<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[x] Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
For the fiscal year ended September 30,1997.
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 .
For the transition period from ____ to ____.
Commission file number 333-28751
NEENAH FOUNDRY COMPANY
NEENAH TRANSPORT, INC.
HARTLEY CONTROLS CORPORATION
(Exact name of registrant as it appears in its charter)
Wisconsin 39-1580331
Wisconsin 39-1378433
Wisconsin 39-0842568
(State or other jurisdiction of (IRS Employer ID Number)
Incorporation or organization)
2121 Brooks Avenue, P.O. Box 729, Neenah, Wisconsin 54957
2121 Brooks Avenue, P.O. Box 729, Neenah, Wisconsin 54957
2400 Holly Road, Neenah, Wisconsin 54956
(Address of principal executive offices) (Zip Code)
(920) 725-7000
(920) 725-7000
(920) 734-2689
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to section 12(g) of the Act:
11 1/8% Series B Senior Subordinated Notes Due 2007
11 1/8% Series D Senior Subordinated Notes Due 2007
(Title of class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
<PAGE> 2
PART I
Item 1. BUSINESS
On April 30, 1997, pursuant to an Agreement and Plan of Reorganization with
NC Merger Company and NFC Castings, Inc., Neenah Corporation (the "Predecessor
Company") was acquired by NFC Castings, Inc. (the "Merger"). Prior to July 1,
1997, Neenah Foundry Company was one of three wholly owned subsidiaries of
Neenah Corporation, a holding company with no significant assets or operations
other than its holdings in the common stock of its three wholly owned
subsidiaries. On July 1, 1997, Neenah Foundry Company merged with and into
Neenah Corporation and the surviving company changed its name to Neenah Foundry
Company (the "Company").
The Company, founded in 1872, is one of the largest manufacturers of a
wide range of high quality ductile and gray iron castings for the heavy
municipal market and selected segments of the industrial market. The Company
believes it is the largest manufacturer of heavy municipal iron castings in the
United States with approximately a 19% market share in calendar year 1996. The
Company's broad range of heavy municipal iron castings includes manhole covers
and frames, storm sewer frames and grates, heavy duty airport castings,
specialized trench drain castings, specialty flood control castings and
ornamental tree grates. These municipal castings are sold throughout the United
States to state and local government entities, utility companies, precast
concrete manhole structure producers and contractors for both new construction
and infrastructure replacement. The heavy municipal market generated
approximately 45% of the Company's net sales on a pro forma basis for the six
months ended September 30, 1997. The Company believes it is also a leading
manufacturer of a wide range of complex industrial castings, including castings
for medium- and heavy-duty truck drive line components, a broad range of
castings for the farm equipment industry and specific components for compressors
used in heating, ventilation and air conditioning systems. The industrial market
generated approximately 52.6% of the Company's net sales on a pro forma basis
for the six months ended September 30, 1997. In addition, the Company engineers,
manufactures and sells customized sand control systems and related products,
which are an essential part of the casting process, to other iron foundries.
Sales of these sand control systems and related products represented
approximately 2.4% of the Company's net sales on a pro forma basis for the six
months ended September 30, 1997.
The Company currently operates two modern foundries with an annual
aggregate rated capacity of approximately 187,000 tons at a single site in
Neenah, Wisconsin. Since 1985, the Company has invested over $100 million in its
production facilities, with approximately $73 million invested in a major plant
modernization program from 1985 to 1990. This plant modernization program was a
critical part of a long-term strategy to produce higher volume, value-added
castings for its existing industrial customers and to penetrate other selected
segments of the industrial market, while preserving its position as the leader
in the heavy municipal market. This modernization program entailed the closing
of the Company's oldest foundry, Plant 1, and the updating of the Company's
other two foundries, Plants 2 and 3, which enabled the Company both to produce
higher volume, complex castings for selected industrial segments and to improve
the Company's cost position in the heavy municipal market. Following the
completion of the modernization program, the Company has steadily decreased its
production of lower margin products such as axle covers and brake drums and
increased the production of higher margin, more complex parts, such as
transmission and axle housings. As a result of this strategy, the Company's
ongoing improvements in its manufacturing process and increased demand for
medium- and heavy-duty truck components have caused net sales and EBITDA to
increase substantially.
2
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PRODUCTS, CUSTOMERS AND MARKETS
The Company provides a variety of products to both the heavy municipal and
industrial markets. The following table sets forth certain information regarding
the end-user markets served by the Company, the products produced by the
Company, representative customers in each end-user market and the percentage of
net sales attributable to each of the Company's markets for the fiscal year
ended March 31, 1997 and for the Pro forma six months ended September 30, 1997.
<TABLE>
<CAPTION>
Percentage of Net
Sales(1)
-------------------------------------------
Fiscal Year Pro forma
Representative Ended Six Months Ended
Market End Product Customers March 31, 1997 September 30, 1997 (2)
------ ----------- --------- -------------- ----------------------
<S> <C> <C> <C> <C>
Heavy Municipal Standard castings including State and local 44.6% 46.5%
storm and sanitary sewer government
castings, including manhole entities, utility
covers and frames, storm companies, precast
sewer frames and grates; concrete structure
Specialty castings including producers and
heavy duty airport castings, contractors (3)
specialized trench drain
castings, specialty flood
control castings and
ornamental tree grates
Industrial
Medium- and
Heavy-Duty
Truck Differential carriers and Rockwell 34.3% 33.8%
cases, brackets, cages, International
calipers, caps, carriers, Eaton Corp.
hubs, knuckles, transmission Dana Corp
housings, yokes
Farm
Equipment Various gear housings, planet John Deere 16.0% 15.8%
carrier, axle housings, New Holland
planting and harvesting
equipment parts,
counterweights
Other
Industrial Compressor components, Aisin 5.1% 3.9%
various housing and gear cases The Trane
Company
</TABLE>
(1) Net sales include sales of Neenah Foundry Company only.
(2) The Company changed its fiscal year end to September 30 from March 31
effective September 30, 1997.
(3) No municipal customer represented more than 1.5% of Neenah Foundry Company's
net sales for the fiscal year ended March 31, 1997 or the pro forma six
months ended September 30, 1997.
3
<PAGE> 4
Heavy Municipal. Based on industry reported data, the Company believes it
is the largest manufacturer of heavy municipal iron castings in the United
States with an estimated 19% market share in calendar year 1996. The Company's
broad heavy municipal product line consists of two general categories of
castings, "standard" and "specialty" castings. Standard castings principally
consist of storm and sanitary sewer castings that are consistent with
pre-existing dimension and strength specifications established by local
authorities. Standard castings are generally high volume items that are
routinely used in new construction and infrastructure replacement. Specialty
castings are generally lower volume, higher margin products which include
heavy-duty airport castings, trench drain castings, flood control castings,
special manhole and inlet castings and ornamental tree grates. These specialty
items are frequently selected and/or specified from the Company's municipal
product catalog and its tree grate catalog, which together encompass over 4,400
standard and specialty patterns. For many of these specialty products, the
Company believes it is the only manufacturer with existing patterns to produce
such a particular casting, although a competing manufacturer could elect to make
the investment in patterns or equipment necessary to produce a similar casting.
The Company's municipal castings are sold to state and local government
entities, utility companies, pre-cast concrete manhole structure producers and
contractors for both new construction and infrastructure replacement. The
Company's 17,000 active municipal customers generally make purchase decisions
based on a number of criteria including acceptability of the product per local
specification, quality, service, price and the customer's relationship with the
foundry. Relative to customers in the industrial market, municipal market
customers are less technically demanding and rely on published product
specifications to ensure product performance.
A key aspect of winning orders in the heavy municipal market is the
specification process in which a local authority or design engineer sets
specific criteria for the casting or castings to be used in a particular
project. Those criteria then become part of the formal plans and specifications
that will govern the acceptability of castings for a particular project. The
Company seeks to be an active participant in the specification process. Its
sales staff makes frequent calls on design engineers as part of a continuous
effort to stay abreast of current specifications and upcoming projects. In these
sales calls, the Company seeks to create opportunities for the selection of
specifications which utilize an existing Company pattern. Although in many cases
the design engineer who sets the specification does not make the purchase
decision, when the Company's specialty product is specified it becomes more
difficult for another manufacturer to provide an alternate part which is
considered acceptable. The Company's professional sales staff and product
engineering department are highly regarded by design engineers and are
frequently consulted during the specification drafting process. The Company
believes its reputation for its product engineering support, consistent quality
and reliable service have made the Company's municipal and tree grate catalogs
two of the most frequently used specification design tools in the municipal
casting industry.
Over the past three years, the Company has introduced what it calls
"lightweighted" parts to the heavy municipal market. These lightweighted parts
have been reengineered in order to reduce both their weight and amount of raw
materials necessary for their manufacture, while maintaining the high quality
performance characteristics of the heavier version of the casting. This
improvement in the design and manufacture of municipal castings has resulted in
lower material costs and improved margins for this product line. The Company is
able to manufacture lightweighted castings because its manufacturing processes
enable it to refine castings walls down to very narrow tolerances, many of which
are currently not achievable by the Company's competitors. While only a portion
of the municipal castings the Company sells are candidates for lightweighting,
the Company expects to continue to increase the number of lightweighted castings
which it offers for sale over the next several years.
4
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Industrial. The Company believes it is a leading manufacturer of a wide
range of complex industrial castings, including castings for medium- and
heavy-duty truck drive line components and farm equipment as well as castings
for specific components for compressors used in HVAC systems. The Company's
industrial castings have increased in complexity since the early 1990's and are
generally produced in higher volumes than municipal castings. Complexity in the
industrial market is determined by the intricacy of a casting's shape, the
thinness of its walls and the amount of processing by a customer required before
a part is suitable for use by it. OEMs and their first tier suppliers have been
demanding higher complexity parts principally to reduce labor costs in their own
production processes by using fewer parts to manufacture the same finished
product or assembly and by using parts which require less preparation before
entering the production process.
The Company's industrial castings are primarily sold to a limited number of
customers with whom the Company has established a close working relationship.
The Company has sold to certain industrial customers for over 20 years and
currently has multi-year arrangements with certain of those customers. These
customers make purchasing decisions based on, among other things, technical
ability, price, service, quality assurance systems, facility capabilities and
reputation. However, as in the municipal market, the Company's assistance in
product engineering plays an important role in winning bids for industrial
castings. The average industrial casting typically takes between 12 and 18
months to go from the design phase to full production and has an average product
life cycle of approximately 8 to 10 years. The patterns for industrial castings,
unlike the patterns for municipal castings, are owned by the Company's customers
rather than the Company. However, such industrial patterns are not readily
transferable to other foundries without, in most cases, significant additional
investment. Although foundries, including the Company, do not design industrial
castings, a close working relationship between a foundry and the customer during
a product launch is critical to reduce potential production problems and
minimize the customer's risk of incurring lost sales or reputation damage due to
a delayed launch. Involvement by a foundry early in the design process generally
improves the likelihood that the customer will design a casting within the
manufacturing capabilities of such foundry and also improves the likelihood that
such foundry will be awarded the casting for full production.
The Company is the sole-sourced supplier of over 85% of the industrial
castings it currently produces. Historically, the Company has retained
approximately 90% of the castings it has been awarded throughout the product
life cycle, which is typical for the industry. The Company believes industrial
customers will continue to seek out foundries with a strong reputation for
performance who are capable of providing a cost-effective combination of
manufacturing technology and quality. The Company's strategy is to further its
relationships with existing customers by participating in the design and
production of more complex industrial castings, while seeking out selected new
customers who would value the Company's performance reputation, technical
ability and high level of quality and service.
In addition to increasing its sales to existing customers and seeking out
new customers, the Company intends to explore opportunities in austempering and
machining and assembling sub-components for specific industrial customers.
Austempering is the process of heat treating a ductile iron casting to increase
its strength, thereby increasing the casting's ability to replace steel in
additional applications. Machining and sub-assembling are value-added processes
often performed by the OEM or third parties. Austempering and machining and
sub-assembly are both processes which generally provide higher margins and
increase a customer's reliance on the manufacturer.
5
<PAGE> 6
SALES AND MARKETING
Heavy Municipal. Over its 70 years of heavy municipal market participation,
the Company has emphasized sales and marketing and believes it has built a
strong reputation for customer service. The Company believes that it is one of
the leaders in U.S. heavy municipal casting production and that it has strong
name recognition. The Company has the largest sales and marketing effort of any
foundry serving the heavy municipal market, including 56 Company employees and
26 commissioned representatives. The dedicated sales force works out of regional
sales offices to market the Company's municipal castings to contractors and
state and local governmental entities throughout the United States. The Company
operates nine regional distribution and sales centers and has two other sales
offices in Oklahoma City, Oklahoma and Norwood, Pennsylvania. The Company
believes this regional approach enhances its knowledge of local specifications
and its position in the heavy municipal market.
Industrial. The Company employs a dedicated industrial casting sales force
of six people, five based in Neenah, Wisconsin and one based in Mansfield, Ohio.
These six people consist of three account coordinators, who support the ongoing
customer relationships and organize the scheduling and delivery of shipments,
and three major account managers who work with customers' engineers and
procurement representatives, Company engineers, manufacturing management and
quality assurance representatives throughout all stages of the production
process to ensure that the final product consistently meets or exceeds customer
specifications. This team approach consisting of sales, marketing,
manufacturing, engineering and quality assurance effort is an integral part of
the Company's marketing strategy.
MANUFACTURING PROCESS
The Company operates two modern foundries with an annual rated capacity of
approximately 187,000 tons at a single location in Neenah, Wisconsin. The
Company's foundries manufacture gray and ductile iron and cast it into intricate
shapes according to customer metallurgical and dimensional specifications. Since
1985, the Company has invested over $100 million in its production facilities,
with approximately $73 million invested from 1985 to 1990 in plant modernization
and new equipment. The Company also continually invests in the improvement of
process controls and product performance and believes that these investments and
its significant experience in the industry have made it one of the most
efficient manufacturers of industrial and heavy municipal casting products.
During the pro forma six months ended September 30, 1997, the Company had a
combined scrap rate of less that 2.0%.
The casting process involves using metal, wood or urethane patterns to make
an impression of a casting product in a mold made primarily of sand. Cores, also
made primarily of sand, are used to make the internal cavities and openings in a
casting product. Once the casting impression is made in the mold, the cores are
set into the mold and the mold is closed. Molten metal is then poured into the
mold, fills the mold cavity and takes on the shape of the desired casting
product. Once the iron has solidified and cooled, the mold is shaken from the
casting and the sand is recycled. The selection of the appropriate casting
method, pattern, core-making equipment and sand and other raw materials depends
on the final product including its complexity, specifications, and function as
well as intended production volumes. Because the casting process involves many
critical variables, such as choice of raw materials, design and production of
tooling, iron chemistry and metallurgy, and core and molding sand properties, it
is important to monitor the process parameters closely to ensure dimensional
precision and metallurgical consistency.
6
<PAGE> 7
The Company continually seeks to find ways to expand the capabilities of
existing technology to improve manufacturing processes. An example of this
expansion is the Company's integration of Disamatic molding machines into its
operations. Disamatic molding machines are considered to be among the most
efficient sand molding machines because of their ability to produce high quality
molds at high production rates. Disamatic molding machines are also used by most
of the Company's direct competitors. Although the Company was not the first
foundry to acquire Disamatic molding machines, it has significantly enhanced the
equipment's range of production by combining it with core-setting capabilities
which exceed those of most foundries. To further improve upon the productivity
of the Disamatic molding machines, the Company has recently increased the length
of two of its cooling lines, making each line among the longest lines in the
world for comparable Disamatic equipment. This extension allows the Company to
run its machines at higher production rates while providing sufficient in-mold
cooling time prior to mold shakeout to facilitate the production of high quality
castings. As a result of these and other similar efforts, the Company has been
able to increase productivity as measured in the number of molds per hour.
Additionally, from 1992 through 1997, the Company reduced employee hours per ton
from 14.8 to 9.0.
The Company also achieves productivity gains by improving upon the
individual steps of the casting process such as reducing the amount of time
required to make a pattern change to produce a different casting product. The
reduced time permits it to profitably produce castings in medium volume
quantities on high volume, cost-effective equipment such as the Disamatic
molding machines. Additionally, extensive effort in real time process controls
permits the Company to produce a consistent, dimensionally accurate casting
product, which requires less time and effort in the final processing stages of
production. This accuracy contributes significantly to the Company's
manufacturing efficiency.
QUALITY ASSURANCE
Continual testing and monitoring of the manufacturing process is important
to maintain product quality. The Company has adopted sophisticated quality
assurance techniques and policies for its manufacturing operations. During and
after the casting process, the Company performs numerous tests, including
tensile, proof-load, radiography, ultrasonic, magnetic particle and chemical
analysis. The Company utilizes statistical process controls to measure and
control significant process variables and casting dimensions. The results of
this testing are documented in metallurgical certifications, which are provided
with each shipment to most industrial customers. The Company strives to maintain
systems that provide for continuous improvement of operations and personnel,
emphasize defect prevention and reduce variation and waste in all areas.
DISTRIBUTION
Industrial castings are shipped direct to customers from the Company. For
many municipal and a small portion of its industrial customers, castings are
delivered by Neenah Transport, Inc. ("Neenah Transport"), a wholly owned
subsidiary of the Company, which operates a fleet of 28 tractors and 101
trailers that deliver products throughout the Midwest. For sales outside of the
Midwest, increased transportation costs impact the ability of the Company to
compete on a cost basis. Neenah Transport also backhauls raw materials for use
by the Company on return trips. Neenah Transport is staffed with professional
drivers who are trained in service standards and product knowledge as
representatives of the Company. To the Company's knowledge, none the Company's
major heavy municipal competitors have a captive transportation subsidiary. The
Company believes Neenah Transport's service and drivers provide another
differentiating factor in favor the Company.
7
<PAGE> 8
RAW MATERIALS
The primary raw materials used by the Company to manufacture ductile and
gray iron castings are steel scrap, pig iron, metallurgical coke and silica
sand. While there are multiple suppliers for each of these commodities, the
Company has single-source arrangements with its suppliers of each of these major
raw materials, with the exception of pig iron. Due to long standing
relationships with each of its suppliers, the Company believes that it will
continue to be able to secure raw materials from its suppliers at competitive
prices. The primary energy sources for the Company's operations, electricity and
natural gas, are purchased through utilities.
Although the prices of all raw materials used by the Company vary, the
fluctuations in the price of steel scrap are the most significant to the
Company. The Company has arrangements with most of its industrial customers
which require the Company to adjust industrial casting prices to reflect scrap
price fluctuations. In periods of rapidly rising or falling scrap prices, these
adjustments will lag the current scrap price because they are generally based on
average market prices for prior periods, which periods vary by customer but are
generally no longer than six months. Castings are generally sold to the heavy
municipal market on a bid basis and, after a bid is won, the price for the
municipal casting subject to the bid generally cannot be adjusted for raw
material price increases. However, in most cases the Company has been successful
in obtaining higher municipal casting unit prices in subsequent bids to
compensate for rises in scrap prices in prior periods. Rapidly fluctuating scrap
prices may have an adverse or positive effect on the Company's financial
condition and results of operations.
COMPETITION
The markets for the Company's products are highly competitive. Competition
is based not only on price, but also on quality of product, range of capability,
level of service and reliability of delivery. The Company competes with numerous
independent and captive foundries, as well as with a number of foreign iron
foundries, including certain foundries located in India. The Company also
competes with several large domestic manufacturers whose products are made with
materials other than ductile and gray iron, such as steel or aluminum. The
industry consolidation that has occurred over the past 20 years has resulted in
a significant reduction in the number of smaller foundries and a rise in the
share of production by larger foundries, some of which have significantly
greater financial resources than the Company. Competition from India has had a
strong presence in the heavy municipal market and continues to be a factor,
primarily in the western and eastern U.S., due in part to costs associated with
transportation. However, foreign companies have been, and continue to be,
subject to antidumping and countervailing duty enforcement litigation which the
Company believes has had a negative effect on foreign companies' ability to
compete in the U.S. markets. There can be no assurance that these factors will
continue to mitigate the impact of foreign competition, or that the Company will
be able to maintain or improve its competitive position in the markets in which
it competes.
BACKLOG
The Company's industrial business generally involves supplying all or a
portion of a customer's annual requirements for a particular casting. Industrial
customers generally order castings on a monthly basis. Orders for the heavy
municipal market are generally received for specific casting products and cover
a much larger range of castings. The Company's backlog at any given time
consists only of firm industrial and municipal orders. The Company's backlog was
24,800 tons at September 30, 1997 as compared to 16,000 tons at September 30,
1996. The increase in backlog of approximately 55% was due primarily to an
increase in the medium- and heavy-duty truck market, coupled with a substantial
extended order from a new customer in the railroad industry.
8
<PAGE> 9
HARTLEY CONTROLS CORPORATION
Hartley Controls Corporation ("Hartley Controls"), a wholly owned
subsidiary of the Company, engineers, manufactures and sells customized sand
control systems, which are an essential part of the casting process, to other
iron foundries. The sand molding media used in all high production iron
foundries is a critical element in determining mold quality. Exacting and
consistent control of this sand with respect to moisture and chemical additives
is an essential element for process control, and relates directly to casting
quality, scrap rate and the ability to produce complex molds for highly
engineered castings. Hartley Controls is a major U.S. supplier of sand control
systems with over 300 installations since 1986. Hartley Controls has made
investments in process technology and has several patented technologies related
to sand systems, including the "Automatic Moisture Controller," the "Even-Flo
Bin," the "Automatic Compactibility Tester," the "Automatic Bond Determinator,"
the "Green Stand Reconditioner" and the "Sandman." Sales of these sand systems
and other products represented approximately 2.4% of the Company's net sales on
a pro forma basis for the six months ended September 30, 1997.
EMPLOYEES
As of September 30, 1997 the Company had 937 full time employees, of whom
739 were hourly employees and 198 were salaried employees. Of the 198 salaried
employees, 96 are in manufacturing and engineering, 56 are in sales and
marketing, 42 are in management and administration and 4 are in transportation.
