . . . . . 78
SECTION 10.13. CHANGE IN ACCOUNTING PRINCIPLES,
FISCAL YEAR OR TAX LAWS . . . . . . . . . . . . 78
SECTION 10.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. . . . . 79
SECTION 10.15. JUDGMENT CURRENCY . . . . . . . . . . . . . . . 79
SECTION 10.16. DOLLAR EQUIVALENT COMPUTATIONS. . . . . . . . . 80
EXHIBITS
EXHIBIT A - FORM OF REVOLVING NOTE
EXHIBIT B - FORM OF SWING LINE NOTE
EXHIBIT C - FORM OF MULTICURRENCY NOTE
EXHIBIT D - FORM OF GUARANTY AGREEMENT
EXHIBIT E - FORM OF CONTRIBUTION AGREEMENT
EXHIBIT F - FORM OF CLOSING CERTIFICATE
EXHIBIT G - FORM OF BORROWER'S COUNSEL OPINION
EXHIBIT H - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT I - FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT J - FORM OF FOREIGN SUBSIDIARY SUBORDINATION AGREEMENT
SCHEDULES
SCHEDULE 1.01 - MASTER DISTRIBUTORSHIP AGREEMENTS
SCHEDULE 3.01 - FCB ACCOUNTS
SCHEDULE 5.01 - SUBSIDIARIES
SCHEDULE 5.05 - LITIGATION
SCHEDULE 5.08(a) - ENVIRONMENTAL CLAIMS
SCHEDULE 5.08(b) - ENVIRONMENTAL NOTICES
SCHEDULE 5.11 - BURDENSOME RESTRICTIONS
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SCHEDULE 5.12 - TAXES
SCHEDULE 5.14 - CONTINGENT OBLIGATIONS
SCHEDULE 5.15 - EMPLOYEE BENEFIT MATTERS
SCHEDULE 5.16 - PATENT, TRADEMARK, LICENSE, AND OTHER INTELLECTUAL
PROPERTY MATTERS
SCHEDULE 5.17 - OWNERSHIP OF PROPERTIES
SCHEDULE 5.20 - LABOR AND EMPLOYMENT MATTERS
SCHEDULE 5.21 - DIVIDEND RESTRICTIONS
SCHEDULE 5.22 - WARRANTS; VOTING AGREEMENTS
SCHEDULE 6.08 - THIRD FISCAL QUARTER FINANCIAL COVENANT CALCULATIONS
SCHEDULE 7.01 - EXISTING INDEBTEDNESS
SCHEDULE 7.02 - EXISTING LIENS
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<PAGE>
MULTICURRENCY
CREDIT AGREEMENT
THIS MULTICURRENCY CREDIT AGREEMENT made and entered into as of December
19, 1997, by and among VARI-LITE INTERNATIONAL, INC., a Delaware corporation
("Borrower"), SUNTRUST BANK, ATLANTA, a banking corporation organized under
the laws of the State of Georgia ("STBA"), the other banks and lending
institutions listed on the signature pages hereof, and any assignees of STBA
or such other banks and lending institutions which become "Lenders" as
provided herein (STBA and such other banks, lending institutions, and
assignees referred to collectively herein as the "Lenders"), SUNTRUST BANK,
ATLANTA, in its capacity as agent for those Lenders, and each successor agent
for such Lenders as may be appointed from time to time pursuant to Article IX
hereof (the "Agent"), SUNTRUST BANK, ATLANTA, in its capacity as collateral
agent for the Agent and Lenders and each successor collateral agent as may be
appointed from time to time pursuant to Article IX hereof (the "Collateral
Agent"; the Agent and the Collateral Agent collectively referred to herein as
the "Agents") and BROWN BROTHERS HARRIMAN & CO., in its capacity as Co-Agent
for the Lenders (the "Co-Agent");
W I T N E S S E T H:
WHEREAS, Borrower has requested that the Lenders provide certain
commitments to Borrower in an aggregate principal amount of $50,000,000, of
which up to the dollar equivalent of $20,000,000 may be borrowed in certain
specified foreign currencies;
WHEREAS, the Lenders, the Agent, the Co-Agent and the Collateral Agent
have agreed to provide such facilities, subject to the terms, conditions and
requirements set forth in this Multicurrency Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Borrower, the Lenders and the Agents and
Co-Agent, intending to be legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of
the terms defined):
<PAGE>
"ACQUISITION" shall mean any transaction, or any series of related
transactions, by which Borrower and/or any of its Subsidiaries directly or
indirectly (a) acquires any ongoing business or all or substantially all of
the assets of any Person or division thereof, whether through purchase of
assets, merger or otherwise, (b) acquires (in one transaction or as the most
recent transaction in a series of transactions) control of at least a
majority in ordinary voting power of the securities of a Person which have
ordinary voting power for the election of directors or (c) otherwise acquires
control of a 50% or more ownership interest in any such Person.
"ADJUSTED FUNDED DEBT" shall mean, with respect to any Person, the sum
of all (i) Funded Debt PLUS (ii) all Synthetic Lease Principal Obligations of
such Person.
"ADJUSTED FUNDED DEBT/EBITDA RATIO" shall mean, as of the last day of
any fiscal quarter of Borrower, the ratio of (A) Adjusted Funded Debt as of
such day, to (B) the sum of Consolidated EBITDA for the fiscal quarter then
ending and the immediately preceding three fiscal quarters.
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest Period
for a Euro Advance, the sum of (i) the rate obtained by dividing (a) LIBOR
for such Interest Period by (b) a percentage equal to 1 MINUS the then stated
maximum rate (stated as a decimal) of all reserves requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency liabilities as defined in Regulation D (or against
any successor category of liabilities as defined in Regulation D), PLUS (ii)
if the relevant Multicurrency Syndicated Advance is in British pounds
sterling, a percentage sufficient to compensate the Lenders for the cost of
complying with any reserves, liquidity and/or special deposit requirements of
the Bank of England directly or indirectly affecting the maintenance or
funding of such Advances.
"ADJUSTED SPECIAL LIBO RATE" shall mean the sum of (i) the rate obtained
by dividing (A) Special LIBOR as in effect from time to time by (B) a
percentage equal to 1 MINUS the then stated maximum rate (stated as a
decimal) of all reserves requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or against any successor category of
liabilities as defined in Regulation D), PLUS (ii) if the relevant
Multicurrency Syndicated Advance is in British pounds sterling, a percentage
sufficient to compensate the Lenders for the cost of complying with any
reserves, liquidity and/or special deposit requirements of the Bank of
England directly or indirectly affecting the maintenance or funding of such
Advances.
"ADVANCE" shall mean any principal amount advanced or to be advanced and
outstanding at any time under (i) the Domestic Syndicated Loans, which
Advance shall be made or outstanding in U.S. Dollars as a Base Rate Advance
or Eurodollar Advance, as the case may be, (ii) the Multicurrency Syndicated
Loans, which Advance shall be made or outstanding as a Multicurrency
Syndicated Advance (which Advance may be made in any Currency), or (iii) the
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<PAGE>
Swing Line Loans, which Advance shall be made or outstanding in U.S. Dollars
as a Base Rate Advance or Transaction Rate Advance, as the case may be.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person,
whether through the ownership of voting securities, by contract or otherwise.
For purposes of this definition, "control" (including with correlative
meanings, the terms "controlling", "controlled by", and "under common control
with") as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"AGENT" shall mean STBA, acting in the manner and to the extent
described in Article IX, and any successor Agent appointed pursuant to
Article IX hereof.
"AGENTS" shall mean, collectively, the Agent and the Collateral Agent.
"AGREEMENT" shall mean this Multicurrency Credit Agreement, as the same
may be further amended, restated, or supplemented from time to time.
"APPLICABLE COMMITMENT FEE RATE" shall mean (x) through March 31, 1998
(or in the event that Borrower pays the Fixed Fee pursuant to Section
3.05(b), through June 30, 1998), 0.25% per annum, and (y) thereafter, the
rate for any day to be used to calculate commitment fees payable by Borrower
pursuant to Section 3.05, expressed as a percentage and determined from the
chart set forth below based on Borrower's Adjusted Funded Debt/EBITDA Ratio
calculated as of the relevant determination date:
Adjusted Funded Applicable Commitment
Debt/EBITDA Ratio Fee Rate
----------------- ---------------------
Greater than or equal to 2.00:1.00 .375%
Less than 2.00:1.00, but greater than
or equal to 1.00:1.00 .25%
Less than 1.00:1.00 .20%
Each change in the Applicable Commitment Fee Rate resulting from a change in
the Adjusted Funded Debt/EBITDA Ratio shall be effective from and after the
date that any related change in the Applicable Margin is effective.
Notwithstanding the foregoing, at any time during which Borrower has failed
to deliver the financial statements and certificates when required by Section
6.07(a), (b), and (c), as applicable (and the cure period set forth in
Section 8.02 hereof shall have expired), the Applicable Commitment Fee Rate
shall be .375%.
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<PAGE>
"APPLICABLE MARGIN" shall mean, (x) with respect to all outstanding Euro
Advances through March 31, 1998 (or in the event that Borrower pays the
Fixed Fee pursuant to Section 3.05(b), through June 30, 1998), 1.50% per
annum, and (y) thereafter with respect to all outstanding Euro Advances for
any day, the applicable percentage determined from the chart set forth below
based on Borrower's Adjusted Funded Debt/EBITDA Ratio calculated as of the
relevant determination date:
Adjusted Funded
Debt/EBITDA Ratio Applicable Margin
----------------- -----------------
Greater than or equal to 2.00:1.00 2.50%
Less than 2.00:1.00, but greater than
or equal to 1.50:1.00 2.00%
Less than 1.50:1.00, but greater than
or equal to 1.00:1.00 1.50%
Less than 1.00:1.00 1.00%
The Adjusted Funded Debt/EBITDA Ratio and the resulting Applicable Margin
shall be determined quarterly, based upon the financial statements delivered
to the Lenders pursuant to Section 6.07(a) or Section 6.07(b) hereof, as the
case may be, in accordance with Section 6.08(b), with such Applicable Margin
to be effective with respect to calculations based upon the financial
statements delivered pursuant to Section 6.07 as of the first day of the
second fiscal quarter immediately following the fiscal quarter for which such
financial statements are delivered (for example, the Applicable Margin
effective with respect to all outstanding Euro Advances as of the first day
of the third fiscal quarter shall be calculated based upon the financial
statements delivered for the first fiscal quarter of Borrower).
Notwithstanding the foregoing, at any time during which Borrower has failed
to deliver the financial statements and certificates when required by Section
6.07(a), (b), and (c), as applicable (and the cure period set forth in
Section 8.02 hereof shall have expired), the Applicable Margin with respect
to the Euro Advances then outstanding shall be 2.50%.
"ASSET SALE" shall mean any sale or other disposition (or a series of
related sales or other dispositions), including without limitation, loss,
damage or destruction which is not covered by insurance (with the exception
of any applicable deductible) or taking, by any Consolidated Company to any
Person other than a Consolidated Company, of any property or asset (including
capital stock but excluding the issuance and sale by Borrower of its own
capital stock).
"ASSET VALUE" shall mean, with respect to any property or asset of any
Consolidated Company, an amount equal to the greater of (i) the book value of
such property or asset as established in accordance with GAAP, and (ii) the
fair market value of such property or asset as
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<PAGE>
determined in good faith by the board of directors (or equivalent governing
body in the case of any Foreign Subsidiary) of such Consolidated Company.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an Eligible Assignee in accordance with the
terms of this Agreement and substantially in the form of EXHIBIT H.
"BANKRUPTCY CODE" shall mean The Bankruptcy Code of 1978, as amended and
in effect from time to time (11 U.S.C. Section 101 ET SEQ.).
"BASE RATE" shall mean the higher of (a) the rate which the Agent
publicly announces from time to time to be its prime lending rate, as in
effect from time to time, and (b) the Federal Funds Rate, as in effect from
time to time, PLUS one-half of one percent (0.50%) per annum. The Agent's
prime lending rate is a reference rate and does not necessarily represent the
lowest or best rate charged to customers; the Agent may make commercial loans
or other loans at rates of interest at, above or below the Agent's prime
lending rate. Any change in the Base Rate shall be effective as of the date
of such change.
"BASE RATE ADVANCE" shall mean an Advance made or outstanding as a
portion of Domestic Revolving Loans, bearing interest based on the Base Rate
as provided in Section 3.03(a)(i).
"BORROWER" shall mean Vari-Lite International, Inc., a Delaware
corporation, and its successors and permitted assigns.
"BORROWING" shall mean the incurrence by Borrower under any Facility of
Advances of one Type concurrently having the same Interest Period (except as
otherwise provided in Sections 3.09 and 3.10) or the continuation or
conversion of an existing Borrowing or Borrowings in whole or in part.
"BUSINESS DAY" shall mean any day (i) excluding Saturday, Sunday and any
other day on which banks are required or authorized to close in Atlanta,
Georgia, Dallas, Texas or New York, New York, (ii) if the applicable Business
Day relates to Euro Advances, on which trading is not carried on by and
between banks in deposits of Dollars and/or the applicable Currencies in the
London interbank and foreign exchange markets and (iii) if the applicable
Business Day relates to any Multicurrency Syndicated Advance, any day on
which banks are not required or authorized to close in the city of the
jurisdiction of such Currency where the FCB Account relating to such Currency
is located.
"CHANGE IN CONTROL" shall mean and be deemed to occur on the earliest
of, and upon any subsequent occurrence of:
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<PAGE>
(a) any individual, entity, or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended),
shall acquire the stock of Borrower resulting in beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the such Act) of more
than 40% of the combined voting power of the then outstanding capital
stock of Borrower entitled to vote for the election of a majority of the
members of the board of directors of Borrower; or
(b) a change in the board of directors of Borrower shall occur such
that, as of any date, a majority of the Board of Directors of Borrower
consists of individuals who were not either (i) directors of Borrower as
of the corresponding date of the previous year, (ii) selected or nominated
to be selected to become directors by the Board of Directors of Borrower
of which a majority consisted of individuals described in clause (i), or
(iii) selected or nominated to be selected to become directors by the
Board of Directors of Borrower of which a majority consisted of
individuals described in clause (i) and individuals described in
clause (ii).
"CO-AGENT" shall mean Brown Brothers Harriman & Co., and its successors
and assigns.
"COLLATERAL AGENT" shall mean STBA acting in the capacity as collateral
agent, collateral trustee, pledgee, secured party, or any similar capacity
under any Security Document, any nominee or designee of STBA acting in such
capacity, and any successor collateral agent appointed from time to time
pursuant to Article IX.
"COMMITMENT" shall mean (i) for any Lender at any time, any of its
Master Syndicated Loan Commitment or Multicurrency Syndicated Loan
Subcommitment, and (ii) for the Swing Line Lender at any time, its Swing Line
Commitment, in each case as the context may require.
"CONSOLIDATED COMPANIES" shall mean, collectively, Borrower and all of
its Subsidiaries.
"CONSOLIDATED EBIT" shall mean, for any fiscal period of Borrower, an
amount equal to the sum for such fiscal period of Consolidated Net Income
(Loss), PLUS, to the extent subtracted in determining such Consolidated Net
Income (Loss), (i) provisions for taxes based on income, and (ii)
Consolidated Interest Expense for such period. For purposes of calculating
Consolidated EBIT, to the extent that the net income (loss) of any Person
acquired or consolidated with a Consolidated Company is included in the
calculation of Consolidated Net Income (Loss), corresponding additions and
deductions shall be made pursuant to this definition for such Person in
accordance with GAAP.
"CONSOLIDATED EBITDA" shall mean, for any fiscal period of Borrower, an
amount equal to Consolidated EBIT PLUS, to the extent subtracted in
determining Consolidated Net Income (Loss) in relation thereto, depreciation
and amortization allowances of the Consolidated Companies, as determined for
such period on a consolidated basis in accordance with GAAP. For purposes of
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<PAGE>
calculating Consolidated EBITDA, to the extent that the net income (loss) of
any Person acquired or consolidated with a Consolidated Company is included
in the calculation of Consolidated Net Income (Loss), corresponding additions
and deductions shall be made pursuant to this definition for such Person in
accordance with GAAP.
"CONSOLIDATED EBITR" shall mean, for any fiscal period of Borrower, an
amount equal to the sum for such fiscal period of Consolidated EBIT PLUS, to
the extent subtracted in determining Consolidated Net Income (Loss),
Consolidated Rental Expense for such period. For purposes of calculating
Consolidated EBITR, to the extent that the net income (loss) of any Person
acquired or consolidated with a Consolidated Company is included in the
calculation of Consolidated Net Income (Loss), corresponding additions and
deductions shall be made pursuant to this definition for such Person in
accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any fiscal period of
Borrower, total interest expense of the Consolidated Companies (including
without limitation, interest expense attributable to capitalized leases in
accordance with GAAP, all capitalized interest, all commissions, discounts
and other fees and charges owed with respect to bankers acceptance financing,
all rental payments constituting Synthetic Lease Obligations which are in the
nature of interest payments and total interest expense (whether shown as
interest expense, other expense, or as loss and expenses on sale of
receivables) under a receivables purchase facility) determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal period of
Borrower, the net income (or loss) of the Consolidated Companies on a
consolidated basis for such period (taken as a single accounting period)
PLUS, without duplication, the net income (or loss) of any Person accrued for
such fiscal period prior to the date such Person becomes a Subsidiary of
Borrower or is merged into or consolidated with any Consolidated Company or
all or substantially all of such Person's assets are acquired by any
Consolidated Company (as determined from audited financial statements of such
Person or other financial reports reasonably acceptable to the Required
Lenders) as determined in conformity with GAAP, PLUS (iii) to the extent
deducted therefrom, High End Lawsuit Expensed Amounts for such period, but
excluding therefrom (to the extent otherwise included therein and not
including High End Lawsuit Expensed Amounts) (i) any items of gain (or PLUS
any items of loss) which were included in determining such Consolidated Net
Income (Loss) and were (x) not realized in the ordinary course of business or
(y) the result of any sale of assets other than in the ordinary course of
business and (ii) the income of any Consolidated Company to the extent that
the declaration or payment of dividends or similar distributions by such
Consolidated Company of that income is not at the time permitted by operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation.
"CONSOLIDATED RENTAL EXPENSE" shall mean, as at any date of
determination, total rental expense of the Consolidated Companies determined
on a consolidated basis in accordance with GAAP, but excluding Synthetic
Lease Obligations.
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<PAGE>
"CONSOLIDATED NET WORTH" shall mean, as of any date of determination,
Shareholders' Equity of Borrower.
"CONTRACTUAL OBLIGATION" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property
owned by it is bound.
"CONTRIBUTION AGREEMENT" shall mean the Contribution Agreement executed
by each of the Guarantors, substantially in the form of EXHIBIT I attached
hereto, as the same may be amended, restated or supplemented from time to
time.
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement, the Notes,
the Guaranty Agreement, the Contribution Agreement, the Pledge Agreements and
all other Security Documents.
"CREDIT PARTIES" shall mean, collectively, each of Borrower and the
Guarantors, (including all Persons that are currently Guarantors and all
Persons who may at any time in the future become Guarantors), and every other
Person who from time to time executes a Security Document with respect to all
or any portion of the Obligations.
"CURRENCY" shall mean, with respect to the Multicurrency Syndicated Loan
Subcommitments, British pounds sterling, Belgian francs, German marks and
Japanese yen, as selected by Borrower.
"CURRENCY CONTRACTS" shall mean any forward contracts, futures
contracts, foreign exchange contracts, currency swap agreements, and other
similar agreements and arrangements entered into by any Consolidated Company
designed to protect any Consolidated Company against fluctuations in foreign
exchange rates.
"DEFAULT" shall mean any condition or event which, with notice or lapse
of time or both, would constitute an Event of Default.
"DOLLAR" and "U.S. DOLLAR" and the sign "$" shall mean lawful money of
the United States of America.
"DOLLAR EQUIVALENT" shall mean, on any day of determination with respect
to an amount in a Currency, the amount of Dollars into which the Agent could,
in accordance with its practice from time to time in the interbank foreign
exchange market, convert such amount of Currency at its spot rate of exchange
at or about 10:00 A.M. (Eastern time) on such date.
"DOMESTIC REVOLVING LOANS" shall mean, collectively, all Domestic
Syndicated Loans and Swing Line Loans.
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<PAGE>
"DOMESTIC SYNDICATED ADVANCE" shall mean a Borrowing pursuant to Section
2.02 consisting of the aggregate amount of Domestic Syndicated Loans made by
the Lenders to Borrower at the same time, on the same interest rate basis
and, if made as a Fixed Rate Advance, for the same Interest Period.
"DOMESTIC SYNDICATED BORROWING" shall mean a Borrowing consisting or to
consist of a Domestic Syndicated Advance.
"DOMESTIC SYNDICATED BORROWING NOTICE" shall mean the notice given by
Borrower to the Agent requesting one or more Domestic Syndicated Advances as
provided in Section 2.02(c).
"DOMESTIC SYNDICATED FACILITY" shall mean the revolving credit facility
established by the Lenders to Borrower pursuant to Section 2.02(a).
"DOMESTIC SYNDICATED LOANS" shall mean, collectively, the loans made to
Borrower by the Lenders pursuant to Section 2.02.
"DOMESTIC SYNDICATED NOTES" shall mean, collectively, the promissory
notes evidencing the Domestic Syndicated Loans in the form attached hereto as
EXHIBIT A duly completed in accordance with the terms hereof.
"ELIGIBLE ASSIGNEE" shall mean any financial institution reasonably
acceptable to Borrower and the Agent.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and foreign
statutes and codes or regulations, rules or ordinances issued, promulgated,
or approved thereunder, now or hereafter in effect (including, without
limitation, those with respect to asbestos or asbestos containing material or
exposure to asbestos or asbestos containing material), relating to pollution
or protection of the environment and relating to public health and safety,
relating to (i) emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or industrial toxic or hazardous
constituents, substances or wastes, including without limitation, any
Hazardous Substance, petroleum including crude oil or any fraction thereof,
any petroleum product or other waste, chemicals or substances regulated by
any Environmental Law into the environment (including without limitation,
ambient air, surface water, ground water, land surface or subsurface strata),
or (ii) the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any
petroleum product or other waste, chemicals or substances regulated by any
Environmental Law, and (iii) underground storage tanks and related piping,
and emissions, discharges and releases or threatened releases therefrom, such
Environmental Laws to include, without limitation (i) the Clean Air Act (42
U.S.C. Section 7401 ET SEQ.), (ii) the Clean Water Act (33 U.S.C. Section
1251 ET SEQ.), (iii) the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 ET SEQ.), (iv) the Toxic Substances Control Act (15 U.S.C.
Section 2601 ET SEQ.), (v) the Comprehensive Environmental Response
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act
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(42 U.S.C. Section 9601 ET SEQ.), and (vi) all applicable national and local
hindrance laws with all national and local building, zoning, environmental
control or other similar laws or regulations under specific terms of
construction licenses.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended and in effect from time to time.
"ERISA AFFILIATE" shall mean, with respect to any Person, each trade or
business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning
of the regulations promulgated under Section 414 of the Tax Code.
"EURO ADVANCE" shall mean (i) a Eurodollar Advance or (ii) a
Multicurrency Advance.
"EURODOLLAR ADVANCE" shall mean an Advance made or outstanding in U.S.
Dollars as a portion of the Domestic Syndicated Loans, bearing interest based
on the Adjusted LIBO Rate as provided in Section 3.03(a)(ii).
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"FCB ACCOUNT" shall mean, with respect to Advances made in any Currency
under the Multicurrency Syndicated Loan Subcommitment, the account maintained
by the Agent for disbursements to, and payments from, Borrower or the
Lenders, as the case may be, in such Currency, as more particularly described
on SCHEDULE 3.01.
"FACILITY" or "FACILITIES" shall mean, as the context may indicate, the
Domestic Syndicated Facility, the Multicurrency Syndicated Facility or the
Swing Line Facility.
"FEDERAL FUNDS RATE" shall mean for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published 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 Agent from three
Federal funds brokers of recognized standing selected by the Agent.