The Local 121B of the Glass, Molders, Pottery, Plastics and Allied Workers
International Union AFL-CIO is the major bargaining agent for the representative
of 705 of the Company's hourly employees. A collective bargaining agreement with
Local 121B was reached on January 1, 1996 and expires on December 31, 1998. The
Independent Patternmakers Union of Neenah, Wisconsin is the major bargaining
agent for and representative of 34 of the Company's hourly employees. A
collective bargaining agreement with the Independent Patternmakers Union was
reached on January 1, 1995 and expires on December 31, 1997. The Company
believes that it has a good relationship with its employees.
ENVIRONMENTAL MATTERS
The Company's facilities are subject to federal, state and local laws and
regulations relating to the protection of the environment and worker health and
safety, including those relating to discharges to air, water and land, the
handling and disposal of solid and hazardous waste and the cleanup of properties
affected by hazardous substances. Such laws include the Federal Clean Air Act,
the Clean Water Act, the Resource Conservation and Recovery Act and the
Occupational Health and Safety Act. The Company believes that its operations
have been and are currently in substantial compliance with applicable
environmental laws, and that it has no liabilities arising under such
environmental laws, except as would not be expected to have a material adverse
effect on the Company's operations, financial condition or competitive position.
However, some risk of environmental liability and other costs is inherent in the
nature of the iron foundry business. The Company might in the future incur
significant costs to meet current or more stringent compliance, cleanup or other
obligations pursuant to environmental requirements. Such costs may include
expenditures related to remediation of historical releases or clean-up of
structures prior to demolition.
Under the Federal Clean Air Act Amendments of 1990 ("CAA"), the
Environmental Protection Agency must establish maximum achievable control
technology standards for hazardous air pollutants emitted from iron foundry
operations by the year 2000. In addition, Wisconsin law imposes requirements on
emissions of air toxins from iron foundries and other industries. Many of the
regulations that will implement the CAA and Wisconsin law have not yet been
promulgated. Although it is not possible to estimate the costs of complying with
the regulations until they are issued, iron foundries, including the Company,
can be expected to incur significant costs over time to comply with these
federal and state regulations.
9
<PAGE> 10
CYCLICALITY AND SEASONALITY
The Company has historically experienced moderate cyclicality in the heavy
municipal market. Sales of municipal products are influenced by, among other
things, public spending. In the industrial market, the Company has experienced
cyclicality in sales resulting from fluctuations in the medium- and heavy-duty
truck market and the farm equipment market, which are subject to general
economic trends.
The Company experiences seasonality in its municipal business where sales
tend to be higher during the construction season, which occurs during the warmer
months, generally the third and fourth quarters of the Company's fiscal year.
The Company maintains level production throughout the year in anticipation of
such seasonality and does not experience production volume fluctuations as a
result. The Company builds inventory in anticipation of the construction season
with such inventories reaching a peak in March or April. The Company has not
historically experienced seasonality in industrial casting sales.
Item 2. PROPERTIES
The Company's headquarters and two foundries are located in Neenah,
Wisconsin. The first manufacturing foundry, Plant 2, produces gray and ductile
iron castings and is equipped with one BMD air impulse molding line, two Hydro
slinger cope and drag molding units, and one 2070 Type B Disamatic molding
machine. The annual rated capacity for Plant 2 is 116,000 gst (good salable
tons). The second manufacturing foundry, Plant 3, produces ductile iron castings
and is equipped with one 2013 Mark IV Disamatic molding machine and one 2070
Type B Disamatic molding machine. The annual rated capacity for Plant 3 is
approximately 71,000 gst. Industrial and municipal castings are produced in both
plants. Rated capacity is based on an assumed product mix and, due to the
Company's current industrial product mix, which includes numerous complex
castings, practical capacity is currently approximately 5% to 6% less than rated
capacity. The Company owns seven and leases six distribution and sales centers.
In early 1994, the Company closed Plant 1, its oldest and lowest capacity plant,
which was primarily producing large castings for HVAC Systems. The Company
closed Plant 1 because of its decision to discontinue the low volume, highly
complex castings produced by Plant 1 and the significant capital expenditures
that would have been necessary to modernize Plant 1.
Item 3. LEGAL PROCEEDINGS
The Company is involved in routine litigation incidental to its business.
Such litigation is not, in the opinion of management, likely to have a material
adverse effect on the financial condition or results of operations of the
Company.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the
period ended September 30, 1997.
PART II
Item 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
There is no public market for the common stock of the Company. There was
one holder of record of the Company's common stock as of September 30, 1997.
Item 6. SELECTED FINANCIAL DATA
The following table sets forth the selected historical consolidated
financial data of the Company for the five years ended March 31,1997,
the six months ended September 30, 1996 and the one month ended April 30, 1997
which have been derived from the Company's historical consolidated financial
statements before the Merger and the five months ended September 30, 1997 which
have been derived from the Company's historical consolidated financial
statements following the Merger.
10
<PAGE> 11
The information contained in the following table should also be read in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations," and the Company's historical consolidated financial
statements and related notes included elsewhere in this report.
<TABLE>
<CAPTION>
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Predecessor Company
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Fiscal Year Ended March 31,
---------------------------
1993 1994 1995 1996 1997 Six One Month Five Months
---- ---- ---- ---- ---- Months Ended Ended
Ended April September
September 30, 1997 30, 1997
30, 1996
(DOLLARS IN
THOUSANDS)
STATEMENT OF
INCOME DATA:
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net sales (1) $133,422 $131,982 $160,621 $166,951 $165,426 $89,739 $17,276 $87,093
Cost of sales 108,279 106,531 120,981 121,631 116,736 62,986 11,351 60,166
------- -------- -------- -------- ------- -------- ------- -------
Gross profit 25,143 25,451 39,640 45,320 48,690 26,753 5,925 26,927
Selling, general
and administrative
expenses 12,865 13,614 16,673 16,983 17,547 9,276 1,752 7,088
Amortization expense -- -- -- -- -- -- -- 3,678
Restructuring charge 6,172 -- -- -- -- -- -- --
------- -------- -------- -------- ------- -------- ------- -------
Operating income 6,106 11,837 22,967 28,337 31,143 17,477 4,173 16,161
Interest expense
(income), net 2,118 1,043 397 (481) (1,162) (413) (121) (8,832)
------- -------- -------- -------- ------- -------- ------- -------
Income before
income taxes
and cumulative
effect of accounting
changes 3,988 10,794 22,570 28,818 32,305 17,890 4,294 7,329
Provision for income
taxes 1,544 4,213 8,866 11,676 12,467 7,154 1,615 3,479
------- -------- -------- -------- ------- -------- ------- -------
Income before
cumulative effect of
accounting changes 2,444 6,581 13,704 17,142 19,838 10,736 2,679 3,850
Cumulative effect of
accounting changes:
Income taxes 5,200 -- -- -- -- -- -- --
Postretirement
benefits other
than pensions (2,564) -- -- -- -- -- -- --
------- -------- -------- -------- ------- -------- ------- -------
Income before
extraordinary item 5,080 6,581 13,704 17,142 19,838 10,736 2,679 3,850
Extraordinary item -- -- -- -- -- -- -- 1,630
------- -------- -------- -------- ------- -------- ------- -------
Net income $ 5,080 $ 6,581 $ 13,704 $ 17,142 $19,838 $ 10,736 $ 2,679 $ 2,220
======= ======== ======== ======== ======= ======== ======= =======
</TABLE>
11
<PAGE> 12
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
BALANCE SHEET
DATA (AT END
OF PERIOD):
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Cash and cash
equivalents $ 79 $ 118 $ 238 $ 10,126 $ 22,403 $ 18,166 $ 29,046 $ 20,344
Working capital 12,983 14,419 15,239 28,113 43,707 34,930 34,052 39,830
Total assets 87,388 74,327 73,813 82,957 93,869 92,759 102,067 328,425
Total debt 21,409 13,325 887 241 134 169 129 197,620
Total stockholders' 36,862 37,929 43,198 54,790 68,857 62,676 74,458 47,220
equity
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Net sales for the years ended March 31, 1993 and 1994 include sales of
products manufactured in Plant 1, which was closed in 1994 as part of the
Company's strategy to increase its focus on higher volume, complex parts
for its industrial customers. The majority of the parts produced in Plant 1
were then discontinued. Plant 1 provided sales of $30.9 million and $4.4
million for the fiscal years ended March 31, 1993 and 1994, respectively.
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
On April 30, 1997, pursuant to an Agreement and Plan of Reorganization with
NC Merger Company and NFC Castings, Inc., the stock of Neenah Corporation (the
"Predecessor Company") was acquired by NFC Castings, Inc. (the "Merger"). On
July 1, 1997, Neenah Foundry Company, which was the principal operating
subsidiary of Neenah Corporation, merged with and into Neenah Corporation and
the surviving company changed its name to Neenah Foundry Company (the
"Company").
The following discussion and analysis of the Company's financial condition
and results of operations addresses the periods both before and after the
Merger. The Merger has had a significant impact on the Company's results of
operations and financial condition. The Merger resulted in the recording of
goodwill and identifiable intangible assets totaling approximately $148.8
million. These amounts are being amortized over their estimated useful lives,
ranging from 5 months to 40 years. The Merger has also resulted in a significant
increase in the Company's interest expense.
The Merger has been accounted for as a business combination and has
resulted in differences in the basis of certain assets and liabilities between
the Predecessor Company and the Company. The Company changed its fiscal year end
to September 30 from March 31 effective September 30, 1997. The following
discussions compare the pro forma results of operations of the Company for the
six months ended September 30, 1997, assuming the Merger occurred on April 1,
1997, to the historical results of the Predecessor Company for the six months
ended September 30, 1996.
12
<PAGE> 13
RESULTS OF OPERATIONS
The following table sets forth for the periods shown certain statement of
income data expressed as a percentage of net sales:
<TABLE>
<CAPTION>
Predecessor Company
-----------------------------------------------------
Fiscal Year Ended March 31, Pro Forma
----------------------------- Six Months Ended Six Months Ended
1995 1996 1997 September 30, 1996 September 30, 1997
---- ---- ---- ------------------ -------------------
<S> <C> <C> <C> <C> <C>
Net sales:
Municipal sales 43.9% 41.6% 43.1% 49.3% 45.0%
Industrial sales 53.2 55.2 53.4 47.5 52.6
Hartley Controls sales 2.9 3.2 3.5 3.2 2.4
----- ----- ----- ----- -----
Total net sales 100.0 100.0 100.0 100.0 100.0
Cost of sales 75.3 72.9 70.6 70.2 67.4
----- ----- ----- ----- -----
Gross profit 24.7 27.1 29.4 29.8 32.6
Selling, general and
administrative expense 10.4 10.1 10.6 10.3 12.1
----- ----- ----- ----- -----
Operating income 14.3% 17.0% 18.8% 19.5% 20.5%
===== ===== ===== ===== =====
</TABLE>
COMPARISON OF PRO FORMA SIX MONTHS ENDED SEPTEMBER 30, 1997 TO SIX MONTHS ENDED
SEPTEMBER 30, 1996
Net Sales. Net sales for the pro forma six months ended September 30, 1997
were $104.4 million which are $14.6 million or 16.3% higher than the six months
ended September 30, 1996. Net sales of municipal castings increased by $2.8
million or 6.2 % due primarily to a strong economy in the upper Midwest and
market share gains in strategic focus areas of the East and Southwest. Net
sales of industrial castings increased by $12.3 million or 28.8% due to a
continuing surge in the heavy duty truck build rates, percentage gains on
dual sourced components and increased build rates by a major industrial
customer. Net sales for Hartley Controls for the pro forma six months ended
September 30,1997, declined by $0.4 million mostly due to a reduction in
equipment sales caused by capital spending cutbacks at the major foundry
customers that Hartley Controls services.
Gross Profit. Gross profit for the pro forma six months ended September 30,
1997 was $34.0 million, an increase of $7.3 million or 27.3%, as compared to the
six months ended September 30, 1996. Gross profit as a percentage of net sales
increased to 32.6% from 29.8% for the six months ended September 30, 1996. The
margin improvement was due to the combined effect of spreading manufacturing
overhead over a greater volume, improved efficiency in plant operations and, to
a lesser extent, improved pricing in both municipal and industrial products.
Production, expressed in good tons, increased during the six months ended
September 30, 1997 by 12,971 tons or 16.7% over the six month period ended
September 30, 1996. Furthermore, man hours per ton over this time period were
reduced from 8.86 hours/ton to 8.77 hours/ton and variable expenses (most
notably foundry supplies, repair parts, utilities and coke) decreased from $207
per good ton to $190 per good ton.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses for the pro forma six months ended September 30, 1997
were $12.6 million, an increase of $3.4 million or 36.2% over the $9.3 million
for the six months ended September 30, 1996. As a percentage of net sales,
selling, general and administrative expenses increased from 10.3% for the six
months ended September 30, 1996 to 12.1% for the pro forma six months ended
September 30, 1997. The increase in selling, general and administrative expense
was primarily due to amortization of goodwill and identifiable intangible assets
resulting from the Merger.
13
<PAGE> 14
Operating Income. Operating income was $21.4 million for the pro forma six
months ended September 30, 1997, an increase of $3.9 million or 22.5% from the
six months ended September 30, 1996. As a percentage of net sales, operating
income increased from 19.5% for the six months ended September 30, 1996 to 20.5%
for the pro forma six months ended September 30, 1997. The improvement in
operating income was achieved for the reasons discussed above offset by
amortization of goodwill and identifiable intangible assets resulting from the
Merger.
Net Interest Expense. Net interest expense increased from $0.4 million net
interest income for the six months ended September 30, 1996 to $10.6 million net
interest expense for the pro forma six months ended September 30, 1997 due to
the interest expense on the indebtedness incurred in connection with the Merger.
Extraordinary Item. For the pro forma six months ended September 30, 1997,
the Company recorded an extraordinary loss of $1.6 million (which is net of an
income tax benefit of $1.0 million) for the write-off of unamortized deferred
financing costs in connection with the repayment in full of the term
indebtedness under the Company's Senior Bank Facility.
COMPARISON OF FISCAL YEAR ENDED MARCH 31, 1997 TO FISCAL YEAR ENDED
MARCH 31, 1996
Net Sales. Net sales were $165.4 million for the year ended March 31, 1997, a
decrease of $1.6 million, or 0.9%, from $167.0 million for the year ended March
31, 1996. Net sales of industrial castings decreased $3.9 million, or 4.2%, to
$88.3 million. The decrease in industrial casting sales was primarily the result
of a decision by the Company to discontinue its production of certain lower
margin brake components which resulted in a 9,600 ton decrease in tons produced
compared to the year earlier period, and, to a lesser extent, reduced demand for
casting products in the medium- and heavy-duty truck market. Net sales of
municipal castings increased $1.9 million, or 2.7%, to $71.3 million, primarily
due to increased pricing. Hartley Controls net sales grew $0.4 million, or 7.4%,
to $5.8 million, principally due to increased volume of equipment sales.
Gross Profit. Gross profit was $48.7 million for the year ended March 31,
1997, an increase of $3.4 million, or 7.5%, from $45.3 million for the year
ended March 31, 1996. Gross profit as a percentage of net sales increased to
29.4% for the year ended March 31, 1997, from 27.1% for the year ended March 31,
1996. The increase in gross profit as a percentage of net sales was due mainly
to improved product mix in the industrial product line and greater overall plant
efficiency. Gross profit percentage also improved due to the continued effect of
the lightweighted municipal casting program.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses were $17.5 million for the year ended March 31, 1997, an
increase of $0.5 million, or 2.9%, from $17.0 million for the year ended March
31, 1996. As a percentage of net sales, selling, general and administrative
expenses increased to 10.6% for the year ended March 31, 1997, from 10.1% for
the year ended March 31, 1996. Approximately $0.2 million of the increase in
selling, general and administrative expenses was due to a non-recurring
charitable contribution and approximately $0.9 million of the increase was due
to increased compensation and benefits to officers of the Company who resigned
at the time of the Merger. Excluding the effects of estimated nonrecurring
officer compensation and benefits and the charitable contribution, selling,
general and administrative expenses, as a percentage of net sales, decreased
slightly to 8.3% for the year ended March 31, 1997, from 8.4% for the year ended
March 31, 1996.
Operating Income. Operating income increased to $31.1 million for the year
ended March 31, 1997, an increase of $2.8 million or 9.9% from $28.3 million for
the year ended March 31, 1996. As a percentage of net sales, operating income
increased to 18.8% for the year ended March 31, 1997, from 17.0% for the year
ended March 31, 1996. The improvement in operating income was achieved primarily
for the reasons discussed above.
COMPARISON OF FISCAL YEAR ENDED MARCH 31, 1996 TO FISCAL YEAR ENDED MARCH 31,
1995
Net sales. Net sales were $167.0 million for the year ended March 31, 1996,
an increase of $6.4 million, or 4.0%, from $160.6 million for the year ended
March 31, 1995. Net sales of industrial castings grew $6.6 million, or 7.7%, to
$92.2 million. The increase in industrial sales was primarily due to improved
pricing while sales volume remained stable. The improved pricing for industrial
castings was mainly the result of a better industrial product mix as the Company
increased its sales of more complex, value-added industrial castings. Net sales
of municipal castings decreased $1.0 million, or
14
<PAGE> 15
1.4%, to $69.4 million, due to a decrease in unit volume, which was
partially offset by improved pricing. The decrease in municipal castings volume
was principally due to artificially high sales in fiscal 1995 resulting from
weather conditions. Fiscal 1995 net sales were affected by poor winter weather
in January to March 1994 which resulted in the postponement of certain sales
from fiscal 1994 into fiscal 1995, and mild weather from January to March 1995
which resulted in the acceleration of sales from fiscal 1996 into fiscal 1995.
Total production volume in tons decreased more significantly than unit volume
for municipal sales because of the effect of the lightweighted casting program.
Hartley Controls net sales grew $0.8 million, or 17.4%, to $5.4
million, principally due to increased volume of equipment sales.
Gross Profit. Gross profit was $45.3 million for the year ended March 31,
1996, an increase of $5.7 million, or 14.4%, from $39.6 million for the year
ended March 31, 1995. Gross profit as a percentage of net sales increased to
27.1% for the year ended March 31, 1996, from 24.7% for the year ended March 31,
1995. The continued improvement in gross profit, as a percentage of net sales,
was due to the combined effect of margin improvements in both the industrial and
municipal product lines. Industrial castings gross profit percentage improved
due to the shift to a more profitable product mix and improved efficiency in
plant operations. Municipal castings gross profit percentage improved largely
due to the effect of implementing the lightweighted casting program and an
increase in selling prices.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses were $17.0 million for the year ended March 31, 1996, an
increase of $0.3 million, or 1.8%, from $16.7 million for the year ended March
31, 1995. As a percentage of net sales, selling, general and administrative
expenses decreased slightly to 10.1% for the year ended March 31, 1996, from
10.4% for the year ended March 31, 1995. Approximately $0.1 million of the
increase in selling, general and administrative expense was due to increased
compensation and benefits to officers of the Company who resigned at the time of
the Merger. Excluding the effects of estimated nonrecurring executive
compensation and benefits, selling, general and administrative expenses, as a
percentage of net sales, decreased to 8.4% from 8.6% for the year ended March
31, 1995, primarily due to the spreading of fixed expenses over a greater volume
of sales.
Operating Income. Operating income increased to $28.3 million for the year
ended March 31, 1996, an increase of $5.3 million, or 23.0%, from $23.0 million
for the year ended March 31, 1995. As a percentage of net sales, operating
income increased to 17.0% for the year ended March 31, 1996, from 14.3% for the
year ended March 31, 1995. The improvement in operating income was achieved
primarily for the reasons discussed above.
LIQUIDITY AND CAPITAL RESOURCES
In connection with the Merger, the Company issued $150.0 million aggregate
principal amount of 11-1/8% Senior Subordinated Notes due 2007 ("the Senior
Subordinated Notes") and entered into a credit agreement providing for term
loans of $45.0 million and a revolving credit facility of up to $30.0 million
(the "Senior Bank Facility.") On July 1, 1997, the Company issued an
additional $45.0 million aggregate principal amount of Senior Subordinated
Notes and used the proceeds of $47.6 million to pay off the term loans under
the Senior Bank Facility, together with the accrued interest thereon and
related fees and expenses. In addition, on September 12, 1997, the Company
amended the revolving credit facility under the Senior Bank Facility to
increase the borrowings available under the revolving credit facility from
$30.0 million to $50.0 million and eliminate all borrowing base limitations.
The Company's liquidity needs will arise primarily from debt service on the
above indebtedness, working capital needs and funding of capital expenditures.
Borrowings under the revolving credit facility bear interest at variable
interest rates. The Senior Bank Facility imposes restrictions on the Company's
ability to make capital expenditures and both the Senior Bank Facility and the
indentures governing the Senior Subordinated Notes limit the Company's ability
to incur additional indebtedness. The covenants contained in the Senior Bank
Facility also, among other things, restrict the ability of the Company and its
subsidiaries to dispose of assets, incur guarantee obligations, prepay the
Senior Subordinated Notes or amend its indentures, pay dividends, create liens
on assets, enter into sale and leaseback transactions, make investments, loans
or advances, make acquisitions, engage in mergers or consolidations, change the
business conducted by the Company, make capital expenditures or engage in
certain transactions with affiliates, and otherwise restrict corporate
activities.
For the fiscal years ended March 31, 1995, 1996 and 1997, and the pro forma
six months ended September 30, 1997, the Company's capital expenditures were
$3.7 million, $7.3 million, $4.5 million and $2.5 million, respectively. The
$3.6
15
<PAGE> 16
million increase in capital expenditures for the fiscal year ended March
31, 1996 from the comparable period for 1995 was primarily the result of the
expansion of the cooling capabilities of two of the Company's production lines.
The Company's principal source of cash to fund its liquidity needs will be
net cash from operating activities and borrowings under its revolving credit
facility. Net cash from operating activities for the pro forma six months ended
September 30, 1997 was $25.4 million. Net cash from operating activities for the
year ended March 31, 1997 was $23.5 million, an increase of $1.2 million from
$22.3 million for the year ended March 31, 1996, primarily as a result of an
increase in net income. Net cash from operating activities for the year ended
March 31, 1996 of $22.3 million represented a decrease of $1.3 million from
$23.6 million in the comparable period of 1995, primarily as a result of a net
increase in working capital (excluding cash and cash equivalents) during 1996
partially offset by greater net income in 1996.