"FIXED CHARGE COVERAGE RATIO" shall mean the ratio of (a) Consolidated
EBITR to (b) the sum of (i) Consolidated Interest Expense plus (ii)
Consolidated Rental Expense, in each case, as determined on the last day of
each fiscal quarter of Borrower on a consolidated basis for the quarter then
ending and the three immediately preceding fiscal quarters.
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"FIXED FEE" shall have the meaning set forth in Section 3.05(b) hereof.
"FIXED RATE ADVANCE" shall mean a Euro Advance and, to the extent quoted
to and accepted by Borrower on the basis of a fixed rate of interest for a
specified Interest Period pursuant to Section 2.03(c), a Transaction Rate
Advance.
"FOREIGN PLAN" shall mean any pension, profit sharing, deferred
compensation, or other employee benefit plan, program or arrangement
maintained by any Foreign Subsidiary which, under applicable local law, is
required to be funded through a trust or other funding vehicle.
"FOREIGN SUBSIDIARY" shall mean each Consolidated Company that is
organized under the laws of a jurisdiction other than the United States of
America or any State thereof.
"FOREIGN SUBSIDIARY LINES OF CREDIT" shall mean lines of credit extended
to Foreign Subsidiaries for borrowing in any Currency.
"FOREIGN SUBSIDIARY SUBORDINATION AGREEMENT" shall mean that certain
Subordination Agreement, substantially in the form of EXHIBIT J attached
hereto, executed by each of the Foreign Subsidiaries pursuant to Section
7.01(g) hereof, either as originally executed or as hereafter amended or
modified.
"FUNDED DEBT" shall mean all Indebtedness for money borrowed,
Indebtedness evidenced or secured by purchase money Liens, capitalized
leases, conditional sales contracts and similar title retention debt
instruments, and Indebtedness evidenced by bonds, debentures, notes or other
similar instruments, including all current maturities of such Indebtedness.
The calculation of Funded Debt shall include all Funded Debt of the
Consolidated Companies, PLUS (i) all Funded Debt of other Persons to the
extent supported by a Guaranty of a Consolidated Company or to the extent
supported by a letter of credit issued for the account of a Consolidated
Company, and (ii) the redemption amount with respect to any Redeemable
Capital Stock of the Consolidated Companies mandatorily redeemable within the
next twelve months; provided that, (x) Guaranties arising with respect to
Lease arrangements of the Consolidated Companies described in Section 7.02(j)
hereof shall not be included in the definition of "Funded Debt" except to the
extent that such Guaranties exceed $5,000,000 at any time outstanding and (y)
Intercompany Loans shall not be included in the definition of "Funded Debt".
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession, which are applicable to the circumstances as of
the date of determination.
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"GUARANTORS" shall mean, collectively, Vari-Lite, Inc. ("VLI"), Showco,
Inc. Ignition! Creative Group, Inc., Irideon, Inc. and all other Subsidiaries
now existing or hereafter created of Borrower that are not Foreign
Subsidiaries, and their respective successors and permitted assigns.
"GUARANTY" shall mean "Guaranty" means, with respect to any Person, any
obligation (except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person guaranteeing
or in effect guaranteeing any Indebtedness, dividends or other obligation of
any other Person in any manner, whether directly or indirectly, including
(without limitation) obligations incurred through an agreement, contingent or
otherwise, by such Person:
(a) to purchase such Indebtedness or obligation or any property
constituting security therefore;
(b) to advance or supply funds (i) for the purchase or payment of
such Indebtedness or obligation, or (ii) to maintain any working capital
or other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such Indebtedness or obligations;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or obligations
against loss in respect thereof, including without limitation, by pledge of
property of such Person in support thereof.
In any computation of the Indebtedness or other liabilities of the obligor
under any Guaranty, the Indebtedness or other obligations that are the
subject of such Guaranty shall be assumed to be direct obligations of such
obligor except to the extent that such Guaranty is limited to a lesser amount
in which case such lesser amount shall be deemed to be the direct obligations
of such obligor. The definition of Guaranty shall not include obligations
arising solely due to the non-recourse pledge of assets of the type described
in Section 7.02(l) with respect to Sales/Leases.
"GUARANTY AGREEMENT" shall mean, the Guaranty Agreement executed by the
Guarantors in favor of the Lenders and the Agents, substantially in the form
of EXHIBIT D, as the same may be amended, restated or supplemented from time
to time.
"HAZARDOUS SUBSTANCES" shall have the meaning assigned to that term in
the Comprehensive Environmental Response Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Acts of 1986.
"HIGH END LAWSUIT EXPENSED AMOUNTS" shall mean, during any period,
amounts expensed by the Consolidated Companies, as shown on the consolidated
income statement of
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Borrower, in connection with the settlement or other resolution (including
the entry of a judgment) of certain litigation pending between certain of the
Consolidated Companies and High End Systems, Inc. in the Federal District
Court of the Northern District of Texas, and which do not, in the aggregate
during the term of this Agreement, exceed $6,000,000.
"INDEBTEDNESS" of any Person shall mean, at any time, without
duplication,
(a) its liabilities for borrowed money and its redemption obligations
in respect of mandatorily Redeemable Capital Stock;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the ordinary
course of business but including all liabilities created or arising under
any conditional sale or other title retention agreement with respect to
any such property);
(c) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capitalized Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its account
by banks and other financial institutions (whether or not representing
obligations for borrowed money);
(f) Interest Rate Contracts and Currency Contracts of such Person;
and
(g) any Guaranty of such Person with respect to liabilities of a type
described in any clauses (a) through (f) hereof.
"INTERCOMPANY LOANS" shall mean, collectively, those loans or other
extensions of credit made by any Consolidated Company to another Consolidated
Company which do not violate the terms and conditions set forth in Section
7.01(g).
"INTEREST PERIOD" shall have the meaning set forth in Section 3.04.
"INTEREST RATE CONTRACTS" shall mean any forward contracts, futures
contracts, interest rate exchange agreements, interest rate cap agreements,
interest rate collar agreements, and other similar agreements and
arrangements entered into by any Consolidated Company designed to protect any
Consolidated Company against fluctuations in interest rates.
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"INVESTMENT" shall mean, when used with respect to any Person, any
direct or indirect advance, loan or other extension of credit (other than
the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person, other than Acquisitions. For purposes of determining the
amount of any Investment consisting of a transfer of property, the Investment
shall be valued at the book value of such property.
"LEASE" shall mean a lease for equipment manufactured by a Consolidated
Company, entered into between a Lessee and a Consolidated Company.
"LEASE RECEIVABLES" shall mean the right of a Consolidated Company to
receive rental payments under the Leases.
"LESSEE" shall mean a Person that has entered into or agreed to enter
into one or more Leases as a lessee.
"LENDER" or "LENDERS" shall mean STBA, the other banks and lending
institutions listed on the signature pages hereof, and each assignee thereof,
if any, pursuant to Section 10.06(c).
"LENDING OFFICE" shall mean for each Lender the office such Lender may
designate in writing from time to time to Borrower and the Agent with respect
to each Type of Loan.
"LEVERAGE RATIO" shall mean, as of any date of determination, the ratio,
expressed as a percentage, of Adjusted Funded Debt to Total Capitalization
for the Consolidated Companies.
"LIBOR" shall mean, for any applicable Interest Period:
(i) with respect to Eurodollar Advances under the Domestic Syndicated
Facility, the offered rate for deposits in Dollars for a period equal to
such Interest Period and in an amount comparable to the Agent's portion of
such Advances, appearing on Telerate Page 3750 as of 11:00 A.M. (London,
England time) on the day that is two Business Days prior to the first day
of such Interest Period, PROVIDED, that if no such offered rate appears
on such page, the rate used for such Interest Period shall be the
arithmetic average of rates offered by the Agent to not less than two major
banks in London, England at approximately 10:00 A.M. (Eastern time) two (2)
Business Days prior to the first day of such Interest Period for deposits
in Dollars in the London interbank market for a term equal to such Interest
Period and in an amount substantially equal to the principal amount of the
Agent's portion of such Advances.
(ii) with respect to Multicurrency Syndicated Advances under the
Multicurrency Syndicated Loan Subcommitments, the rate per annum equal to
the average at which deposits
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in the applicable Currency are offered by the Agent to prime banks in
London, England at 10:00 A.M. (Atlanta, Georgia time) two (2) Business
Days prior to the first day of such Interest Period and in an amount
substantially equal to the principal amount of the Agent's portion of
such Advances.
in any such case rounded, if necessary, to the next higher 1/100 of 1.0%, if
the rate is not such a multiple.
"LIEN" shall mean any mortgage, pledge, security interest, lien, charge,
hypothecation, assignment, deposit arrangement, title retention, preferential
right, trust or other arrangement having the practical effect of the
foregoing and shall include the interest of a vendor or lessor under any
conditional sale agreement, capitalized lease or other title retention
agreement.
"LOANS" shall mean, collectively, the Domestic Syndicated Loans, the
Swing Line Loans and the Multicurrency Syndicated Loans.
"MARGIN REGULATIONS" shall mean Regulation G, Regulation T, Regulation U
and Regulation X of the Board of Governors of the Federal Reserve System, as
the same may be in effect from time to time.
"MASTER DISTRIBUTORSHIP AGREEMENTS" means the distributorship agreements
described on SCHEDULE 1.01, as the same may be amended, modified or restated
from time to time.
"MASTER SYNDICATED LOAN COMMITMENT" shall mean, at any time for any
Lender, the amount of such commitment set forth opposite such Lender's name
on the signature pages of this Agreement, as the same may be increased or
decreased from time to time as a result of any reduction thereof pursuant to
Section 2.05, any assignment thereof pursuant to Section 10.06, or any
amendment thereof pursuant to Section 10.02.
"MATERIALLY ADVERSE EFFECT" shall mean any materially adverse change in
(i) the business, results of operations, financial condition, assets or
prospects of the Consolidated Companies, taken as a whole, or (ii) the
ability of Borrower to perform its respective obligations under the Credit
Documents.
"MULTICURRENCY ADVANCE" shall mean an Advance made or outstanding as
Multicurrency Syndicated Loans bearing interest based on the Adjusted LIBO
Rate or Adjusted Special LIBO Rate as provided in Section 3.03(a)(iii).
"MULTICURRENCY SYNDICATED ADVANCE" shall mean a Borrowing pursuant to
Section 2.04 consisting of the aggregate amount of Multicurrency Syndicated
Loans made by the Lenders to Borrower at the same time, on the same interest
rate basis and for the same Interest Period.
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"MULTICURRENCY SYNDICATED BORROWING" shall mean a Borrowing consisting
or to consist of a Multicurrency Syndicated Advance.
"MULTICURRENCY SYNDICATED BORROWING NOTICE" shall mean the notice given
by or on behalf of Borrower to the Agent requesting one or more Multicurrency
Syndicated Advances as provided in Section 2.04(c).
"MULTICURRENCY SYNDICATED FACILITY" shall mean the loan subfacililty
established pursuant to the Multicurrency Syndicated Loan Subcommitments.
"MULTICURRENCY SYNDICATED LOAN SUBCOMMITMENT" shall mean, at any time
for each Lender, the amount set forth opposite such Lender's name on the
signature pages hereof, as the same may be increased or decreased from time
to time as a result of any reduction thereof pursuant to Section 2.05, any
assignment thereof pursuant to Section 10.06, or any amendment thereof
pursuant to Section 10.02.
"MULTICURRENCY SYNDICATED LOANS" shall mean, collectively, the loans
made to Borrower by the Lenders pursuant to Section 2.04.
"MULTICURRENCY SYNDICATED NOTES" shall mean, collectively, the
promissory notes evidencing the Multicurrency Syndicated Loans in the form
attached hereto as EXHIBIT C, duly completed in accordance with the terms
hereof.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NOTES" shall mean, collectively, the Domestic Syndicated Notes, the
Swing Line Note and the Multicurrency Syndicated Notes.
"NOTICE OF DOMESTIC CONVERSION/CONTINUATION" shall mean the notice given
by Borrower to the Agent in respect of the conversion or continuation of an
outstanding Domestic Syndicated Borrowing as provided in Section 2.02(e).
"NOTICE OF MULTICURRENCY CONTINUATION" shall mean a notice given by or
on behalf of Borrower in respect of the continuation of an outstanding
Multicurrency Syndicated Borrowing pursuant to Section 2.04(e).
"OBLIGATIONS" shall mean all amounts owing to Agent, any Lender or
Collateral Agent pursuant to the terms of this Agreement or any other Credit
Document, including without limitation, all Loans (including all principal
and interest payments due thereunder), fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the
Credit Parties, direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with all renewals,
extensions, modifications or refinancings thereof.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PAYMENT OFFICE" shall mean (i) with respect to payments of principal
and interest relating to Multicurrency Syndicated Loans, the respective FCB
Accounts designated for each Currency on SCHEDULE 3.01, and (ii) with respect
to payments of all other payments of principal, interest, fees or other
amounts relating to the Obligations not described in the preceding clause (i)
and with respect to all notices, and other administrative matters hereunder,
the office specified as the "Payment Office" for the Agent on the signature
page of the Agent, or such other location as to which the Agent shall have
given written notice to Borrower.
"PERMITTED LIENS" shall mean those Liens expressly permitted by Section
7.02.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity,
or any government or political subdivision or agency, department or
instrumentality thereof.
"PLAN" shall mean any "employee benefit plan" (as defined in Section
3(3) of ERISA), including, but not limited to, any defined benefit pension
plan, profit sharing plan, money purchase pension plan, savings or thrift
plan, stock bonus plan, employee stock ownership plan, Multiemployer Plan, or
any plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits, but shall exclude any Foreign Plan.
"PLEDGE AGREEMENTS" shall mean, collectively, those certain pledge
agreements to be delivered to the Collateral Agent, for the benefit of the
Lenders, pursuant to Section 6.10 hereof, in each case providing for the
grant of first priority Liens on the Pledged Stock, as the same may be
further supplemented, amended or restated from time to time.
"PLEDGED STOCK" shall mean, collectively, (i) 65% of all issued and
outstanding capital stock, together with 65% of all warrants, stock options,
and other purchase and conversion rights with respect to such capital stock,
of Vari-Lite Europe Holdings, Ltd., Vari-Lite Hong Kong, Vari-Lite Asia, Inc.
and all other Subsidiaries that are Foreign Subsidiaries directly owned by
Borrower and/or one or more other Subsidiaries organized in the United States.
"PRO RATA SHARE" shall mean, with respect to each of the Master
Syndicated Loan Commitments and the Multicurrency Syndicated Loan
Subcommitments of each Lender or Lender, as the case may be, and each Loan to
be made by and each payment to be made to each such Lender, the percentage
designated as such Lender's Pro Rata Share of such Commitments, such Loans or
such payments, as applicable, set forth under the name of such Lender on the
respective signature page for such Lender, in each case as such Pro Rata
Share may change from time to time as a result of assignments, amendments, or
reductions made pursuant to this Agreement.
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"REDEEMABLE CAPITAL STOCK" shall mean any shares of any class or series
of capital stock that, either by the terms thereof, by the terms of any
security into which it is convertible or exchangeable, or by contract or
otherwise, is or upon the happening of an event or passage of time would be,
required to be redeemed prior to the Revolver/Multicurrency Maturity Date or
is redeemable at the option of the holder thereof at any time prior to the
Revolver/Multicurrency Maturity Date, or is convertible into or exchangeable
for debt securities at any time prior to the Revolver/Multicurrency Maturity
Date.
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time.
"RELEVANT CURRENCY TIME" shall mean, for any Multicurrency Syndicated
Borrowing, the local time in that city in which the FCB Account for such
Currency is located.
"REQUIRED LENDERS" shall mean at any time Lenders holding at least
66-2/3% of the then aggregate amount of the Master Syndicated Loan
Commitments, or if the Master Syndicated Loan Commitments have been
terminated, the Lenders holding at least 66-2/3% of the outstanding Loans.
"REQUIREMENT OF LAW" for any person shall mean the articles or
certificate of incorporation and bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"REVOLVER/ MULTICURRENCY MATURITY DATE" shall mean the earlier of (i)
December 24, 2002, and (ii) the date on which all amounts outstanding under
this Agreement have been declared or have automatically become due and
payable pursuant to the provisions of Article VIII.
"SALES/LEASES" shall mean any Lease wherein the Lessee makes an upfront
cash payment of sufficient amount such that (i) the Lease is treated as a
sale and (ii) the asset subject to the Lease is written down to $0 on the
balance sheet of the Consolidated Company, in each case, in accordance with
GAAP.
"SECURITY DOCUMENTS" shall mean, collectively, the Guaranty Agreement,
the Pledge Agreements and each other guaranty agreement, mortgage, deed of
trust, security agreement, pledge agreement, or other security or collateral
document guaranteeing or securing the Obligations, as the same may be
amended, restated, or supplemented from time to time.
"SENIOR MANAGEMENT" shall mean, with respect to any Person, the Chief
Executive Officer, President, any Executive Vice President and Chief
Financial Officer of such Person, or Persons performing similar functions.
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"SHAREHOLDERS' EQUITY" shall mean, with respect to any Person as at any
date of determination, shareholders' equity of such Person determined on a
consolidated basis in conformity with GAAP.
"SPECIAL LIBOR" shall mean the rate of interest per annum as determined
by the Agent (rounded, if necessary, to the next higher multiple of 1/100%)
at which overnight or weekend deposits of the appropriate Currency (or if
such amount remains unpaid for more than three Business Days, then for such
other period of time not longer than three months as the Agent may select in
its absolute discretion) for delivery in immediately available and
transferable funds would be offered by the Agent to major banks in the London
interbank market for the applicable period as determined above and in an
amount comparable to the Agent's portion of the unpaid Multicurrency
Syndicated Loans bearing interest at such rate (or, if the Agent is not
offering such deposits in such Currency in the London interbank market, then
the Agent's cost of funds in such Currency for such period).
"SUBORDINATED DEBT" shall mean Indebtedness of Borrower which does not
require amortization of principal prior to June 24, 2003 which is
subordinated to the Obligations of Borrower or any other Credit Party arising
under this Agreement, the Notes, and the Guaranty Agreement on terms and
conditions and otherwise contains terms and conditions approved by the Agent
and the Required Lenders, such approval not to be unreasonably withheld.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation or
other entity (including, without limitation, partnerships, joint ventures,
and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the total combined voting power of all
classes of voting stock or other ownership interests of which shall, at the
time as of which any determination is being made, be owned by such Person,
either directly or indirectly through one or more other Subsidiaries.
"SWING LINE ADVANCE" shall mean a Borrowing pursuant to Section 2.03
consisting of a Swing Line Loan (which may be made either as a Base Rate
Advance or as a Transaction Rate Advance) made by the Swing Line Lender to
Borrower on the same date and interest rate basis and, if made as a Fixed
Rate Advance, for the same Interest Period.
"SWING LINE BORROWING" shall mean a Borrowing consisting or to consist
of a Swing Line Advance.
"SWING LINE BORROWING NOTICE" shall mean the notice given by Borrower to
the Agent requesting a Swing Line Advance as provided in Section 2.03(c).
"SWING LINE COMMITMENT" shall mean the commitment of the Swing Line
Lender to make Swing Line Loans in an aggregate principal amount at any time
outstanding not to exceed $5,000,000.
"SWING LINE FACILITY" shall mean the credit facility described in
Section 2.03.
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"SWING LINE LENDER" shall mean Texas Commerce Bank National Association
or any subsequent Lender extending to Borrower the Swing Line Commitment
hereunder.
"SWING LINE LOANS" shall mean, collectively, the loans made to Borrower
by the Swing Line Lender pursuant to Section 2.03.
"SWING LINE NOTE" shall mean the promissory note evidencing the Swing
Line Loans substantially in the form of EXHIBIT B and duly completed in
accordance with the terms hereof.
"SYNTHETIC LEASE" shall mean any lease entered into in connection with
the lease or acquisition of fixed assets which is treated under GAAP as an
operating lease but the lessee is deemed to be the owner of the fixed assets
for purposes of the Tax Code.
"SYNTHETIC LEASE OBLIGATIONS" shall mean the obligation, contingent or
otherwise, to pay rentals and other amounts payable by a lessee under a
Synthetic Lease, including without limitation, any obligation of the lessee
to make any payments at the end of the lease term in connection with the
surrender, purchase or remarketing of the property subject to such Synthetic
Lease; provided that, until exercised, Synthetic Lease Obligations shall not
include amounts payable solely as a result of the exercise of a purchase
option or any option to cause the sale of a leased asset (whether or not the
lessee is the purchaser under such purchase option or sale).
"SYNTHETIC LEASE PRINCIPAL OBLIGATIONS" shall mean, with respect to a
Synthetic Lease, that portion of the Synthetic Lease Obligations which when
paid, is required to be applied by the lessor under such Synthetic Lease, to
the payment of principal of indebtedness or to the return of equity capital
utilized by such lessor to acquire the leased assets; provided that, unless
and until the lessee shall have exercised an option to purchase such asset or
otherwise become obligated, whether contingently or otherwise, for a greater
percentage pursuant to the applicable documents executed in connection with
such Synthetic Lease, Synthetic Lease Principal Obligations shall be deemed
to equal 85% of such outstanding principal indebtedness and equity capital
for which the lessor is liable with respect to such Synthetic Lease.
"TAX CODE" shall mean the Internal Revenue Code of 1986, as amended and
in effect from time to time.
"TAXES" shall mean any present or future taxes, levies, imposts, duties,
fees, assessments, deductions, withholdings or other charges of whatever
nature, including without limitation, income, receipts, excise, property,
sales, transfer, license, payroll, withholding, social security and franchise
taxes now or hereafter imposed or levied by the United States, or any state,
local or foreign government or by any department, agency or other political
subdivision or taxing authority thereof or therein and all interest,
penalties, additions to tax and similar liabilities with respect thereto.
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"TELERATE" shall mean, when used in connection with any designated
page and LIBOR, the display page so designated on the Dow Jones Markets, Inc.
Service (or such other page as may replace that page on that service or
another service as may be nominated by the British Bankers' Association as
the information vendors for the purpose of displaying British Bankers'
Association Interest Settlement Rates for Dollars and each Currency for the
purpose of displaying rates comparable to LIBOR).
"TOTAL CAPITALIZATION" shall mean the sum of Adjusted Funded Debt
and Consolidated Net Worth for the Consolidated Companies.
"TRANSACTION RATE" shall mean the rate of interest specified by the
Swing Line Lender to Borrower as being applicable to a Swing Line Loan
requested by Borrower pursuant to Section 2.03(c).
"TRANSACTION RATE ADVANCE" shall mean an Advance made or
outstanding as a Swing Line Loan bearing interest based on the Transaction
Rate as provided in Section 3.03(a)(iv).
"TRANSACTION RATE QUOTE" shall mean an offer by the Swing Line
Lender to make a Swing Line Loan to Borrower at the Transaction Rate
specified therein for the Interest Period to be applicable to the Swing Line
Loan as specified therein, pursuant to Section 2.03(c).
"TYPE" of Borrowing shall mean a Borrowing consisting of Base Rate
Advances, Euro Advances and Transaction Rate Advances.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms shall be
construed herein, all accounting determinations hereunder shall be made, all
financial statements required to be delivered hereunder shall be prepared,
and all financial records shall be maintained in accordance with, GAAP,
except that financial records of Foreign Subsidiaries may be maintained in
accordance with generally accepted accounting principles in effect from time
to time in the jurisdiction of organization of such Foreign Subsidiary;
PROVIDED, HOWEVER, that compliance with the financial covenants and
calculations set forth in Section 6.08, Article VII, and elsewhere herein,
and in the definitions used in such covenants and calculations, shall be
calculated, made and applied in accordance with GAAP and such generally
accepted accounting principles in such foreign jurisdictions, as the case may
be, as in effect on the date of this Agreement applied on a basis consistent
with the preparation of the financial statements referred to in Section 5.14
unless and until the parties enter into an agreement with respect thereto in
accordance with Section 10.13.
SECTION 1,03. OTHER DEFINITIONAL TERMS. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Article, Section, Schedule, Exhibit and like
references are to this Agreement unless otherwise specified.