The Company believes that cash generated from operations and existing
revolving lines of credit will be sufficient to meet its normal operating
requirements, including future interest payments on the Company's outstanding
indebtedness.
RAW MATERIALS
Although the prices of all raw materials used by the Company vary, the
fluctuations in the price of steel scrap are the most significant to the
Company. The Company has arrangements with most of its industrial customers
which require the Company to adjust industrial casting prices to reflect scrap
price fluctuations. In periods of rapidly rising or falling scrap prices, these
adjustments will lag the current scrap price because they are generally based on
average market prices for prior periods, which periods vary by customer but are
generally no longer than six months. Castings are generally sold to the heavy
municipal market on a bid basis and, after a bid is won, the price for the
municipal casting subject to the bid generally cannot be adjusted for raw
material price increases. However, in most cases the Company has been successful
in obtaining higher municipal casting unit prices in subsequent bids to
compensate for rises in scrap prices in prior periods. Rapidly fluctuating scrap
prices may have a temporary adverse or positive effect on the Company's results
of operations.
INFLATION
The Company does not believe that inflation has had a material impact on
its financial position or results of operations during the pro forma six month
period ended September 30, 1997 or during the three years ended March 31, 1997.
CYCLICALITY AND SEASONALITY
The Company has historically experienced moderate cyclicality in the heavy
municipal market. Sales of municipal products are influenced by, among other
things, public spending. In the industrial market, the Company has experience
cyclicality in sales resulting from fluctuations in the medium- and heavy-duty
truck market and the farm equipment market, which are subject to general
economic trends.
The Company experiences seasonality in its municipal business where sales
tend to be higher during the construction season, which occurs during the warmer
months, generally the third and fourth quarters of the Company's fiscal year.
The Company maintains level production throughout the year in anticipation of
such seasonality and does not experience production volume fluctuations as a
result. The Company builds inventory in anticipation of the construction season
with such inventories reaching a peak in March or April. The Company has not
historically experienced seasonality in industrial casting sales.
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements and schedules are listed in Part IV Item 14 of
this Form 10-K.
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None.
16
<PAGE> 17
PART III
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
MANAGEMENT
The following sets forth certain information as of September 30, 1997, with
respect to the persons who are members of the Board of Directors or executive
officers of the Company.
<TABLE>
<CAPTION>
Name Age Position
---- --- --------
<S> <C> <C>
James K. Hildebrand 60 Chairman of the Board and Chief Executive Officer
William M. Barrett 50 Vice President and General Manger
Gary W. LaChey 51 Vice President - Finance, Treasurer and Secretary
Charles M. Kurtti 60 Vice President - Manufacturing and Engineering
William J. Martin 49 Vice President and General Manager - Hartley
Controls Corporation
John Z. Rader 48 Vice President - Human Resources
Brenton F. Halsey 69 Director
David F. Thomas 47 Director
John D. Weber 33 Director
</TABLE>
Mr. Hildebrand is Chairman of the Board and Chief Executive Officer of the
Company, a position he has held since May 1, 1997. Mr. Hildebrand has been
President and Chief Executive Officer of Advanced Cast Products, Inc. since
1988, and will continue in that position for the foreseeable future. Previously,
he served as President of the Cast Products Group of Amcast Industrial Corp. Mr.
Hildebrand is also employed by ACP Holding Company which, beneficially owns all
the common equity of both the Company and Advanced Cast Products, Inc. Mr.
Hildebrand devotes substantial time to, and is partially compensated by,
Advanced Cast Products, Inc.
Mr. Barrett is Vice President and General Manager of the Company, a
position he has held since May 1, 1997. Mr. Barrett joined the Company in 1992
serving as General Sales Manager - Industrial Castings. From 1985 to 1992, Mr.
Barrett was the Vice President - Sales for Harvard Industries Cast Products
Group.
Mr. LaChey is Vice President - Finance, Treasurer and Secretary of the
Company, a position he has held since May 1, 1997. Mr. LaChey joined the Company
in 1971, serving in a variety of positions of increasing responsibility in the
finance department. Mr. LaChey was most recently Vice President - Administration
of the Company.
Mr. Kurtti is Vice President - Manufacturing and Engineering, of the
Company, a position he has held since 1991. Mr. Kurtti joined the Company in
1976 as a salesman. Mr. Kurtti has served as Director of Marketing, Director of
Purchasing - Engineering and Director - Manufacturing and Engineering.
Mr. Martin is Vice President and General Manger - Hartley Controls
Corporation, a wholly owned subsidiary of the Company, a position he has held
since 1996. Previously, Mr. Martin was Territory Sales Manager at Disamatic,
Inc., a molding machine manufacturer, from 1986 to 1996.
Mr. Rader is Vice President - Human Resources, a position he has held since
1990. Mr. Rader joined the Company in 1987, serving as Director - Personnel
until 1989 and as Director - Human Resources until 1990.
Mr. Halsey is a director of the Company, a position he has held since May
1, 1997. Mr. Halsey was the founding Chief Executive Officer and Chairman of the
James River Corporation from 1969 to 1990. He continued as Chairman until 1992
when he became Chairman Emeritus.
17
<PAGE> 18
Mr. Thomas is a director of the Company, a position he has held since May
1, 1997. Mr. Thomas has been a Managing Director of Citicorp Venture Capital,
Ltd. for more than the past five years. Mr. Thomas is a director of Lifestyles
Furnishings International Ltd., Galey & Lord, Inc., Anvil Knitwear, Inc. and a
number of private companies.
Mr. Weber is a director of the Company, a position he has held since May 1,
1997. Since 1994, Mr. Weber has been a Vice President at Citicorp Venture
Capital, Ltd. Previously, Mr. Weber worked at Putnam Investments from 1992
through 1994. Mr. Weber is a director of Anvil Knitwear, Inc. and a number of
private companies.
Directors of the Company do not receive compensation for their services as
directors. Directors of the Company receive reimbursement of their reasonable
out-of-pocket expenses in connection with their travel to and attendance at
meetings of the board of directors or committees thereof.
18
<PAGE> 19
ITEM 11. Executive Compensation
The following table sets forth information concerning compensation received
by the chief executive officer of the Company and its five most highly
compensated executive officers (the "Named Executive Officers") for services
rendered during the five months ended September 30, 1997.
<TABLE>
<CAPTION>
Long-Term
Compensation
Annual Compensation ------------------------------------------
------------------------- Other Annual Options/ LTIP All Other
Name and Principal Position Salary Bonus Compensation(1) SARs(#) Payouts Compensation
- --------------------------- ------ ----- --------------- -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C>
Jim Hildebrand
Chairman and Chief
Executive Officer $ 50,000 $ 48,000 $527
Bill Barrett
Vice President and
General Manager 55,000 46,200 9,562
Gary LaChey
Vice President - Finance,
Secretary and Treasurer 59,175 49,700 11,528
Chuck Kurtti
Vice President -
Manufacturing and
Engineering 55,000 46,200 12,926
Bill Martin
Vice President and
General Manager -
Hartley Controls
Corporation 50,000 30,000 11,553
John Rader
Vice President - Human
Resources 55,000 46,200 11,984
</TABLE>
(1) The Named Executive Officers have participated in the Company's profit
sharing, Company 401(k) contributions, and excess benefit programs. The
aggregate payments made by the Company pursuant to such programs are listed
as Other Annual Compensation.
MANAGEMENT INCENTIVE PLAN
The Company intends to provide performance-based compensation awards to
executive officers and key employees for achievement during each year as part of
a bonus plan. Such compensation awards may be a function of individual
performance and consolidated corporate results. The qualitative and quantitative
criteria will be determined from time to time by the Board of Directors of the
Company.
19
<PAGE> 20
MANAGEMENT EQUITY PARTICIPATION
In connection with the Merger, (a) certain management investors acquired
units representing membership interests in ACP Products, L.L.C., ("ACP
Products") which represent, in the aggregate, approximately a ten percent
beneficial interest in the Company (the "Purchased Interests") and (b) certain
management investors and certain other employees of the Company are expected to
be granted, over a five year period, options (the "Options") to purchase
additional Purchased Interests representing, in the aggregate, approximately a
two percent beneficial interest in the Company. The Options are expected to be
granted periodically and to vest and become exercisable upon (i) certain
threshold dates and/or (ii) the satisfaction of certain financial performance
tests.
Upon the termination of employment with the Company, an employee's
Purchased Interests will be subject to certain repurchase provisions exercisable
by ACP Products or its designees. The Purchased Interests obtainable upon
exercise of the Options are expected to be subject to rights and restrictions
similar to those of the Purchased Interests purchased in connection with the
closing of the Merger. The exercise price of the Options will be established by
ACP Products, in consultation with the Board of Directors of the Company or a
compensation committee thereof.
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The Company's authorized capital stock consists of 11,000 shares of common
stock, par value $100 per share (the "Common Stock"), 1,000 shares of which are
issued and outstanding and owned by NFC Castings, Inc. and are pledged under the
Senior Bank Facility. NFC Castings, Inc. is a wholly-owned subsidiary of ACP
Holdings Company ("ACP Holdings") which in turn is wholly-owned by ACP
Products.
The outstanding common units of ACP Products consist of 185,000 Class A-3
Common Units (the "Class A Common Units"), 815,000 Class B-3 Common Units (the
"Class B Common Units", and together with the Class A Common Units, the "Common
Units"). Holders of Class A Common Units are entitled to one vote per Class A
Common Unit on all matters to be voted upon by the holders of Class A Common
Units. Holders of Class B Common Units have no right to vote on any matters to
be voted on by holders of Common Units. Holders of Class B Common Units may
elect at any time to convert any or all of such Units into Class A Common
Units, on a Common Unit-for-Common-Unit basis.
20
<PAGE> 21
Set forth below is certain information regarding the beneficial
ownership as of September 30, 1997 of Class A Common Units by each person who
beneficially owns 5.0% or more of the outstanding Class A Common Units, each
director and Named Executive Officer and all directors and Named Executive
Officers as a group. Except as indicated below, the address for each of the
persons listed below is c/o Neenah Foundry Company, 2121 Brooks Avenue, Box 729,
Neenah, Wisconsin 54957.
<TABLE>
<CAPTION>
Number of Percentage of
Voting Voting
Class A Class A
Common Common
NAME AND ADDRESS OF BENEFICIAL OWNER Units Units
------------------------------------ --------- -------------
<S> <C> <C>
Citicorp Venture Capital, Ltd. (1) (2).................................. 90,000 48.65%
James K. Hildebrand (1)............................................... 20,000 10.81%
William M. Barrett (1)................................................. 13,000 7.03%
Gary W. LaChey (1) .................................................... 13,000 7.03%
Charles W. Kurtti (1).................................................. 13,000 7.03%
Bill Martin (1) ....................................................... 13,000 7.03%
John Z. Rader (1)...................................................... 13,000 7.03%
David F Thomas (3) ................................................... 90,000 48.65%
John D. Weber (3)...................................................... 90,000 48.65%
Directors and named executive officers as a group....................... 175,000 94.59%
</TABLE>
(1) Such person disclaims beneficial ownership of the Common Stock.
(2) Citicorp Venture Capital, Ltd. and its affiliates (collectively, "CVC")
own 739,821.82 Class B Common Units representing 90.78% of the Class B
Common Units outstanding.
(3) Consists of the Class A Common Units held by CVC, which may be deemed
to be beneficially owned by Messrs. Thomas and Weber. Messrs. Thomas
and Weber disclaim beneficial ownership of shares held by CVC. Mr. Thomas
is a managing director of CVC. Mr. Weber is a vice president of CVC.
21
<PAGE> 22
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
RELATIONSHIP WITH ACP HOLDINGS
ACP Products holds all of the issued and outstanding shares of capital
stock of ACP Holdings. ACP Holdings is the parent company of NFC Castings,
Inc., and thus ACP Holdings indirectly owns 100% of the Common Stock of the
Company. James K. Hildebrand, who serves as the Chairman of the Board and Chief
Executive Officer of the Company, currently serves as President and Chief
Executive Officer of ACP Holdings and its principal operating subsidiary,
Advanced Cast Products, Inc. ("Advanced Cast"). Since the closing of the
Merger, Mr. Hildebrand has devoted substantial time to, and has been partially
compensated by, Advanced Cast, in addition to his role with the Company.
Advanced Cast also produces iron castings for sale to the industrial medium-and
heavy-duty truck market, but it has not competed with the Company in the past
in any significant way and the Company does not anticipate that it will so
compete with Advanced Cast in the future.
SHAREHOLDER RELATIONSHIPS
In connection with Merger, certain management investors and certain
institutional investors, including CVC, became parties to the Third Amended and
Restated Limited Liability Agreement of ACP Products as amended (the "L.L.C.
Agreement"). The L.L.C. Agreement contains certain provisions with respect to
the beneficial equity interests and corporate governance of the Company. The
L.L.C. Agreement provides that CVC and certain institutional investors and
certain management investors, as the only members of ACP Products holding
beneficial interests in the Company, have the right to direct all actions taken
in respect of NFC Castings, Inc. and the Company, including, without limitation,
appointing members of the Board of Directors of the Company and of NFC Castings,
Inc.
REGISTRATION RIGHTS AGREEMENT
The Company entered into a registration rights agreement (the "Registration
Rights Agreement") with CVC and certain institutional investors and certain
management investors. Pursuant to the terms of the Registration Rights
Agreement, certain holders of the Common Stock have the right to require the
Company, at the Company's sole cost and expense and subject to certain
limitations, to register under the Securities Act of 1933, as amended, or list
on any recognized stock exchange all or part of the Common Stock beneficially
owned by such holders (the "Registrable Securities"). All such holders will be
entitled to participate in all registrations by the Company or other holders,
subject to certain limitations. In connection with all such registrations, the
Company agreed to indemnify all beneficial owners of Registrable Securities
against certain liabilities, including liabilities under the Securities Act of
1933, as amended, and other applicable state or foreign securities laws.
Registrations pursuant to the Registration Rights Agreement will be made, if
applicable, on the appropriate registration form and may be underwritten
registrations.
EMPLOYMENT AGREEMENTS
The Company entered into a consulting agreement with James P. Keating that
provides, among other things, that Mr. Keating will be available to serve as a
consultant to the Company from July 1, 1997 to June 30, 1999. Mr. Keating is
paid $16,500 per month under such consulting agreement.
22
<PAGE> 23
Part IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) (1) Consolidated Financial Statements of Neenah Foundry Company
<TABLE>
<CAPTION>
Page
<S> <C>
Report of Ernst & Young LLP, Independent Auditors 29
Consolidated Balance Sheet 30
Consolidated Statement of Income 32
Consolidated Statement of Cash Flows 33
Notes to Consolidated Financial Statements 34
Consolidated Financial Statements of Neenah Foundry Company (Predecessor)
Report of Ernst & Young LLP, Independent Auditors 50
Consolidated Balance Sheets 51
Consolidated Statements of Income 53
Consolidated Statements of Changes in Stockholders' Equity 54
Consolidated Statements of Cash Flows 55
Notes to Consolidated Financial Statements 56
(2) Financial Statements Schedules
Report of Ernst & Young LLP, Independent Auditors 68
Schedule II - Valuation and Qualifying Accounts of Neenah Foundry Company 69
Report of Ernst & Young LLP, Independent Auditors 70
Schedule II - Valuation and Qualifying Accounts of Neenah Foundry
Company(Predecessor) 71
The following schedules are omitted as not applicable or not required under the rules of regulation S-X: I, III, IV, and V.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed by the Company for the quarter ended September 30, 1997.
(c) Exhibits
See Exhibit Index.
</TABLE>
23
<PAGE> 24
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Neenah,
State of Wisconsin, on December 29, 1997.
NEENAH FOUNDRY COMPANY
NEENAH TRANSPORT, INC.
HARTLEY CONTROLS CORPORATION
(Registrant)
/s/Gary W. LaChey
-----------------
Gary W. LaChey
Vice President - Finance, Secretary
and Treasurer
(Principal Financial and Principal
Accounting Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below on December 29, 1997, by the following persons on behalf
of the registrant and in the capacities indicated.
/s/James K. Hildebrand /s/ Brenton F. Halsey
- ---------------------- ---------------------
James K. Hildebrand Brenton F. Halsey
Chairman of the Board and Director
Chief Executive Officer
/s/ David F. Thomas /s/ Gary W. LaChey
- ---------------------- ------------------
David F. Thomas Gary W. LaChey
Director Vice President - Finance, Secretary
and Treasurer
(Principal Financial and Principal
Accounting Officer)
/s/ John D. Weber
- -----------------------
John D. Weber
Director
24
<PAGE> 25
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
2.1 Agreement and Plan of Reorganization, dated November 20, 1996, by and
among NFC Castings, Inc., NC Merger Company and Neenah Corporation. **
2.2 First Amendment to Agreement and Plan of Reorganization, dated as of
January 13, 1997, by and among NFC Castings, Inc., NC Merger Company
and Neenah Corporation. **
2.3 Second Amendment to Agreement and Plan of Reorganization, dated as of
February 21, 1997, by and among NFC Castings, Inc., NC Merger
Company and Neenah Corporation. **
2.4 Third Amendment to Agreement and Plan of Reorganization, dated as of
April 3, 1997, by and among NFC Castings, Inc., NC Merger Company and
Neenah Corporation. **
2.5 Merger Agreement, made as of July 1,1997, by and between Neenah
Corporation and Neenah Foundry Company. **
3.1 Restated Articles of Incorporation of Neenah Foundry Company. **
3.2 By-laws of Neenah Foundry Company. **
3.3 (Intentionally omitted.)
3.4 (Intentionally omitted.)
3.5 Restated Articles of Incorporation of Hartley Controls Corporation. **
3.6 By-laws of Hartley Controls Corporation. **
3.7 Restated Articles of Incorporation of Neenah Transport, Inc.**
3.8 By-laws of Neenah Transport, Inc. **
4.1 Indenture dated as of April 30, 1997 among NC Merger Company and United
States Trust Company of New York. **
4.2 Purchase Agreement dated as of April 23, 1997 among NC Merger Company,
Chase Securities Inc. and Morgan Stanley & Co. Incorporated. **
4.3 Exchange and Registration Rights Agreement dated as of April 30, 1997
among Neenah Corporation, Neenah Foundry Company, Hartley Controls
Corporation and Neenah Transport, Inc. and Chase Securities, Inc.**
4.4 First Supplemental Indenture, dated as of April 30, 1997 among Neenah
Corporation, Neenah Foundry Company, Neenah Transport, Inc. and Hartley
Controls Corporation and United States Trust Company of New York. **
4.5 Letter Agreement, dated as of April 30, 1997 among Neenah Corporation,
Neenah Foundry Company, Hartley Controls Corporation and Neenah
Transport, Inc. and Chase Securities Inc. and Morgan Stanley & Co.
Incorporated. **
4.6 Form of Global Note relating to the Indenture dated as of April 23,
1997. **
4.7 Indenture dated as of July 1, 1997 among Neenah Corporation, Neenah
Foundry Company, Neenah Transport, Inc., Hartley Controls Corporation
and United States Trust Company of New York. **
4.8 Purchase Agreement dated as of June 26, 1997 among Neenah Corporation,
Neenah Foundry Company, Hartley Controls Corporation, Neenah Transport,
Inc. and Chase Securities Inc. **
4.9 Exchange and Registration Rights Agreement dated as of July 1, 1997 by
and between Neenah Corporation, Neenah Foundry Company, Hartley
Controls Corporation, Neenah Transport, Inc. and Chase Securities,
Inc. **
4.10 Form of Global Note related to the Indenture dated as of July 1,
1997. **
10.1 Master Lease Agreement between Neenah Foundry Company and Bank One
Leasing Corporation dated December 14, 1992. **
10.2 Agreement between Neenah Foundry Company and Rockwell International
Corporation effective April 1, 1995. **
10.3 Letter Agreement between Neenah Foundry Company and Eaton Corporation
dated April 4, 1996.**
10.4 (Intentionally omitted).
10.5 1996-1998 Collective Bargaining Agreement between Neenah Foundry
Company and Local 121B Glass, Molders, Pottery, Plastics and Allied
Workers International Union AFL-CIO-CLC. **
</TABLE>
25
<PAGE> 26
<TABLE>
<S> <C>
10.6 1995-1997 Collective Bargaining Agreement between Neenah Foundry
Company and The Independent Patternmakers Union of Neenah,
Wisconsin. **
10.7 Credit Agreement, dated as of April 30, 1997 among Chase Manhattan
Bank, N.A., NFC Castings, Inc. and NC Merger Company. **
10.8 Employment Agreement dated September 9, 1994 between the Neenah
Corporation, Neenah Foundry Company, Harley Controls Corporation,
Neenah Transport, Inc. and James P. Keating, Jr.**
10.9 Consulting Agreement dated September 9, 1994 between the Neenah
Foundry Company and the Guarantors and James P. Keating, Jr. **
10.10 First Amendment to Employment Agreement, dated September 9, 1994,
between Neenah Foundry Company, Neenah Corporation, Hartley Controls
Corporation and James P. Keating, Jr. **
10.11 Pledge Agreement dated as of April 30, 1997, among NC Merger Company, a
Wisconsin Corporation, NFC Castings, Inc., a Delaware Corporation. **
10.12 Subsidiary Guarantee Agreement dated as of April 30, 1997, among each
of the subsidiaries listed of NC Merger Company, a Wisconsin
corporation, and The Chase Manhattan Bank, a New York banking
corporation, as collateral agent for the secured parties. **
10.13 Parent Guarantee Agreement dated as of April 30, 1997, between NFC
Castings, Inc., a Delaware corporation and The Chase Manhattan Bank,
a New York banking corporation, as collateral agent for the secured
parties. **
10.14 Security Agreement dated as of April 30, 1997, among NC Merger Company,
a Wisconsin corporation, each subsidiary of the borrower and The Chase
Manhattan Bank, a New York banking corporation, as collateral agent for
the secured parties. **
10.15 Form of Mortgage. **
10.16 Amended and Restated Revolving Credit Agreement, dated
September 12, 1997 among Chase Manhattan Bank, N.A., NFC Castings,
Inc. and NC Merger Company.
21.1 Subsidiaries of the Registrant.
24.1 Powers of Attorney (included in signature page). **
25.1 Statement of Eligibility of Trustee on Form T-1. **
27.1 Financial Data Schedule.
</TABLE>
- -------
** Incorporated by reference to the Company's Form S-4 (Registration No.
333-28751) which became effective August 12, 1997.
26
<PAGE> 27
CONSOLIDATED FINANCIAL STATEMENTS
NEENAH FOUNDRY COMPANY
Period from inception, May 1, 1997,
through September 30, 1997
27
<PAGE> 28
Neenah Foundry Company
Consolidated Financial Statements
Period from inception, May 1, 1997, through September 30, 1997
CONTENTS
Report of Independent Auditors.....................................
Consolidated Balance Sheet.........................................
Consolidated Statement of Income...................................
Consolidated Statement of Cash Flows...............................
Notes to Consolidated Financial Statements.........................
28
<PAGE> 29
Report of Ernst & Young LLP, Independent Auditors
Board of Directors
Neenah Foundry Company
We have audited the accompanying consolidated balance sheet of Neenah Foundry
Company (the Company) as of September 30, 1997, and the related consolidated
statements of income and cash flows for the period from inception, May 1, 1997,
through 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 audit.
We conducted our audit 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 audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of the
Company as of September 30, 1997, and the consolidated results of its operations
and its cash flows for the period from inception, May 1, 1997, through September
30, 1997, in conformity with generally accepted accounting principles.
Milwaukee, Wisconsin ERNST & YOUNG LLP
October 31, 1997
29
<PAGE> 30
Neenah Foundry Company
Consolidated Balance Sheet
(In Thousands, Except Share and Per Share Amounts)
September 30, 1997
<TABLE>
<CAPTION>
<S> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 20,344
Accounts receivable, less allowance for doubtful accounts
of $386 29,932
Inventories 19,639
Other current assets 318
Deferred income taxes 1,695
-------------
Total current assets 71,928
Property, plant and equipment:
Land 1,576
Buildings and improvements 7,856
Machinery and equipment 71,491
Patterns 22,787
-------------
103,710
Less accumulated depreciation 3,131
-------------
100,579
Deferred financing costs, net of accumulated amortization of $295 6,853
Identifiable intangible assets, net of accumulated amortization of $2,450
28,424
Goodwill, net of accumulated amortization of $1,228 116,690
Other assets 3,951
-------------
155,918
-------------
$328,425
=============
</TABLE>
30
<PAGE> 31
<TABLE>
<CAPTION>
<S> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 10,333
Income taxes payable 4,384
Accrued wages and employee benefits 5,174
Accrued interest 8,251
Other accrued liabilities 3,858
Current portion of long-term debt 98
-----------
Total current liabilities 32,098
Long-term debt 197,522
Postretirement benefit obligations 4,894
Deferred income taxes 44,519
Other liabilities 2,172
-----------
Total liabilities 281,205
Commitments and contingencies (Note 5)
Stockholders' equity:
Preferred stock, par value $100 per share; authorized 3,000 shares; no shares issued
or outstanding -
Common stock, Class A (voting), par value $100 per share; authorized 1,000 shares;
issued and outstanding, 1,000 shares 100
Common stock, Class B (nonvoting), par value $100 per share; authorized 10,000
shares; no shares issued or outstanding -
Additional paid-in capital 44,900
Retained earnings 2,220
-----------
Total stockholders' equity 47,220
-----------
$ 328,425
===========
</TABLE>
See accompanying notes
31
<PAGE> 32
Neenah Foundry Company
Consolidated Statement of Income
(In Thousands)
Period from inception, May 1, 1997, through September 30, 1997
<TABLE>
<S> <C>
Net sales $87,093
Cost of sales 60,166
------------
Gross profit 26,927
Selling, general and administrative expenses 7,088
Amortization expense 3,678
------------
Operating income 16,161
Other income (expense):
Interest income 367
Interest expense (9,199)
------------
Income before income taxes and extraordinary item 7,329
Provision for income taxes 3,479
------------
Income before extraordinary item 3,850
Extraordinary item, net of income tax benefit of $999 1,630
============
Net income and retained earnings at end of period $ 2,220
============
</TABLE>
See accompanying notes 32
<PAGE> 33
Neenah Foundry Company
Consolidated Statement of Cash Flows
(In Thousands)
Period from inception, May 1, 1997, through September 30, 1997
<TABLE>
<S> <C>
OPERATING ACTIVITIES
Net income $ 2,220
Adjustments to reconcile net income to net cash provided by operating activities:
Extraordinary item 2,629
Depreciation 3,141
Amortization of identifiable intangible assets and goodwill 3,678
Amortization of deferred financing costs and premium on notes 273
Deferred income taxes (2,939)
Other (10)
Changes in operating assets and liabilities:
Accounts receivable (4,235)
Inventories 5,707
Other current assets (318)
Accounts payable (1)
Income taxes payable 1,866
Accrued liabilities 9,327
Postretirement benefit obligations 141
Other liabilities 21
--------
Net cash provided by operating activities 21,500
INVESTING ACTIVITIES
Payment of closing date net worth adjustment (12,530)
Purchase of property, plant and equipment (2,281)
Proceeds from redemption of life insurance 866
Other 43
--------
Net cash used in investing activities (13,902)
FINANCING ACTIVITIES
Proceeds from long-term debt 47,588
Payments on long-term debt (45,030)
Debt issuance costs (1,356)
--------
Net cash provided by financing activities 1,202
--------
Increase in cash and cash equivalents 8,800
Cash and cash equivalents at beginning of period 11,544
--------
Cash and cash equivalents at end of period $ 20,344
========
Supplemental disclosures of cash flow information:
Cash paid for:
Interest $ 674
Income taxes 3,502
</TABLE>
See accompanying notes. 33
<PAGE> 34
Neenah Foundry Company
Notes to Consolidated Financial Statements
September 30, 1997
(In Thousands)
1. NATURE OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES
NATURE OF OPERATIONS
On April 30, 1997, pursuant to an Agreement and Plan of Reorganization with NC
Merger Company and NFC Castings, Inc., Neenah Corporation (Predecessor Company)
was acquired by NFC Castings, Inc. using (i) $45,000 of cash equity contributed
by NFC Castings, Inc., (ii) $45,000 of term loans, (iii) proceeds from the
issuance of $150,000 of unsecured Senior Subordinated Notes in a Rule 144A
private placement and (iv) cash of Neenah Corporation. The purchase price was
$261,713 including a closing date net worth adjustment and direct costs of the
acquisition. The acquisition has been accounted for using the purchase method of
accounting. The purchase price has been allocated on the basis of fair values of
the underlying assets acquired and liabilities assumed. The excess of the cost
of acquisition over the fair value of the net tangible and identifiable
intangible assets acquired has been allocated to goodwill.
Prior to July 1, 1997, Neenah Foundry Company was one of three wholly owned
subsidiaries of Neenah Corporation, a holding company with no significant assets
or operations other than its holdings in the common stock of its subsidiaries.
On July 1, 1997, Neenah Foundry Company merged into Neenah Corporation and the
surviving company changed its name to Neenah Foundry Company (the Company).
The Company operates in one business segment for financial reporting purposes:
the manufacture of gray and ductile iron castings. The Company manufactures
castings for sale to industrial and municipal customers throughout the United
States and several foreign countries. Industrial castings are custom-engineered
and are produced for customers in several industries, with a concentration in
the medium and heavy-duty truck components, farm equipment, and heating,
ventilation, and air-conditioning industries. Municipal castings include manhole
covers and frames, storm sewer frames and grates, trench drain systems, tree
grates and specialty castings for a variety of applications.
34
<PAGE> 35
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
1. NATURE OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Industrial castings are generally sold to large, well-established companies,
with two customers accounting for 15% and 10% of net sales in the five months
ended September 30, 1997. Combined receivables from these two customers totaled
$5,145 at September 30, 1997. Municipal castings are sold to a large number of
customers. The Company's accounts receivable generally are unsecured.
The Company has two wholly owned subsidiaries--Neenah Transport, Inc.
(Transport) and Hartley Controls Corporation (Hartley). Transport is a common
and contract carrier licensed to operate in the continental United States. The
majority of Transport's revenues are derived from transport services provided to
the Company. Hartley designs and manufactures customized sand control systems
for the foundry industry, which are sold and serviced throughout the United
States and several foreign countries. Hartley and Transport each account for
less than 10% of consolidated net sales, net income and total assets.
The Company changed its fiscal year end to September 30 effective September 30,
1997. The following is unaudited financial information of the Predecessor
Company for the six months ended September 30, 1996:
Net sales $89,739
Gross profit 26,753
Provision for income taxes 7,154
Net income 10,736
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its wholly owned subsidiaries, Transport and Hartley. All significant
intercompany accounts and transactions have been eliminated in consolidation.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the amounts reported in the financial statements and accompanying notes.
Actual results could differ from those estimates.
35
<PAGE> 36
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
1. NATURE OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
CASH AND CASH EQUIVALENTS
For purposes of the consolidated statement of cash flows, the Company considers
all highly liquid investments with a maturity of three months or less when
purchased to be cash equivalents.
INVENTORIES
Inventories are stated at the lower of cost or market. Cost is determined on the
last-in, first-out (LIFO) method for substantially all inventories except for
supplies, for which cost is determined on the first-in, first-out (FIFO) method.
PROPERTY, PLANT AND EQUIPMENT
Expenditures for additions and improvements to property, plant and equipment are
capitalized at cost while replacements, maintenance and repairs which do not
improve or extend the lives of the respective assets are expensed as incurred.
Depreciation for financial reporting purposes is provided over the estimated
useful lives of the respective assets, using the straight-line method.
DEFERRED FINANCING COSTS
Costs incurred to obtain long-term financing are amortized using the interest
method over the term of the related debt.
IDENTIFIABLE INTANGIBLE ASSETS
Identifiable intangible assets are amortized on a straight-line basis over the
estimated useful lives of five months to 40 years.
36
<PAGE> 37
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
1. NATURE OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
GOODWILL
Goodwill is amortized on a straight-line basis over 40 years. The carrying value
of goodwill will be reviewed if facts and circumstances suggest that it may be
impaired. If this review indicates that goodwill will not be recoverable, as
determined based on the undiscounted cash flows of the Company over the
remaining amortization period, the Company would reduce the carrying value of
the goodwill by the estimated shortfall of cash flows.
REVENUE RECOGNITION
Revenue from the sale of castings and sand control systems is recognized upon
shipment to the customer.
ADVERTISING COSTS
Advertising costs are expensed as incurred, and amounted to $274 for the five
months ended September 30, 1997.
INCOME TAXES
Deferred income taxes are provided for temporary differences between the
financial reporting and income tax basis of the Company's assets and liabilities
and are measured using currently enacted tax rates and laws.
37
<PAGE> 38
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
1. NATURE OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
FINANCIAL INSTRUMENTS
The Company has a number of financial instruments, none of which are held for
trading purposes. The following presents the carrying amounts and estimated fair
values of such instruments at September 30, 1997:
<TABLE>
<CAPTION>
Carrying Fair
Amount Value
------------ ------------
<S> <C> <C>
Cash and cash equivalents $ 20,344 $ 20,344
Accounts receivable 29,932 29,932
Accounts payable 10,333 10,333
Long-term debt 197,620 213,623 (1)
</TABLE>
(1) The fair value of the Senior Subordinated Notes is based on quoted market
prices.
PENDING ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
"Disclosures about Segments of an Enterprise and Related Information." SFAS No.
131 establishes the standards for the manner in which public enterprises are
required to report financial and descriptive information about their operating
segments. The statement defines operating segments as components of an
enterprise for which separate financial information is available and evaluated
regularly as a means for assessing segment performance and allocating resources
to segments. A measure of profit or loss, total assets and other related
information are required to be disclosed for each operating segment. In
addition, this statement requires the annual disclosure of information
concerning revenues derived from the enterprise's products or services,
countries in which it earns revenue or holds assets, and major customers. SFAS
No. 131 is effective for fiscal years beginning after December 15, 1997. The
adoption of SFAS No. 131 will not affect the Company's results of operations or
financial position, but may affect the disclosure of segment information.
38
<PAGE> 39
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
2. INVENTORIES
Inventories consist of the following at September 30, 1997:
<TABLE>
<S> <C>
Raw materials $ 1,688
Work in process and finished goods 13,379
Supplies 4,572
--------
$ 19,639
========
</TABLE>
At September 30, 1997, inventories at LIFO approximate FIFO cost.
3. IDENTIFIABLE INTANGIBLE ASSETS
Identifiable intangible assets consist of the following at September 30, 1997:
<TABLE>
<S> <C>
Customer lists $14,200
Trade names 11,700
Assembled work force 2,050
Other 2,924
-------
30,874
Less accumulated amortization 2,450
-------
$28,424
=======
</TABLE>
39
<PAGE> 40
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
4. LONG-TERM DEBT
Long-term debt consists of the following at September 30, 1997:
<TABLE>
<S> <C>
111/8% Series B Senior Subordinated Notes $150,000
111/8% Series D Senior Subordinated Notes, including unamortized
premium of $2,522 47,522
Other 98
--------
197,620
Less current portion 98
--------
$197,522
========
</TABLE>
The Series B and Series D Senior Subordinated Notes (collectively, the Notes)
are unsecured and mature on May 1, 2007. Interest is payable semiannually on May
1 and November 1. The Notes are fully, unconditionally, jointly and severally
guaranteed by Transport and Hartley (Guarantor Subsidiaries). The Notes are
subordinated to all existing and future senior indebtedness of the Company but
rank equally in right of
40
<PAGE> 41
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
4. LONG-TERM DEBT (CONTINUED)
payment with any future senior subordinated indebtedness of the Company. The
Notes contain covenants which limit the Company from incurring additional
indebtedness and restrict dividend payments, stock redemptions and certain other
transactions.
The Series D Senior Subordinated Notes were issued on July 1, 1997. The Company
used the proceeds to repay the term loans, accrued interest thereon and related
fees and expenses. In connection with the prepayment in full of the term loans,
the Company wrote off the unamortized balance of the related deferred financing
costs of $2,629.
The Company has an unsecured revolving credit facility that provides for
borrowings up to $50 million through April 30, 2002. The revolving credit
facility bears interest at (a) the base rate (as defined) plus 1.5% or (b) LIBOR
(as defined) plus 2.5%, in each case subject to certain reductions based on the
Company's financial performance. Interest is payable quarterly on outstanding
borrowings. The Company is subject to a quarterly commitment fee of .5% per
annum, subject to reduction based upon the Company's financial performance, on
the average daily unused portion of the revolving credit facility.
The covenants contained in the revolving credit facility restrict the payment of
dividends, capital expenditures and certain other transactions and require the
Company to maintain leverage, net worth and interest coverage ratios.
5. COMMITMENTS AND CONTINGENCIES
The Company leases warehouse space, machinery and equipment, office equipment
and vehicles under operating leases. Rent expense under these operating leases
for the five-month period ended September 30, 1997 amounted to $446. Minimum
rental payments due under these operating leases for subsequent fiscal years are
as follows:
<TABLE>
<S> <C>
1998 $ 678
1999 506
2000 223
2001 94
2002 21
-------
$ 1,522
=======
</TABLE>
41
<PAGE> 42
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
5. COMMITMENTS AND CONTINGENCIES (CONTINUED)
The Company is involved in a number of product liability claims, none of which,
in the opinion of management, is expected to have a material adverse effect on
the consolidated financial statements.
The Company is partially self-insured for workers compensation claims. An
accrued liability is recorded for claims incurred but not yet paid or reported,
with such accrual based on current and historical claim information. The accrual
may ultimately be settled for an amount greater or lesser than the recorded
amount. Adjustments of the accrual are recorded in the period in which they are
determined.
As of September 30, 1997, the Company had outstanding letters of credit in the
aggregate amount of $595, which secure certain workers compensation and other
obligations.
6. INCOME TAXES
The provision for income taxes consists of the following at September 30, 1997:
<TABLE>
<S> <C>
Current:
Federal $ 5,265
State 1,153
-------
6,418
Deferred (2,939)
-------
$ 3,479
=======
</TABLE>
42
<PAGE> 43
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
6. INCOME TAXES (CONTINUED)
The provision for income taxes differs from the amount computed by applying the
federal statutory rate of 34% to income before income taxes and extraordinary
item at September 30, 1997, as follows:
<TABLE>
<S> <C>
Provision at statutory rate $ 2,492
State income taxes, net of federal tax benefit 432
Amortization of goodwill 467
Other 88
---------
Provision for income taxes $ 3,479
=========
The components of the Company's deferred income tax assets and liabilities are
as follows at September 30, 1997:
Deferred income tax liabilities:
Book basis of inventories in excess of tax basis $ (3,270)
Book basis of property, plant and equipment in excess of tax basis (32,310)
Identifiable intangible assets (11,370)
Employee benefit plans (720)
Other (296)
---------
(47,966)
Deferred income tax assets:
Employee benefit plans 2,805
Accrued vacation 1,011
Other accrued liabilities 1,112
Other 214
---------
5,142
---------
Net deferred income tax liability $ (42,824)
=========
Included in the consolidated balance sheet as:
Current deferred income tax asset $ 1,695
Noncurrent deferred income tax liability (44,519)
---------
$ (42,824)
=========
</TABLE>
43
<PAGE> 44
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
7. EMPLOYEE BENEFIT PLANS
DEFINED BENEFIT PENSION PLANS
The Company sponsors two defined benefit pension plans covering substantially
all hourly employees. Retirement benefits for the pension plans are based on
years of credited service and defined benefit rates. The Company funds the
pension plans based on an actuarially determined cost method allowable under
Internal Revenue Service regulations.
The following table reconciles the funded status of the pension plans as of
August 31, 1997 (the Company uses a measurement date as of August 31), to the
amounts included in the consolidated balance sheet at September 30, 1997:
<TABLE>
<CAPTION>
Underfunded Overfunded
Plan Plan
-----------------------------
<S> <C> <C>
Actuarial present value of benefit obligations:
Vested benefit obligations $ (821) $(20,506)
============ ============
Accumulated benefit obligations $ (836) $(21,006)
============ ============
Projected benefit obligations $ (836) $(21,006)
Plan assets at fair value (consisting principally of pooled
investment funds and an investment contract with an
insurance company) 776 24,524
------------ ------------
Projected benefit obligations less than (in excess of) plan assets
(60) 3,518
Unrecognized net gain (3) (1,655)
------------ ------------
Prepaid (accrued) pension obligations $ (63) $ 1,863
============ ============
Net pension asset included in other assets in the consolidated
balance sheet $ 1,800
============
</TABLE>
44
<PAGE> 45
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
7. EMPLOYEE BENEFIT PLANS (CONTINUED)
Components of net periodic pension cost for the five-month period ended
September 30, 1997 are as follows:
Service cost - benefits earned during the period $ 202
Interest cost on projected benefit obligations 662
Actual return on plan assets (723)
------
$ 141
======
The discount rate used in estimating the projected benefit obligations and in
determining the interest cost component of pension expense for the following
year for both plans was 7.5%. The assumed long-term rate of return on plan
assets used in determining pension expense was 7.5%.
PROFIT-SHARING AND SAVINGS RETIREMENT PLAN
The Company sponsors a Profit-Sharing and Savings Retirement Plan covering
substantially all salaried employees. The plan allows participants to make
401(k) contributions in an amount from 1% to 5% of their compensation. The
Company matches 50% of the participants' contributions. The Company may make
additional voluntary contributions to the plan as determined annually by the
Board of Directors. Total Company contributions amounted to $378 for the
five-month period ended September 30, 1997.
POSTRETIREMENT BENEFITS
The Company sponsors defined benefit postretirement health care plans covering
substantially all salaried employees and their dependents. Benefits are provided
from the date of retirement for the duration of the employee's life up to a
maximum of $1 million per individual. Retirees' contributions to the plans are
based on years of service and age at retirement. The Company funds benefits as
incurred.
45
<PAGE> 46
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
7. EMPLOYEE BENEFIT PLANS (CONTINUED)
The following table reconciles the funded status of the postretirement benefit
plans to the amounts included in the consolidated balance sheet at September 30,
1997:
Accumulated postretirement benefit obligations:
Retirees $2,191
Fully eligible active participants 801
Other active participants 1,902
------
Accrued postretirement benefit obligations $4,894
======
Components of net periodic postretirement benefit cost for the five-month period
ended September 30, 1997 are as follows:
Service cost $ 58
Interest cost on accumulated postretirement benefit
obligations
148
------
$ 206
======
The weighted-average discount rate used in determining the accumulated
postretirement benefit obligations for both plans was 7.5%, and the healthcare
cost trend rate was assumed to decrease gradually to 2009 and then remain at
that level thereafter. The range of cost trend rates is 8.5% to 4.5%. The
healthcare cost trend rate assumption has a significant effect on the amounts
reported. Increasing the healthcare cost trend rate by one percentage point
would increase the accumulated postretirement benefit obligations as of
September 30, 1997 by $825 and would increase postretirement benefit expense for
the five-month period ended September 30, 1997 by $48.
46
<PAGE> 47
Neenah Foundry Company
Notes to Consolidated Financial Statements
(In Thousands)
8. GUARANTOR SUBSIDIARIES
Transport and Hartley, wholly owned subsidiaries of the Company, fully,
unconditionally, jointly and severally guarantee the Notes. The following is
summarized combined financial information of the wholly owned subsidiaries. Net
sales include net sales to Neenah Foundry Company of $2,048 for the five months
ended September 30, 1997. Separate financial statements of the Guarantor
Subsidiaries are not separately presented because, in the opinion of management,
such financial statements are not material to investors.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997
------------------
<S> <C>
Current assets $1,999
Noncurrent assets 2,464
Current liabilities 1,337
Noncurrent liabilities 382
<CAPTION>
FIVE MONTHS ENDED
SEPTEMBER 30, 1997
---------------------
<S> <C>
Net sales $4,232
Gross profit 1,530
Net income 381
</TABLE>
47
<PAGE> 48
CONSOLIDATED FINANCIAL STATEMENTS
NEENAH FOUNDRY COMPANY (PREDECESSOR)
Years ended March 31, 1995,
1996 and 1997 and one month
ended April 30, 1997
48
<PAGE> 49
Neenah Foundry Company (Predecessor)
Consolidated Financial Statements
Years ended March 31, 1995, 1996 and 1997 and one
month ended April 30, 1997
CONTENTS
Report of Independent Auditors............................................