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SECTION 1.04. EXHIBITS AND SCHEDULES. All Exhibits and Schedules
attached hereto are by reference made a part hereof.
ARTICLE
LOANS
SECTION 2.01. DESCRIPTION OF FACILITIES. Subject to and upon the
terms and conditions herein set forth, (a) the Lenders hereby establish in
favor of Borrower the Master Syndicated Loan Commitments consisting of (i)
the Domestic Syndicated Facility pursuant to Section 2.02, and (ii) the
Multicurrency Syndicated Facility pursuant to Section 2.04, and (b) the
Swing Line Lender hereby establishes in favor of Borrower the Swing Line
Facility pursuant to Section 2.03; PROVIDED, HOWEVER, that in no event may
(x) the aggregate principal amount of all outstanding Domestic Revolving
Loans and the Dollar Equivalent of the aggregate principal amount of all
outstanding Multicurrency Syndicated Loans (the Dollar Equivalent of each
such outstanding Loan to be calculated as of the date of the most recent
continuation of such Loan pursuant to Section 2.04(e) or, if not previously
continued, the date of the initial Borrowing of such Loan pursuant to Section
2.04(a)) exceed at any time the aggregate Master Syndicated Loan Commitments
from time to time in effect MINUS the Dollar Equivalent of the aggregate
principal amount outstanding pursuant to the Foreign Subsidiary Lines of
Credit, or (y) the Dollar Equivalent of the aggregate principal amount of all
outstanding Multicurrency Syndicated Loans (the Dollar Equivalent of each
such outstanding Loan to be calculated as of the date of the most recent
continuation of such Loan pursuant to Section 2.04(e) or, if not previously
continued, the date of the initial Borrowing of such Loan pursuant to Section
2.04(a)) exceed at any time the total Multicurrency Syndicated Loan
Subcommitments from time to time in effect MINUS the Dollar Equivalent of the
aggregate principal amount outstanding pursuant to the Foreign Subsidiary
Lines of Credit.
SECTION 2.02. DOMESTIC SYNDICATED LOANS.
(a) Subject to and upon the terms and conditions herein set forth
(including the limitation set forth in Section 2.01), each Lender severally
agrees to make to Borrower, from time to time prior to the
Revolver/Multicurrency Maturity Date, Domestic Syndicated Loans in an
aggregate principal amount outstanding at any time not to exceed an amount
equal to (i) such Lender's Master Syndicated Loan Commitment, MINUS (ii) the
Dollar Equivalent of such Lender's Multicurrency Syndicated Loans. Borrower
shall be entitled to repay and reborrow Domestic Syndicated Loans in
accordance with the provisions, and subject to the limitations, set forth
herein (including the limitation set forth in Section 2.01).
(b) Each Domestic Syndicated Loan shall, at the option of
Borrower, be made or continued as, or converted into, part of one or more
Borrowings that shall consist entirely of Base Rate Advances or Eurodollar
Advances. The aggregate principal amount of each Borrowing of Domestic
Syndicated Loans shall be not less than $1,000,000 or a greater integral
multiple of
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$500,000, PROVIDED that each Borrowing of Domestic Syndicated Loans comprised
of Base Rate Advances shall be not less than $1,000,000 or a greater integral
multiple of $100,000. At no time shall the total number of Borrowings
outstanding under this Section 2.02 exceed four; PROVIDED that, for purposes
of determining the number of Borrowings outstanding and the minimum amount
for Borrowings resulting from conversions or continuations, all Borrowings of
Base Rate Advances under this Section 2.02 shall be considered as one
Borrowing.
(c) Whenever Borrower desires to make a Domestic Syndicated
Borrowing (other than one resulting from a conversion or continuation
pursuant to Section 2.02(e)), it shall give the Agent prior written notice
(or telephonic notice promptly confirmed in writing) of such Domestic
Syndicated Borrowing (each a "Domestic Syndicated Borrowing Notice") prior to
1:00 p.m. (Eastern time) at its Payment Office (i) one Business Day prior to
the requested date of such Domestic Syndicated Borrowing in the case of Base
Rate Advances, and (ii) three Business Days prior to the requested date of
such Domestic Syndicated Borrowing in the case of Eurodollar Advances.
Notices received after 1:00 p.m. (Eastern time) shall be deemed received on
the next Business Day. Each Domestic Syndicated Borrowing Notice shall be
irrevocable and shall specify the aggregate principal amount of the Domestic
Syndicated Borrowing, the date of the Domestic Syndicated Borrowing (which
shall be a Business Day), and whether the Domestic Syndicated Borrowing is to
be made as a Base Rate Advance or Eurodollar Advance and, in the case of a
Eurodollar Advance, the Interest Period to be applicable thereto.
(d) No later than 11:00 a.m. (Eastern time) on the date of each
Domestic Syndicated Borrowing (other than one resulting from a conversion or
continuation pursuant to Section 2.02(e)), each Lender will make available
its Pro Rata Share of the amount of such Domestic Syndicated Borrowing in
immediately available funds at the Payment Office of the Agent. The Agent
will make available to Borrower the aggregate of the amounts (if any) so made
available by the Lenders to the Agent in a timely manner by crediting such
amounts to Borrower's demand deposit account maintained with the Agent by no
later than 2:00 p.m. (Eastern time). If any Lender does not make such amount
available to the Agent by the time prescribed above, but such amount is
received later that day, such amount may be credited to Borrower in the
manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business
Day).
(e) Whenever Borrower desires to convert all or a portion of an
outstanding Domestic Syndicated Borrowing made as a Base Rate Advance or
Eurodollar Advance into one or more Domestic Syndicated Borrowings consisting
of an Advance of another Type, or to continue outstanding a Domestic
Syndicated Borrowing made as a Eurodollar Advance for a new Interest Period,
it shall give the Agent at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of each such
Domestic Syndicated Borrowing to be converted into or continued as a
Eurodollar Advance. Such notice (each a "Notice of Domestic
Conversion/Continuation") shall be given prior to 1:00 p.m. (Eastern time) on
the date specified. Each such Notice of Domestic Conversion/Continuation
shall be irrevocable and shall specify the aggregate principal amount of the
Advance to be converted or continued, the date of such conversion
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or continuation, whether the Advance is being converted into or continued as
a Eurodollar Advance and (in the case of a Eurodollar Advance) the Interest
Period to be applicable thereto. If, upon the expiration of any Interest
Period in respect of any Domestic Syndicated Borrowing, Borrower shall have
failed, or pursuant to the following sentence be unable, to deliver the
Notice of Domestic Conversion/Continuation, Borrower shall be deemed to have
elected to convert or continue such Domestic Syndicated Borrowing to a
Domestic Syndicated Borrowing made as a Base Rate Advance. So long as any
Default or Event of Default shall have occurred and be continuing, no
Domestic Syndicated Borrowing may be converted into or continued as (upon
expiration of the current Interest Period) a Fixed Rate Advance. No
conversion of any Domestic Syndicated Borrowing made as a Fixed Rate Advance
shall be permitted except on the last day of the Interest Period in respect
thereof.
(f) Borrower's obligations to pay the principal of, and interest
on, the Domestic Syndicated Loans to each Lender shall be evidenced by the
records of the Agent and such Lender and by the Domestic Syndicated Note
payable to such Lender (or the assignor of such Lender) completed in
conformity with this Agreement.
(g) All outstanding principal amounts under the Domestic
Syndicated Loans shall be due and payable in full on the
Revolver/Multicurrency Maturity Date.
SECTION 2.03. SWING LINE LOANS.
(a) Subject to and upon the terms and conditions herein set forth
(including the limitation set forth in Section 2.01), the Swing Line Lender
agrees to make to Borrower, from time to time prior to the
Revolver/Multicurrency Maturity Date, Swing Line Loans in an aggregate
principal amount outstanding at any time not to exceed the Swing Line
Commitment then in effect. Borrower shall be entitled to repay and reborrow
Swing Line Loans in accordance with the provisions, and subject to the
limitations, set forth herein (including the limitation set forth in Section
2.01).
(b) Each Swing Line Loan shall, at the option of Borrower, be made
as a Base Rate Advance or Transaction Rate Advance. The aggregate principal
amount of each Swing Line Borrowing shall be not less than $250,000 or a
greater integral multiple of $1,000. At no time shall the number of Swing
Line Borrowings outstanding under this Section 2.03 exceed three; PROVIDED
THAT, for purposes of determining the number of Swing Line Borrowings
outstanding, all Swing Line Borrowings consisting of Base Rate Advances shall
be considered as one Swing Line Borrowing.
(c) Whenever Borrower desires to make a Swing Line Borrowing, it
shall give the Swing Line Lender (with a copy to the Agent) prior written
notice (or telephonic notice promptly confirmed in writing) of such Swing
Line Borrowing (each a "Swing Line Borrowing Notice") prior to 10:00 a.m.
(local time for the Swing Line Lender) on the date of such Swing Line
Borrowing. Each Swing Line Borrowing Notice shall specify the aggregate
principal amount of the Swing Line Borrowing, the date of such Swing Line
Borrowing (which shall be a Business Day), whether a
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Transaction Rate Quote is being requested and, if so, the Interest Period to
be applicable thereto. If Borrower requests a Transaction Rate Quote as
aforesaid, then prior to 12:00 noon (local time for the Swing Line Lender) on
such date, the Swing Line Lender shall furnish Borrower (with a copy to the
Agent) with a quotation of the interest rate being offered with respect to
such Swing Line Borrowing (whether expressed as a fixed rate of interest in
effect for the Interest Period applicable thereto or as a floating rate of
interest based on a specified interest rate index and applicable margin for
the Interest Period to be applicable thereto; in either case, a "Transaction
Rate Quote") by telephone (promptly confirmed in writing) or by facsimile
transmission. Borrower shall immediately inform the Swing Line Lender (with
a copy to the Agent) of its decision as to whether to accept the Transaction
Rate Quote and to confirm the Swing Line Borrowing (which may be done by
telephone, promptly confirmed in writing, and which decision shall be
irrevocable). If Borrower has so informed the Swing Line Lender and
confirmed the terms of the Swing Line Borrowing, then no later than 2:00 p.m.
(local time for the Swing Line Lender) on such date, the Swing Line Lender
shall make the principal amount of the Swing Line Loan available to the Agent
in immediately available funds at the Payment Office of the Agent, and the
Agent will make available to Borrower such amount by crediting such amount to
Borrower's demand deposit account maintained with the Agent. In the event
that the Swing Line Lender does not make such amount available to the Agent
at the time prescribed above, but such amount is received later that day,
such amount may be credited to Borrower in the manner described in the
preceding sentence on the next Business Day (with interest on such amount to
begin accruing hereunder on such next Business Day).
(d) Borrower's obligations to pay the principal of, and interest on,
the Swing Line Loans shall be evidenced by the records of the Agent and the
Swing Line Lender and by the Swing Line Note payable to the Swing Line Lender
(or the assignor of such Swing Line Lender) completed in conformity with this
Agreement.
(e) The outstanding principal amount under each Swing Line Loan shall
be due and payable in full (i) on the expiration of the Interest Period
applicable to such Swing Line Loan if outstanding as a Transaction Rate
Advance, and (ii) on the Revolver/Multicurrency Maturity Date.
(f) At any time on the request of the Swing Line Lender, each Lender
other than the Swing Line Lender shall purchase a participating interest in
all outstanding Swing Line Loans in an amount equal to its Pro Rata Share of
such Swing Line Loans, and the Swing Line Lender shall furnish each Lender
with a certificate evidencing such participating interest. Such purchase
shall be made on the third Business Day after such request is made; PROVIDED,
HOWEVER, that unless an Event of Default has occurred and is continuing on
the date such request is made, the purchase of a participating interest in
any Swing Line Loan outstanding as a Transaction Rate Advance shall not be
required to be made until the expiration of the current Interest Period in
effect for such Swing Line Loan. On the date of such required purchase, each
Lender will immediately transfer to the Swing Line Lender, in immediately
available funds, the amount of its participation. Whenever, at any time
after the Swing Line Lender has received from any such Lender the funds for
its participating interest in a Swing Line Loan, the Agent or the Swing Line
Lender receives any payment on account thereof, the Agent or the Swing Line
Lender will distribute to such Lender its
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participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded); PROVIDED, HOWEVER, that
if such payment received by the Agent or the Swing Line Lender is required to
be returned, such Lender will return to the Agent or the Swing Line Lender
any portion thereof previously distributed by the Agent or the Swing Line
Lender to it. Each Lender's obligation to purchase such participating
interests shall be absolute and unconditional and shall not be affected by
any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may
have against the Lender requesting such purchase or any other Person for any
reason whatsoever, (ii) the occurrence or continuation of a Default or an
Event of Default or the termination of any of the Commitments, (iii) any
adverse change in the condition (financial or otherwise) of Borrower, any of
its Consolidated Subsidiaries, or any other Person, (iv) any breach of this
Agreement by Borrower or any other Lender, or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing; PROVIDED, HOWEVER, that no such obligation shall exist (A) to the
extent that the aggregate Swing Line Loans were advanced in excess of the
Swing Line Commitment then in effect, or (B) with respect to any Swing Line
Loan where the Swing Line Lender actually advanced to Borrower net proceeds
from the Swing Line Loan (and therefore was not refunding a previous Swing
Line Loan) at a time when (x) the Swing Line Lender had actual knowledge that
an Event of Default had occurred and then existed, and (y) the Required
Lenders had not agreed to waive such Event of Default for purposes of funding
such Swing Line Loan.
SECTION 2.04. MULTICURRENCY SYNDICATED LOANS.
(a) Subject to and upon the terms and conditions herein set forth
(including the limitation set forth in Section 2.01), each Lender severally
agrees to make to Borrower from time to time prior to the
Revolver/Multicurrency Maturity Date, Multicurrency Syndicated Loans in an
aggregate principal amount outstanding at any time not to exceed the lesser
of (x) such Lender's unutilized Master Syndicated Loan Commitment and (y)
such Lender's Multicurrency Syndicated Loan Subcommitment MINUS the Dollar
Equivalent of the aggregate principal amount outstanding pursuant to the
Foreign Subsidiary Lines of Credit. For the purpose of determining the
unutilized portion of the Multicurrency Syndicated Loan Subcommitment of each
Lender on the date of a requested Borrowing under the Multicurrency
Syndicated Loan Subcommitments, the Dollar Equivalent of the Multicurrency
Syndicated Borrowing then being requested shall be aggregated with the Dollar
Equivalents of all Multicurrency Syndicated Loans then outstanding (the
Dollar Equivalent of each such outstanding Loan to be calculated as of the
date of the most recent continuation of such Loan pursuant to Section 2.04(e)
or, if not previously continued, the date of the initial Borrowing of such
Loan pursuant to Section 2.04(a)) and the principal amount of all Domestic
Revolving Loans then outstanding. The Borrower shall be entitled to repay
and reborrow Multicurrency Syndicated Loans in accordance with the
provisions, and subject to the limitations, set forth herein (including the
limitation set forth in Section 2.01).
(b) Each Multicurrency Syndicated Loan shall, at the option of
Borrower, be made or continued as, or converted into, part of one or more
Borrowings that, unless otherwise specifically
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provided herein, shall consist entirely of Multicurrency Syndicated Advances.
The aggregate principal amount of each Borrowing of Multicurrency Syndicated
Loans shall be in the minimum amounts and multiples indicated below for a
Borrowing in the specified Currency:
MINIMUM
CURRENCY BORROWING MULTIPLE
-------- --------- --------
German Marks 150,000 50,000
Belgian Francs 5,000,000 500,000
British Pounds 550,000 55,000
Japanese Yen 20,000,000 1,000,000.
At no time shall the number of Borrowings outstanding under this Section 2.04
exceed six.
(c) Whenever Borrower desires to make a Multicurrency Syndicated
Borrowing (other than one resulting from a or continuation pursuant to
Section 2.04(e)), it shall give the Agent prior written notice (or telephonic
notice promptly confirmed in writing) of such Multicurrency Syndicated
Borrowing (each a "Multicurrency Syndicated Borrowing Notice") prior to 1:00
p.m. (Eastern time) at its Payment Office three Business Days prior to the
requested date of such Multicurrency Syndicated Borrowing. Notices received
after 1:00 p.m. (Eastern time) shall be deemed received on the next Business
Day. Each Multicurrency Syndicated Borrowing Notice shall be irrevocable and
shall specify the aggregate principal amount of the Multicurrency Syndicated
Borrowing, the Currency in which such Borrowing is to be made, the date of
the Multicurrency Syndicated Borrowing (which shall be a Business Day), the
Interest Period to be applicable thereto and the account details in which
proceeds of such Borrowing should be transferred.
(d) No later than 11:00 a.m. (Relevant Currency Time) on the date
of each Multicurrency Syndicated Borrowing (other than one resulting from a
continuation pursuant to Section 2.04(e)), each Lender will make available
its Pro Rata Share of the amount of such Multicurrency Syndicated Borrowing
in immediately available funds at the Payment Office of the Agent. The Agent
will make available to Borrower the aggregate of the amounts (if any) so made
available by the Lenders to the Agent in a timely manner by crediting such
amounts to an account of Borrower's specified by Borrower to Agent in the
Multicurrency Syndicated Borrowing Notice. If a Lender does not make such
amount available to the Agent by the time prescribed above, but such amount
is received later that day, such amount may be credited to Borrower in the
manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business
Day).
(e) Whenever Borrower desires to continue outstanding a Multicurrency
Syndicated Borrowing in the same Currency for a new Interest Period, Borrower
shall give the Agent at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each such Multicurrency
Syndicated Borrowing to be continued as a Multicurrency Syndicated Advance.
Such notice (each a "Notice of Multicurrency Continuation") shall be given
prior to 1:00
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p.m. (Eastern time) at its Payment Office on the date specified. Each such
Notice of Multicurrency Continuation shall be irrevocable and shall specify
the aggregate principal amount of the Multicurrency Syndicated Advance to be
continued, the date of such continuation, and the Interest Period to be
applicable thereto. If, upon the expiration of any Interest Period in
respect of any Multicurrency Syndicated Advance, Borrower shall have failed,
or pursuant to the following sentence be unable, to deliver or have delivered
on its behalf the Notice of Multicurrency Continuation, such Borrowing shall,
until repaid or until subsequently continued when the applicable conditions
set forth in the following sentence shall no longer exist, continue
outstanding in the same Currency and shall bear interest at the Adjusted
Special LIBO Rate PLUS the Applicable Margin. So long as any Default or
Event of Default shall have occurred and be continuing, no Multicurrency
Syndicated Borrowing may be continued as (upon expiration of the current
Interest Period) a Multicurrency Syndicated Advance.
(f) The Borrower' obligations to pay the principal of, and interest
on, the Multicurrency Syndicated Loans to each Lender shall be evidenced by the
records of the Agent and such Lender and by the Multicurrency Syndicated Note
payable to such Lender (or the assignor of such Lender) completed in
conformity with this Agreement.
(g) All outstanding principal amounts under the Multicurrency
Syndicated Loans shall be due and payable in full on the
Revolver/Multicurrency Maturity Date in the same Currency as such
Multicurrency Syndicated Loans were made.
SECTION 2.05. REDUCTIONS OF COMMITMENTS.
Upon at least three Business Days' prior telephonic notice (promptly
confirmed in writing) to the Agent, Borrower shall have the right, without
premium or penalty, to terminate the Master Syndicated Loan Commitments, in
part or in whole, provided that (i) any such termination shall apply to
proportionately and permanently reduce the Master Syndicated Loan Commitment
of each of the Lenders, (ii) any partial termination pursuant to this Section
2.05 shall be in an amount of at least $1,000,000 and integral multiples of
$100,000, and (iii) no such reduction shall be permitted which would reduce
the Master Syndicated Loan Commitments to an amount less than the aggregate
principal amounts outstanding under the Loans. Unless otherwise requested by
Borrower in the applicable notice of reduction, any reduction of the Master
Syndicated Loan Commitments shall constitute a pro rata reduction of the
Multicurrency Syndicated Loan Subcommitments but shall not reduce the Swing
Line Loan Commitment.
SECTION 2.06. MANDATORY PREPAYMENTS.
(a) Subject to Section 2.06(b) below in the case of currency
fluctuations, if the aggregate outstanding principal amounts of the Loans
exceed at any time the amount of the Master Syndicated Loan Commitments, as
reduced pursuant to Section 2.05 or otherwise, MINUS the Dollar Equivalent of
the aggregate principal amount outstanding pursuant to the Foreign Subsidiary
Lines
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of Credit, Borrower shall immediately repay the Loans by an amount equal to
such excess, together with all accrued but unpaid interest on such excess
amount.
(b) If at any time the Agent shall determine that the aggregate
principal amount of the Multicurrency Syndicated Loans (after converting all
Multicurrency Syndicated Advances to their Dollar Equivalent on the date of
calculation) is equal to or greater than one hundred ten percent (110%) of
the aggregate Multicurrency Syndicated Loan Subcommitments then in effect
MINUS the Dollar Equivalent of the aggregate principal amount outstanding
pursuant to the Foreign Subsidiary Lines of Credit, Borrower shall, upon
three Business Days' prior written notice from the Agent to Borrower, prepay
an aggregate principal amount of Multicurrency Syndicated Loans such that the
Dollar Equivalent of the outstanding principal amount of the Multicurrency
Syndicated Loans does not exceed the aggregate Multicurrency Syndicated Loan
Subcommitments MINUS the Dollar Equivalent of the aggregate principal amount
outstanding pursuant to the Foreign Subsidiary Lines of Credit.
(c) Each mandatory prepayment of Loans pursuant to (i) Section
2.06(a) shall be applied first to Base Rate Advances to the full extent
thereof before application to Eurodollar Advances and (ii) Section 2.06(b)
shall be applied to the Multicurrency Syndicated Advance determined by
Borrower, or if no such determination is received, by the Agent.
SECTION 2.07. USE OF PROCEEDS. The proceeds of the Revolving
Loans shall be used as working capital and for other general corporate
purposes of Borrower and its Consolidated Subsidiaries, including
Acquisitions.
ARTICLE
GENERAL LOAN TERMS
SECTION 3.01. FUNDING NOTICES. Without in any way limiting
Borrower's obligation to confirm in writing any telephonic notice, the Agent
may act without liability upon the basis of telephonic notice believed by
Agent in good faith to be from Borrower, prior to receipt of written
confirmation. In each such case, Borrower hereby waives the right to dispute
the Agent's record of the terms of such telephonic notice.
SECTION 3.02. DISBURSEMENT OF FUNDS.
(a) Unless the Agent shall have been notified by any Lender prior to
the date of a Borrowing that such Lender does not intend to make available to
the Agent such Lender's portion of the Borrowing to be made on such date, the
Agent may assume that such Lender has made such amount available to the Agent
on such date and Agent may make available to Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the Agent by
such Lender on the date of Borrowing, the Agent shall be entitled to recover
such corresponding amount
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on demand from such Lender together with interest at the customary rate set
by the Agent for the correction of errors among banks in the applicable
Currency. If such Lender does not pay such corresponding amount forthwith
upon the Agent's demand therefor, the Agent shall promptly notify Borrower,
and Borrower shall immediately pay such corresponding amount to the Agent
together with interest at the rate specified for the Borrowing which includes
such amount paid. Nothing in this subsection shall be deemed to relieve any
Lender from its obligation to fund its Commitments hereunder in accordance
with the terms hereof or to prejudice any rights which Borrower may have
against any Lender as a result of any default by such Lender hereunder.
(b) All Borrowings under the Domestic Syndicated Facility and the
Multicurrency Syndicated Loan Subcommitments shall be loaned by the Lenders
on the basis of their Pro Rata Share. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each Lender
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fund its Commitments
hereunder.
SECTION 3.03. INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Loans from the respective dates such principal
amounts were advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at rates per annum equal to the rates indicated
below as applicable to outstanding Advances in accordance with the terms
hereof:
(i) For a Base Rate Advance--The Base Rate in effect from time
to time;
(ii) For a Eurodollar Advance -- The relevant Adjusted LIBO Rate
PLUS the Applicable Margin;
(iii) For a Multicurrency Syndicated Advance--The relevant Adjusted
LIBO Rate (or Adjusted Special LIBO Rate in the case of Multicurrency
Syndicated Advances not being repaid or continued at the expiration of an
Interest Period as provided in Section 2.04(e)) PLUS the Applicable Margin;
and
(iv) For a Transaction Rate Advance--The relevant Transaction Rate
quoted by the Swing Line Lender and accepted by Borrower pursuant to
Section 2.03(c).