Consolidated Balance Sheets...............................................
Consolidated Statements of Income.........................................
Consolidated Statements of Changes in Stockholders' Equity................
Consolidated Statements of Cash Flows.....................................
Notes to Consolidated Financial Statements................................
49
<PAGE> 50
Report of Ernst & Young LLP, Independent Auditors
Board of Directors
Neenah Foundry Company (formerly
Neenah Corporation - see Note 1)
We have audited the accompanying consolidated balance sheets of Neenah Foundry
Company (the Company) as of March 31, 1996 and 1997, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows for each of the three years in the period ended March 31, 1997, and for
the one month ended April 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, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of the
Company as of March 31, 1996 and 1997, and the consolidated results of its
operations and its cash flows for each of the three years in the period ended
March 31, 1997, and for the one month ended April 30, 1997, in conformity with
generally accepted accounting principles.
Milwaukee, Wisconsin ERNST & YOUNG LLP
June 4, 1997, except for Notes 1 and 10
as to which the date is July 1, 1997
50
<PAGE> 51
Neenah Foundry Company (Predecessor)
Consolidated Balance Sheets
(In Thousands, Except Share and Per Share Amounts)
<TABLE>
<CAPTION>
MARCH 31
1996 1997
----------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 10,126 $ 22,403
Accounts receivable, less allowance for doubtful
accounts of $386 at March 31, 1996 and 1997 20,831 21,423
Inventories 13,324 13,956
Other current assets - 401
Deferred income taxes 2,253 2,325
--------- -----------
Total current assets 46,534 60,508
Property, plant and equipment:
Land 847 847
Buildings and improvements 14,972 15,063
Machinery and equipment 97,749 101,655
--------- -----------
113,568 117,565
Less accumulated depreciation 79,840 86,186
--------- -----------
33,728 31,379
Other assets 2,695 1,982
--------- -----------
$ 82,957 $ 93,869
========= ============
</TABLE>
51
<PAGE> 52
<TABLE>
<CAPTION>
MARCH 31
1996 1997
-----------------------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 8,124 $ 8,497
Dividends payable 2,220 -
Income taxes payable 517 573
Accrued wages and employee benefits 5,516 5,545
Other accrued liabilities 1,937 2,052
Current portion of long-term debt 107 134
--------- ---------
Total current liabilities 18,421 16,801
Long-term debt 134 -
Pension obligations 1,737 -
Postretirement benefit obligations 5,300 5,667
Deferred income taxes 2,575 2,544
--------- ---------
Total liabilities 28,167 25,012
Commitments and contingencies (Note 5)
Stockholders' equity:
Preferred stock, par value $100 per share:
Authorized 3,000 shares; no shares issued and
outstanding - -
Common stock, par value $100 per share:
Class A (voting):
Authorized 1,000 shares; issued and outstanding,
620 shares 62 62
Class B (nonvoting):
Authorized 10,000 shares; issued and outstanding,
3,820 shares
382 382
Retained earnings 57,268 71,335
Notes receivable from owners to finance stock purchase (2,922) (2,922)
--------- --------
Total stockholders' equity 54,790 68,857
--------- --------
$ 82,957 $ 93,869
========= ========
</TABLE>
See accompanying notes
52
<PAGE> 53
Neenah Foundry Company (Predecessor)
Consolidated Statements of Income
(In Thousands)
<TABLE>
<CAPTION>
ONE MONTH
ENDED
YEAR ENDED MARCH 31 APRIL 30
1995 1996 1997 1997
------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 160,621 $166,951 $165,426 $17,276
Cost of sales 120,981 121,631 116,736 11,351
--------- --------- --------- --------
Gross profit 39,640 45,320 48,690 5,925
Selling, general and administrative
expenses 16,673 16,983 17,547 1,752
--------- --------- --------- --------
Operating income 22,967 28,337 31,143 4,173
Net interest income (expense) (397) 481 1,162 121
--------- --------- --------- --------
Income before income taxes 22,570 28,818 32,305 4,294
Provision for income taxes 8,866 11,676 12,467 1,615
--------- --------- --------- --------
Net income $ 13,704 $ 17,142 $ 19,838 $ 2,679
========= ========= ========= ========
</TABLE>
See accompanying notes
53
<PAGE> 54
Neenah Foundry Company (Predecessor)
Consolidated Statements of Changes in Stockholders' Equity
(In Thousands, Except Share and Per Share Amounts)
<TABLE>
<CAPTION>
Common Stock
------------------------------------- Notes Receivable
Preferred Stock Class A Class B from Owners
-------------------------------------------------------- Retained to Finance
Shares Amount Shares Amount Shares Amount Earnings Stock Purchase Total
-----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at April 1, 1994 1,468 $ 147 719 $ 72 4,920 $ 492 $ 40,140 $(2,922) $ 37,929
Redemption and retirement of stock (1,468) (147) (99) (10) (1,100) (110) (5,932) -- (6,199)
Dividends declared:
Preferred - $4.50 per share -- -- -- -- -- -- (5) -- (5)
Common - $475 per share -- -- -- -- -- -- (2,231) -- (2,231)
Net income -- -- -- -- -- -- 13,704 -- 13,704
------ ------ ------ ------ ------ ------ -------- ------- ------
Balance at March 31, 1995 -- -- 620 62 3,820 382 45,676 (2,922) 43,198
Common dividends declared -
$1,250 per share -- -- -- -- -- -- (5,550) -- (5,550)
Net income -- -- -- -- -- -- 17,142 -- 17,142
------ ------ ------ ------ ------ ------ -------- ------- ------
Balance at March 31, 1996 -- -- 620 62 3,820 382 57,268 (2,922) 54,790
Common dividends declared -
$1,300 per share -- -- -- -- -- -- (5,771) -- (5,771)
Net income -- -- -- -- -- -- 19,838 -- 19,838
------ ------ ------ ------ ------ ------ -------- ------- ------
Balance at March 31, 1997 -- -- 620 62 3,820 382 71,335 (2,922) 68,857
Collection of notes
receivable from owners -- -- -- -- -- -- -- 2,922 2,922
Net income -- -- -- -- -- -- 2,679 -- 2,679
------ ------ ------ ------ ------ ------ -------- ------- -------
Balance at April 30, 1997 -- $ -- 620 $ 62 3,820 $ 382 $ 74,01 $ -- $74,458
====== ====== ====== ====== ====== ====== ======== ======= =======
</TABLE>
See accompanying notes
54
<PAGE> 55
Neenah Foundry Company (Predecessor)
Consolidated Statements of Cash Flows
(In Thousands)
<TABLE>
<CAPTION>
ONE MONTH
ENDED
YEAR ENDED MARCH 31 APRIL 30
1995 1996 1997 1997
-------------------------------------------------------------
<S> <C> <C> <C> <C>
OPERATING ACTIVITIES
Net income $ 13,704 $ 17,142 $19,838 $ 2,679
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation 6,842 6,776 6,881 518
Deferred income taxes 2,862 1,863 (103) (120)
Other (274) 48 (103) -
Changes in operating assets and liabilities:
Accounts receivable (3,384) 439 (592) (3,764)
Inventories (142) (603) (632) 495
Other current assets 186 27 (401) 401
Accounts payable 684 (2,653) 373 1,308
Income taxes payable 526 (585) 56 1,734
Accrued liabilities 1,388 (1,261) 144 (185)
Pension obligations 900 859 (2,349) 822
Postretirement benefit obligations 289 221 367 29
-------- -------- ------- -------
Net cash provided by (used in) operating activities 23,581 22,273 23,479 3,917
INVESTING ACTIVITIES
Purchase of property, plant and equipment (3,665) (7,275) (4,546) (190)
Proceeds from life insurance policy - - 1,439 -
Other 253 (24) 3 (1)
-------- -------- ------- -------
Net cash used in investing activities (3,412) (7,299) (3,104) (191)
FINANCING ACTIVITIES
Dividends paid (1,411) (4,440) (7,991) -
Redemption of stock (6,199) - - -
Proceeds from long-term debt 70,529 16,370 - -
Payments on long-term debt (82,968) (17,016) (107) (5)
Collection of notes receivable from owners - - - 2,922
-------- -------- ------- -------
Net cash provided by (used in) financing activities (20,049) (5,086) (8,098) 2,917
-------- -------- ------- -------
Increase in cash and cash equivalents 120 9,888 12,277 6,643
Cash and cash equivalents at beginning of period 118 238 10,126 22,403
-------- -------- ------- --------
Cash and cash equivalents at end of period $ 238 $ 10,126 $22,403 $ 29,046
======== ======== ======= ========
Supplemental disclosures of cash flow information:
Cash paid for:
Interest $ 624 $ 84 $ 39 $ 1
Income taxes 5,478 10,398 12,515 -
</TABLE>
See accompanying notes. 55
<PAGE> 56
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
NEENAH FOUNDRY COMPANY (PREDECESSOR)
Years ended March 31, 1995,
1996 and 1997 and one month
ended April 30, 1997
(In Thousands)
1. NATURE OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES
NATURE OF OPERATIONS
Prior to July 1, 1997, Neenah Foundry Company was one of three wholly owned
subsidiaries of Neenah Corporation, a holding company with no significant assets
or operations other than its holdings in the common stock of its subsidiaries.
On July 1, 1997, Neenah Foundry Company merged into Neenah Corporation and the
surviving company changed its name to Neenah Foundry Company (the Company).
The Company operates in one business segment for financial reporting purposes:
the manufacture of gray and ductile iron castings. The Company manufactures
castings for sale to industrial and municipal customers throughout the United
States and several foreign countries. Industrial castings are custom-engineered
and are produced for customers in several industries, with a concentration in
the medium and heavy-duty truck components, farm equipment, and heating,
ventilation, and air-conditioning industries. Municipal castings include manhole
covers and frames, storm sewer frames and grates, trench drain systems, tree
grates and specialty castings for a variety of applications.
Industrial castings are generally sold to large, well-established companies,
with two customers accounting for 18% and 15% of net sales in fiscal 1995, 17%
and 9% of net sales in fiscal 1996, 16% and 10% of net sales in fiscal 1997 and
29% and 24% for the one month ended April 30, 1997. Combined receivables from
these two customers totaled $4,974 and $6,651 at March 31, 1996 and 1997,
respectively. Municipal castings are sold to a large number of customers. The
Company's accounts receivable generally are unsecured.
The Company has two wholly owned subsidiaries--Neenah Transport, Inc.
(Transport) and Hartley Controls Corporation (Hartley). Transport is a common
and contract carrier licensed to operate in the continental United States. The
majority of Transport's revenues are derived from transport services provided to
the Company. Hartley designs and manufactures customized sand control systems
for the foundry industry, which are sold and serviced throughout the United
States and several foreign countries. Hartley and Transport each account for
less than 10% of consolidated net sales, net income and total assets.
56
<PAGE> 57
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
1. NATURE OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its wholly owned subsidiaries, Transport and Hartley. All significant
intercompany accounts and transactions have been eliminated in consolidation.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the amounts reported in the financial statements and accompanying notes.
Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS
For purposes of the consolidated statement of cash flows, the Company considers
all highly liquid investments with a maturity of three months or less when
purchased to be cash equivalents. Cash equivalents, consisting principally of
investments in commercial paper, totaled $11,598 and $23,028 at March 31, 1996
and 1997, respectively. The cost of these debt securities, which are considered
as "available for sale" for financial reporting purposes, approximates fair
value at both March 31, 1996 and 1997. There were no realized gains or losses
recognized on these securities during any of the three years in the period ended
March 31, 1997 or the one month ended April 30, 1997.
INVENTORIES
Inventories are stated at the lower of cost or market. Cost is determined on the
last-in, first-out (LIFO) method for substantially all inventories except for
supplies, for which cost is determined on the first-in, first-out (FIFO) method.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment are recorded at cost. Expenditures for additions
and improvements are capitalized while replacements, maintenance and repairs
which do not improve or extend the lives of the respective assets are expensed
as incurred.
57
<PAGE> 58
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
1. NATURE OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Depreciation for financial reporting purposes is provided over the estimated
useful lives of the respective assets, using accelerated and straight-line
methods. Depreciation expense includes amortization of machinery and equipment
recorded under capitalized leases.
REVENUE RECOGNITION
Revenue from the sale of castings and sand control systems is recognized upon
shipment to the customer.
ADVERTISING COSTS
Advertising costs are expensed as incurred, and amounted to $467, $527, $524
and $55 for the years ended March 31, 1995, 1996 and 1997 and one month ended
April 30, 1997, respectively.
INCOME TAXES
Deferred income taxes are provided for temporary differences between the
financial reporting and income tax basis of the Company's assets and liabilities
and are measured using currently enacted tax rates and laws.
FINANCIAL INSTRUMENTS
The Company has a number of financial instruments, none of which are held for
trading purposes. The Company estimates that the fair value of all financial
instruments at March 31, 1996 and 1997 does not differ materially from the
carrying value of such instruments recorded in the accompanying consolidated
balance sheets, as follows:
<TABLE>
<CAPTION>
MARCH 31
1996 1997
-----------------------------
<S> <C> <C>
Cash and cash equivalents $ 10,126 $ 22,403
Accounts receivable 20,831 21,423
Accounts payable (8,124) (8,497)
Long-term debt (241) (134)
</TABLE>
58
<PAGE> 59
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
1. NATURE OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
NEW ACCOUNTING STANDARDS
The Company adopted FASB Statement of Financial Accounting Standards (SFAS) No.
121, "Accounting for the Impairment of Long-Lived Assets and for Assets to Be
Disposed Of," and SFAS No. 123, "Accounting for Stock-Based Compensation," on
April 1, 1996, SFAS No. 125, "Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities," on January 1, 1997, and
Statement of Position 96-1, "Environmental Remediation Liabilities," on April 1,
1997. The adoption of these statements did not have any effect on the Company's
consolidated financial statements.
In accordance with SFAS No. 121, the Company records impairment losses on
long-lived assets used in operations when events and circumstances indicate that
the assets might be impaired and the undiscounted cash flows estimated to be
generated by those assets are less than the carrying amounts of those assets.
2. INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
MARCH 31
1996 1997
---------------------------
<S> <C> <C>
Raw materials $ 2,214 $ 2,017
Work in process and finished goods 13,957 14,324
Supplies 4,886 4,860
-------- --------
Inventories at FIFO cost 21,057 21,201
Excess of FIFO cost over LIFO cost (7,733) (7,245)
-------- --------
$13,324 $ 13,956
======== ========
</TABLE>
3. LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
MARCH 31
1996 1997
----------------------
<S> <C> <C>
Capital lease obligations $ 241 $ 134
Less current portion 107 134
----- ------
$ 134 $ -
===== =======
</TABLE>
59
<PAGE> 60
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
3. LONG-TERM DEBT (CONTINUED)
The Company has a revolving credit agreement (the Agreement) with a bank that
provides for borrowings up to $25,000 through July 31, 1998. Interest is payable
monthly on outstanding borrowings at the bank's Reference Rate (8.25% at March
31, 1997). The Agreement contains an option that allows the Company to designate
a portion (minimum of $2,000) of the borrowings to bear a fixed rate of interest
for a specified period of time. Borrowings under the Agreement are unsecured and
a quarterly fee is charged by the bank on the unused portion of the facility.
The capital lease obligations consist of leases for a propane system and
semi-tractors and trailers. Included in machinery and equipment is $567 and
$397, and included in accumulated depreciation is $272 and $179 at March 31,
1996 and 1997, respectively, related to these capital leases.
4. NOTES RECEIVABLE FROM OWNERS
The notes receivable from owners of $2,922 were repaid by the owners prior to
the consummation of the plan of reorganization described in Note 10. The
proceeds of the notes receivable were used to purchase 1,461 shares of Company
Class B common stock from other shareholders, and were secured by such common
stock.
5. COMMITMENTS AND CONTINGENCIES
The Company leases warehouse space, machinery and equipment, office equipment
and vehicles under operating leases. Rent expense under these operating leases
for the years ended March 31, 1995, 1996 and 1997 and one month ended April 30,
1997 amounted to $850, $996, $1,088 and $85, respectively. Minimum rental
payments due under these operating leases for subsequent fiscal years are as
follows:
1998 $ 736
1999 586
2000 287
2001 115
-------
$ 1,724
=======
60
<PAGE> 61
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
5. COMMITMENTS AND CONTINGENCIES (CONTINUED)
The Company is involved in a number of product liability claims, none of which,
in the opinion of management, is expected to have a material adverse effect on
the consolidated financial statements.
The Company is partially self-insured for workers compensation claims. An
accrued liability is recorded for claims incurred but not yet paid or reported,
with such accrual based on current and historical claim information. The accrual
may ultimately be settled for an amount greater or lesser than the recorded
amount. Adjustments of the accrual are recorded in the period in which they are
determined.
As of March 31, 1997, the Company had outstanding letters of credit in the
aggregate amount of $595, which secure certain workers compensation and
other obligations.
6. INCOME TAXES
The provision for income taxes consists of the following:
<TABLE>
<CAPTION>
ONE MONTH
ENDED
YEAR ENDED MARCH 31 APRIL 30
1995 1996 1997 1997
----------------------------------------------------
<S> <C> <C> <C> <C>
Current:
Federal $5,556 $ 9,147 $11,554 $1,460
State 448 666 1,016 275
------ -------- ------- ------
6,004 9,813 12,570 1,735
Deferred 2,862 1,863 (103) (120)
------ -------- ------- ------
$8,866 $11,676 $12,467 $1,615
====== ======== ======= ======
</TABLE>
The difference between the provision for income taxes and income taxes
computed using the statutory U.S. federal income tax rate of 35% is as
follows:
<TABLE>
<CAPTION>
ONE MONTH
ENDED
YEAR ENDED MARCH 31 APRIL 30
1995 1996 1997 1997
----------------------------------------------------
<S> <C> <C> <C> <C>
Provision at statutory rate $7,900 $10,086 $11,307 $1,503
State income taxes, net of federal tax benefit 801 1,126 1,318 112
Other 165 464 (158) -
------ ------- ------- ------
Provision for income taxes $8,866 $11,676 $12,467 $1,615
====== ======= ======= ======
</TABLE>
61
<PAGE> 62
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
6. INCOME TAXES (CONTINUED)
The components of the Company's deferred income tax assets and liabilities are
as follows:
<TABLE>
<CAPTION>
MARCH 31
1996 1997
-------------- ---------------
<S> <C> <C>
Deferred income tax liabilities:
Tax depreciation in excess of book depreciation $(5,621) $(5,156)
Employee benefit plans (602) (441)
Other (437) (127)
------- -------
(6,660) (5,724)
Deferred income tax assets:
Inventories 560 560
Employee benefit plans 3,316 3,128
Accrued vacation 825 855
Other accrued liabilities 672 790
State tax credit carryforwards 676 -
Other 289 172
------- -------
6,338 5,505
------- -------
Net deferred income tax liability $ (322) $ (219)
======= =======
Included in the consolidated balance sheets as:
Current deferred income tax asset $ 2,253 $ 2,325
Noncurrent deferred income tax liability (2,575) (2,544)
------- -------
$ (322) $ (219)
======= =======
</TABLE>
The Company has not recorded a valuation allowance with respect to any deferred
tax assets at March 31, 1996 or 1997.
7. EMPLOYEE BENEFIT PLANS
DEFINED BENEFIT PENSION PLANS
The Company sponsors two defined benefit pension plans covering
substantially all hourly employees and previously sponsored a defined benefit
supplemental executive retirement plan (SERP) which covered certain salaried
employees. During the year ended March 31, 1997, the Company purchased
nonparticipating annuity contracts to settle the vested benefit obligations
under the SERP. Retirement benefits for the pension plans are
62
<PAGE> 63
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
7. EMPLOYEE BENEFIT PLANS (CONTINUED)
based on years of credited service and defined benefit rates while retirement
benefits for the SERP were based on compensation levels. The Company funds the
pension plans based on an actuarially determined cost method allowable under
Internal Revenue Service regulations. The SERP was unfunded.
The following table reconciles the funded status of the pension plans, as of
December 31, 1995 and 1996 (the Company uses a measurement date as of December
31), to the amounts included in the consolidated balance sheets at March 31,
1996 and 1997:
<TABLE>
<CAPTION>
1996 1997
-----------------------------------------------------------
Underfunded Overfunded Underfunded Overfunded
Plans Plan Plan Plan
-----------------------------------------------------------
<S> <C> <C> <C> <C>
Accumulated benefit obligations $ (3,944) $(19,805) $(845) $(20,150)
Effect of assumed increases in compensation on
SERP (2,593) -- -- --
---------- ---------- ---------- ----------
(6,537) (19,805) (845) (20,150)
Projected benefit obligations
Plan assets at fair value (consisting
principally of pooled investment funds and
an investment contract with an insurance
company) 697 21,110 735 22,169
---------- ---------- ---------- ----------
Projected benefit obligations less than
(in excess of) plan assets (5,840) 1,305 (110) 2,019
Unrecognized net loss (gain) 2,055 (1,940) (8) (2,966)
Unrecognized prior service cost 259 4,833 160 4,452
Unrecognized net transition obligation (asset) 782 (2,695) (21) (2,411)
Adjustment to recognize additional minimum
liability (503) -- (131) --
---------- ---------- ---------- ----------
Prepaid (accrued) pension obligation, at
December 31, 1995 and December 31, 1996,
respectively (3,247) 1,503 (110) 1,094
Contributions between January 1 and March 31,
1996 and 1997, respectively 7 -- -- --
---------- --------- ---------- ----------
Prepaid (accrued) pension obligations $ (3,240) $ 1,503 $ (110) $ 1,094
========== ========= ========== ==========
Net pension asset (obligation) included in
the consolidated balance sheets $ (1,737) $ 984
========== ==========
</TABLE>
63
<PAGE> 64
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
7. EMPLOYEE BENEFIT PLANS (CONTINUED)
Components of net periodic pension cost are as follows:
<TABLE>
<CAPTION>
ONE MONTH
ENDED
YEAR ENDED MARCH 31 APRIL 30
1995 1996 1997 1997
------------ ------------ -------------- ------------
<S> <C> <C> <C> <C>
Service cost - benefits earned during the year $ 822 $ 880 $ 820 $ 38
Interest cost on projected benefit obligations 1,437 1,545 1,742 125
Actual return on plan assets (1,412) (1,450) (1,531) (132)
Net amortization and deferral 217 203 220 (1)
--------- -------- -------- -------
$ 1,064 $ 1,178 $ 1,251 $ 30
========= ======== ======== =======
</TABLE>
As a result of the settlement of the SERP, the Company recognized a curtailment
gain of $1,317 and a settlement loss of $878 during the year ended March 31,
1997. The discount rate used in estimating the projected benefit obligations and
in determining the interest cost component of pension expense for the following
year for all plans was 7.5% for all years. The annual rate of compensation
increase assumed for the SERP in estimating the projected benefit obligations
was 6.5% for all years. The assumed long-term rate of return on plan assets used
in determining pension expense was 7.5% for all years.
PROFIT-SHARING AND SAVINGS RETIREMENT PLAN
The Company sponsors a Profit-Sharing and Savings Retirement Plan covering
substantially all salaried employees. The plan allows participants to make
401(k) contributions in an amount from 1% to 5% of their compensation. The
Company matches 50% of the participants' contributions. The Company may make
additional voluntary contributions to the plan as determined annually by the
Board of Directors. Total Company contributions amounted to $859, $891, $915 and
$82 for the years ended March 31, 1995, 1996 and 1997 and one month ended April
30, 1997, respectively.
POSTRETIREMENT BENEFITS
The Company sponsors defined benefit postretirement health care plans covering
substantially all salaried employees and their dependents. Benefits are provided
from the date of retirement for the duration of the employee's life up to a
maximum of $1 million per individual. Retirees' contributions to the plans are
based on years of service and age at retirement. The Company funds benefits as
incurred.
64
<PAGE> 65
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
7. EMPLOYEE BENEFIT PLANS (CONTINUED)
The following table reconciles the funded status of the postretirement benefit
plans to the amounts included in the consolidated balance sheets at March 31:
<TABLE>
<CAPTION>
1996 1997
------------ -----------
<S> <C> <C>
Accumulated postretirement benefit obligations:
Retirees $ 2,047 $ 1,830
Fully eligible active participants 654 810
Other active participants 2,534 2,784
--------- --------
5,235 5,424
Plan assets - -
--------- --------
5,235 5,424
Unrecognized net gain 65 243
======== ========
Accrued postretirement benefit obligations $ 5,300 $ 5,667
======== ========
</TABLE>
Components of net periodic postretirement benefit cost are as follows:
<TABLE>
<CAPTION>
ONE MONTH
ENDED
YEAR ENDED MARCH 31 APRIL 30
1995 1996 1997 1997
---- ---- ---- -----------
<S> <C> <C> <C> <C>
Service cost $ 164 $ 176 $ 193 $ 11
Interest cost on accumulated post-
retirement benefit obligations 340 361 370 27
Net amortization and deferral (4) (4) (5) (7)
====== ===== ====== =====
$ 500 $ 533 $ 558 $ 31
====== ===== ====== =====
</TABLE>
The weighted-average discount rate used in determining the accumulated
postretirement benefit obligations for both plans was 7.5% for all years, and
the healthcare cost trend rate was projected to have annual increases of 8.5%.
The healthcare cost trend rate assumption has a significant effect on the
amounts reported. Increasing the healthcare cost trend rate by one percentage
point would increase the accumulated postretirement benefit obligations as of
March 31, 1997 by $1,014 and would increase postretirement benefit expense for
the year ended March 31, 1997 by $131.
65
<PAGE> 66
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
8. STOCKHOLDERS' EQUITY
The Company has a Restrictive Stock Transfer Agreement with certain of its
stockholders which permits the transfer of its stock held by such stockholders
to permitted transferees, as defined. In the event a stockholder wishes to sell
stock to a third party who is not a permitted transferee, the stock must first
be offered for sale to the Company. If the Company accepts the offer of sale,
the purchase price is based on a formula, as defined. The purchase price will be
financed by a promissory note payable in ten equal annual installments with
interest at the prime rate less 1%. The Restrictive Stock Transfer Agreement was
terminated concurrently with the consummation of the plan of reorganization
described in Note 10.
9. UNAUDITED QUARTERLY RESULTS
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31, 1996
Quarter 1 Quarter 2 Quarter 3 Quarter 4
----------------- ----------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Net sales $46,277 $44,454 $39,015 $37,205
Gross profit 12,976 12,243 10,199 9,902
Net income 5,325 5,024 3,839 2,954
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31, 1997
Quarter 1 Quarter 2 Quarter 3 Quarter 4
----------------- ----------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Net sales $44,309 $45,430 $37,815 $37,872
Gross profit 13,140 13,613 10,825 11,112
Net income 5,178 5,558 4,635 4,467
</TABLE>
10. SUBSEQUENT EVENT
On April 30, 1997, pursuant to an Agreement and Plan of Reorganization with NC
Merger Company and NFC Castings, Inc., Neenah Corporation was acquired by NFC
Castings, Inc. using (i) $45,000 of cash equity contributed by NFC Castings,
Inc., (ii) $45,000 of term loans, (iii) proceeds from the issuance of $150,000
of unsecured Senior Subordinated Notes in a Rule 144A private placement and (iv)
Company cash. The consideration for the acquisition is subject to a closing date
net worth adjustment. On July 1, 1997, the Company issued $45,000 of unsecured
Senior Subordinated Notes in a Rule 144A private placement and used the proceeds
to repay the term loans.
66
<PAGE> 67
Neenah Foundry Company (Predecessor)
Notes to Consolidated Financial Statements
(In Thousands)
10. SUBSEQUENT EVENT (CONTINUED)
As described in Note 1, on July 1, 1997, Neenah Foundry Company, the principal
operating subsidiary of Neenah Corporation, merged into Neenah Corporation.
Transport and Hartley, wholly owned subsidiaries of the Company, fully,
unconditionally, jointly and severally guarantee the Senior Subordinated Notes
issued in the private placement discussed above. The following is summarized
combined financial information of the wholly owned subsidiaries. Net sales
includes net sales to Neenah Foundry Company of $4,181, $4,090, $4,012 and $365
for the years ended March 31, 1995, 1996 and 1997 and one month ended April 30,
1997, respectively. Separate financial statements of the guarantor subsidiaries
are not separately presented because, in the opinion of management, such
financial statements are not material to investors.
<TABLE>
<CAPTION> MARCH 31
1996 1997
---------- ----------
<S> <C> <C>
Current assets $1,494 $1,867
Noncurrent assets 1,661 1,918
Current liabilities 941 1,006
Noncurrent liabilities 401 453
</TABLE>
<TABLE>
<CAPTION>
ONE MONTH
ENDED
YEAR ENDED MARCH 31 APRIL 30
1995 1996 1997 1997
--------------- -------------- -------------- ----------------
<S> <C> <C> <C> <C>
Net sales $9,131 $9,795 $9,971 $703
Gross profit 2,719 3,165 3,247 169
Net income (loss) 501 651 513 (15)
</TABLE>
67
<PAGE> 68
Report of Ernst & Young LLP, Independent Auditors
We have audited the consolidated financial statements of Neenah Foundry Company
as of September 30, 1997, and for the period from inception, May 1, 1997 through
September 30, 1997, and have issued our report thereon dated October 31, 1997
(included elsewhere in this Annual Report on Form 10-K). Our audit also included
the financial statement schedule listed in the index at Item 14(a). This
schedule is the responsibility of the Company's management. Our responsibility
is to express an opinion based on our audit.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
Milwaukee, Wisconsin ERNST & YOUNG LLP
October 31, 1997
68
<PAGE> 69
Schedule II
NEENAH FOUNDRY COMPANY
VALUATION AND QUALIFYING ACCOUNTS
Period from inception, May 1, 1997, through September 30, 1997
(Dollars in Thousands)
<TABLE>
<CAPTION>
BALANCE AT ADDITIONS
BEGINNING CHARGED TO BALANCE AT
DESCRIPTION OF PERIOD EXPENSE DEDUCTIONS END OF PERIOD
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Allowance for doubtful
accounts receivable:
1997 $ 386 $ 36 $ 36 (A) $ 386
===== ======= ======= ========
</TABLE>
(A) Uncollectible accounts written off, net of recoveries.
69
<PAGE> 70
Report of Ernst & Young LLP, Independent Auditors
We have audited the consolidated financial statements of Neenah Foundry Company
(formerly Neenah Corporation) as of March 31, 1996 and 1997, and for each of the
three years in the period ended March 31, 1997, and have issued our report
thereon dated June 4, 1997, except for Notes 1 and 10 as to which the date is
July 1, 1997 (included elsewhere in this Annual Report on Form 10-K). Our audits
also included the financial statement schedule listed in the index at Item
14(a). This schedule is the responsibility of the Company's management. Our
responsibility is to express an opinion based on our audits.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
Milwaukee, Wisconsin ERNST & YOUNG LLP
June 4, 1997
70
<PAGE> 71
Schedule II
NEENAH FOUNDRY COMPANY (PREDECESSOR)
VALUATION AND QUALIFYING ACCOUNTS
Years ended March 31, 1995, 1996 and 1997
(Dollars in Thousands)
<TABLE>
<CAPTION>
BALANCE AT ADDITIONS
BEGINNING CHARGED TO BALANCE AT
DESCRIPTION OF YEAR EXPENSE DEDUCTIONS END OF YEAR
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Allowance for doubtful
accounts receivable:
1995 $ 386 $ 214 $ 214 (A) $ 386
===== ======= ======= ========
1996 $ 386 $ 233 $ 233 (A) $ 386
===== ======= ======= ========
1997 $ 386 $ 175 $ 175 (A) $ 386
===== ======= ======= ========
</TABLE>
(A) Uncollectible accounts written off, net of recoveries.
71
<PAGE> 1
Exhibit 10.16
NEENAH FOUNDRY COMPANY
NFC CASTINGS, INC.
$50,000,000
Credit Agreement
Dated as of April 30, 1997,
as Amended and Restated as of
September 12, 1997
CHASE SECURITIES INC.
AS ARRANGER
THE CHASE MANHATTAN BANK
AS ADMINISTRATIVE AGENT
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
Definitions
SECTION 1.01. Definitions.................................................... 1
SECTION 1.02. Terms Generally................................................ 17
ARTICLE II
The Credits
SECTION 2.01. Commitments.................................................... 17
SECTION 2.02. Loans.......................................................... 17
SECTION 2.03. Borrowing Procedure............................................ 19
SECTION 2.04. Evidence of Debt; Repayment of Loans........................... 19
SECTION 2.05. Fees........................................................... 20
SECTION 2.06. Interest of Loans.............................................. 20
SECTION 2.07. Default Interest............................................... 21
SECTION 2.08. Alternate Rate of Interest..................................... 21
SECTION 2.09. Termination and Reduction of Commitments....................... 21
SECTION 2.10. Conversion and Continuation of Borrowings...................... 21
SECTION 2.11. [Intentionally Omitted]........................................ 22
SECTION 2.12. Optional Prepayment............................................ 22
SECTION 2.13. Mandatory Prepayments.......................................... 23
SECTION 2.14. Reserve Requirements; Change in Circumstances.................. 24
SECTION 2.15. Change in Legality............................................. 25
SECTION 2.16. Indemnity...................................................... 25
SECTION 2.17. Pro Rata Treatment............................................. 25
SECTION 2.18. Sharing of Setoffs............................................. 26
SECTION 2.19. Payments....................................................... 26
SECTION 2.20. Taxes.......................................................... 26
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate............................................. 27
SECTION 2.22. Letters of Credit.............................................. 28
</TABLE>
<PAGE> 3
ARTICLE III
Representations and Warranties
<TABLE>
<CAPTION>
<S> <C>
SECTION 3.01. Organization; Powers........................................... 31
SECTION 3.02. Authorization.................................................. 31
SECTION 3.03. Enforceability................................................. 31
SECTION 3.04. Governmental Approvals......................................... 31
SECTION 3.05. Financial Statements........................................... 31
SECTION 3.06. No Material Adverse Change..................................... 32
SECTION 3.07. Title to Properties; Possession Under Leases................... 32
SECTION 3.08. Subsidiaries................................................... 32
SECTION 3.09. Litigation; Compliance with Laws............................... 32
SECTION 3.10. Agreements..................................................... 33
SECTION 3.11. Federal Reserve Regulations.................................... 33
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act..... 33
SECTION 3.13. Use of Proceeds................................................ 33
SECTION 3.14. Tax Returns.................................................... 33
SECTION 3.15. No Material Misstatements...................................... 33
SECTION 3.16. ERISA.......................................................... 34
SECTION 3.17. Environmental Matters.......................................... 34
SECTION 3.18. Insurance...................................................... 34
SECTION 3.19. Security Documents............................................. 34
SECTION 3.20. Location of Real Property and Leased Premises.................. 35
SECTION 3.21. Labor Matters.................................................. 35
SECTION 3.22. Solvency....................................................... 35
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events.............................................. 36
SECTION 4.02. First Credit Event............................................. 36
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Business and Properties............................. 38
SECTION 5.02. Insurance...................................................... 39
SECTION 5.03. Obligations and Taxes.......................................... 40
SECTION 5.04 Financial Statements, Reports, etc............................. 40
SECTION 5.05. Litigation and Other Notices................................... 41
SECTION 5.06. Maintaining Records; Access to Properties and Inspections...... 41
SECTION 5.07. Use of Proceeds................................................ 41
SECTION 5.08. Compliance with Environmental Laws............................. 41
SECTION 5.09. Preparation of Environmental Reports........................... 41
SECTION 5.10. [Intentionally Omitted]........................................ 42
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
SECTION 5.11. Further Assurances............................................ 42
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.................................................. 42
SECTION 6.02. Liens......................................................... 43
SECTION 6.03. Sale and Lease-Back Transactions.............................. 44
SECTION 6.04. Investments, Loans and Advances............................... 45
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions..... 45
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends............................... 46
SECTION 6.07. Transactions with Affiliates.................................. 47
SECTION 6.08. Business of Borrower and Subsidiaries......................... 47
SECTION 6.09. Other Indebtedness and Agreements............................. 47
SECTION 6.10. Capital Expenditures.......................................... 48
SECTION 6.11. Consolidated Leverage Ratio................................... 48
SECTION 6.12. Consolidated Net Worth........................................ 48
SECTION 6.13. Consolidated Interest Coverage Ratio.......................... 48
SECTION 6.14. Fiscal Year................................................... 48
ARTICLE VII
Events of Default............................................. 48
ARTICLE VIII
The Administrative Agent and the Collateral Agent............. 50
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices....................................................... 52
SECTION 9.02. Survival of Agreement......................................... 53
SECTION 9.03. Binding Effect................................................ 53
SECTION 9.04. Successors and Assigns........................................ 53
SECTION 9.05. Expenses; Indemnity........................................... 55
SECTION 9.06. Right of Setoff............................................... 56
SECTION 9.07. Applicable Law................................................ 56
SECTION 9.08. Waivers; Amendment............................................ 57
SECTION 9.09. Interest Rate Limitation...................................... 57
SECTION 9.10. Entire Agreement.............................................. 57
SECTION 9.11. WAIVER OF JURY TRIAL.......................................... 57
SECTION 9.12. Severability.................................................. 58
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C>
SECTION 9.13. Counterparts.................................................. 58
SECTION 9.14. Headings...................................................... 58
SECTION 9.15. Jurisdiction; Consent to Service of Process................... 58
SECTION 9.16. Confidentiality............................................... 58
SECTION 9.17. Termination................................................... 59
</TABLE>
SCHEDULES:
Schedule 1.01(a) -- Subsidiary Guarantors
Schedule 2.01 -- Lenders and Commitments
Schedule 3.07(d) -- Contractual Rights Regarding Mortgaged Property
Schedule 3.08 -- Subsidiaries
Schedule 3.09(a) -- Litigation
Schedule 3.09(c) -- Certificates of Occupancy
Schedule 3.10 -- Agreements and Instruments
Schedule 3.17 -- Environmental Matters
Schedule 3.18 -- Insurance
Schedule 3.19(d) -- Filing Offices-- Mortgages
Schedule 3.20(a) -- Mortgaged Properties
Schedule 3.20(b) -- Leased Properties
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.07 -- Transactions with Affiliates
EXHIBITS:
Exhibit A -- Form of Administrative Questionnaire
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Borrowing Request
Exhibit D -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E -- Form of Mortgages
Exhibit F -- Form of Parent Guarantee Agreement
Exhibit G -- Form of Pledge Agreement
Exhibit H -- Form of Security Agreement
Exhibit I -- Form of Subsidiary Guarantee Agreement
Exhibit J -- Form of Opinion of Kirkland & Ellis
<PAGE> 6
CREDIT AGREEMENT dated as of April 30, 1997,
amended and restated as of September 12, 1997, among NEENAH
FOUNDRY COMPANY (formerly known as Neenah Corporation), a
Wisconsin corporation (the "Borrower"), NFC CASTINGS, INC.,
a Delaware corporation ("Holdings"), the Lenders (as
defined in Article I), and THE CHASE MANHATTAN BANK, a New
York banking corporation, as issuing bank (in such
capacity, the "Issuing Bank"), as administrative agent (in
such capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral Agent")
for the Lenders.
Holdings and the Borrower have requested the Lenders to extend credit
to the Borrower in the form of Loans at any time and from time to time prior to
the Maturity Date, in an aggregate principal amount at any time outstanding not
in excess of $50,000,000. Holdings and the Borrower have requested the Issuing
Bank to issue letters of credit, in an aggregate face amount at any time
outstanding not in excess of $15,000,000, to support payment obligations
incurred in the ordinary course of business by the Borrower and its
Subsidiaries. The proceeds of the Loans are to be used solely for general
corporate purposes in the ordinary course of the Borrower's business, including
acquisitions of other businesses subject to the terms and conditions set forth
herein.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Bank is willing to issue letters of credit for the account of the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"Account" shall mean any right to payment for goods sold or for services
rendered, whether or not it has been earned by performance.
"ACP Holdings" shall mean ACP Holding Company, a Delaware corporation.
"ACP Merger" shall have the meaning assigned to such term in the definition
of the term "Change in Control".
"ACP Products" shall mean ACP Products, L.L.C., a Delaware limited
liability company.
<PAGE> 7
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate in
effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Aggregate Credit Exposure" shall mean the aggregate amount of the Lenders'
Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) or (c),
or both, of the preceding sentence, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
The term "Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective on the date such change is publicly announced as being
effective. The term "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate.
"Amendment Agreement" shall mean the Amendment Agreement dated as of
September 12, 1997 among the Borrower, Holdings, the Continuing Lenders (as
defined therein) and the Departing Lenders (as defined therein), the
Administrative Agent, the Collateral Agent and the Issuing Bank.
"Applicable Percentage" shall mean, for any day, with respect to any Loan,
or with respect to the Commitment Fees, as the case may be, the applicable
percentage set forth below under the caption "Eurodollar Spread", "ABR Spread",
or "Fee Percentage", as the case may be, based upon the Consolidated Leverage
Ratio as of the relevant date of determination:
<PAGE> 8
<TABLE>
<CAPTION>
===========================================================================================================
Consolidated Leverage Eurodollar Fee
Ratio Spread ABR Spread Percentage
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Category 1 2.50% 1.50% .50%
- ----------
Equal to or greater than 4.50
to 1.00
- -----------------------------------------------------------------------------------------------------------
Category 2 2.25% 1.25% .50%
- ----------
Equal to or greater than 4.00
to 1.00, but less than 4.50 to
1.00
- -----------------------------------------------------------------------------------------------------------
Category 3 2.00% 1.00% .50%
- ----------
Equal to or greater than 3.50
to 1.00, but less than 4.00 to
1.00
- -----------------------------------------------------------------------------------------------------------
Category 4 1.75% .75% .375%
- ----------
Equal to or greater than 3.00
to 1.00, but less than 3.50 to
1.00
- -----------------------------------------------------------------------------------------------------------
Category 5 1.50% .50% .375%
- ----------
Less than 3.00 to 1.00
===========================================================================================================
</TABLE>
Each change in the Applicable Percentage resulting from a change in the
Consolidated Leverage Ratio shall be effective with respect to all Loans,
Commitments and Letters of Credit outstanding on and after the date of delivery
to the Administrative Agent of the financial statements and certificates
required by Section 5.04(a) or (b) indicating such change until the date
immediately preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the foregoing, (a)
at any time during which the Borrower has failed to deliver the financial
statements and certificates required by Section 5.04(a) or (b), or (b) at any
time after the occurrence and during the continuance of an Event of Default, the
Consolidated Leverage Ratio shall be deemed to be in Category 1 for purposes of
determining the Applicable Percentage.
"Approved Fund" shall mean, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by
<PAGE> 9
the Administrative Agent to the Federal Deposit Insurance Corporation (or
any successor thereto) for insurance by such Corporation (or such successor) of
time deposits made in dollars at the Administrative Agent's domestic offices.
"Asset Sale" shall mean the sale, transfer or other disposition (by way of
merger or otherwise) by the Borrower or any of the Subsidiaries to any person
other than the Borrower or any Subsidiary Guarantor of (a) any capital stock of
any of the Subsidiaries (other than directors' qualifying shares) or (b) any
other assets of the Borrower or any of the Subsidiaries (other than (i)
inventory, excess, damaged, obsolete or worn out assets, scrap, Permitted
Investments and licenses of patterns developed for customers of the Borrower or
any Subsidiary, in each case disposed of in the ordinary course of business,
(ii) assets transferred for an aggregate purchase price not exceeding $3,000,000
in any fiscal year of the Borrower in connection with the replacement or upgrade
of a tangible asset of the Borrower or any Subsidiary Guarantor within 180 days
of such transfer or (iii) dispositions resulting in Casualty Proceeds or
Condemnation Proceeds), provided that neither (x) any asset sale or series of
related asset sales described in clause (b) above having a value not in excess
of $100,000 nor (y) any Equity Issuance shall be deemed an "Asset Sale" for
purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower Tax Amount" shall mean, with respect to any fiscal quarter, the
amount paid by Holdings, the Borrower and the Subsidiaries to ACP Holdings
pursuant to the Tax Sharing Agreement, which amount shall not be greater than
the amount of taxes that would be required to be paid in cash by Holdings, the
Borrower and the Subsidiaries on a consolidated basis if Holdings, the Borrower
and the Subsidiaries were not consolidated with ACP Holdings and its other
subsidiaries for tax purposes.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.03 and substantially in the form of Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" of any Person shall mean any and all shares, interests
(including membership and economic interests in a limited liability company),
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such
<PAGE> 10
Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity prior to such conversion.