(b) Intentionally Omitted.
(c) Overdue principal and, to the extent not prohibited by
applicable law, overdue interest, in respect of the Loans, and all other
overdue amounts owing hereunder, shall bear interest from each date that
such amounts are overdue:
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(i) in the case of overdue principal and interest with respect to
Multicurrency Syndicated Loans, at the Adjusted Special LIBO Rate PLUS the
Applicable Margin and an additional two percent (2.0%) per annum;
(ii) in the case of overdue principal and interest with respect to
all other Loans outstanding as Eurodollar Advances and Transaction Rate
Advances (to the extent outstanding as Fixed Rate Advances), at the rate
otherwise applicable for the then-current Interest Period PLUS an
additional two percent (2.0%) per annum; thereafter at the rate in effect
for Base Rate Advances pursuant to Section 3.03(a)(i); and
(iii) in the case of overdue principal and interest with respect to
all other Loans outstanding as Base Rate Advances and Transaction Rate
Advances (to the extent not outstanding as Fixed Rate Advances), and all
other Obligations hereunder (other than Loans), at a rate equal to the
applicable Base Rate PLUS an additional two percent (2.0%) per annum;
PROVIDED that no Loan shall bear interest after maturity (whether by
acceleration, notice of prepayment or otherwise) at a rate per annum less
than two percent (2.0%) per annum in excess of the rate of interest
applicable thereto at maturity.
(d) Interest on each Loan shall accrue from and including the date
of such Loan to but excluding the date of any repayment thereof; PROVIDED
that, if a Loan is repaid on the same day made, one day's interest shall be
paid on such Loan. Interest on all outstanding Base Rate Advances shall be
payable quarterly in arrears on the last calendar day of each fiscal quarter
of Borrower in each year. Interest on all outstanding Fixed Rate Advances
and Transaction Rate Advances shall be payable on the last day of each
Interest Period applicable thereto, and, in the case of Fixed Rate Advances
having an Interest Period in excess of 90 days, on each day which occurs
every 3 months, after the initial date of such Interest Period. Interest on
all Loans shall be payable on any conversion of any Advance comprising such
Loans into an Advance of another Type, prepayment (on the amount prepaid), at
maturity (whether by acceleration, notice of prepayment or otherwise) and,
after maturity, on demand.
(e) The Agent, upon determining the Adjusted LIBO Rate or Adjusted
Special LIBO Rate for any Interest Period, shall promptly notify by telephone
(confirmed in writing) or in writing Borrower and the other Lenders. Any
such determination shall, absent manifest error, be final, conclusive and
binding for all purposes.
SECTION 3.04. INTEREST PERIODS. In connection with the making or
continuation of, or conversion into, each Borrowing of Fixed Rate Advances
and Transaction Rate Advances, Borrower shall select an interest period (each
an "Interest Period") to be applicable to such Advances, which Interest
Period shall (x) in the case of Euro Advances, if quoted on the basis of such
periods, be either a 1, 2, 3 or 6 month period, and (y) in the case of
Transaction Rate Advances be a period up to seven days as requested by or on
behalf of Borrower and accepted by the Swing Line Lender; PROVIDED THAT:
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(i) The initial Interest Period for any Borrowing consisting of
any such Advance shall commence on the date of such Borrowing (including
the date of any conversion from a Borrowing consisting of an Advance of
another Type) and each Interest Period occurring thereafter in respect of
such Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii) If any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED that if any Interest Period in respect
of a Euro Advance would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day occurs
in such month, such Interest Period shall expire on the next preceding
Business Day;
(iii) Any Interest Period in respect of a Euro Advance which begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall, subject to part
(iv) below, expire on the last Business Day of such calendar month;
(iv) The Interest Period for a Fixed Rate Advance which is converted
pursuant to Section 3.09(b) shall commence on the date of such conversion
and shall expire on the date on which the Interest Periods for the Fixed
Rate Advances of the other Lenders which were not converted expires; and
(v) No Interest Period with respect to the Loans shall extend beyond
the Revolver/Multicurrency Maturity Date.
SECTION 3.05. FEES.
(a) Borrower shall pay to the Agent, for the account of and
distribution to the Lenders in connection with their respective Pro Rata
Shares, a commitment fee in respect of the Master Syndicated Loan Commitments
computed at a per annum rate equal to the Applicable Commitment Fee Rate, for
each fiscal quarter, calculated on the average daily unused portion of the
Master Syndicated Loan Commitment of such Lender, such fee being payable
quarterly in arrears on the last calendar day of each fiscal quarter of
Borrower, commencing on March 31, 1998, and on the Revolver/Multicurrency
Maturity Date. Solely for purposes of calculating the fees due under this
Section 3.05(a), (i) the Dollar Equivalent of the aggregate principal amount
outstanding pursuant to the Foreign Subsidiary Lines of Credit shall not
constitute usage of any of the Master Syndicated Loan Commitments and (ii)
the aggregate principal amount of the Swing Line Loans from time to time
outstanding shall constitute a usage of the Master Syndicated Loan Commitment
only with respect to the Swing Line Lender unless and until a participation
is purchased in such Swing Line Loans by the other Lenders. For purposes of
calculating the commitment fees hereunder, the Dollar Equivalent of the
Multicurrency Syndicated Loans shall be calculated as of the date of the most
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recent continuation of such Loan pursuant to Section 2.04(e) or, if not
previously continued, the date of the initial borrowing of such Loan pursuant
to Section 2.04(a).
(b) At the option of Borrower, exercised upon three (3) Business
Days' prior written notice to the Agent, at any time prior to March 28, 1998,
Borrower may elect to extend the Applicable Margin and Applicable Commitment
Fee Rate in effect as of the Closing Date until June 30, 1998; provided that,
such election is accompanied by payment of a fee in the amount of $25,000
(the "Fixed Fee"), which Fixed Fee shall be payable to the Agent, for the
account of and distribution to the Lenders in connection with their
respective Pro Rata Shares.
(c) On the Closing Date, the Borrower shall pay to the Agent, for
the account of and distribution to the Lenders in connection with their
respective Pro Rata Shares, a facility fee in respect of the Master
Syndicated Loan Commitments equal to 0.10% multiplied by the Master
Syndicated Loan Commitments, such fee to be fully earned and non-refundable
as of the Closing Date.
(d) The Borrower shall pay to Agent an administrative fee, payable
in advance in the respective amount previously agreed in writing by Borrower
and Agent.
SECTION 3.06. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) The Borrower may, at its option, prepay Borrowings consisting
of Base Rate Advances, and Transaction Rate Advances (to the extent not
outstanding as Fixed Rate Advances), at any time in whole, or from time to
time in part, in amounts aggregating $250,000 or any greater integral
multiple of $1000, by paying the principal amount to be prepaid together with
interest accrued and unpaid thereon to the date of prepayment. Those Borrowings
consisting of Eurodollar Advances may be prepaid, at Borrower's option, in
whole, or from time to time in part, in amounts aggregating $500,000 and in
integral multiples of $100,000, and those Borrowings consisting of other
types of Fixed Rate Advances may be prepaid, at Borrower's option, in whole,
or from time to time in part, in amount aggregating and in integral multiples
equal to the minimum borrowing amount for such Advances, by paying the principal
amount to be prepaid, together with interest accrued and unpaid thereon to the
date of prepayment, and all compensation payments pursuant to Section 3.12 if
such prepayment is made on a date other than the last day of an Interest Period
applicable thereto. Each such optional prepayment shall be applied in
accordance with Section 3.06(c) below.
(b) Borrower desiring to make a prepayment pursuant to Section
3.06(a) shall give written notice (or telephonic notice confirmed in writing)
to the Agent of any intended prepayment (i) not less than one Business Day
prior to any prepayment of Base Rate Advances, or Transaction Rate Advances
(to the extent outstanding as Fixed Rate Advances), (ii) not less than two
Business Days prior to any prepayment of Euro Advances. Such notice, once
given, shall be irrevocable. Upon receipt of such notice of prepayment, the
Agent shall promptly notify each Lender of the contents of such notice and of
such Lender's share of such prepayment.
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(c) Borrower in providing notice of prepayment pursuant to Section
3.06(b) may designate the Types of Advances and the specific Borrowings that
are to be prepaid, PROVIDED that (i) if any prepayment of Eurodollar
Advances of Borrower made pursuant to a single Borrowing shall reduce the
outstanding Advances made pursuant to such Borrowing to an amount less than
$1,000,000, such Borrowing shall immediately be converted into Base Rate
Advances; (ii) no partial prepayment of any other Fixed Rate Advance shall be
allowed if it shall reduce such an Advance to an amount less than the minimum
borrowing amount for such Type of Advance; and (iii) each prepayment made
pursuant to a single Borrowing shall be applied pro rata among the Loans
comprising such Borrowing. In the absence of a designation by Borrower, the
Agent shall, subject to the foregoing, make such designation in their sole
discretion. All voluntary prepayments shall be applied to the payment of
interest before application to principal and shall be applied against
scheduled amortization payments in the inverse order of maturity.
SECTION 3.07. PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein, all payments
under this Agreement and the other Credit Documents, shall be made without
defense, set-off or counterclaim to the Agent not later than 2:00 P.M.
(Eastern time) in the case of Dollars and 2:00 P.M. (Relevant Currency Time)
in the case of any Currency on the date when due and shall be made in Dollars
or the applicable Currency in immediately available funds at its Payment
Office. All payments of principal and interest with respect to the
Multicurrency Syndicated Loans shall be made in the Currency in which the
related Borrowing was made.
(b) All such payments shall be made free and clear of and without
deduction or withholding for any Taxes in respect of this Agreement, the
Notes or other Credit Documents, or any payments of principal, interest, fees
or other amounts payable hereunder or thereunder (but excluding, except as
provided in paragraph (c) hereof, any Taxes imposed on the overall net income
of the Lenders pursuant to the laws of (x) the United States, (y) the
jurisdiction in which such Lender is organized, or (z) the jurisdiction in
which the principal executive office or appropriate Lending Office of such
Lender is located). If Borrower or other Person is required by applicable
law to make any deduction or withholding of any Tax, Borrower agrees (A) to
pay the full amount of such Taxes, and such additional amounts as may be
necessary so that every net payment of all amounts due hereunder and under
the Notes and other Credit Documents, after withholding or deduction for or
on account of any such Taxes (including additional sums payable under this
Section 3.07), will not be less than the full amount provided for herein had
no such deduction or withholding been required, (B) to make such withholding
or deduction and (C) to pay the full amount deducted to the relevant
authority in accordance with applicable law. The Borrower will furnish to
the Agent and each Lender, within 30 days after the date the payment of any
Taxes is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by Borrower. Borrower will indemnify and hold
harmless the Agent and each Lender and reimburse the Agent and each Lender
upon written request for the amount of any Taxes so levied or imposed and
paid by the Agent or Lender and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. A
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certificate as to the amount of such payment by such Lender or the Agent,
absent manifest error, shall be final, conclusive and binding for all
purposes.
(c) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Borrower and the
Agent, prior to the time it becomes a Lender hereunder, two copies of either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 or any successor forms thereto (wherein such Lender claims entitlement
to complete exemption from or reduced rate of U.S. Federal withholding tax on
interest paid by Borrower hereunder) and to provide to Borrower and the Agent
a new Form 4224 or Form 1001 or any successor forms thereto if any previously
delivered form is found to be incomplete or incorrect in any material respect
or upon the obsolescence of any previously delivered form; PROVIDED, HOWEVER,
that no Lender shall be required to furnish a form under this paragraph (c)
after the date that it becomes a Lender hereunder if it is not entitled to
claim an exemption from or a reduced rate of withholding under applicable law.
(d) Borrower shall also reimburse the Agent and each Lender, upon
written request, for any Taxes imposed (including, without limitation, Taxes
imposed on the overall net income of the Agent or Lender or its applicable
Lending Office pursuant to the laws of the jurisdiction in which the
principal executive office or the applicable Lending Office of the Agent or
Lender is located) as the Agent or Lender shall determine are payable by the
Agent or Lender in respect of amounts paid by or on behalf of Borrower to or
on behalf of the Agent or Lender pursuant to paragraph (b) hereof.
(e) Subject to Section 3.04(ii), whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest thereon
shall be payable at the applicable rate during such extension.
(f) All computations of interest and fees shall be made on the
basis of a year of 360 days (or in the case of pounds sterling, 365/366 days)
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are payable (to
the extent computed on the basis of days elapsed). Interest on Base Rate
Advances shall be calculated based on the Base Rate from and including the
date of such Loan to but excluding the date of the repayment or conversion
thereof. Interest on Euro Advances and Transaction Rate Advances shall be
calculated as to each Interest Period from and including the first day
thereof to but excluding the last day thereof. Each determination by the
Agent of an interest rate or fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding for all
purposes.
(g) Payment by Borrower to the Agent in accordance with the terms
of this Agreement shall, as to Borrower, constitute payment to the Lenders.
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SECTION 3.08. INTEREST RATE NOT ASCERTAINABLE, ETC. In the event
that the Agent shall have determined (which determination shall be made in
good faith and, absent manifest error, shall be final, conclusive and binding
upon all parties) that on any date for determining the Adjusted LIBO Rate or
Adjusted Special LIBO Rate for any Interest Period, by reason of any changes
arising after the date of this Agreement affecting the London interbank
market or the Agent's position in such market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided for
in the definition of Adjusted LIBO Rate or Adjusted Special LIBO Rate, as the
case may be, then, and in any such event, the Agent shall forthwith give
notice (by telephone confirmed in writing) to Borrower and to the Lenders of
such determination and a summary of the basis for such determination. Until
the Agent notifies Borrower that the circumstances giving rise to the
suspension described herein no longer exist, the obligations of the Lenders
to make or permit portions of the Loans to remain outstanding as Adjusted
Special LIBO Rate or Euro Advances as the case may be, shall be suspended,
and such affected Eurodollar Advances shall bear the same interest as Base
Rate Advances.
SECTION 3.09. ILLEGALITY.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall
be final, conclusive and binding upon all parties) at any time (i) that the
making or continuance of any Euro Advance has become unlawful by compliance
by such Lender in good faith with any applicable law, governmental rule,
regulation, guideline or order (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful), or (ii) that
there shall have occurred any change in national or international financial,
political or economic conditions (including the imposition of or any change
in exchange controls) or currency exchange rates which would make it unlawful
or impossible for any Lender to make Loans denominated in any Currency to
Borrower as contemplated by this Agreement, then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to
Borrower and to the Agent of such determination and a summary of the basis
for such determination (which notice the Agent shall promptly transmit to the
other Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, Borrower's right to request and such Lender's
obligation to fund its portion of Euro Advances, as the case may be, (limited
in the case of (a)(ii) to the affected Currency or Currencies) shall be
immediately suspended, whereupon any request for an Euro Advance, shall, as
to such Lender only, (A) if such Loan is not a Multicurrency Syndicated Loan,
be deemed to have been a request for a Base Rate Advance and (B) if such Loan
is a Multicurrency Syndicated Loan, be deemed to have been withdrawn unless
and until such Lender shall advise the Agent that the circumstances giving
rise to such suspension no longer exist. In addition, such Lender may
require that all outstanding Eurodollar Loans or Multicurrency Syndicated
Loans (in the affected Currency or Currencies) as the case may be, made by it
be (A) if such Loan is not a Multicurrency Syndicated Loan, converted to a
Base Rate Advance, and (B) if such Loan is a Multicurrency Syndicated Loan,
repaid immediately, in which case all such Multicurrency Syndicated Loans (in
the affected Currency or Currencies) shall be required to be repaid in full
by Borrower as of the effective date of the notice as provided in
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subsection (c) below; provided that if more than one Lender is affected at
any time, then all affected Lenders must be treated the same pursuant to this
Section 3.09(b).
(c) For purposes of this Section 3.09, a notice to Borrower by any
Lender shall be effective as to each such Loan, if lawful, on the last day of
the Interest Period currently applicable thereto and in all other cases, such
notice shall be effective on the date of receipt by Borrower.
SECTION 3.10 INCREASED COSTS.
(a) If, by reason of (x) after the date hereof, the introduction
of or any change (including, without limitation, any change by way of
imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (y) the compliance with any guideline or request
issued or made after the date hereof, from any central bank or other
governmental authority or quasi-governmental authority exercising control
over banks or financial institutions generally (whether or not having the
force of law):
(i) any Lender (or its applicable Lending Office) shall be subject
to any tax, duty or other charge with respect to its portion of a Fixed
Rate Advance or its obligation to fund a portion of a Fixed Rate Advance,
or the basis of taxation of payments to any Lender of the principal of or
interest on its portion of a Fixed Rate Advance or its obligation to fund
a portion of a Fixed Rate Advance shall have changed (except for changes
in the tax on the overall net income of such Lender or its applicable
Lending Office imposed by the jurisdiction in which such Lender's principal
executive office or applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System or a similar governmental
authority in the county of any Currency), special deposit or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender's applicable Lending Office shall be
imposed or deemed applicable or any other condition affecting its portion
of a Fixed Rate Advance or its obligation to fund a portion of a Fixed
Rate Advance shall be imposed on any Lender or its applicable Lending
Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining a portion of a
Fixed Rate Advance (except to the extent already included in the
determination of the applicable interest rate in effect for such portion of
the Fixed Rate Advance), or there shall be a reduction in the amount received
or receivable by such Lender or its applicable Lending Office, then Borrower
shall from time to time (subject, in the case of certain Taxes, to the
applicable provisions of Section 3.07(b)), upon written notice from and
demand by such Lender on Borrower (with a copy of such notice and demand to
the Agent), pay to the Agent for the account of such Lender, within five
Business Days after the date of such notice and demand, additional amounts
sufficient to indemnify such Lender against such increased cost. A
certificate as to the amount of such increased cost, submitted to Borrower
and the Agent by such Lender in
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good faith and accompanied by a statement prepared by such Lender describing
in reasonable detail the basis for and calculation of such increased cost,
shall, except for manifest error, be final, conclusive and binding for all
purposes.
(b) If any Lender shall advise either Agent that at any time,
because of the circumstances described in clauses (x) or (y) in Section
3.10(a) or any other circumstances beyond such Lender's reasonable control
arising after the date of this Agreement affecting such Lender or the London
interbank market or such Lender's position in such markets, (x) deposits in
the relevant amount in the relevant Currency and for the relevant Interest
Period are no longer available to such Lender, or (y) the Adjusted LIBO
Rate, the Adjusted Special LIBO Rate, as the case may be, as determined by
the Agent, will not adequately and fairly reflect the cost to such Lender of
funding its portion of a Fixed Rate Advance, then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone confirmed
in writing) to Borrower and to the other Lenders of such advice;
(ii) Borrower's right to request and such Lender's obligation to
make or permit portions of the Loans to remain outstanding as a Eurodollar
Advances or Multicurrency Syndicated Borrowings in the relevant Currency
or Currencies, as the case may be, shall be immediately suspended until
such Lender advises the Agent that the reasons for such suspension no
longer exist; and
(iii) such Lender shall make a Loan as part of the requested Borrowing
consisting of a Eurodollar Advance, as a Base Rate Advance, which such
Base Rate Advance shall, for all other purposes, be considered part of
such Borrowing and any requested Borrowing consisting of Multicurrency
Syndicated Advances shall be deemed to have been rescinded; PROVIDED
HOWEVER, in the event that any Lender determines with respect to a
Multicurrency Syndicated Advance that while the Adjusted LIBO Rate will
not adequately and fairly reflect the costs of such Lender but the Adjusted
Special LIBO Rate would adequately and fairly reflect such costs, then
such Lender's portion of such requested Borrowing shall bear interest based
upon the Adjusted Special LIBO Rate, if available.
SECTION 3.11. LENDING OFFICES.
Each Lender agrees that, if requested by Borrower, it will use
reasonable efforts (subject to overall policy considerations of such Lender)
to designate an alternate Lending Office with respect to any of its portions
of Fixed Rate Advances affected by the matters or circumstances described in
Sections 3.07(b), 3.08, 3.09 or 3.10 to reduce the liability of Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender, which
determination if made in good faith, shall be conclusive and binding on all
parties hereto. Nothing in this Section 3.11 shall affect or postpone any of
the obligations of Borrower or any right of any Lender provided hereunder.
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SECTION 3.12. FUNDING LOSSES. Borrower shall compensate each
Lender, upon its written request to Borrower, with a copy to Agent, (which
request shall set forth the basis for requesting such amounts in reasonable
detail and which request shall be made in good faith and, absent manifest
error, shall be final, conclusive and binding upon all of the parties
hereto), for all losses, expenses and liabilities (including, without
limitation, any interest paid by such Lender to lenders of funds borrowed by
it to make or carry its portions of Fixed Rate Advances, and any amounts
required to be paid by any Lender as a result of currency fluctuations of
Currencies borrowed by it to make or carry Multicurrency Syndicated Loans, in
either case to the extent not recovered by such Lender in connection with the
re-employment of such funds or Currencies and including loss of anticipated
profits), which the Lender may sustain: (i) if for any reason (other than a
default by such Lender) a borrowing of, or conversion to or continuation of,
Fixed Rate Advances to Borrower does not occur on the date specified therefor
in a notice given by Borrower to Agent as provided herein (whether or not
withdrawn), (ii) if any repayment (including mandatory prepayments and any
conversions pursuant to Section 3.09(b)) of any Fixed Rate Advances to
Borrower occurs on a date which is not the last day of an Interest Period
applicable thereto, or (iii), if, for any reason, Borrower defaults in its
obligation to repay its Fixed Rate Advances when required by the terms of
this Agreement.
SECTION 3.13. FAILURE TO PAY IN APPROPRIATE CURRENCY. If Borrower
is unable for any reason to effect payment of a Multicurrency Syndicated Loan
in the appropriate Currency as required by Section 3.07(a) or if Borrower
shall default in the payment when due of any payment in the appropriate
Currency, the Lenders may, at their option, require such payment to be made
to the Agent in the Dollar Equivalent of such Currency at the Agent's Payment
Office specified for payments of Loans in Dollars. In any such case,
Borrower agrees to hold any Lender harmless from any loss incurred by such
Lender arising from any change in the value of Dollars in relation to such
Currency between the date such payment became due and the date of payment
thereof.
SECTION 3.14. ASSUMPTIONS CONCERNING FUNDING OF FIXED RATE
ADVANCES. Calculation of all amounts payable to a Lender under this Article
III shall be made as though that Lender had actually funded its portions of
relevant Fixed Rate Advances through the purchase of deposits in the relevant
market and Currency, as the case may be, bearing interest at the rate
applicable to such Fixed Rate Advances in an amount equal to the amount of
its portions of the Fixed Rate Advances and having a maturity comparable to
the relevant Interest Period and, in the case of Multicurrency Syndicated
Advances, through the transfer of such Multicurrency Syndicated Advances from
an offshore office of that Lender to a domestic office of that Lender in the
United States of America; PROVIDED HOWEVER, that each Lender may fund its
portions of each of the Fixed Rate Advances in any manner it sees fit and the
foregoing assumption shall be used only for calculation of amounts payable
under this Article III.
SECTION 3.15. APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of Loans, facility fees, commitment fees shall
be apportioned among all outstanding Commitments and Loans to which such
payments relate, proportionately to the Lenders' respective Pro Rata Shares
of such Commitments and outstanding Loans. The Agent shall promptly
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distribute to each Lender at its primary address set forth beside its name on
the appropriate signature page hereof or such other address as any Lender may
request its share of all such payments received by the Agent.