"Casualty" shall have the meaning set forth in each of the Mortgages.
"Casualty Proceeds" shall have the meaning set forth in each of the
Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) prior to the
earlier to occur of the first fully distributed public offering of Voting Stock
of Holdings (or, in the event (i) Holdings shall merge with and into ACP
Holdings or the Borrower in a transaction permitted by Section 6.05 (a "Holdings
Merger"), ACP Holdings, or (ii) following a Holdings Merger, ACP Holdings shall
merge with and into ACP Products or the Borrower in a transaction permitted by
Section 6.05 (an "ACP Holdings Merger"), ACP Products), the Permitted Holders
shall cease to own directly or indirectly (including by way of direct or
indirect ownership of economic interests in ACP Products), beneficially or of
record, shares representing at least 51% on a fully diluted, as if converted,
basis of the aggregate ordinary voting power represented by the issued and
outstanding Voting Stock of Holdings (or, in the event of (i) a Holdings Merger,
ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products), (b) after the first
fully distributed public offering of Voting Stock of Holdings (or, in the event
of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP
Products), the Permitted Holders shall cease to own directly or indirectly
(including by way of direct or indirect ownership of economic interests in ACP
Products), beneficially or of record, shares representing at least 25% on a
fully diluted, as if converted, basis of the aggregate ordinary voting power
represented by the issued and outstanding Voting Stock of Holdings (or, in the
event of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger,
ACP Products), (c) after the first fully distributed public offering of Voting
Stock of Holdings (or, in the event of (i) a Holdings Merger, ACP Holdings, or
(ii) an ACP Holdings Merger, ACP Products), any person or group (within the
meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the
date hereof) other than the Permitted Holders shall own directly or indirectly,
beneficially or of record, a percentage of the issued and outstanding Voting
Stock of Holdings (or, in the event of (i) a Holdings Merger, ACP Holdings, or
(ii) an ACP Holdings Merger, ACP Products) on a fully diluted, as if converted,
basis having ordinary voting power in excess of the percentage then owned,
directly or indirectly (including by way of direct or indirect ownership of
economic interests in ACP Products), beneficially and of record, on a fully
diluted, as if converted, basis, by the Permitted Holders; (d) a majority of the
seats (except in the case of any vacancy for 30 days or less resulting from the
death or resignation of any director of Holdings (or, in the event of (i) a
Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products)) on
the board of directors of Holdings (or, in the event of (i) a Holdings Merger,
ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products) shall at any time be
occupied by persons who were neither (i) nominated by the board of directors of
Holdings, ACP Holdings or ACP Products, as the case may be, nor (ii) appointed
by directors so nominated; (e) any change in control (or similar event, however
denominated) with respect to Holdings (or, in the event of (i) a Holdings
Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products) or the
Borrower shall occur under and as defined in any indenture or agreement in
respect of Indebtedness to which any such person or any Subsidiary is a party;
or (f) Holdings (or in the event of (i) a Holdings Merger, ACP Holdings, or (ii)
an ACP Holdings Merger, ACP Products) shall cease to own, beneficially and of
record, 100% of the issued and outstanding Capital Stock of the Borrower.
"Citicorp" shall mean Citicorp, a Delaware corporation.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
<PAGE> 11
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender to make Loans hereunder as set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender assumed its Commitment,
as applicable, as the same may be (a) reduced from time to time pursuant to
Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Condemnation" shall have the meaning set forth in each of the Mortgages.
"Condemnation Proceeds" shall have the meaning set forth in each of the
Mortgages.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated August 1997.
"Consolidated Capital Expenditures" shall mean, for any period, the sum
of (a) the aggregate of all expenditures (whether paid in cash or
other consideration or accrued as a liability) by the Borrower or any
of the Subsidiaries during such period that, in accordance with GAAP, are or
should be included in "additions to property, plant and equipment" or
similar items reflected in the consolidated statement of cash flows of the
Borrower and the Subsidiaries for such period (including the amount of
assets leased in connection with any Capital Lease Obligation), and (b)
to the extent not included pursuant to clause (a) above, the aggregate
of all expenditures (whether paid in cash or other consideration or accrued
as a liability) by the Borrower or any Subsidiary to acquire, by purchase or
otherwise, the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any person (other than expenditures for
Permitted Acquisitions); provided, however, that, for purposes of Section
6.10 only, to the extent the Borrower or a Subsidiary uses, within 180 days of
the receipt thereof, the proceeds of the disposition of assets described in
clause (b)(i), (ii) or (iii) of the definition of the term "Asset Sale"
or Condemnation Proceeds to purchase, construct, repair, lease or replace
any property, plant or equipment, the amount of the related Consolidated
Capital Expenditure shall be reduced by the amount of such proceeds.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income
for such period, plus, to the extent deducted in computing such Consolidated Net
Income, (a) the sum of (i) all Federal, state, local and foreign taxes, (ii)
Consolidated Net Interest Expense and (iii) depreciation, depletion,
amortization of intangibles and other non-cash charges or non-cash losses
(including non-cash transaction expenses and the amortization of debt
discounts), minus, to the extent added in computing such Consolidated Net
Income, (b) any non-cash income or non-cash gains, all as determined on a
consolidated basis with respect to the Borrower and the Subsidiaries in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio for such period of (a) Consolidated EBITDA to (b) Consolidated Net
Interest Expense determined in each case for the period of four consecutive
fiscal quarters ending on the last day of such period; provided, however, that
for purposes of determining the Consolidated Interest Coverage Ratio for the
four-fiscal-quarter periods ending on the last day of the fiscal year ending
September 30, 1997 (the "1997 Fiscal Year"), and the last day of the first
quarter of the fiscal year ending on September 30, 1998, (the "1998 Fiscal
Year"), Consolidated EBITDA and Consolidated Net Interest Expense shall be
deemed to be (i) in the case of the four-fiscal-quarter period ending on the
last day of the last quarter of the 1997 Fiscal Year, Consolidated EBITDA and
Consolidated Net Interest Expense for the two-fiscal-quarter period ending on
such date, multiplied by 2 and (ii) in the case of the four-fiscal-quarter
period ending on the last day of the first quarter of the 1998 Fiscal Year,
Consolidated
<PAGE> 12
EBITDA and Consolidated Net Interest Expense for the
three-fiscal-quarter period ending on such date, multiplied by 1-1/3.
"Consolidated Leverage Ratio" shall mean, as of any date of determination,
the ratio of (a) Net Debt on such date to (b) Consolidated EBITDA for the period
of four consecutive fiscal quarters ending on such date (including the
Consolidated EBITDA for such four fiscal quarters of any Subsidiary acquired
during such four fiscal quarters constituting a Permitted Acquisition pursuant
to Section 6.04(g)); provided, however, that for purposes of determining the
Consolidated Leverage Ratio for the four-fiscal-quarter periods ending on the
last day of the fiscal year ending on September 30, 1997 (the "1997 Fiscal
Year"), and the last day of the first quarter of the fiscal year ending on
September 30, 1998 (the "1998 Fiscal Year"), Consolidated EBITDA shall be deemed
to be (i) in the case of the four-fiscal-quarter period ending on the last day
of the 1997 Fiscal Year, Consolidated EBITDA for the two-fiscal-quarter period
ending on such date, multiplied by 2 and (ii) in the case of the
four-fiscal-quarter period ending on the last day of the first quarter of the
1998 Fiscal Year, Consolidated EBITDA for the three-fiscal-quarter period ending
on such date, multiplied by 1-1/3.
"Consolidated Net Income" shall mean, for any period, net income or loss of
the Borrower and the Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
income of any person in which any other person (other than the Borrower or any
of the Subsidiaries or any director holding qualifying shares in accordance with
applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any wholly
owned Subsidiary by such person during such period, (b) the income (or loss) of
any person accrued prior to the date it becomes a Subsidiary of the Borrower or
is merged into or consolidated with the Borrower or any of the Subsidiaries or
the date that person's assets are acquired by the Borrower or any of the
Subsidiaries (except, in the case of any Subsidiary acquired during such period
constituting a Permitted Acquisition pursuant to Section 6.04(g), which shall
not be excluded for purposes of determining Consolidated EBITDA for purposes of
the Consolidated Leverage Ratio only), (c) the income of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or similar
distributions by the Subsidiary 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 applicable to that
Subsidiary, (d) any after tax gains or losses attributable to sales of assets
out of the ordinary course of business and (e) (to the extent not included in
clauses (a) through (d) above) any non-cash extraordinary gains or non-cash
extraordinary losses.
"Consolidated Net Interest Expense" shall mean, for any period, (a) the
gross interest expense of the Borrower and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including the
portion of any payments or accruals with respect to Capital Lease Obligations
that are allocable to interest expense in accordance with GAAP, but excluding
(i) the amortization of debt discounts and (ii) the amortization of all fees
(including fees with respect to Interest Rate Protection Agreements) payable in
connection with the incurrence of Indebtedness to the extent included in
interest expense in accordance with GAAP less the total interest income of the
Borrower and its Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP. For purposes of the foregoing, gross interest expense
shall be determined after giving effect to any net payments made or received by
the Borrower or any Subsidiary with respect to Interest Rate Protection
Agreements.
"Consolidated Net Worth" shall mean, as of any date of determination, the
consolidated stockholder's equity of the Borrower and the Subsidiaries at such
date, as determined on a consolidated basis in accordance with GAAP; provided,
however, that common stock or preferred stock (a) with respect to which no
payments that would violate Section 6.06 are required to be
<PAGE> 13
made and (b) that is redeemable not earlier than April 30, 2009 shall be
included regardless of its classification under GAAP.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Credit Exposure" shall mean, with respect to any Lender at any time, the
aggregate principal amount at such time of all outstanding Loans of such Lender,
plus the aggregate amount at such time of such Lender's L/C Exposure.
"CVC" shall mean Citicorp Venture Capital, Ltd., a New York corporation.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"Earn-Out Obligation" shall mean any unsecured contingent liability of the
Borrower or any Subsidiary owed to any seller in connection with any Permitted
Acquisition permitted pursuant to Section 6.04(g) by the Borrower or any
Subsidiary that (a) constitutes a portion of the purchase price for such
Permitted Acquisition but is not an amount certain on the date of incurrence
thereof and is not subject to any right of acceleration by such seller or (b) is
only payable upon the achievement of performance standards by the property
acquired in such Permitted Acquisition and in an amount based upon such
achievement.
"Environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation, notice
of violation, claim, demand, order, directive, cost recovery action or other
cause of action by, or on behalf of, any Governmental Authority or any person
for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980,
<PAGE> 14
as amended by the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. ss.ss. 9601 et seq. (collectively "CERCLA"), the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976 and
Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. ss.ss. 6901 et seq., the
Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977,
33 U.S.C. ss.ss. 1251 et seq., the Clean Air Act of 1970, as amended 42 U.S.C.
ss.ss. 7401 et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. ss.ss.
2601 et seq., the Occupational Safety and Health Act of 1970, as amended, 29
U.S.C. ss.ss. 651 et seq., the Emergency Planning and Community Right-to-Know
Act of 1986, 42 U.S.C. ss.ss. 11001 et seq., the Safe Drinking Water Act of
1974, as amended, 42 U.S.C. ss.ss. 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. ss.ss. 5101 et seq., and any similar or
implementing state or local law, and all amendments or regulations promulgated
under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Issuance" shall mean any issuance or sale by Holdings (or, in the
event of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger,
ACP Products), the Borrower or any Subsidiary of any shares of capital stock or
other equity securities of any such person or any obligations convertible into
or exchangeable for, or giving any person a right, option or warrant to acquire
such securities or such convertible or exchangeable obligations, except in each
case for (a) any issuance or sale to Holdings (or, in the event of (i) a
Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products),
the Borrower or any Subsidiary, (b) any issuance of directors' qualifying
shares, (c) sales or issuances of common stock to management or key employees of
Holdings (or, in the event of (i) a Holdings Merger, ACP Holdings, or (ii) an
ACP Holdings Merger, ACP Products), the Borrower or any Subsidiary under any
employee stock option or stock purchase plan in existence from time to time to
the extent that the proceeds from all sales and issuances described in this
clause (c) shall not exceed in the aggregate $1,000,000 in any fiscal year, (d)
any issuance of Capital Stock the proceeds of which are substantially
concurrently used to make Permitted Acquisitions pursuant to Section 6.04(g) and
(e) any issuance of Capital Stock the proceeds of which are substantially
concurrently used to make Consolidated Capital Expenditures pursuant to Section
6.10.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or
<PAGE> 15
any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate determined
by reference to the Adjusted LIBO Rate in accordance with the provisions of
Article II.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Excluded Taxes" shall mean, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.21(a)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.20(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.20(a).
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" shall mean the Fee Letter dated July 28, 1997, among the
Borrower and The Chase Manhattan Bank.
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees, the
L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Foreign Lender" shall mean any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
<PAGE> 16
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantee Agreements" shall mean the Parent Guarantee Agreement and the
Subsidiary Guarantee Agreement.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive substances or
wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid or
gaseous wastes, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Holdings Merger" shall have the meaning assigned to such term in the
definition of the term "Change in Control".
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business),
(d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person,
(e) all obligations of such person issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable, accrued
obligations incurred in the ordinary course of business and any unaccrued
Earn-Out Obligation), (f) all Indebtedness of others of the type described in
clauses (a) through (e) and (g) through (j) of this definition secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations of such person, (i) all obligations of such person in respect of
interest rate protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements and (j) all obligations of
such person as an account party in respect of letters of credit and bankers'
acceptances. The Indebtedness of any person shall include the Indebtedness of
any partnership in which such person is a general partner.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, as amended and restated as of
the date hereof, substantially in the form of Exhibit D, among the Borrower, the
Subsidiary Guarantors and the Collateral Agent.
<PAGE> 17
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months' duration been applicable to
such Borrowing, and, in addition, the date of any prepayment of such Borrowing
or conversion of such Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Maturity Date and (iii)
the date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.10 or repaid or prepaid in accordance with Section
2.12 or 2.13; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates, and not entered into for
speculation.
"Investors" shall mean CVC and certain other investors.
"Issuing Bank Fees" shall have the meaning assigned to such term in Section
2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.22.
"L/C Disbursement" shall mean a payment or disbursement made by the Issuing
Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time. The L/C Exposure of any Lender at any time shall mean its Pro Rata
Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule 2.01
(other than any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any financial institution that
has become a party hereto pursuant to an Assignment and Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.22.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Service (or on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of the Telerate Service, as
<PAGE> 18
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not so available at such time for any reason, the "LIBO Rate" with
respect to such Eurodollar Borrowing for such Interest Period shall be the rate
at which dollar deposits approximately equal in principal amount to the
Administrative Agent's portion of such Eurodollar Borrowing and for a maturity
comparable to such Interest Period are offered to the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreements, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the loans made by the Lenders to the Borrower pursuant
to Section 2.01. Each Loan shall be a Eurodollar Loan or an ABR Loan.
"Management Investors" shall mean the officers, directors and employees of
ACP Holdings, ACP Products, Holdings, the Borrower or a Subsidiary of the
Borrower who acquire Voting Stock of ACP Holdings, ACP Products, Holdings or the
Borrower on or after the Original Closing Date.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the Subsidiaries, taken as a whole, (b) material impairment of
the ability of the Borrower or any other Loan Party to perform any of its
obligations under any Loan Document to which it is or will be a party or (c)
material impairment of the rights of or benefits available to the Lenders under
any Loan Document.
"Maturity Date" shall mean April 30, 2002.
"Merger Agreement" shall mean the Agreement and Plan of Reorganization
dated as of November 20, 1996, by and among Holdings, the Borrower and Neenah,
as the same may be amended, restated, modified or supplemented from time to time
prior to the date hereof or in accordance with Section 6.09(a).
"Mortgaged Properties" shall mean the owned real properties of the Loan
Parties specified on Schedule 3.20(a).
<PAGE> 19
"Mortgages" shall mean the mortgages, deeds of trust, leasehold mortgages,
assignments of leases and rents, modifications and other security documents
delivered pursuant to clause (i) of Section 4.02(j) or pursuant to Section 5.11,
each substantially in the form of Exhibit E.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Debt" shall mean, at any date and without duplication, (a) the
aggregate amount of all Indebtedness of the Borrower and the Subsidiaries on a
consolidated basis at such date (other than any Indebtedness described in clause
(i) or (j) of the definition of the term "Indebtedness") minus (b) the aggregate
amount of all marketable securities on the Borrower's balance sheet on such
date.
"Obligations" shall mean all obligations defined as "Obligations" in the
Guarantee Agreements and the Security Documents.
"Original Closing Date" shall mean April 30, 1997.
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Parent Guarantee Agreement" shall mean the Parent Guarantee Agreement, as
amended and restated as of the date hereof, substantially in the form of Exhibit
F, made by Holdings in favor of the Collateral Agent for the benefit of the
Secured Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex 2 to the Security Agreement.
"Permitted Acquisitions" shall mean acquisitions of not less than 100% of
the outstanding capital stock of any corporation, a division of any corporation
or any similar business unit (or of substantially all the assets and business of
any of the foregoing) engaged in a Related Business (each, an "Acquisition") so
long as (i) in the case of each such Acquisition of capital stock, such
Acquisition was not preceded by an unsolicited tender offer for such capital
stock by Holdings or any of its Affiliates and (ii) in the case of all
Acquisitions, the aggregate principal amount of the Loans at any time
outstanding used to finance the cash consideration paid in connection with all
such Acquisitions, to refinance Indebtedness in connection with all such
Acquisitions and to pay related fees and expenses, taken as a whole, does not
exceed the excess of (a) $40,000,000 over (b) the aggregate principal amount of
outstanding Loans used to finance Consolidated Capital Expenditures pursuant to
Section 6.10(d).
"Permitted Holders" shall mean (i) CVC and its Affiliates and Permitted
Transferees and (ii) the Management Investors and their Permitted Transferees.
<PAGE> 20
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America (or
by any agency thereof to the extent such obligations are backed by the full
faith and credit of the United States of America), in each case maturing
within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's Ratings Service or
from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof that has
a combined capital and surplus and undivided profits of not less than
$250,000,000;
(d) other investment instruments approved in writing by the Required
Lenders and offered by financial institutions which have a combined capital
and surplus and undivided profits of not less than $250,000,000; and
(e) shares of funds registered under the Investment Company Act of
1940, as amended, that have assets of at least $100,000,000 and invest only
in obligations described in clauses (a) through (d) above, to the extent
that such shares are rated by Moody's Investors Service, Inc. or Standard &
Poor's Ratings Service in one of the two highest rating categories assigned
by such agency for shares of such nature.
"Permitted Transferee" shall mean (a) with respect to CVC (i) Citicorp, any
direct or indirect wholly owned subsidiary of Citicorp, and any officer,
director or employee of CVC, Citicorp or any wholly owned subsidiary of
Citicorp, (ii) any spouse or lineal descendant (including by adoption and
stepchildren) of the officers, directors and employees referred to in clause
(a)(i) above or (iii) any trust, corporation or partnership 100% in interest of
the beneficiaries, stockholders or partners of which consists of one or more of
the persons described in clause (a)(i) or (ii) above and (b) with respect to any
officer or employee of ACP Products, ACP Holdings, Holdings, the Borrower or a
Subsidiary, (i) any spouse or lineal descendant (including by adoption and
stepchildren) of such officer or employee and (ii) any trust, corporation or
partnership 100% in interest of the beneficiaries, stockholders or partners of
which consists of such officer or employee, any of the persons described in
clause (b)(i) above or any combination thereof.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, as amended and restated
as of the date hereof, substantially in the form of Exhibit G, among the
Borrower, Holdings, the Subsidiaries party thereto and the Collateral Agent for
the benefit of the Secured Parties.
<PAGE> 21
"Preferred Stock" as applied to the Capital Stock of any corporation, shall
mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Pro Rata Percentage" of any Lender at any time shall mean the percentage of
the Total Commitment represented by such Lender's Commitment.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Business" shall mean any business of the Borrower and its
Subsidiaries as conducted on the Original Closing Date or the Restatement
Closing Date and any business related, ancillary or complementary thereto.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) cleanup, remove, treat,
abate or in any other way address any Hazardous Material in the environment;
(ii) prevent the Release or threat of Release, or minimize the further Release
of any Hazardous Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the environment; or (iii) perform studies and
investigations in connection with, or as a precondition to, (i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans, L/C
Exposure and unused Commitments representing at least a majority of the sum of
all Loans outstanding, L/C Exposure and unused Commitments at such time.
"Responsible Officer" of any corporation shall mean any executive officer or
Financial Officer of such corporation and any other officer or similar official
thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Restatement Closing Date" shall mean September 12, 1997.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, as amended and
restated as of the date hereof, substantially in the form of Exhibit H, between
the Borrower, the Subsidiaries party thereto and the Collateral Agent for the
benefit of the Secured Parties.
<PAGE> 22
"Security Documents" shall mean the Mortgages, the Security Agreement, the
Pledge Agreement and each of the security agreements, mortgages and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.12.