SECTION 3.16. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment or reduction (including, without limitation, any amounts
received as adequate protection of a deposit treated as cash collateral under
the Bankruptcy Code) of any obligation of Borrower hereunder (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Pro Rata Share of payments or reductions on
account of such obligations obtained by all the Lenders, such Lender shall
forthwith (i) notify each of the other Lenders and the Agent of such receipt,
and (ii) purchase from the other Lenders such participations in the affected
obligations as shall be necessary to cause such purchasing Lender to share
the excess payment or reduction, net of costs incurred in connection
therewith, ratably with each of them, provided that if all or any portion of
such excess payment or reduction is thereafter recovered from such purchasing
Lender or additional costs are incurred, the purchase shall be rescinded and
the purchase price restored to the extent of such recovery or such additional
costs, but without interest unless the Lender obligated to return such funds
is required to pay interest on such funds. Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section
3.16 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation
as fully as if such Lender were the direct creditor of Borrower in the amount
of such participation.
SECTION 3.17. CAPITAL ADEQUACY. Without limiting any other
provision of this Agreement, in the event that any Lender shall have
determined that any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy not currently in
effect or fully applicable as of the Closing Date, or any change therein or
in the interpretation or application thereof, or compliance by such Lender
with any request or directive regarding capital adequacy (whether or not
having the force of law and whether or not failure to comply therewith would
be unlawful) from a central bank or governmental authority or body having
jurisdiction, does or shall have the effect of reducing the rate of return on
such Lender's capital as a consequence of its obligations hereunder to a
level below that which such Lender could have achieved but for such law,
treaty, rule, regulation, guideline or order, or such change or compliance
(taking into consideration such Lender's policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then within ten
Business Days after written notice and demand by such Lender (with copies
thereof to the Agent), Borrower shall from time to time pay to such Lender
additional amounts sufficient to compensate such Lender for such reduction
(but, in the case of outstanding Base Rate Advances, without duplication of
any amounts already recovered by such Lender by reason of an adjustment in
the applicable Base Rate). Each certificate as to the amount payable under
this Section 3.17 (which certificate shall set forth the basis for requesting
such amounts in reasonable detail), submitted to Borrower by any Lender in
good faith, shall, absent manifest error, be final, conclusive and binding
for all purposes.
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SECTION 3.18. BENEFITS TO GUARANTORS. In consideration for the
execution and delivery by the Guarantors of their Guaranty Agreement,
Borrower agrees to make the benefit of extensions of credit hereunder
available to the Guarantors in accordance with the provisions hereof.
SECTION 3.19. APPLICATION OF LOAN PROCEEDS TO MATURING LOANS.
Notwithstanding the provisions of this Agreement requiring the Lenders to
make available proceeds of their respective Loans to the Agent, in connection
with the Borrowing of Domestic Revolving Loans and Multicurrency Syndicated
Loans, to the extent that a Loan previously made by a Lender matures on the
date of any such Borrowing of a requested Loan, such Lender shall apply that
portion of the proceeds of the Loan it is then making sufficient to effect
the repayment of principal of the maturing Loan owing to it, with any excess
proceeds to be made available to Borrower as contemplated herein.
ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligation of each Lender to make Advances to Borrower hereunder is
subject to the satisfaction of the following conditions:
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL ADVANCE. On the Closing
Date, all obligations of Borrower hereunder incurred prior to such date
(including, without limitation, Borrower's obligations to reimburse the
reasonable fees and expenses of counsel to the Agent and any fees and
expenses payable to the Agent, the Lenders and their Affiliates as previously
agreed with Borrower), shall have been paid in full, and the Agent shall have
received the following, in form and substance reasonably satisfactory in all
respects to the Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Notes;
(c) the Guaranty Agreement and Contribution Agreement;
(d) a duly executed certificate of Borrower in substantially the form
of EXHIBIT F attached hereto and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary of each of
the Credit Parties attaching and certifying copies of the resolutions of
the boards of directors of the Credit Parties, authorizing as applicable
(i) the execution, delivery and performance of the Credit Documents, and
(ii) the granting of the pledges and security interests granted pursuant
to the Pledge Agreements;
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(f) certificates of the Secretary or an Assistant Secretary of each
of the Credit Parties certifying (i) the name, title and true signature
of each officer of such entities executing the Credit Documents, and
(ii) the bylaws or comparable governing documents of such entities;
(g) certified copies of the certificate or articles of incorporation
of each Credit Party, together with certificates of good standing or
existence, as may be available from the Secretary of State of the
jurisdiction of incorporation or organization of such Credit Party;
(h) copies of all documents and instruments, including all consents,
authorizations and filings, required or advisable under any Requirement
of Law or by any material Contractual Obligation of the Credit Parties,
in connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be
executed and delivered hereunder, and such consents, authorizations,
filings and orders shall be in full force and effect and all applicable
waiting periods shall have expired;
(i) certified copies of indentures, credit agreements, instruments,
and other documents evidencing or securing Indebtedness of any
Consolidated Company described on SCHEDULE 7.01, in any single case in
an amount not less than $1,000,000 (or the Dollar Equivalent thereof);
(j) a summary, set forth in format and detail acceptable to the
Agent, of the types and amounts of insurance (property and liability)
maintained by the Consolidated Companies;
(k) the favorable opinion of Gardere & Wynne, L.L.P., United States
counsel to the Credit Parties, substantially in the form of EXHIBIT G,
in each case addressed to the Agents and each of the Lenders, and
covering such other matters as either Agent or any Lender may reasonably
request;
(l) a duly executed pay-off letter with respect to the Existing
Credit Agreement, in form and substance satisfactory to the Agent, and
all terminations, releases and other documents necessary to release all
existing Liens securing the Indebtedness outstanding pursuant to the
Existing Credit Agreement (or an undertaking to provide such releases
within thirty days after the Closing Date); and
(m) certified copies of all material agreements of the Consolidated
Companies (other than documents relating to Indebtedness of the
Consolidated Companies delivered above or included as an exhibit to
Borrower's Registration Statement on Form S-1 on file with the
Securities and Exchange Commission) including without limitation, the
Master Distributorship Agreements.
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In addition to the foregoing, the following conditions shall have been satisfied
or shall have existed, all to the satisfaction of the Agent, as of the time the
initial Advance hereunder:
(n) the Loans to be made on the Closing Date and the use of proceeds
thereof shall not have contravened, violated or conflicted with, or
involved the Agents or any Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any court of law or other
governmental authority; and
(o) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability
of the Credit Documents shall have been reasonably satisfactory in form
and substance to the Required Lenders.
SECTION 4.02. CONDITIONS TO ALL LOANS. At the time of the making of
all Loans (before as well as after giving effect to such Loans and the
proposed use of the proceeds thereof), the following conditions shall have
been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained herein
(other than those made only as of a specified date) shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of
such Loans;
(c) since the date of the most recent financial statements of the
Consolidated Companies described in Section 5.14, there shall have been
no change which has had or could reasonably be expected to have a
Materially Adverse Effect (whether or not any notice with respect to
such change has been furnished to the Lenders pursuant to Section 6.07);
(d) there shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge of
Borrower, threatened (i) which reasonably could be expected to have a
Materially Adverse Effect, or (ii) seeking to prohibit or restrict one
or more Credit Party's ownership or operation of any portion of its
business or assets, or to compel one or more Credit Party to dispose of
or hold separate all or any portion of its businesses or assets, where
such portion or portions of such business(es) or assets, as the case may
be, constitute a material portion of the total businesses or assets of
the Consolidated Companies;
(e) the Loans to be made and the use of proceeds thereof shall not
contravene, violate or conflict with, or involve the Agents or any
Lender in a violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental authority
applicable to Borrower; and
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(f) The Agent shall have received such other documents or legal
opinions as the Agent or any Lender may reasonably request, all in form
and substance reasonably satisfactory to the Agent, including, without
limitation, with respect to all Loans made as long as the Foreign
Subsidiary Lines of Credit are outstanding, a certificate from the
Borrower as to the outstanding amount thereunder as of the date of
Borrowing hereunder.
Each request for a Borrowing and the acceptance by Borrower of the
proceeds thereof shall constitute a representation and warranty by Borrower,
as of the date of the Loans comprising such Borrowing, that the applicable
conditions specified in Sections 4.01 and 4.02 have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Borrower (as to itself and all of its Subsidiaries) represents and
warrants as follows:
SECTION 5.01. ORGANIZATIONAL EXISTENCE; COMPLIANCE WITH LAW. Each of
the Consolidated Companies is duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its organization, and each of
the Credit Parties has the corporate or other organizational power and
authority and the legal right to own and operate its property and to conduct
its business. Each of the Consolidated Companies (i) other than the Credit
Parties, has the corporate or other organizational power and authority and
the legal right to own and operate its property and to conduct its business,
(ii) is duly qualified as a foreign corporation or other organization and in
good standing under the laws of each jurisdiction where its ownership of
property or the conduct of its business requires such qualification, and
(iii) is in compliance with all Requirements of Law, where (a) with respect
to those Consolidated Companies that are not Credit Parties, the failure to
have such power, authority and legal right as set forth in clause (i), (b)
the failure to be so qualified or in good standing as set forth in clause
(ii), or (c) the failure to comply with Requirements of Law as set forth in
clause (iii), would reasonably be expected, in the aggregate, to have a
Materially Adverse Effect. The jurisdiction of incorporation or
organization, and the ownership of all issued and outstanding capital stock
or other equity interests, for each Subsidiary as of the date of this
Agreement is accurately described on SCHEDULE 5.01.
SECTION 5.02. ORGANIZATIONAL POWER; AUTHORIZATION. Each of the Credit
Parties has the corporate or other organizational power and authority to
make, deliver and perform the Credit Documents to which it is a party and has
taken all necessary corporate or other organizational action to authorize the
execution, delivery and performance of such Credit Documents. No consent or
authorization of, or filing with, any Person (including, without limitation,
any governmental authority), is required in connection with the execution,
delivery or performance by any Credit Party, or the validity or
enforceability against any Credit Party, of the Credit Documents, other than
(i) such consents, authorizations or filings which have been made or
obtained, and (ii) customary filings to perfect the Liens in favor of the
Collateral Agent granted in the Security Documents.
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SECTION 5.03. ENFORCEABLE OBLIGATIONS. This Agreement has been duly
executed and delivered, and each other Credit Document will be duly executed
and delivered, by the respective Credit Parties, and this Agreement
constitutes, and each other Credit Document when executed and delivered will
constitute, legal, valid and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in accordance with their
respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity.
SECTION 5.04. NO LEGAL BAR. The execution, delivery and performance by
the Credit Parties of the Credit Documents will not violate any Requirement
of Law or cause a breach or default under any of their respective Contractual
Obligations.
SECTION 5.05. NO MATERIAL LITIGATION. Except as set forth on SCHEDULE
5.05 or in any notice furnished to the Lenders pursuant to Section 6.07(i) at
or prior to the respective times the representations and warranties set forth
in this Section 5.05 are made or deemed to be made hereunder, no litigation,
investigations or proceedings of or before any courts, tribunals, arbitrators
or governmental authorities are pending or, to the knowledge of Borrower,
threatened by or against any of the Consolidated Companies, or against any of
their respective properties or revenues, existing or future (a) with respect
to any Credit Document, or any of the transactions contemplated hereby or
thereby, or (b) which, if adversely determined, would reasonably be expected
to have a Materially Adverse Effect.
SECTION 5.06. INVESTMENT COMPANY ACT, ETC. None of the Credit Parties
is an "investment company" or a company "controlled" by an "investment
company" (as each of the quoted terms is defined or used in the Investment
Company Act of 1940, as amended). None of the Credit Parties is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation limiting
its ability to incur indebtedness for money borrowed, guarantee such
indebtedness, or pledge its assets to secure such indebtedness, as
contemplated hereby or by any other Credit Document.
SECTION 5.07. MARGIN REGULATIONS. No part of the proceeds of any of
the Loans will be used for any purpose which violates, or which would be
inconsistent or not in compliance with, the provisions of the applicable
Margin Regulations.
SECTION 5.08. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) The Consolidated Companies have received no notices of claims or
potential liability under, and are in compliance with, all applicable
Environmental Laws, where such claims and liabilities under, and failures to
comply with, such statutes, regulations, rules, ordinances, laws or licenses,
would reasonably be expected to result in penalties, fines, claims or other
liabilities (including, without limitation, remediation costs and expenses)
to the Consolidated Companies in amounts in excess of $1,000,000, either
individually or in the aggregate (including any such
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penalties, fines, claims, or liabilities relating to the matters set forth on
SCHEDULE 5.08(a)), except as set forth on SCHEDULE 5.08(a) or in any notice
furnished to the Lenders pursuant to Section 6.07(j) at or prior to the
respective times the representations and warranties set forth in this
Section 5.08(a) are made or deemed to be made hereunder.
(b) Except as set forth on SCHEDULE 5.08(b) or in any notice furnished
to the Lenders pursuant to Section 6.07(j) at or prior to the respective
times the representations and warranties set forth in this Section 5.08(b)
are made or deemed to be made hereunder, none of the Consolidated Companies
has received any notice of violation, or notice of any action, either
judicial or administrative, from any governmental authority (whether United
States or foreign) relating to the actual or alleged violation of any
Environmental Law, including, without limitation, any notice of any actual or
alleged spill, leak, or other release of any Hazardous Substance, waste or
hazardous waste by any Consolidated Company or its employees or agents, or as
to the existence of any contamination on any properties owned by any
Consolidated Company, where any such violation, spill, leak, release or
contamination would reasonably be expected to result in penalties, fines,
claims or other liabilities (including, without limitation, remediation costs
and expenses) to the Consolidated Companies in amounts in excess of
$1,000,000, either individually or in the aggregate (including any such
penalties, fines, claims or liabilities relating to the matters set forth on
SCHEDULE 5.08(a)).
(c) The Consolidated Companies have obtained all necessary governmental
permits, licenses and approvals which are material to the operations
conducted on their respective properties, including without limitation, all
required material permits, licenses and approvals for (i) the emission of air
pollutants or contaminates, (ii) the treatment or pretreatment and discharge
of waste water or storm water, (iii) the treatment, storage, disposal or
generation of hazardous wastes, (iv) the withdrawal and usage of ground water
or surface water, and (v) the disposal of solid wastes.
SECTION 5.09. INSURANCE. The Consolidated Companies currently maintain
insurance with respect to their respective properties and businesses, with
financially sound and reputable insurers, having coverages against losses or
damages of the kinds customarily insured against by reputable companies in
the same or similar businesses, such insurance being in amounts no less than
those amounts which are customary for such companies under similar
circumstances. The Consolidated Companies have paid all material amounts of
insurance premiums now due and owing with respect to such insurance policies
and coverages, and such policies and coverages are in full force and effect.
SECTION 5.10. NO DEFAULT. None of the Consolidated Companies is in
default under or with respect to any Contractual Obligation in any respect
which has had or is reasonably expected to have a Materially Adverse Effect.
SECTION 5.11. NO BURDENSOME RESTRICTIONS. Except as set forth on
SCHEDULE 5.11 or in any notice furnished to the Lenders pursuant to Section
6.07(p) at or prior to the respective times the representations and
warranties set forth in this Section 5.11 are made or deemed to be made
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hereunder, none of the Consolidated Companies is a party to or bound by any
Contractual Obligation or Requirement of Law which has had or would
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.12. TAXES. Except as set forth on SCHEDULE 5.12, each of the
Consolidated Companies have filed or caused to be filed all declarations,
reports and tax returns which are required to have been filed, and has paid
all taxes, custom duties, levies, charges and similar contributions ("taxes"
in this Section 5.12) shown to be due and payable on said returns or on any
assessments made against it or its properties, and all other taxes, fees or
other charges imposed on it or any of its properties by any governmental
authority (other than those the amount or validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided in its books); and
no tax liens have been filed and, to the knowledge of Borrower, no claims are
being asserted with respect to any such taxes, fees or other charges;
excluding, however, for purposes of the foregoing portions of this Section,
tax returns not filed or taxes not paid where the aggregate amount of taxes
involved does not exceed $1,000,000 in the aggregate and the failure to file
such returns or pay such taxes has resulted from the Consolidated Companies
being without knowledge that the respective tax authorities are claiming such
taxes to be due.
SECTION 5.13. SUBSIDIARIES. Except as disclosed on SCHEDULE 5.01, on
the date of this Agreement, Borrower has no Subsidiaries and neither Borrower
nor any Subsidiary is a joint venture partner or general partner in any
partnership. After the date of this Agreement, except as disclosed on
SCHEDULE 5.01 or in any notice furnished pursuant to Section 6.07(q) at or
prior to the respective times the representations and warranties set forth in
this Section 5.13 are made or deemed to be made hereunder, Borrower has no
Subsidiaries.
SECTION 5.14. FINANCIAL STATEMENTS. The Borrower has furnished to the
Agent and the Lenders (i) the audited consolidated balance sheet of the
Consolidated Companies as at June 30, 1997 and the related consolidated
statements of income, shareholders' equity and cash flows for the nine-month
period then ended, including in each case the related schedules and notes,
and (ii) the unaudited balance sheets of the Consolidated Companies as at the
end of the first and second fiscal quarters of 1997, and the related
unaudited consolidated statements of income, shareholders' equity, and cash
flows for the periods then ended, setting forth in each case in comparative
form the figures for the previous fiscal year and corresponding fiscal
quarter, as the case may be. The foregoing financial statements fairly
present in all material respects the consolidated financial condition of such
Consolidated Companies as at the dates thereof and results of operations for
such periods in conformity with GAAP consistently applied. As of the Closing
Date, except as set forth on SCHEDULE 5.14 hereto, such Consolidated
Companies taken as a whole do not have any material contingent obligations,
contingent liabilities, or material liabilities for known taxes, long-term
leases or unusual forward or long-term commitments not reflected in the
foregoing financial statements or the notes thereto. Since June 30, 1997,
there have been no changes with respect to such Consolidated Companies which
has had or would reasonably be expected to have a Materially Adverse Effect.
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SECTION 5.15. ERISA. Except as disclosed on SCHEDULE 5.15 or in any
notice furnished to the Lenders pursuant to Section 6.07(k) at or prior to
the respective times the representations and warranties set forth in this
Section 5.15 are made or deemed to be made hereunder:
(a)(1) IDENTIFICATION OF PLANS. (A) None of the Consolidated Companies
nor any of their respective ERISA Affiliates maintains or contributes to, or
has during the past two years maintained or contributed to, any Plan that is
subject to Title IV of ERISA, and (B) none of the Consolidated Companies
maintains or contributes to any Foreign Plan;
(2) COMPLIANCE. Each Plan and each Foreign Plan maintained by the
Consolidated Companies have at all times been maintained, by their terms and
in operation, in compliance with all applicable laws, and the Consolidated
Companies are subject to no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof, including without
limitation, any tax or penalty under Title I or Title IV of ERISA or under
Chapter 43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 162, 404, or 419 of the Tax Code, where the failure
to comply with such laws, and such taxes and penalties, together with all
other liabilities referred to in this Section 5.15 (taken as a whole), would
in the aggregate have a Materially Adverse Effect;
(3) LIABILITIES. The Consolidated Companies are subject to no
liabilities (including withdrawal liabilities) with respect to any Plans or
Foreign Plans of such Consolidated Companies or any of their ERISA
Affiliates, including without limitation, any liabilities arising from Titles
I or IV of ERISA, other than obligations to fund benefits under an ongoing
Plan and to pay current contributions, expenses and premiums with respect to
such Plans or Foreign Plans, where such liabilities, together with all other
liabilities referred to in this Section 5.15 (taken as a whole), would in the
aggregate have a Materially Adverse Effect;
(4) FUNDING. The Consolidated Companies and, with respect to any
Plan which is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (A) required to
be contributed under the terms of each Plan and applicable law, and (B)
required to be paid as expenses (including PBGC or other premiums) of each
Plan, where the failure to pay such amounts (when taken as a whole, including
any penalties attributable to such amounts) would have a Materially Adverse
Effect. No Plan subject to Title IV of ERISA has an "amount of unfunded
benefit liabilities" (as defined in Section 4001(a)(18) of ERISA), determined
as if such Plan terminated on any date on which this representation and
warranty is deemed made, in any amount which, together with all other
liabilities referred to in this Section 5.15 (taken as a whole), would have a
Materially Adverse Effect if such amount were then due and payable. The
Consolidated Companies are subject to no liabilities with respect to
post-retirement medical benefits in any amounts which, together with all
other liabilities referred to in this Section 5.15 (taken as a whole), would
have a Materially Adverse Effect if such amounts were then due and payable.
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(b) With respect to any Foreign Plan, reasonable reserves have
been established in accordance with prudent business practice or where
required by ordinary accounting practices in the jurisdiction where the
Foreign Subsidiary maintains its principal place of business or in which the
Foreign Plan is maintained. The aggregate unfunded liabilities, after giving
effect to any reserves for such liabilities, with respect to such Foreign
Plans, together with all other liabilities referred to in this Section 5.15
(taken as a whole), would not have a Materially Adverse Effect.
SECTION 5.16. PATENTS, TRADEMARKS, LICENSES, ETC. Except as set forth
on SCHEDULE 5.16 or in any notice furnished to the Lenders pursuant to
Section 6.07(p) at or prior to the respective times the representations and
warranties set forth in this Section 5.16 are made or deemed to be made
hereunder, (i) the Consolidated Companies have obtained and hold in full
force and effect all material patents, trademarks, service marks, trade
names, copyrights, licenses and other such rights, free from burdensome
restrictions, which are necessary for the operation of their respective
businesses as presently conducted, and (ii) to the best of Borrower's
knowledge, no product, process, method, service or other item presently sold
by or employed by any Consolidated Company in connection with such business
infringes any patents, trademark, service mark, trade name, copyright,
license or other right owned by any other person and there is not presently
pending, or to the knowledge of Borrower, threatened, any claim or litigation
against or affecting any Consolidated Company contesting such Person's right
to sell or use any such product, process, method, substance or other item
where the result of such failure to obtain and hold such benefits or such
infringement would have a Materially Adverse Effect.
SECTION 5.17. OWNERSHIP OF PROPERTY. Except as set forth on SCHEDULE
5.17, (i) each Consolidated Company that is not a Foreign Subsidiary has good
and marketable fee simple title to or a valid leasehold interest in all of
its real property and good title to, or a valid leasehold interest in, all of
its other property, and (ii) each Foreign Subsidiary owns or has a valid
leasehold interest in all of its real property and owns or has a valid
leasehold interest in, all of its other properties, in the case of clauses
(i) and (ii) as such properties are reflected in the consolidated balance
sheet of the Consolidated Companies as of June 30, 1997, referred to in
Section 5.14, other than properties disposed of in the ordinary course of
business since such date or as otherwise permitted by the terms of this
Agreement, subject to no Lien or title defect of any kind, except Liens
permitted hereby and title defects not constituting material impairments in
the intended use for such properties. The Consolidated Companies enjoy
peaceful and undisturbed possession under all of their respective leases.
SECTION 5.18. INDEBTEDNESS. As of the Closing Date, except as set
forth on SCHEDULE 7.01, none of the Consolidated Companies is an obligor in
respect of any Indebtedness for borrowed money, or any commitment to create
or incur any Indebtedness for borrowed money, in an amount not less than
$500,000 in any single case, and such Indebtedness and commitments for
amounts less than $500,000 do not exceed $1,000,000 in the aggregate for all
such Indebtedness and commitments of the Consolidated Companies.
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SECTION 5.19. FINANCIAL CONDITION. On the Closing Date and after
giving effect to the transactions contemplated by this Agreement and the
other Credit Documents, including without limitation, the use of the proceeds
of the Multicurrency Syndicated Loans, and Domestic Revolving Loans as
provided in Article II (i) assets of each Credit Party at fair valuation and
based on their present fair saleable value (including, without limitation,
the fair value of (x) any contribution or subrogation rights in respect of
any Guaranty Agreement given by such Credit Party, and (y) any Intercompany
Loan owed to such Credit Party) will exceed such Credit Party's debts,
including contingent liabilities (as such liabilities may be limited under
the express terms of any Guaranty Agreement of such Credit Party), (ii) the
remaining capital of such Credit Party will not be unreasonably small to
conduct the Credit Party's business, and (iii) such Credit Party will not
have incurred debts, or have intended to incur debts, beyond the Credit
Party's ability to pay such debts as they mature. For purposes of this
Section 5.19, "debt" means any liability on a claim, and "claim" means (a)
the right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured, or (b) the right to an
equitable remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured.
SECTION 5.20. LABOR MATTERS. Except as set forth in SCHEDULE 5.20 or
in any notice furnished to the Lenders pursuant to Section 6.07(p) at or
prior to the respective times the representations and warranties set forth in
this Section 5.20 are made or deemed to be made hereunder, the Consolidated
Companies have experienced no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements which have had, or would reasonably be
expected to have, a Materially Adverse Effect, and, to the best knowledge of
Borrower, there are no such strikes, disputes, slow downs or work stoppages
threatened against any Consolidated Company. The hours worked and payment
made to employees of the Consolidated Companies have not been in violation in
any material respect of the Fair Labor Standards Act (in the case of
Consolidated Companies that are not Foreign Subsidiaries) or any other
applicable law dealing with such matters. All payments due from the
Consolidated Companies, or for which any claim may be made against the
Consolidated Companies, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as liabilities on the
books of the Consolidated Companies where the failure to pay or accrue such
liabilities would reasonably be expected to have a Materially Adverse Effect.
SECTION 5.21. PAYMENT OR DIVIDEND RESTRICTIONS. Except as set forth in
Section 7.10 or described on SCHEDULE 5.21, none of the Consolidated
Companies is party to or subject to any agreement or understanding (other
than restrictions arising under applicable law) restricting or limiting the
payment of any dividends or other distributions by any such Consolidated
Company.
SECTION 5.22. CAPITAL STOCK. All capital stock, debentures, bonds,
notes and all other securities of the Borrower presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws in all material respects, including but not limited to, the "Blue
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Sky" laws of all applicable states and all federal securities laws, except to
the extent any failure with respect thereto would not reasonably be expected
to have a Materially Adverse Effect. All warrants, voting trusts,
shareholders agreements and similar arrangements known to Borrower with
respect to its outstanding capital stock are listed on SCHEDULE 5.22
attached hereto. All issued shares of the capital stock of each Subsidiary
of the Borrower which is owned by the Borrower or one of its Subsidiaries, is
owned free and clear of any Lien or adverse claim, other than Liens on the
Pledged Stock in favor of the Collateral Agent.
SECTION 5.23. DISCLOSURE. No representation or warranty contained in
this Agreement (including the Schedules attached hereto) or in any other
document furnished from time to time pursuant to the terms of this Agreement,
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact necessary to make the statements herein
or therein not misleading as of the date made or deemed to be made. Except
as may be set forth herein (including the Schedules attached hereto) or in
any notice furnished to the Lenders pursuant to Section 6.07 at or prior to
the respective times the representations and warranties set forth in this
Section 5.23 are made or deemed to be made hereunder, there is no fact known
to Borrower which is specific to the Consolidated Companies (and not general
economic conditions or factors applicable to the industries in which the
Consolidated Companies are engaged) which has had, or is reasonably expected
to have, a Materially Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note shall
remain unpaid, Borrower will:
SECITON 6.01. ORGANIZATIONAL EXISTENCE, ETC. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate or
other organizational existence, its material rights, franchises, and
licenses, and its material patents and copyrights (for the scheduled duration
thereof), trademarks, trade names, and service marks, necessary or desirable
in the normal conduct of its business, and its qualification to do business
as a foreign corporation or other organization in all jurisdictions where it
conducts business or other activities making such qualification necessary,
where the failure to be so qualified would reasonably be expected to have a
Materially Adverse Effect.
SECITON 6.02. COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws subject to the exception set forth in
Section 5.08(a) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve
amounts in excess of $1,000,000 in the aggregate) and Contractual Obligations
applicable to or binding on any of them where the failure to comply with such
Requirements of Law and Contractual Obligations would reasonably be expected
to have a Materially Adverse Effect.
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SECTION 6.03. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each of
its Subsidiaries to pay, (i) all taxes, assessments and governmental charges
imposed upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies or services) which, if
unpaid, could reasonably be expected to become a Lien upon its property,
unless, in each case, the validity or amount thereof is being contested in
good faith by appropriate proceedings and adequate reserves are maintained
with respect thereto.
SECTION 6.04. KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions which are required to be maintained in order to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
SECTION 6.05. VISITATION, INSPECTION, ETC. Permit, and cause each of
its Subsidiaries to permit, any representative of any Agent or Lender to
visit and inspect any of its property, to examine its books and records and
to make copies and take extracts therefrom, and to discuss its affairs,
finances and accounts with its officers, all at such reasonable times and as
often as such Agent or Lender may reasonably request after reasonable prior
notice to Borrower; PROVIDED, HOWEVER, that at any time following the
occurrence and during the continuance of a Default or an Event of Default, no
prior notice to Borrower shall be required. To the extent that any Agent or
Lender thereby obtains possession of non-public information constituting
trade secrets, technology or other similar proprietary information identified
to the Agent or Lender in writing by Borrower as being subject to
confidential treatment under this Agreement, such party shall treat such
information as confidential. In any event, such Agent or Lender may, subject
to Section 10.06(e), make disclosure to any assignee or participant which has
been notified of this confidentiality obligation and agreed in writing to
observe and comply therewith, or to any prospective assignee or participant,
in connection with an assignment or participation permitted thereby, or as
required or requested by any governmental agency or representative thereof,
or as required to defend any legal action or to exercise any rights, remedies
or powers available to the Agents or Lender under the Credit Documents or as
otherwise required by law or pursuant to legal process; PROVIDED, THAT,
unless prohibited by applicable law or court order, such Agent or Lender
shall notify Borrower as promptly as practicable after receipt thereof of any
governmental request, subpoena or court order (other than any such request,
subpoena or court order in connection with an examination of the financial
condition of such Agent or Lender by any governmental agency) for disclosure
of any such non-public information; PROVIDED, HOWEVER, that no delay or
failure to provide such notice shall give rise to any claim, defense or right
of offset against such Lender or Agent hereunder. The foregoing shall not
prohibit disclosure of such information to the extent it has become public
information other than through a disclosure by a Agent or Lender not
otherwise permitted herein.
SECTION 6.06. INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially sound and
reputable insurers, insurance with respect to its properties and business,
and the properties and business of its
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Subsidiaries, against loss or damage of the kinds customarily insured against
by reputable companies in the same or similar businesses, such insurance to
be of such types and in such amounts as is customary for such companies under
similar circumstances; PROVIDED, HOWEVER, that in any event Borrower shall
use its best efforts to maintain, or cause to be maintained, insurance in
amounts and with coverages not materially less favorable to any Consolidated
Company as in effect on the date of this Agreement, except where the costs of
maintaining such insurance would, in the judgment of both Borrower and the
Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; PROVIDED, HOWEVER, that nothing in this Section shall prevent Borrower
from discontinuing the operation or maintenance of any such properties if
such discontinuance is, in the judgment of Borrower, desirable in the conduct
of its business or the business of any Consolidated Company.
SECTION 6.07. REPORTING COVENANTS. Furnish to each Lender:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 90 days after the end of each fiscal year of Borrower,
balance sheets of the Consolidated Companies as at the end of such year,
presented on a consolidated basis, and the related statements of income,
shareholders' equity, and cash flows of the Consolidated Companies for
such fiscal year, presented on a consolidated basis, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and accompanied by a report thereon of Deloitte & Touche
or other independent public accountants of comparable recognized national
standing, which such report shall be unqualified as to going concern and
scope of audit and shall state that such financial statements present
fairly in all material respects the financial condition as at the end of
such fiscal year on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal year
in accordance with GAAP and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the end of each fiscal quarter of Borrower
(other than the fourth fiscal quarter), balance sheets of the
Consolidated Companies as at the end of such quarter presented on a
consolidated basis and the related statements of income, shareholders'
equity, and cash flows of the Consolidated Companies for such fiscal
quarter and for the portion of Borrower's fiscal year ended at the end of
such quarter, presented on a consolidated basis setting forth in each case
in comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower's previous fiscal year, all in reasonable
detail and certified by the chief
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financial officer or principal accounting officer of Borrower that such
financial statements fairly present in all material respects the financial
condition of the Consolidated Companies as at the end of such fiscal
quarter on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal
quarter and such portion of Borrower's fiscal year, in accordance with GAAP
consistently applied (subject to normal year-end audit adjustments and the
absence of certain footnotes);
(c) NO DEFAULT/COMPLIANCE CERTIFICATE. Together with the financial
statements required pursuant to subsections (a) and (b) above, a
certificate of a member of Senior Management of Borrower (i) to the effect
that, based upon a review of the activities of the Consolidated Companies
and such financial statements during the period covered thereby, there
exists no Event of Default and no Default under this Agreement, or if
there exists an Event of Default or a Default hereunder, specifying the
nature thereof and the proposed response thereto, and (ii) demonstrating
in reasonable detail compliance as at the end of such fiscal year or such
fiscal quarter with Section 6.08 and Sections 7.01 through 7.05;
(d) DOLLAR EQUIVALENT CERTIFICATE. Together with the financial
statements required pursuant to subsections (a) and (b) above, a
certificate of a member of Senior Management of Borrower setting forth the
amount of each advance outstanding pursuant to any Foreign Subsidiary Line
of Credit as of the date of such financial statements;
(e) AUDITOR'S CERTIFICATE. Together with the financial statements
required pursuant to subsection (a) above, a certificate of the accountants
who prepared the report referred to therein, to the effect that, based upon
their audit, nothing has come to their attention indicating that any of the
information set forth in the officer's certificate delivered in connection
therewith is incorrect;
(f) ANNUAL BUDGET. Within 120 days after the beginning of each
fiscal year, an annual financial plan and forecasted balance sheets and
statements of income, shareholders' equity, and cash flows for such fiscal
year for the Consolidated Companies presented on a consolidated basis;
(g) NOTICE OF DEFAULT. Promptly after any officer of Borrower has
notice or knowledge of the occurrence of an Event of Default or a Default,
a certificate of a member of Senior Management of Borrower specifying the
nature thereof and the proposed response thereto;
(h) INFORMATION REGARDING ACQUISITIONS. In connection with any
proposed Acquisition by a Consolidated Company, three years of historical
audited financial statements of the target of such Acquisition, together
with pro forma consolidated and consolidating financial statements of the
Borrower after giving pro forma effect to such Acquisition and certifying
that no Default or Event of Default shall exist hereunder after
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giving effect thereto, together with such other information as any Lender,
through the Agent may reasonably request;
(i) LITIGATION. Promptly after (i) the occurrence thereof, notice
of the institution of or any material adverse development in any material
action, suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated Company,
or any material property of any thereof, or (ii) actual knowledge thereof,
notice of the threat of any such action, suit, proceeding, investigation
or arbitration;
(j) ENVIRONMENTAL NOTICES. Promptly after receipt thereof, notice
of any actual or alleged violation, or notice of any action, claim or
request for information, either judicial or administrative, from any
governmental authority relating to any actual or alleged claim, notice of
potential responsibility under or violation of any Environmental Law, or
any actual or alleged spill, leak, disposal or other release of any waste,
petroleum product, or hazardous waste or Hazardous Substance by any
Consolidated Company which could result in penalties, fines, claims or
other liabilities to any Consolidated Company in amounts in excess of
$1,000,000;
(k) ERISA. (A)(i) Promptly after the occurrence thereof with
respect to any Plan of any Consolidated Company or any ERISA Affiliate
thereof, or any trust established thereunder, notice of (A) a "reportable
event" described in Section 4043 of ERISA and the regulations issued from
time to time thereunder (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under such regulations), or (B)
any other event which could subject any Consolidated Company to any tax,
penalty or liability under Title I or Title IV of ERISA or Chapter 43 of
the Tax Code, or any tax or penalty resulting from a loss of deduction
under Sections 162, 404 or 419 of the Tax Code, or any tax, penalty or
liability under any Requirement of Law applicable to any Foreign Plan,
where any such taxes, penalties or liabilities exceed or could exceed
$1,000,000 in the aggregate;
(ii) Promptly after such notice must be provided to the PBGC,
or to a Plan participant, beneficiary or alternative payee, any notice
required under Section 101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or
4041(c)(1)(A) of ERISA or under Section 401(a)(29) or 412 of the Tax Code
with respect to any Plan of any Consolidated Company or any ERISA
Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the intent
of the PBGC or any other governmental authority to terminate a Plan of
such Company or ERISA Affiliate thereof which is subject to Title IV of
ERISA, to impose any liability on such Consolidated Company or ERISA
Affiliate under Title IV of ERISA or Chapter 43 of the Tax Code;
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(iv) Promptly upon the filing thereof with the Internal Revenue
Service ("IRS") or the Department of Labor ("DOL"), a copy of IRS Form
5500 or annual report for each Plan of any Consolidated Company or ERISA
Affiliate thereof which is subject to Title IV of ERISA;
(v) Upon the request of the Agent, (A) true and complete copies
of any and all documents, government reports and IRS determination or
opinion letters or rulings for any Plan of any Consolidated Company from
the IRS, PBGC or DOL, (B) any reports filed with the IRS, PBGC or DOL with
respect to a Plan of the Consolidated Companies or any ERISA Affiliate
thereof, or (C) a current statement of withdrawal liability for each
Multiemployer Plan of any Consolidated Company or any ERISA Affiliate
thereof;
(B) Promptly upon any Consolidated Company becoming aware
thereof, notice that (i) any material contributions to any Foreign Plan
have not been made by the required due date for such contribution and such
default cannot immediately be remedied, (ii) any Foreign Plan is not
funded to the extent required by the law of the jurisdiction whose law
governs such Foreign Plan based on the actuarial assumptions reasonably
used at any time, or (iii) a material change is anticipated to any Foreign
Plan that may have a Materially Adverse Effect.
(l) LIENS. Promptly upon any Consolidated Company becoming aware
thereof, notice of the filing of any federal statutory Lien, tax or other
state or local government Lien or any other Lien affecting their
respective properties, other than those Liens expressly permitted by
Section 7.02;
(m) DOMESTICATION OF SUBSIDIARIES. Not less than 30 days prior
thereto, notice of any intended domestication of any Foreign Subsidiary as
a United States corporation, whether by merger, stock transfer or
otherwise;
(n) PUBLIC FILINGS, ETC. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements,
annual, quarterly and special reports, proxy statements and notices sent
or made available generally by Borrower to its public security holders, of
all regular and periodic reports and all registration statements and
prospectuses, if any, filed by any of them with any securities exchange,
and of all press releases and other statements made available generally to
the public containing material developments in the business or financial
condition of Borrower and the other Consolidated Companies;
(o) ACCOUNTANTS' REPORTS. Promptly upon receipt thereof, copies
of all financial statements of, and all reports submitted by, independent
public accountants to Borrower in connection with each annual, interim, or
special audit of Borrower's financial statements, including without
limitation, the comment letter submitted by such accountants to management
in connection with their annual audit;
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(p) BURDENSOME RESTRICTIONS, ETC. Promptly upon the existence or
occurrence thereof, notice of the existence or occurrence of (i) any
Contractual Obligation or Requirement of Law described in Section 5.11,
(ii) failure of any Consolidated Company to hold in full force and effect
those trademarks, service marks, patents, trade names, copyrights,
licenses and similar rights necessary in the normal conduct of its
business, the loss or absence of which could reasonably be expected to
have a Materially Adverse Effect, and (iii) any strike, labor dispute,
slow down or work stoppage as described in Section 5.20;
(q) NEW SUBSIDIARIES. Within 30 days after the formation or
acquisition of any Subsidiary, or any other event resulting in the creation
of a new Subsidiary, notice of the formation or acquisition of such
Subsidiary or such occurrence, including a description of the assets of
such entity, the activities in which it will be engaged, and such other
information as the Agent may request;
(r) INTERCOMPANY ASSET TRANSFERS. Promptly upon the occurrence
thereof, notice of the transfer of title to any assets from any Credit
Party to any other Consolidated Company that is not a Credit Party (in any
transaction or series of related transactions), excluding sales or other
transfers of assets in the ordinary course of business, where the Asset
Value of such assets is greater than $2,000,000.
(s) ASSET SALES. At any time that the aggregate amount of Asset
Sales (other than intercompany asset transfers among Consolidated
Companies) made by the Consolidated Companies after the Closing Date
exceeds $2,000,000 (based on the Asset Values), prompt notice of any
additional Asset Sale or related series of Asset Sales involving Asset
Values of $1,000,000 or more; and
(t) OTHER INFORMATION. With reasonable promptness, such other
information about the Consolidated Companies as any Agent or Lender may
reasonably request from time to time.
SECTION 6.08. FINANCIAL COVENANTS.
(a) LEVERAGE RATIO. Maintain as of the last day of each fiscal
quarter of Borrower, a maximum Leverage Ratio of no greater than fifty
percent (50%).
(b) ADJUSTED FUNDED DEBT/EBITDA. Maintain as of the last day of
each fiscal quarter of Borrower, a maximum Adjusted Funded Debt/EBITDA Ratio
of no greater than 2.50:1.00.
(c) FIXED CHARGE COVERAGE. Maintain as of the last day of each
fiscal quarter of Borrower, a minimum Fixed Charge Coverage Ratio of no less
than 2.00:1.00.
(d) CONSOLIDATED NET WORTH. Maintain as of the Closing Date and
as of the last day of each fiscal quarter of Borrower thereafter, a
Consolidated Net Worth equal to or greater than
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the Minimum Compliance Level. The "Minimum Compliance Level" shall, as of
any date of determination, equal to the sum of (x) $45,000,000, PLUS (y) an
additional amount calculated as of the last day of each fiscal year of
Borrower, commencing with the fiscal year ending September 30, 1998, equal to
50% of the Consolidated Net Income for such fiscal year of Borrower then
ending, PLUS (z) the net proceeds of any equity offering consummated by any
Consolidated Company since the last date of the determination of the Minimum
Compliance Level; PROVIDED, HOWEVER, in the event that the Consolidated
Companies suffer a net loss for any fiscal year, Consolidated Net Income
shall be deemed to be $0, and further provided that amounts calculated
pursuant to clauses (y) and (z) above shall be permanent increases in the
Minimum Compliance Level so that in no event shall the Minimum Compliance
Level at any date of determination be less than the amount required at any
preceding date of determination.
(e) THIRD FISCAL QUARTER CALCULATIONS. SCHEDULE 6.08 sets forth
the calculation of the financial covenant amounts, ratios, and percentages
required by paragraphs (a) through (d) of this Section 6.08 calculated as of
the end of the third fiscal quarter of Borrower's 1997 fiscal year.
SECTION 6.09. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS.
Immediately upon its receipt thereof, Borrower shall furnish the Agent a copy
of any notice received by it or any other Consolidated Company from the
holder(s) of Indebtedness referred to in Section 7.01(b), (c), (d), (e), (f),
(h), (i), (j) or (k) (or from any trustee, agent, attorney, or other party
acting on behalf of such holder(s)) in an amount which, in the aggregate,
exceeds $500,000, where such notice states or claims the existence or
occurrence of any default or event of default with respect to such
Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Indebtedness,
or any other event requiring or permitting the holders thereof to require the
immediate repayment, redemption or defeasance thereof.
SECTION 6.10. ADDITIONAL CREDIT PARTIES AND COLLATERAL.
(a) Within sixty (60) days after the Closing Date, deliver to the
Collateral Agent, for the benefit of the Lenders, duly executed Pledge
Agreements with respect to the Pledged Stock, together with such certificates
as may evidence such Pledged Stock, with appropriate stock powers and
endorsements, together with such opinions, officer's certificates and other
evidence as to the enforceability and priority of the Liens, all in form and
substance satisfactory to the Collateral Agent.
(b) Promptly after (i) the formation or acquisition of any
Subsidiary not listed on SCHEDULE 5.01, (ii) the domestication of any Foreign
Subsidiary that is a Subsidiary, or (iii) the occurrence of any other event
creating a new Subsidiary, Borrower shall execute and deliver, and cause to
be executed and delivered (x) a Pledge Agreement with respect to 65% of the
capital stock of such Subsidiary if it is a Foreign Subsidiary directly owned
by Borrower or a Subsidiary that is not, and is not directly or indirectly
controlled by, a Foreign Subsidiary, and (y) a Guaranty Agreement from each
such Subsidiary that is not a Foreign Subsidiary, together with related
documents of the kind described in Section 4.01(d), (e), (f), (g), (h), and
(k), all in form and substance satisfactory to the Agent.
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ARTICLE VII.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note
shall remain unpaid, Borrower will not and will not permit any Subsidiary to:
SECTION 7.01. INDEBTEDNESS. Create, incur, assume or suffer to exist
any Indebtedness, other than:
(a) Indebtedness under this Agreement and the Guaranty Agreement;
(b) Indebtedness outstanding on the Closing Date and described on
SCHEDULE 7.01;
(c) purchase money Indebtedness to the extent secured by a Lien
permitted by Section 7.02(b);
(d) Indebtedness outstanding pursuant to the Master
Distributorship Agreements and owing to third parties in an aggregate
principal amount at any one time outstanding not to exceed $5,000,000;
(e) Indebtedness incurred by the Foreign Subsidiaries pursuant to
the Foreign Subsidiary Lines of Credit; PROVIDED THAT, the Dollar
Equivalent of the aggregate outstanding amounts thereunder does not exceed
$20,000,000 and PROVIDED FURTHER that no such Indebtedness shall be
permitted to be outstanding at any time after the earlier to occur of (x)
the date which is ninety (90) days after the Closing Date, and (y) the date
on which this Agreement is amended to allow for Borrower's Foreign
Subsidiaries to borrow hereunder;
(f) Subordinated Debt of Borrower in an aggregate principal amount
not to exceed $20,000,000 at any one time outstanding;
(g) the Intercompany Loans described on SCHEDULE 7.01 and any
other loans between Consolidated Companies provided that (i) each loan or
other extension of credit made by a Credit Party to another Consolidated
Company that is not a Credit Party hereunder shall be made payable on
demand and shall not be subordinated to other obligations of such
Consolidated Company, (ii) each loan or other extension of credit made to
a Credit Party by another Consolidated Company that is not a Credit Party
hereunder shall be made on a subordinated basis pursuant to the terms of
the Foreign Subsidiary Subordination Agreement, and (iii) such loans or
other extensions of credit are otherwise permitted pursuant to the
limitations of Section 7.04(c); provided that, Intercompany Loans
described in clause (ii)
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shall be permitted prior to the execution of the Foreign Subsidiary
Subordination Agreement for a period of sixty (60) days after the Closing
Date as long as such Intercompany Loans do not exceed $5,000,000 in the
aggregate amount at any one time outstanding;
(h) Indebtedness under Currency Contracts and Interest Rate
Contracts entered into in the ordinary course of business consistent with
past practices;
(i) Guaranties secured by Liens described in Section 7.02(j);
provided that such Guaranties do not at any one time outstanding exceed
$5,000,000;
(j) Guaranties incurred in the ordinary course of business of the
Consolidated Companies; PROVIDED THAT, after giving effect to such
Guaranty, the Borrower will be in compliance with Section 6.08(a) hereof
on a pro forma basis; and
(k) other Indebtedness not to exceed $1,000,000 at any one time
outstanding.
SECTION 7.02. LIENS. Create, incur, assume or suffer to exist any
Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness other than:
(a) Liens existing on the date hereof disclosed on SCHEDULE 7.02;
(b) any Lien on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition
cost of such property, PROVIDED that such Lien does not extend to any
other property, and PROVIDED FURTHER that the aggregate amount of
Indebtedness secured by all such Liens at any time does not exceed ten
percent (10%) of the Consolidated Net Worth of Borrower;
(c) Liens for taxes not yet due, and Liens for taxes or Liens
imposed by ERISA which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the
ordinary course of business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
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(f) survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes,
or zoning or other restrictions as to the use of real properties or liens
incidental to the conduct of the business of such Person or the ownership
of its properties which were not incurred in connection with Indebtedness
and which do not in the aggregate materially adversely affect the value of
said properties or materially impair their use in the operation of the
business of such Person;
(g) Liens securing Indebtedness incurred to finance the
construction, purchase or lease of, or repairs, improvements or additions
to, property; PROVIDED, HOWEVER, that the Lien may not extend to any other
property owned by Borrower or any Subsidiary at the time the Lien is
incurred, and the Indebtedness secured by the Lien may not be issued more
than 180 days after the later of the acquisition or construction of the
property subject to the Lien;
(h) Liens on property or shares of stock of a Person at the time
such Person becomes a Subsidiary; PROVIDED, HOWEVER, that any such Lien
may not extend to any other property owned by Borrower or any Subsidiary;
(i) Liens on property at the time Borrower or a Subsidiary
acquires the property including any acquisition by means of a merger or
consolidation with or into Borrower or a Subsidiary; PROVIDED, HOWEVER,
that the Liens may not extend to any other property owned by Borrower or
any Subsidiary;
(j) (i) Liens securing payment of Lease Receivables that have been
sold and assigned by Borrower or that are payable under Leases that have
been sold and assigned by Borrower, PROVIDED that such Liens shall only
encumber the equipment that is the subject of such Lease and any rights
retained by Borrower in and to such Leases; (ii) Liens securing payment
of lease financing facilities provided by third-party lenders to Lessees,
whether or not such lease financing facilities have been guaranteed by a
Consolidated Company or are recourse to the credit or other assets of
Consolidated Company; and (iii) Liens securing guaranty obligations of a
Consolidated Company with respect to Guaranties permitted by Section
7.01(i); PROVIDED that such Liens shall only encumber the equipment which
is the subject of the Leases to which Lessees are parties and any rights
retained by such Consolidated Companies in and to such Leases;
(k) Liens in favor of the Collateral Agent securing the
Obligations hereunder;
(l) Liens securing Sales/Leases PROVIDED that such Liens shall
only encumber the equipment which is the subject of the Leases to which
Lessees are parties and any rights retained by such Consolidated Companies
in and to such Leases; and
(m) Liens securing other Indebtedness not to exceed $1,000,000.
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SECTION 7.03. MERGERS, ACQUISITIONS, SALES, ETC. Merge or
consolidate with any other Person, or sell, lease, or otherwise dispose of
its accounts, property or other assets (including capital stock of
Subsidiaries), or purchase, lease or otherwise acquire all or any substantial
portion of the property or assets (including capital stock) of any Person;
PROVIDED, HOWEVER, that the foregoing restrictions shall not be applicable to:
(a) (i) mergers or consolidations of (x) any Subsidiary with any
other Subsidiary which is a Guarantor, (y) any Subsidiary with Borrower,
as long as Borrower is the surviving corporation, or (z) any Foreign
Subsidiary with another Foreign Subsidiary; or (ii) mergers or
consolidations which result in Acquisitions of Persons engaged in
businesses permitted by Section 7.07 of this Agreement where the surviving
corporation is a wholly-owned Subsidiary of Borrower (or merged into
Borrower) and such Acquisition is in compliance with subsection (c) hereof;
(b) (i) Asset Sales where, on the date of execution of a binding
obligation to make such Asset Sale (provided that if the Asset Sale is not
consummated within six (6) months of such execution, then on the date of
consummation of such Asset Sale rather than on the date of execution of
such binding obligation), (x) the Asset Value of Asset Sales occurring
after the Closing Date, taking into account the Asset Value of the
proposed Asset Sale, would not exceed 10% of Consolidated Net Worth, as
calculated as of the most recently ended quarter of Borrower, and (y) the
assets subject to such Asset Sale have not accounted for more than 10% of
the Consolidated Net Income of the Borrower during the four most recently
ended fiscal quarters of Borrower, and (ii) sales of inventory in the
ordinary course of business, and
(c) Acquisitions (x) which have been approved in advance by a
majority of the board of directors of the seller, (y) where the
information required to be delivered to the Lenders pursuant to Section
6.07(h) has been provided, and (z) which are in compliance with the terms
of Section 7.07, where the total consideration to be paid by the
Consolidated Companies does not exceed (1) with respect to any Acquisition
or related series of Acquisitions, 40% of the Consolidated Net Worth of
Borrower, as calculated as of the last day of the most recently ended
fiscal quarter of Borrower and (2) with respect to all Acquisitions made
during such fiscal quarter and the most recent three fiscal quarters of
Borrower, an amount equal to 1.75 times the Consolidated EBITDA for the
most recently ended four fiscal quarters of Borrower;
PROVIDED, HOWEVER, that no transaction pursuant to subsections (a), (b)(i) or
(c) above shall be permitted if any Default or Event of Default otherwise
exists at the time of such transaction or would otherwise exist as a result
of such transaction.
SECTION 7.04. INVESTMENTS, LOANS, ETC. Make, permit or hold any
Investments in any Person, or otherwise acquire or hold any Subsidiaries,
other than:
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(a) Investments in Subsidiaries that are Guarantors under this
Agreement;
(b) Investments made and simultaneously used for the acquisition
of the capital stock of any Person, or all or any substantial portion of
the property or assets of any Person, in an Acquisition permitted
pursuant to Section 7.03;
(c) Investments in Subsidiaries, other than those Subsidiaries
that are Guarantors under this Agreement, made after the Closing Date, in
an aggregate amount at any one time outstanding not to exceed $20,000,000
unless otherwise consented to in writing by the Required Lenders;
PROVIDED, HOWEVER, that no Investment may be made at any time that a
Default or Event of Default has occurred and is continuing or would exist
as a result of such Investment and provided further, that the amount of
permitted Investments pursuant to this subsection (c) shall be reduced by
the Dollar Equivalent of the outstanding principal amount under the
Foreign Subsidiary Lines of Credit;
(d) direct obligations of the United States or any agency thereof,
or obligations guaranteed by the United States or any agency thereof, in
each case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
(e) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by a nationally recognized
credit rating agency;
(f) time deposits maturing within one year from the date of
creation thereof with, including certificates of deposit issued by, any
office located in the United States of any bank or trust company which is
organized under the laws of the United States or any state thereof and has
capital, surplus and undivided profits aggregating at least $500,000,000,
including without limitation, any such deposits in Eurodollars issued by a
foreign branch of any such bank or trust company;
(g) Investments made by Plans and Foreign Plans;
(h) Advances to officers and employees in the ordinary course of
business in an aggregate principal amount at any time outstanding not to
exceed $1,000,000; and
(i) Investments (other than those permitted by paragraphs (a)
through (h) above) in an aggregate amount not to exceed $5,000,000 at any
one time outstanding.
SECTION 7.05. SALE AND LEASEBACK TRANSACTIONS. Sell or transfer
any property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any
Consolidated Company intends to use for substantially the same purpose or
purposes as the property being sold or transferred.
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SECTION 7.06. TRANSACTIONS WITH AFFILIATES. Enter into any
material transaction or series of related transactions which in the aggregate
would be material, whether or not in the ordinary course of business, with
any Affiliate of any Consolidated Company (but excluding any Affiliate which
is also a Consolidated Company), other than on terms and conditions
substantially as favorable to such Consolidated Company as would be obtained
by such Consolidated Company at the time in a comparable arm's-length
transaction with a Person other than an Affiliate.
SECTION 7.07. CHANGES IN BUSINESS. Engage in any business other
than (a) the businesses in which they are engaged on the Closing Date, (b)
the design, manufacture, sale, rental, lease and distribution of lighting and
sound systems for the entertainment and architectural industry and the
provision of services related thereto, and (c) other businesses, subject to
the approval of the Required Lenders (such approval not to be unreasonably
withheld), which are reasonably related to, or constitute extensions or
expansions of, the businesses described in clauses (a) and (b) preceding.
SECTION 7.08. ERISA. Take or fail to take any action with respect
to any Plan or Foreign Plan of any Consolidated Company or, with respect to
its ERISA Affiliates, any Plans which are subject to Title IV of ERISA or to
continuation health care requirements for group health plans under the Tax
Code, including without limitation (i) establishing any such Plan, (ii)
amending any such Plan (except where required to comply with applicable law),
(iii) terminating or withdrawing from any such Plan, or (iv) incurring an
amount of unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA, or any withdrawal liability under Title IV of ERISA with respect to
any such Plan, or any unfunded liabilities under any Foreign Plan, without
first obtaining the written approval of the Required Lenders, where such
actions or failures could result in a Material Adverse Effect.
SECTION 7.09. ADDITIONAL NEGATIVE PLEDGES. Create or otherwise
cause or suffer to exist or become effective, directly or indirectly, any
prohibition or restriction on the creation or existence of any Lien upon any
asset of any Consolidated Company, other than pursuant to (i) Section 7.02,
(ii) the terms of any agreement, instrument or other document pursuant to
which any Indebtedness permitted by Section 7.02(b) or 7.02(g) is incurred by
any Consolidated Company, so long as such prohibition or restriction applies
only to the property or asset being financed by such Indebtedness, (ii)
Subordinated Debt permitted pursuant to Section 7.01(f) and (iii) any
requirement of applicable law or any regulatory authority having jurisdiction
over any of the Consolidated Companies.
SECTION 7.10. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or
become effective, any consensual encumbrance or restriction on the ability of
any Consolidated Company to (i) pay dividends or make any other distributions
on such Consolidated Company's stock, or (ii) pay any indebtedness owed to
Borrower or any other Consolidated Company, or (iii) transfer any of its
property or assets to Borrower or any other Consolidated Company, except any
consensual encumbrance or restriction existing under the Credit Documents or
any restriction arising under applicable law.
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SECTION 7.11. CHANGE IN FISCAL YEAR. Change the calculation of the
fiscal year of any of the Consolidated Companies.
SECTION 7.12. AMENDMENT OF MASTER DISTRIBUTORSHIP AGREEMENTS.
Amend or modify the terms of any Master Distributorship Agreement in any
manner which could reasonable be expected to have a Materially Adverse
Effect; provided that nothing set forth herein shall be deemed to restrict
the ability of the Borrower to cancel or terminate a Master Distributorship
Agreement in accordance with the terms thereof if such cancellation or
termination is deemed by Borrower to be in the best interests of the
Consolidated Companies.
ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
SECTION 8.01. PAYMENTS. Borrower shall fail to make promptly when
due (including, without limitation, by mandatory prepayment) any principal
payment with respect to the Loans, or Borrower shall fail to make within five
(5) days after the due date thereof any payment of interest, fee or other
amount payable hereunder;
SECTION 8.02. COVENANTS WITHOUT NOTICE. Borrower shall fail to
observe or perform any covenant or agreement contained in Sections 6.07(g) or
6.08 or shall fail to observe or perform any covenant or agreement contained
in Section 6.10 or Article VII and, if capable of being remedied, such
failure shall remain unremedied for 5 days after the earlier of (i) any
member of Senior Management of Borrower obtaining knowledge thereof, or (ii)
written notice thereof shall have been given to Borrower by Agent or Lender;
SECTION 8.03. OTHER COVENANTS. Borrower shall fail to observe or
perform any covenant or agreement contained in this Agreement, other than
those referred to in Sections 8.01 and 8.02, and, if capable of being
remedied, such failure shall remain unremedied for 30 days after the earlier
of (i) any member of Senior Management of Borrower obtaining knowledge
thereof, or (ii) written notice thereof shall have been given to Borrower by
Agent or Lender;
SECTION 8.04. REPRESENTATIONS. Any representation or warranty
made or deemed to be made by Borrower, or any other Credit Party or by any of
its officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted
to the Agent or the Lenders by any such Person pursuant to the terms of this
Agreement or any other Credit Document, shall be incorrect in any material
respect when made or deemed to be made or submitted;
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SECTION 8.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any
Consolidated Company shall fail to make when due (whether at stated maturity,
by acceleration, on demand or otherwise, and after giving effect to any
applicable grace period) any payment of principal of or interest on any
Indebtedness (other than the Obligations) exceeding $5,000,000 (or the
equivalent in any Currency) in the aggregate;
SECITON 8.06. DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated
Company shall fail to observe or perform within any applicable grace period
any covenants or agreements contained in any agreements or instruments
relating to any of its Indebtedness or Synthetic Lease Obligations exceeding
$5,000,000 (or the equivalent in any currency) in the aggregate, or any
other event shall occur if the effect of such failure or other event is to
accelerate, or to permit the holder of such Indebtedness or any other Person
to accelerate, the maturity of such Indebtedness or Synthetic Lease
Obligations; or any such Indebtedness or Synthetic Lease Obligations shall be
required to be prepaid, redeemed or defeased (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated
maturity;
SECTION 8.07. BANKRUPTCY. Borrower or any other Consolidated
Company shall commence a voluntary case concerning itself under the
Bankruptcy Code or applicable foreign bankruptcy laws; or an involuntary case
for bankruptcy is commenced against any Consolidated Company and the petition
is not controverted within 10 days, or is not dismissed within 90 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code)
or similar official under applicable foreign bankruptcy laws is appointed
for, or takes charge of, all or any substantial part of the property of any
Consolidated Company; or any Consolidated Company commences proceedings of
its own bankruptcy or to be granted a suspension of payments or any other
proceeding under any reorganization, arrangement, adjustment of debt, relief
of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction, whether now or hereafter in effect, relating to any
Consolidated Company or there is commenced against any Consolidated Company
any such proceeding which remains undismissed for a period of 90 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or
any Consolidated Company suffers any appointment of any custodian or the like
for it or any substantial part of its property to continue undischarged or
unstayed for a period of 90 days; or any Consolidated Company makes a general
assignment for the benefit of creditors; or any Consolidated Company shall
fail to pay, or shall state that it is unable to pay, or shall be unable to
pay, its debts generally as they become due; or any Consolidated Company
shall call a meeting of its creditors with a view to arranging a composition
or adjustment of its debts; or any Consolidated Company shall by any act or
failure to act indicate its consent to, approval of or acquiescence in any of
the foregoing; or any corporate action is taken by any Consolidated Company
for the purpose of effecting any of the foregoing;
SECTION 8.08. ERISA. A Plan or Foreign Plan of a Consolidated
Company or a Plan subject to Title IV of ERISA of any of its ERISA Affiliates
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(i) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan or Foreign
Plan, Section 412 of the Tax Code or Section 302 of ERISA for any plan year
or a waiver of such standard is sought or granted with respect to such Plan
or Foreign Plan under applicable law, the terms of such Plan or Foreign
Plan or Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or has been, terminated or the subject of termination
proceedings under applicable law or the terms of such Plan or Foreign Plan;
or
(iii) shall require a Consolidated Company to provide security
under applicable law, the terms of such Plan or Foreign Plan, Section 401
or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan or Foreign Plan, or Title IV of
ERISA;
and there shall result from any such failure, waiver, termination or other
event a liability to the PBGC (or any similar Person with respect to any
Foreign Plan) or a Plan that would have a Materially Adverse Effect.
SECTION 8.09. MONEY JUDGMENT. A judgment or order for the payment
of money in excess of $5,000,000 (or the equivalent in any currency) or
otherwise having a Materially Adverse Effect shall be rendered against
Borrower or any other Consolidated Company and such judgment or order shall
continue unsatisfied (in the case of a money judgment) and in effect for a
period of 30 days during which execution shall not be effectively stayed or
deferred (whether by action of a court, by agreement or otherwise);
SECTION 8.10. OWNERSHIP OF CREDIT PARTIES. If any Credit Party
(other than Borrower) shall at any time fail to be a wholly owned Subsidiary
of Borrower, either directly or indirectly through another wholly owned
Subsidiary of Borrower, except where all outstanding Intercompany Loans made
to Borrower have been paid in full;
SECTION 8.11. CHANGE IN CONTROL OF BORROWER. Any Change in
Control shall occur or exist;
SECTION 8.12. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall
exist or occur any "Event of Default" as provided under the terms of any
other Credit Document, or any Credit Document ceases to be in full force and
effect or the validity or enforceability thereof is disaffirmed by or on
behalf of Borrower or any other Credit Party, or at any time it is or becomes
unlawful for Borrower or any other Credit Party to perform or comply with its
obligations under any Credit Document, or the obligations of Borrower or any
other Credit Party under any Credit Document are not or cease to be legal,
valid and binding on Borrower or any such Credit Party;
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SECTION 8.13. DEFAULT UNDER INTEREST RATE CONTRACT OR CURRENCY
CONTRACT. Any event or condition shall occur or exist which causes, or
permits any party thereto (other than the Consolidated Company or Companies
party thereto) to cause, the termination or cancellation of any Interest Rate
Contract or Currency Contract (excluding any termination or cancellation
effected at the option of Borrower in the exercise of Borrower's business
judgment or any other termination or cancellation of such Interest Rate
Contract or Currency Contract not resulting from any breach of such agreement
or default thereunder by any Consolidated Company or Companies), and as a
result of such cancellation or termination, any of the Consolidated Companies
would be required to make net payments thereunder in excess of $5,000,000 (or
the equivalent in any currency) in the aggregate;
SECTION 8.14. ATTACHMENTS. An attachment or similar action shall
be made on or taken against any of the assets of any Consolidated Company
with an Asset Value exceeding $5,000,000 in aggregate and is not removed
within 90 days of the same being made;
then, and in any such event, and at any time thereafter if any Event of
Default shall then be continuing, the Agent may, with the consent of the
Required Lenders, and upon the written (including telecopied) of the
Required Lenders, shall, by written notice to Borrower, take any or all of
the following actions, without prejudice to the rights of the Agent, any
Lender or the holder of any Note to enforce its claims against Borrower or
any other Credit Party: (i) declare all Commitments terminated, whereupon the
pro rata Commitments of each Lender shall terminate immediately and any
commitment fee shall forthwith become due and payable without any other
notice of any kind; and (ii) declare the principal of and any accrued
interest on the Loans, and all other Obligations owing hereunder, to be,
whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by Borrower; PROVIDED, that, if an Event of Default specified
in SECTION 8.07 shall occur, the result which would occur upon the giving of
written notice by the Agent to any Credit Party, as specified in clauses (i)
and (ii) above, shall occur automatically without the giving of any such
notice; and (iii) exercise any rights or remedies under the Security
Documents, any other Credit Document or otherwise available at law or in
equity.
ARTICLE IX.
THE AGENTS AND CO-AGENT
SECTION 9.01. APPOINTMENT OF AGENT. Each Lender hereby designates
STBA as Agent to administer all matters concerning the Loans and to act as
herein specified. Each Lender hereby irrevocably authorizes, and each holder
of any Note by the acceptance of a Note shall be deemed irrevocably to
authorize, the Agent to take such actions on its behalf under the provisions
of this Agreement, the other Credit Documents, and all other instruments and
agreements referred to herein or therein, and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to
or required of the Agent by the terms hereof and thereof
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and such other powers as are reasonably incidental thereto. The Agent may
perform any of its duties hereunder by or through its agents or employees.
SECTION 9.02. APPOINTMENT OF COLLATERAL AGENT.
(a) The Agent and each Lender hereby designates STBA as Collateral
Agent and hereby authorizes the Collateral Agent to enter into each of the
Security Documents substantially in the form attached hereto, and to take all
action contemplated thereby. All rights and remedies under the Security
Documents may be exercised by the Collateral Agent for the benefit of the
Agent and the Lenders and the other beneficiaries thereof upon the terms
thereof. The Agent and the Lenders further agree that the Collateral Agent
may assign its rights and obligations as Collateral Agent under any of the
Security Documents to any affiliate of the Collateral Agent or to any
trustee, which assignee in each such case shall (subject to compliance with
any requirements of applicable law governing the assignment of such Security
Documents) be entitled to all the rights of the Collateral Agent under and
with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any
Security Document, the Collateral Agent shall have the right to grant or
withhold any consent, exercise any remedy, make any determination or direct
any action by the Collateral Agent under such Security Document, the
Collateral Agent shall act in respect of such consent, exercise of remedies,
determination or action, as the case may be, with the consent of and at the
direction of the Required Lenders; PROVIDED, HOWEVER, that no such consent of
the Required Lenders shall be required with respect to any consent,
determination or other matter that is, in the Collateral Agent's judgment,
ministerial or administrative in nature; PROVIDED, FURTHER, that in no event
shall the Collateral Agent be required, and in all cases shall be fully
justified in failing or refusing, to take any action under or pursuant to any
Security Document which, in the reasonable opinion of the Collateral Agent,
(a) would be contrary to the terms of any Security Document or would subject
it or its officers, employees, or directors to liability, unless and until
the Collateral Agent shall be indemnified or tendered security to its
satisfaction by the Lenders against any and all loss, cost, expense or
liability in connection therewith, or (b) would be contrary to law, in each
case anything herein or elsewhere contained to the contrary notwithstanding.
In each circumstance where any consent of or direction from the Required
Lenders is required, the Collateral Agent shall send to the Lenders a notice
setting forth a description in reasonable detail of the matter as to which
consent or direction is requested and the Collateral Agent's proposed course
of action with respect thereto. In the event the Collateral Agent shall not
have received a response from any Lender within five (5) Business Days after
such Lender's receipt of such notice, such Lender shall be deemed to have
agreed to the course of action proposed by the Collateral Agent.
SECTION 9.03. NATURE OF DUTIES OF AGENTS. The Agents shall have
no duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. None of the Agents nor any of
their respective officers, directors, employees or agents shall be liable for
any action taken or omitted by it as such hereunder or in connection
herewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Agents shall be ministerial and
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administrative in nature; the Agents shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender; and nothing in
this Agreement, express or implied, is intended to or shall be so construed
as to impose upon the Agents any obligations in respect of this Agreement or
the other Credit Documents except as expressly set forth herein.
SECTION 9.04. LACK OF RELIANCE ON THE AGENTS.
(a) Independently and without reliance upon the Agents, each
Lender, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Credit Parties in connection with the taking or not taking of
any action in connection herewith, and (ii) its own appraisal of the
creditworthiness of the Credit Parties, and, except as expressly provided in
this Agreement, the Agents shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before the making of any Loans, or at any time or times thereafter.
(b) The Agents shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith
or for the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the Notes, the
Guaranty Agreement, the Pledge Agreements or any other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or be
required to make any inquiry concerning either the performance or observance
of any of the terms, provisions or conditions of this Agreement, the Notes,
the Guaranty Agreement, the Pledge Agreements or the other documents
contemplated hereby or thereby, or the financial condition of the Credit
Parties, or the existence or possible existence of any Default or Event of
Default; PROVIDED, HOWEVER, to the extent the Agent have been advised that a
Lender has not received any information formally delivered to the Agent
pursuant to Section 8.07, the Agent shall deliver or cause to be delivered
such information to such Lender.
SECTION 9.05. CERTAIN RIGHTS OF THE AGENTS. If any Agent shall
request instructions from the Required Lenders or the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, such Agent shall be entitled to refrain from such act or
taking such act, unless and until the Agent shall have received instructions
from such Lenders; and the Agent shall not incur liability to any Person by
reason of so refraining. Without limiting the foregoing, no Lender shall
have any right of action whatsoever against any Agent as a result of such
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders or the Required Lenders where required
by the terms of this Agreement.
SECTION 9.06. RELIANCE BY AGENTS. The Agents shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, teletype or telecopier message,
cablegram, radiogram, order or other documentary, teletransmission or
telephone message believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person. The Agents may consult with legal
counsel (including counsel for any Credit
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Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 9.07. INDEMNIFICATION OF AGENTS. To the extent the Agents are
not reimbursed and indemnified by the Credit Parties, each Lender will
reimburse and indemnify (i) each Agent, ratably according to the respective
principal amounts of the Loans outstanding by each Lender (or if no amounts
are outstanding, ratably in accordance with the Commitments), and (ii) the
Collateral Agent, ratably according to the respective amounts of the Loans
outstanding under all Facilities (or if no amounts are outstanding, ratably in
accordance with the Commitments), in either case, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against such Agent in performing its duties hereunder,
in any way relating to or arising out of this Agreement or the other Credit
Documents; PROVIDED that no Lender shall be liable to any Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent's
gross negligence or willful misconduct.
SECTION 9.08. THE AGENTS IN THEIR INDIVIDUAL CAPACITY. With respect to
its obligation to lend under this Agreement, the Loans made by it and the
Notes issued to it, each Agent shall have the same rights and powers hereunder
as any other Lender or holder of a Note and may exercise the same as though it
were not performing the duties specified herein; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms shall, unless the
context clearly otherwise indicates, include each of the Agents in its
individual capacity. The Agents may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any affiliate of the Consolidated
Companies as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Consolidated Companies for
services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.
SECTION 9.09. HOLDERS OF NOTES. The Agents may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have been filed
with the Agents. Any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent, is the holder
of any Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
SECTION 9.10. SUCCESSOR AGENTS.
(a) Any Agent may resign at any time by giving written notice thereof to
the Lenders and Borrower and may be removed at any time with or without cause
by the Required Lenders; PROVIDED, HOWEVER, the Agent may not resign or be
removed except where the Collateral Agent is also resigning or being removed
and a successor Agent and Collateral Agent has been
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appointed under this Agreement and shall have accepted such appointment. Upon
any such resignation or removal, the Required Lenders shall have the right,
upon five days' notice to Borrower, to appoint a successor Agent which
successor shall be approved by the Borrower, such approval not to be
unreasonably withheld; provided that, Borrower shall not have the right to
approve any successor Agent during the continuance of an Event of Default. If
no successor Agent shall have been so appointed by the Required Lenders and
approved by the Borrower, if required, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then, upon
five days' notice to Borrower, the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a bank which maintains an
office in the United States, or a commercial bank organized under the laws of
the United States of America or any State thereof, or any Affiliate of such
bank, having a combined capital and surplus of at least $100,000,000.
(b) Upon the acceptance of any appointment as an Agent hereunder, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent under this
Agreement.
SECTION 9.11. APPOINTMENT OF CO-AGENT. Each of Lenders hereby
designates Brown Brothers Harriman & Co. as the Co-Agent for the Lenders
hereunder and acknowledges that the Co-Agent shall have no duties under this
Agreement whatsoever but shall be entitled to all protections afforded the
Agent under this Article IX, which protection shall also extend to each
partner of the Co-Agent.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopy or similar
teletransmission or writing) and shall be given to such party at its address
or applicable teletransmission number set forth on the signature pages hereof,
or such other address or applicable teletransmission number as such party may
hereafter specify by notice to the Agents and Borrower. Each such notice,
request or other communication shall be effective (i) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, (ii) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and
the appropriate confirmation is received, or (iii) if given by any other means
(including, without limitation, by air courier), when delivered or received at
the address specified in this Section; PROVIDED that notices to the Agents
shall not be effective until received.
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SECTION 10.02. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or the other Credit Documents, nor consent to any departure
by any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED that no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders (or, in the
case of any amendment or waiver of Section 4.02, all the Lenders) do any of
the following: (i) waive any of the conditions specified in Sections 4.01 or
4.02, (ii) increase the Commitments or other contractual obligations to
Borrower under this Agreement, (iii) reduce the principal of, or interest on,
the Notes or any fees hereunder, (iv) postpone any date fixed for the payment
in respect of principal of, or interest on, the Notes or any fees hereunder,
(v) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number or identity of Lenders which
shall be required for the Lenders or any of them to take any action hereunder,
(vi) agree to release any of the Pledged Stock from the Lien of the Security
Documents or to release any Guarantor from its obligations under any Guaranty
Agreement (PROVIDED, that no agreement to any such release shall be required
from any Lenders in connection with a sale of Pledged Stock that is made at a
time when Borrower has satisfied the requirements set forth in Section 7.03(b)
with respect to such sale), or (vii) amend this Section 10.02 or Section
10.06. Notwithstanding the foregoing, no amendment, waiver or consent shall,
unless in writing and signed by the Agent or the Collateral Agent, as the case
may be, in addition to the Lenders required hereinabove to take such action,
affect the rights or duties of the Agent or the Collateral Agent, as the case
may be, under this Agreement or under any other Credit Document.
SECTION 10.03. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Agents, the Collateral Agent, any Lender or any holder of a
Note in exercising any right or remedy hereunder or any other Credit Document,
and no course of dealing between any Credit Party and the Agent, the
Collateral Agent, any Lender or the holder of any Note shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or
remedy hereunder or any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right or remedy hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which the Agent, the Collateral
Agent, any Lender or the holder of any Note would otherwise have. No notice
to or demand on any Credit Party not required hereunder or any other Credit
Document in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of
the rights of the Agent, the Collateral Agent, the Lenders or the holder of
any Note to any other or further action in any circumstances without notice or
demand.
SECTION 10.04. PAYMENT OF EXPENSES, ETC. Borrower shall:
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Agents in the administration (both before and after the execution hereof
and including advice of counsel as to the rights and duties of the Agents
and the Lenders with respect thereto) of, and in connection with the
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preparation, execution and delivery of, preservation of rights under,
enforcement of, and, after a Default or Event of Default, refinancing,
renegotiation or restructuring of, this Agreement and the other Credit
Documents and the documents and instruments referred to therein, and any
amendment, waiver or consent relating thereto (including, without
limitation, the reasonable fees and disbursements of counsel for the
Agents), subject, in each case, to any limitations on fees and expenses
as shall be agreed upon in writing by the Agents and the Borrower) and in
the case of enforcement of this Agreement or any Credit Document during
the continuance of an Event of Default, all such reasonable,
out-of-pocket costs and expenses (including, without limitation, the
reasonable fees and disbursements of counsel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 3.07(b), pay and hold each of the Lenders harmless
from and against any and all present and future stamp, documentary, and
other similar Taxes with respect to this Agreement, the Notes and any
other Credit Documents, any collateral described therein, or any payments
due thereunder, and save each Lender harmless from and against any and
all liabilities with respect to or resulting from any delay or omission
to pay such Taxes;
(iii) indemnify each Agent, the Co-Agent and each Lender, and their
respective officers, partners, directors, employees, representatives and
agents from, and hold each of them harmless against, any and all costs,
losses, liabilities, claims, damages or expenses incurred by any of them
(whether or not any of them is designated a party thereto) (an
"Indemnitee") arising out of or by reason of any investigation,
litigation or other proceeding related to any actual or proposed use of
the proceeds of any of the Loans or any Credit Party's entering into and
performing of the Agreement, the Notes or the other Credit Documents,
including, without limitation, the reasonable fees and disbursements of
counsel (including foreign counsel) incurred in connection with any such
investigation, litigation or other proceeding; PROVIDED, HOWEVER,
Borrower shall not be obligated to indemnify any Indemnitee for any of
the foregoing arising out of such Indemnitee's gross negligence or
willful misconduct; and
(iv) without limiting the indemnities set forth in subsection (iii)
above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the cost of
investigating or defending any claim and whether or not such claim is
ultimately defeated, and whether such claim arose before, during or after
any Credit Party's ownership, operation, possession or control of its
business, property or facilities or before, on or after the date hereof,
and including also any amounts paid incidental to any compromise or
settlement by the Indemnitee or Indemnitees to the holders of any such
claim), lawsuits, liabilities, obligations, actions, judgments, suits,
disbursements, encumbrances, liens, damages (including without limitation
damages for contamination or destruction of natural resources), penalties
and fines of any kind or nature whatsoever (including without limitation
in all cases the reasonable fees, other
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charges and disbursements of counsel in connection therewith) incurred,
suffered or sustained by that Indemnitee based upon, arising under or
relating to Environmental Laws based on, arising out of or relating to in
whole or in part, the existence or exercise of any rights or remedies by
any Indemnitee under this Agreement any other Credit Document or any
related documents (but excluding those incurred, suffered or sustained by
any Indemnitee as a result of any action taken by or on behalf of the
Lenders with respect to any Subsidiary of Borrower owned or controlled by
the Lenders, the Collateral Agent, or their nominees or designees, as a
result of their acquisition of Pledged Stock pursuant to exercise of
remedies under the Pledge Agreements or the exercise of voting rights
thereunder or to the extent arising out of the gross negligence or
willful misconduct of the Indemnitee).
If and to the extent that the obligations of Borrower under this Section
10.04 are unenforceable for any reason, Borrower hereby agree to make the
maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
SECTION 10.05. RIGHT OF SETOFF. In addition to and not in limitation of
all rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, during the
continuance of any Event of Default and whether or not such Lender or such
holder has made any demand or any Credit Party's obligations are matured, have
the right to appropriate and apply to the payment of any Credit Party's
obligations hereunder and the other Credit Documents, all deposits of any
Credit Party (general or special, time or demand, provisional or final) then
or thereafter held by and other indebtedness or property then or thereafter
owing by such Lender or other holder to any Credit Party, whether or not
related to this Agreement or any transaction hereunder.
SECTION 10.06 BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto,
provided that Borrower may not assign or transfer any of its interest
hereunder without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(c) Each Lender may assign all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of any of its
Commitments and the Loans at the time owing to it and the Notes held by it) to
any Eligible Assignee; PROVIDED, HOWEVER, that (i) the Agent and Borrower must
give their prior written consent to such assignment (such consent not to be
unreasonably withheld) unless an Event of Default has occurred and is
continuing in which case no consent of Borrower shall be required, (ii) the
aggregate amount of the Commitment of the assigning Lender that are subject to
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Agents) shall not be less than
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$5,000,000, (iii) the assigning Lender retains after the consummation of such
assignment a minimum aggregate amount of Commitment of $5,000,000, (iv) the
parties to each such assignment shall execute and deliver to the Agents an
Assignment and Acceptance, together with a Note or Notes subject to such
assignment and a processing and recordation fee of $3,000; PROVIDED, FURTHER,
that in the case of any assignment made (x) where such assigning Lender is
assigning the entire amount of its Commitments hereunder, or (y) where such
assigning Lender is assigning to one of its Affiliates or to a Person that is
already a Lender under this Agreement prior to giving effect to such
assignment, then and in any such assignment described in the preceding clause
(x) or (y), the minimum amounts specified in clauses (ii) and (iii) in this
sentence shall not be required. From and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, the assignee thereunder shall
be a party hereto and to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement. Within five (5) Business Days after receipt of the notice and
the Assignment and Acceptance, Borrower, at its own expense, shall execute and
deliver to the Agent, in exchange for the surrendered Note or Notes, a new
Note or Notes to the order of such assignee in a principal amount equal to the
applicable Commitments assumed by it pursuant to such Assignment and
Acceptance and new Note or Notes to the assigning Lender in the amount of its
retained Commitment or Commitments. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the date of the surrendered Note or
Notes which they replace, and shall otherwise be in substantially the form
attached hereto.
(d) Each Lender may, without the consent of Borrower or the Agent, sell
participations to one or more banks or other entities in all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitments in the Loans owing to it and the Notes held by it), PROVIDED,
HOWEVER, that (i) no Lender may sell a participation in its aggregate
Commitments (after giving effect to any permitted assignment hereof) in an
amount in excess of fifty percent (50%) of such aggregate Commitments (after
giving effect to any permitted assignment hereof), except that no such maximum
amount shall be applicable to any such participation sold at any time there
exists an Event of Default hereunder, (ii) such Lender's obligations under
this Agreement shall remain unchanged, (iii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, and (iv) the participating bank or other entity shall not be
entitled to the benefit (except through its selling Lender) of the cost
protection provisions contained in Article III of this Agreement, and (v)
Borrower and the Agents and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and such
Lender shall retain the sole right to enforce the obligations of Borrower
relating to the Loans, and to approve any amendment, modification or waiver of
any provisions of this Agreement and the other Credit Documents; provided
that, any such participant may be given the right to approve any amendment,
modification or waiver which would require the approval of all of the Lenders
pursuant to Section 10.02.
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(e) Any Lender or participant may, in connection with the assignment or
participation or proposed assignment or participation, pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to Borrower or the other Consolidated
Companies furnished to such Lender by or on behalf of Borrower or any other
Consolidated Company; PROVIDED that, prior to any such disclosure of
information designated by Borrower as confidential, the Lender proposing to
make such assignment or sell such participation shall obtain from such
prospective assignee or participant an agreement whereby such prospective
assignee or participant shall agree to preserve the confidentiality of such
confidential information consistent with the provisions of Section 6.05.
(f) If (i) any Taxes referred to in Section 3.07(b) have been levied
or imposed so as to require withholdings or deductions by Borrower and payment
by Borrower of additional amounts to any Lender as a result thereof, (ii) any
Lender shall make demand for payment of any material additional amounts as
compensation for increased costs or for its reduced rate of return pursuant to
Section 3.10 or 3.17 hereof, or (iii) the ability to borrow in any Currency
shall be suspended due to any Lender's inability to lend in such Currency, then
and in such event, upon request from Borrower delivered to such Lender and the
Agent, such Lender shall assign, in accordance with the provisions of
Section 10.06(c), all of its rights and obligations under this Agreement and the
other Credit Documents to another Lender or an Eligible Assignee selected by
Borrower, in consideration for the payment by such assignee to the Lender of the
principal of, and interest on, the outstanding Loans accrued to the date of such
assignment, and the assumption of such Lender's Master Syndicated Loan
Commitment hereunder, together with any and all other amounts owing to such
Lender under any provisions of this Agreement or the other Credit Documents
accrued to the date of such assignment.
(g) Any Lender may at any time assign all or any portion of its rights
in this Agreement and the Notes issued to it to a Federal Reserve Bank;
PROVIDED that no such assignment shall release the Lender from any of its
obligations hereunder.
SECTION 10.07. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, THE
NOTES, OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE SUPERIOR COURT OF
FULTON COUNTY, GEORGIA, OR IN ANY COURT OF THE UNITED STATES OF AMERICA FOR
THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, BORROWER HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
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GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS.
(c) Nothing herein shall affect the right of the Agents, any Lender, any
holder of a Note or any Credit Party to commence legal proceedings or
otherwise proceed against Borrower in any other jurisdiction.
SECTION 10.08. INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts
payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Notes, and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
SECTION 10.09. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
SECTION 10.10. SURVIVAL. The obligations of Borrower under Sections
3.07(b), 3.10, 3.12, 3.13, 3.17, 10.04 and 10.15 hereof shall survive the
payment in full of the Notes after the Revolver/Multicurrency Maturity Date.
All representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement, the other Credit
Documents, and such other agreements and documents, the making of the Loans
hereunder and the execution and delivery of the Notes.
SECTION 10.11. SEVERABILITY. In case any provision in or obligation
under this Agreement or the other Credit Documents shall be invalid, illegal
or unenforceable, in whole or in part, in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way
be affected or impaired thereby.
SECTION 10.12. INDEPENDENCE OF COVENANTS. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant,
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
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SECTION 10.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX LAWS.
If (i) any preparation of the financial statements referred to in Section
6.07 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) result in a material
change in the method of calculation of financial covenants, standards or terms
found in this Agreement, (ii) there is any change in Borrower's fiscal quarter
or fiscal year, or (iii) there is a material change in federal tax laws which
materially affects any of the Consolidated Companies' ability to comply with
the financial covenants, standards or terms found in this Agreement, the
parties agree to enter into negotiations in order to amend such provisions so
as to equitably reflect such changes with the desired result that the criteria
for evaluating any of the Consolidated Companies' financial condition shall be
the same after such changes as if such changes had not been made. Unless and
until such provisions have been so amended, the provisions of this Agreement
shall govern.
SECTION 10.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings
of the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement. This Agreement, the other Credit
Documents, and the agreements and documents required to be delivered pursuant
to the terms of this Agreement constitute the entire agreement among the
parties hereto and thereto regarding the subject matters hereof and thereof
and supersede all prior agreements, representations and understandings related
to such subject matters.
SECTION 10.15. JUDGMENT CURRENCY.
(a) The Credit Parties' obligations hereunder and the other Credit
Documents to make payments in a particular Currency (the "Obligation
Currency") shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other
than the Obligation Currency, except to the extent that such tender or
recovery actually results in the effective receipt by the Agents the
Collateral Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Agent, the Collateral Agent or such Lender
under this Agreement or the other Credit Documents. If for the purpose of
obtaining or enforcing judgment against Borrower or other Credit Party in any
court or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the conversion shall be made, and the Currency equivalent
determined, in each case, as on the day immediately preceding the day on which
the judgment is given (such Business Day being hereafter referred to as the
"Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Credit Parties covenant and agree to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange quoted by the Agent at its prevailing rate
for such Currency
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exchange on the date of payment, will produce the amount of the Obligation
Currency which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial award at the rate of exchange prevailing
on the Judgment Currency Conversion Date.
(c) For purposes of determining the Currency equivalent for this
Section, such amounts shall include any premium and costs payable in
connection with the purchase of the Obligation Currency.
SECTION 10.16. DOLLAR EQUIVALENT COMPUTATIONS. Unless otherwise
provided herein, to the extent that the determination of compliance with any
requirement of this Agreement requires the conversion to U.S. Dollars of
foreign currency amounts, such U.S. Dollar amount shall be computed using the
Dollar Equivalent of the amount of such foreign currency at the time such item
is to be calculated or is to be or was incurred, created or suffered or
permitted to exist, or assumed or transferred or sold for purposes of this
Agreement (except if such item was incurred, created or assumed, or suffered
or permitted to exist or transferred or sold prior to the date hereof, such
conversion shall be made based on the Dollar Equivalent of the amounts of such
foreign currency at the date hereof).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered in Atlanta, Georgia, by their duly
authorized officers as of the day and year first above written.
ADDRESS FOR NOTICES: VARI-LITE INTERNATIONAL, INC.
201 Regal Row
Dallas, Texas 75247 By: /s/ Michael P. Herman
Attention: Michael P. Herman ------------------------------------
Michael P. Herman
Vice President of Finance/Secretary
Telecopy No.: (214) 630-1963
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: SUNTRUST BANK, ATLANTA,
AS AGENT AND COLLATERAL AGENT
25 Park Place, N.E.
23rd Floor
Atlanta, GA 30303
Attention: John Fields By: /s/ F. McClennan Deaver, III
-----------------------------------
Name: F. McClennan Deaver, III
Title: Group Vice President
By: /s/ John A. Fields, Jr.
Telecopy No.: 404/588-8833 ------------------------------------
Name: John A. Fields, Jr.
Title: Vice President
PAYMENT OFFICE FOR DOMESTIC SYNDICATED BORROWINGS:
25 Park Place, N.E.
Atlanta, GA 30303
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: PER PRO BROWN BROTHERS HARRIMAN & CO.,
AS CO-AGENT
59 Wall Street
New York, NY 10005
Attention: Chief Credit Officer By: /s/ Richard J. Ragoza
------------------------------------
Richard J. Ragoza
Manager
Telecopy No.: 212/493-5512
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: SUNTRUST BANK, ATLANTA
25 Park Place
23rd Floor
Atlanta, GA 30303
Attention: John Fields By: /s/ F. McClennan Deaver, III
------------------------------------
Name: F. McClennan Deaver, III
Title: Group Vice President
By: /s/ John A. Fields, Jr.
Telecopy No.: 404/588-8833 ------------------------------------
Name: John A. Fields, Jr.
Title: Vice President
DOMESTIC LENDING OFFICE:
One Park Place, N.E.
Atlanta, GA 30303
EUROCURRENCY LENDING OFFICE:
One Park Place, N.E.
Atlanta, Georgia 30303
MASTER SYNDICATED LOAN COMMITMENT: $12,500,000
MULTICURRENCY SYNDICATED LOAN SUBCOMMITMENT: $5,000,000
PRO RATA SHARE: 25%
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: PER PRO BROWN BROTHERS HARRIMAN & CO.
59 Wall Street
New York, NY 10005
Attention: Chief Credit Officer By: /s/ Richard J. Ragoza
-----------------------------------
Richard J. Ragoza
Manager
Telecopy No.: 212/493-5512
DOMESTIC LENDING OFFICE:
59 Wall Street
New York, NY 10005
EUROCURRENCY LENDING OFFICE:
59 Wall Street
New York, NY 10005
MASTER SYNDICATED LOAN COMMITMENT: $10,000,000
MULTICURRENCY SYNDICATED LOAN SUBCOMMITMENT: $4,000,000
PRO RATA SHARE: 20%
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: TEXAS COMMERCE BANK NATIONAL
545 East Carpenter Fwy.
Irving, TX 75062
Attention: Bruce Bradford By: /s/ Bruce Bradford
------------------------------------
Name: Bruce Bradford
Title: Vice President
Telecopy No.: 972/869-6054
DOMESTIC LENDING OFFICE:
EUROCURRENCY LENDING OFFICE:
MASTER SYNDICATED LOAN COMMITMENT: $9,500,000
MULTICURRENCY SYNDICATED LOAN SUBCOMMITMENT: $3,800,000
PRO RATA SHARE: 19%
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: COMERICA BANK - TEXAS
8828 Stemmons Freeway
Suite 441, Mail Code 6525
Dallas, TX 75247
Attention: David Terry By: /s/ G. Christopher Jones
------------------------------------
G. Christopher Jones
Vice President/Group Manager
Telecopy No.: 214/841-4419
DOMESTIC LENDING OFFICE:
1601 Elm Street
Dallas, TX 75201
EUROCURRENCY LENDING OFFICE:
Comerica Bank - Grand Cayman
MASTER SYNDICATED LOAN COMMITMENT: $9,000,000
MULTICURRENCY SYNDICATED LOAN SUBCOMMITMENT: $3,600,000
PRO RATA SHARE: 18%
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: THE FIRST NATIONAL BANK OF
CHICAGO
1 First National Plaza
Mail Suite 0162, 16th Floor
Chicago, IL 60670
Attention: Bob O'Connell By: /s/ Robert E. O'Connell
-----------------------------------
Name: Robert E. O'Connell
Title: Authorized Agent
Telecopy No.: 312/732-6222
DOMESTIC LENDING OFFICE:
EUROCURRENCY LENDING OFFICE:
MASTER SYNDICATED LOAN COMMITMENT: $9,000,000
MULTICURRENCY SYNDICATED LOAN SUBCOMMITMENT: $3,600,000
PRO RATA SHARE: 18%
<PAGE>
EXHIBIT 11.1
VARI-LITE INTERNATIONAL, INC.
CALCULATION OF PRIMARY AND FULLY DILUTED EARNINGS PER SHARE*
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
1997 1996 1995
---------- ---------- ----------
<S> <C> <C> <C>
Net earnings............................................................... $ 4,329 $ 3,119 $ 4,714
Weighted average number of shares outstanding.............................. 5,799,327 5,813,252 5,699,431
Dilutive effect of stock warrants after application of treasury stock
method................................................................... 19,472 98,731 114,583
Shares used in calculating primary net earnings per share.................. 5,818,799 5,911,983 5,814,014
Net earnings per share..................................................... $ 0.74 $ 0.53 $ 0.81
</TABLE>
- ------------------------
* Fully diluted earnings per share are identical to primary earnings per share.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> YEAR YEAR
<FISCAL-YEAR-END> SEP-30-1996 SEP-30-1997
<PERIOD-START> OCT-01-1995 OCT-01-1996
<PERIOD-END> SEP-30-1996 SEP-30-1997
<CASH> 2,633 1,862
<SECURITIES> 0 0
<RECEIVABLES> 12,426 14,895
<ALLOWANCES> (348) (450)
<INVENTORY> 2,395 4,050
<CURRENT-ASSETS> 17,922 22,893
<PP&E> 104,691 123,893
<DEPRECIATION> (47,982) (55,248)
<TOTAL-ASSETS> 78,581 96,704
<CURRENT-LIABILITIES> 18,568 23,722
<BONDS> 29,922 38,418
0 0
0 0
<COMMON> 0 0
<OTHER-SE> 24,538 27,541
<TOTAL-LIABILITY-AND-EQUITY> 78,581 96,704
<SALES> 11,397 15,129
<TOTAL-REVENUES> 77,138 90,658
<CGS> 7,783 10,676
<TOTAL-COSTS> 34,208 40,047
<OTHER-EXPENSES> 34,481 39,640
<LOSS-PROVISION> 348 450
<INTEREST-EXPENSE> 3,092 3,726
<INCOME-PRETAX> 5,357 7,245
<INCOME-TAX> 2,238 2,916
<INCOME-CONTINUING> 8,449 10,971
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 3,119 4,329
<EPS-PRIMARY> .53<F1> .74<F1>
<EPS-DILUTED> .53<F2> .74<F2>
<FN>
<F1>EPS-Primary unknown
<F2>EPS-Diluted unknown
</FN>
</TABLE>