"Senior Subordinated Notes" shall mean (a) the 11.125% Senior Subordinated
Notes due 2007 of the Borrower, issued on the Original Closing Date in an
aggregate principal amount of $150,000,000 and (b) the 11.125% Series C Senior
Subordinated Notes due 2007 of the Borrower issued on July 1, 1997, in an
aggregate principal amount of $45,000,000.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting office making or holding a Loan) is subject (a)
with respect to the Base CD Rate, for new negotiable nonpersonal time deposits
in dollars of over $100,000 with maturities approximately equal to three months,
and (b) with respect to the Adjusted LIBO Rate, for Eurocurrency Liabilities (as
defined in Regulation D of the Board). Such reserve percentages shall include
those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, as amended and restated as of the date hereof, substantially in the
form of Exhibit I, made by the Subsidiary Guarantors in favor of the Collateral
Agent for the benefit of the Secured Parties.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(a), and each other Subsidiary that is or becomes a party to a Subsidiary
Guarantee Agreement.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement, substantially
in the form of Exhibit K, among ACP Holdings, Holdings and ACP Holdings' other
direct and indirect subsidiaries.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such
<PAGE> 23
next preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m., New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business Day) by
the Administrative Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it.
"Total Commitment" shall mean, at any time, the aggregate amount of the
Commitments, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"Voting Stock" of a corporation shall mean all classes of Capital Stock of
such corporation then outstanding and normally entitled to vote in the election
of directors.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, (a) any reference in this Agreement to any Loan Document shall
mean such document as amended, restated, supplemented or otherwise modified from
time to time and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that for purposes of determining compliance with the covenants
contained in Article VI, except as otherwise provided herein, all accounting
terms herein shall be interpreted and all accounting determinations hereunder
shall be made in accordance with GAAP as in effect on the date of this Agreement
and applied on a basis consistent with the application used in the financial
statements referred to in Section 3.05(a) (except to the extent that such
financial statements accounted for inventory on a last-in-first-out basis).
<PAGE> 24
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Loans to the Borrower, at any time and from
time to time on or after the date hereof, and until the earlier of the Maturity
Date and the termination of the Commitment of such Lender in accordance with the
terms hereof, in an aggregate principal amount at any time outstanding that will
not result in such Lender's Credit Exposure exceeding such Lender's Commitment.
Within the limits set forth in the preceding sentence and subject to the terms,
conditions and limitations set forth herein, the Borrower may borrow, pay or
prepay and reborrow Loans.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided, however, that the failure of any Lender to
make any Loan shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Except for Loans deemed made pursuant to Section
2.02(f), the Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) an integral multiple of $500,000 and not less than $1,000,000
in the case of Eurodollar Loans, (ii) an integral multiple of $100,000 and not
less than $500,000 in the case of ABR Loans or (iii) in the case of ABR Loans,
equal to the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same time;
provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than seven Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 11:00 a.m.,
New York City time, and the Administrative Agent shall by 12:00 (noon), New York
City time, credit the amounts so received to an account in the name of the
Borrower, maintained with the Administrative Agent and designated by the
Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available to
the Administrative Agent such Lender's portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If the Administrative Agent shall have so made funds available then, to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the
<PAGE> 25
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of the Borrower,
the interest rate applicable at the time to the Loans comprising such Borrowing
(in lieu of interest which would otherwise become due to such Lender pursuant to
Section 2.06) and (ii) in the case of such Lender, a rate determined by the
Administrative Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender's Loan as part of such Borrowing for purposes of
this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request a Borrowing pursuant to which the Interest
Period requested with respect thereto would end after the Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.22(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each Lender
of such L/C Disbursement and its Pro Rata Percentage thereof. Each Lender shall
pay by wire transfer of immediately available funds to the Administrative Agent
not later than 2:00 p.m., New York City time, on such date (or, if such Lender
shall have received such notice later than 12:00 (noon), New York City time, on
any day, not later than 10:00 a.m., New York City time, on the immediately
following Business Day), an amount equal to such Lender's Pro Rata Percentage of
such L/C Disbursement (it being understood that such amount shall be deemed to
constitute an ABR Loan of such Lender and such payment shall be deemed to have
reduced the L/C Exposure), and the Administrative Agent will promptly pay to the
Issuing Bank amounts so received by it from the Lenders. The Administrative
Agent will promptly pay to the Issuing Bank any amounts received by it from the
Borrower pursuant to Section 2.22(e) prior to the time that any Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the
Administrative Agent thereafter will be promptly remitted by the Administrative
Agent to the Lenders that shall have made such payments and to the Issuing Bank,
as their interests may appear. If any Lender shall not have made its Pro Rata
Percentage of such L/C Disbursement available to the Administrative Agent as
provided above, such Lender and the Borrower severally agree to pay interest on
such amount, for each day from and including the date such amount is required to
be paid in accordance with this paragraph to but excluding the date such amount
is paid, to the Administrative Agent for the account of the Issuing Bank at (i)
in the case of the Borrower, a rate per annum equal to the interest rate
applicable to Loans pursuant to Section 2.06(a) (in lieu of interest which would
otherwise become due to such Lender pursuant to Section 2.06), and (ii) in the
case of such Lender, for the first such day, the Federal Funds Effective Rate,
and for each day thereafter, the Alternate Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other
than a deemed Borrowing pursuant to Section 2.02(f), as to which this Section
2.03 shall not apply), the Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Borrowing Request (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the Business Day of
a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether such Borrowing is to be a Eurodollar Borrowing or an
ABR Borrowing; (ii) the date of such Borrowing (which shall be a Business Day),
(iii) the number and location of the account to which funds are to be disbursed
(which shall be an account that complies with the requirements of Section
2.02(c)); (iv) the amount of such Borrowing; and (v) if such Borrowing is to be
a Eurodollar Borrowing, the Interest Period with respect thereto; provided,
however, that, notwithstanding any contrary specification in any Borrowing
Request,
<PAGE> 26
each requested Borrowing shall comply with the requirements set forth in
Section 2.02. If no election as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall promptly advise
the applicable Lenders of any notice given pursuant to this Section 2.03 (and
the contents thereof), and of each Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the principal amount of the then unpaid principal amount of each
Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will record
(i) the amount of each Loan made hereunder, the Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event any
Lender shall request and receive a promissory note payable to such Lender and
its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last day of March, June, September and December
in each year and on each date on which any Commitment of such Lender shall
expire or be terminated as provided herein, a commitment fee (a "Commitment
Fee") equal to the Applicable Percentage set forth under the heading "Fee
Percentage" in the definition of the term "Applicable Percentage" per annum in
effect from time to time on the average daily unused amount of the Commitments
of such Lender during the preceding quarter (or other period commencing with the
date of acceptance by the Borrower of the Commitment of such Lender or ending
with the Maturity Date or the date on which the Commitment of such Lender shall
expire or be terminated). All Commitment Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days. The Commitment Fee due
to each Lender shall commence to accrue on the date of acceptance by the
Borrower of the Commitment of such Lender and shall cease to accrue on the date
on which the Commitment of such Lender shall expire or be terminated as provided
herein. For purposes of this Section 2.05, the unused amount of any Lender's
Commitment on any date shall equal such Lender's Commitment on such date minus
such Lender's outstanding Loans and L/C Exposure on such date.
<PAGE> 27
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Lender, through the
Administrative Agent, on the last day of March, June, September and December of
each year and on the date on which the Commitment of such Lender shall be
terminated as provided herein, a fee (an "L/C Participation Fee") calculated on
such Lender's Pro Rata Percentage of the average daily aggregate L/C Exposure
(excluding the portion thereof attributable to unreimbursed L/C Disbursements)
during the preceding quarter (or shorter period commencing with the date hereof
or ending with the Maturity Date or the date on which all Letters of Credit have
been canceled or have expired and the Commitments of all Lenders shall have been
terminated) at a rate equal to the Applicable Percentage from time to time used
to determine the interest rate on Borrowings comprised of Eurodollar Loans
pursuant to Section 2.06, and (ii) to the Issuing Bank with respect to each
Letter of Credit the standard fronting, issuance and drawing fees specified from
time to time by the Issuing Bank (the "Issuing Bank Fees"). All L/C
Participation Fees and Issuing Bank Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available funds,
to the Administrative Agent for distribution, if and as appropriate, among the
Lenders, except that the Issuing Bank Fees shall be paid directly to the Issuing
Bank. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when the Alternate Base Rate is determined by reference to
the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the Alternate Base Rate plus the Applicable Percentage in effect
from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest. If the Borrower shall default in the payment
of the principal of or interest on any Loan or any other amount becoming due
hereunder, by acceleration or otherwise, or under any other Loan Document, the
Borrower shall on demand from time to time pay interest, to the extent permitted
by law, on such defaulted amount to but excluding the date of actual payment
(after as well as before judgment) (a) in the case of overdue principal, at the
rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00% per
annum and (b) in all other cases, at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the case
may be, when determined by reference to the Prime Rate and over a year of 360
days at all other times) equal to the sum of the Alternate Base Rate plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar
<PAGE> 28
Borrowing the Administrative Agent shall have determined in good faith that
dollar deposits in the principal amounts of the Loans comprising such Borrowing
are not generally available in the London interbank market, or that the rates at
which such dollar deposits are being offered will not adequately and fairly
reflect the cost to any Lender of making or maintaining its Eurodollar Loan
during such Interest Period, or that reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, but, in any event, prior to the commencement of any
Interest Period, give written or telecopy notice of such determination to the
Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be
deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Commitments
and the L/C Commitment shall automatically terminate on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or telecopy
notice to the Administrative Agent, the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently reduce, in each
case, without premium or penalty, the Commitments; provided, however, that (i)
each partial reduction of the Commitments shall be in an integral multiple of
$500,000 and in a minimum amount of $1,000,000 and (ii) the Total Commitment
shall not be reduced to an amount that is less than the Aggregate Credit
Exposure at the time.
(c) Each reduction in the Commitments hereunder shall be made ratably among
the Lenders in accordance with their respective Commitments. The Borrower shall
pay to the Administrative Agent for the account of the Lenders, on the date of
each termination or reduction, the unpaid Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower shall
have the right at any time upon prior irrevocable notice to the Administrative
Agent (a) not later than 11:00 a.m., New York City time, on the Business Day of
conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (b) not
later than 10:00 a.m., New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period, and (c) not later than 10:00 a.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Borrowing to another permissible Interest Period,
subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any Borrowing
shall be converted or continued, then each resulting Borrowing shall satisfy
the limitations specified in Sections 2.02(a) and 2.02(b) regarding the
principal amount and maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan (or
portion thereof) of such Lender being converted by an equivalent principal
amount; accrued and unpaid interest on any
<PAGE> 29
Eurodollar Loan (or portion thereof) being converted shall be paid by
the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than the
end of the Interest Period applicable thereto, the Borrower shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the Interest
Period in effect for such Borrowing into an ABR Borrowing; and
(vii) upon notice to the Borrower from the Administrative Agent given
at the request of the Required Lenders, after the occurrence and during the
continuance of a Default or Event of Default, no outstanding Loan may be
converted into, or continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR
Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. [Intentionally Omitted.]
SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part,
upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) in the case
of Eurodollar Loans, or prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) on or prior to the date of
prepayment in the case of ABR Loans, to the Administrative Agent before 11:00
a.m., New York City time; provided, however, that each partial prepayment shall
be in an amount that is an integral multiple of $500,000 and not less than
$1,000,000.
(b) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments of Eurodollar Loans
under this Section 2.12 shall be subject to Section 2.16 but otherwise without
premium or penalty. All prepayments of ABR Loans shall be without premium or
penalty. All prepayments under this Section 2.12 shall be accompanied by accrued
but unpaid interest on the principal amount being prepaid to the date of
payment.
<PAGE> 30
SECTION 2.13. Mandatory Prepayments. (a) In the event of any termination of
all the Commitments, the Borrower shall repay or prepay all its outstanding
Borrowings on the date of such termination. In the event of any partial
reduction of the Commitments, then (i) at or prior to the effective date of such
reduction, the Administrative Agent shall notify the Borrower and the Lenders of
the Aggregate Credit Exposure after giving effect thereto and (ii) if the
Aggregate Credit Exposure would exceed the Total Commitment after giving effect
to such reduction or termination, then the Borrower shall, on the date of such
reduction or termination, first, prepay Borrowings in an amount sufficient to
eliminate such excess and second, to the extent of any remaining excess (after
the prepayment of Loans), replace outstanding Letters of Credit and/or deposit
an amount in cash in a cash collateral account established with the Collateral
Agent for the benefit of the Secured Parties.
(b) In the event that there shall occur any Casualty or Condemnation and,
pursuant to the applicable Mortgage, the Casualty Proceeds or Condemnation
Proceeds, as the case may be, are required to be used to prepay the Loans, then
the Borrower shall apply an amount equal to 100% of such Casualty Proceeds or
Condemnation Proceeds, as the case may be, to prepay outstanding Loans and/or
cash collateralizing Letters of Credit in accordance with Section 2.13(a).
(c) The Borrower shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment. Each notice of prepayment shall
specify the prepayment date, the Type of each Loan being prepaid and the
principal amount of each Loan (or portion thereof) to be prepaid. All
prepayments of Borrowings under this Section 2.13 shall be subject to Section
2.16, but shall otherwise be without premium or penalty.
(d) Amounts to be applied pursuant to this Section 2.13 to the prepayment of
Loans shall be applied, as applicable, first to reduce outstanding ABR Loans.
Any amounts remaining after each such application shall, at the option of the
Borrower, be applied to prepay Eurodollar Loans immediately and/or shall be
deposited in the Prepayment Account (as defined below). The Administrative Agent
shall apply any cash deposited in the Prepayment Account to prepay Eurodollar
Loans on the last day of their respective Interest Periods (or, at the direction
of the Borrower, on any earlier date) until all outstanding Loans have been
prepaid or until all the allocable cash on deposit with respect to such Loans
has been exhausted. For purposes of this Agreement, the term "Prepayment
Account" shall mean an account established by the Borrower with the
Administrative Agent and over which the Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal for
application in accordance with this paragraph (d). The Administrative Agent
will, at the request of the Borrower, invest amounts on deposit in the
Prepayment Account in Permitted Investments that mature prior to the last day of
the applicable Interest Periods of the Eurodollar Borrowings to be prepaid, as
the case may be; provided, however, that (i) the Administrative Agent shall not
be required to make any investment that, in its sole judgment, would require or
cause the Administrative Agent to be in, or would result in any, violation of
any law, statute, rule or regulation and (ii) the Administrative Agent shall
have no obligation to invest amounts on deposit in the Prepayment Account if an
Event of Default shall have occurred and be continuing. The Borrower shall
indemnify the Administrative Agent for any losses relating to the investments so
that the amount available to prepay Eurodollar Borrowings on the last day of the
applicable Interest Period is not less than the amount that would have been
available had no investments been made pursuant thereto. Other than any interest
earned on such investments, the Prepayment Account shall not bear interest.
Interest or profits, if any, on such investments shall be deposited in the
Prepayment Account and reinvested and disbursed as specified above. If the
maturity of the Loans has been accelerated pursuant to Article VII, the
Administrative Agent may, in its sole discretion, apply all amounts on deposit
in the Prepayment Account to satisfy any of the Obligations. The Borrower hereby
grants
<PAGE> 31
to the Administrative Agent, for its benefit and the benefit of the Issuing
Bank and the Lenders, a security interest in the Prepayment Account to secure
the Obligations.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any Eurodollar Loan made by such Lender
or any Fees or other amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Lender or the Issuing Bank by
the jurisdiction in which such Lender or the Issuing Bank has its principal
office or lending office or by any political subdivision or taxing authority
therein), or shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by any Lender or the Issuing Bank (except any such
reserve requirement which is reflected in the Adjusted LIBO Rate) or shall
impose on such Lender or the Issuing Bank or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Lender or the Issuing Bank of
making or maintaining any Eurodollar Loan or increase the cost to any Lender of
issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise) by an amount reasonably deemed by such Lender or the Issuing Bank to
be material, then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, upon demand such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
the Issuing Bank's capital or on the capital of such Lender's or the Issuing
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's or the
Issuing Bank's policies and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy) by an amount reasonably deemed
by such Lender or the Issuing Bank to be material, then from time to time the
Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts reasonably determined by such Lender or Issuing Bank to be necessary
to compensate such Lender or the Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) above shall be delivered to the
Borrower and shall be conclusive absent manifest error. The
<PAGE> 32
Borrower shall pay such Lender or the Issuing Bank the amount shown as
due on any such certificate delivered by it within 10 days after its receipt of
the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and the Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision of
this Agreement, if, after the date hereof, any change in any law or regulation
or in the interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter
(for the duration of such unlawfulness) be made by such Lender hereunder (or
be continued for additional Interest Periods and ABR Loans will not
thereafter (for such duration) be converted into Eurodollar Loans),
whereupon any request for a Eurodollar Borrowing (or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing
for an additional Interest Period) shall, as to such Lender only, be deemed
a request for an ABR Loan (or a request to continue an ABR Loan as such for
an additional Interest Period or to convert a Eurodollar Loan into an ABR
Loan, as the case may be), unless such declaration shall be subsequently
withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans made
by it be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date of
such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
(a) any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last day of
the Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made
by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of
such Loan shall have been given by the Borrower hereunder (any of the events
referred to in this
<PAGE> 33
clause (a) being called a "Breakage Event") or (b) any default in the making
of any payment or prepayment required to be made hereunder. In the case of any
Breakage Event, such loss shall include an amount equal to the excess, as
reasonably determined by such Lender, of (i) its cost of obtaining funds for the
Eurodollar Loan that is the subject of such Breakage Event for the period from
the date of such Breakage Event to the last day of the Interest Period in effect
(or that would have been in effect) for such Loan over (ii) the amount of
interest likely to be realized by such Lender in redeploying the funds released
or not utilized by reason of such Breakage Event for such period. A certificate
of any Lender setting forth any amount or amounts which such Lender is entitled
to receive pursuant to this Section 2.16 shall be delivered to the Borrower and
shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as required under Sections
2.14, 2.15 or 2.20, each Borrowing, each payment or prepayment of principal of
any Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees, each reduction of the Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Loans).
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole dollar
amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Loans or participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Loans or
participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Loans or L/C Exposure, as the case may be of such other Lender, so that the
aggregate unpaid principal amount of the Loans and L/C Exposure and
participations in Loans and L/C Exposure held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Loans and L/C
Exposure then outstanding as the principal amount of its Loans and L/C Exposure
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Loans and L/C Exposure outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.18 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower and Holdings expressly
consent to the foregoing arrangements and agree that any Lender holding a
participation in a Loan or L/C Disbursement deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower and Holdings to such Lender
by reason thereof as fully as if such Lender had made a Loan directly to the
Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 1:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than Issuing Bank Fees, which shall be paid directly to the Issuing
<PAGE> 34
Bank) shall be made to the Administrative Agent at its offices at 270 Park
Avenue, New York, New York by wire transfer.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that, if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code and the law of the jurisdiction in
which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the
<PAGE> 35
Issuing Bank pursuant to Section 2.20, the Borrower may, at its sole expense and
effort (including with respect to the processing and recordation fee referred to
in Section 9.04(b)), upon notice to such Lender or the Issuing Bank and the
Administrative Agent, require such Lender or the Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, of the Issuing Bank), which
consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans or L/C
Disbursements of such Lender or the Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or the Issuing Bank
hereunder (including any amounts under Section 2.14 and Section 2.16); provided
further that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's or the Issuing Bank's claim for
compensation under Section 2.14 or notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as the case may be, cease to cause such Lender or the
Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken by
such Lender or the Issuing Bank pursuant to paragraph (b) below), or if such
Lender or the Issuing Bank shall waive its right to claim further compensation
under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event, as the case may be, then
such Lender or the Issuing Bank shall not thereafter be required to make any
such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such filing or assignment, delegation and
transfer.
SECTION 2.22. Letters of Credit. (a) General. The Borrower may request
the issuance of a Letter of Credit for its own account or the account of any
Subsidiary Guarantor, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time while the
Commitments remain in effect. This Section shall not be construed to impose an
obligation upon the Issuing Bank to issue any Letter of Credit that is
inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of
<PAGE> 36
Credit (or to amend, renew or extend an existing Letter of Credit), the Borrower
shall hand deliver or telecopy to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) below), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare such Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if, and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (A) the L/C Exposure shall not exceed
$15,000,000 and (B) the Aggregate Credit Exposure shall not exceed the Total
Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Maturity Date, unless such Letter of Credit expires by its terms on an earlier
date.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Lender, and each such Lender hereby acquires from the
Issuing Bank, a participation in such Letter of Credit equal to such Lender's
Pro Rata Percentage of the aggregate amount available to be drawn under such
Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender's Pro Rata Percentage of each L/C Disbursement
made by the Issuing Bank and not reimbursed by the Borrower (or, if applicable,
another party pursuant to its obligations under any other Loan Document)
forthwith on the date due as provided in Section 2.02(f). Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or an Event of Default, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrower shall pay or cause to be paid to
the Administrative Agent an amount equal to such L/C Disbursement not later than
2:00 p.m. on the Business Day the Borrower shall have received notice from the
Issuing Bank that payment of such draft will be made, or, if the Borrower shall
have received such notice later than 10:00 a.m., New York City time, on any
Business Day, not later than 10:00 a.m., New York City time, on the immediately
following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
<PAGE> 37
(iii) the existence of any claim, setoff, defense or other right
that the Borrower, any other party guaranteeing, or otherwise obligated
with, the Borrower, any Subsidiary or other Affiliate thereof or any
other person may at any time have against the beneficiary under any
Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other person, whether in connection with this Agreement,
any other Loan Document or any other related or unrelated agreement or
transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any
such L/C Disbursement. The Administrative Agent shall promptly give each Lender
notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of the Issuing Bank, for each
<PAGE> 38
day from and including the date of such L/C Disbursement, to but excluding the
earlier of the date of payment by the Borrower or the date on which interest
shall commence to accrue thereon as provided in Section 2.02(f), at the rate per
annum that would apply to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder, without affecting its rights and
obligations with respect to Letters of Credit previously issued by it. At the
time such removal or resignation shall become effective, the Borrower shall pay
all accrued and unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of
any appointment as the Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrower and the Administrative Agent, and, from and after the effective
date of such agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan
Documents and (ii) references herein and in the other Loan Documents to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such resignation or removal, but shall not be required to issue
additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders thereof and of the amount to be
deposited, deposit in an account with the Collateral Agent, for the benefit of
the Lenders, an amount in cash equal to the L/C Exposure as of such date. Such
deposit shall be held by the Collateral Agent as collateral for the payment and
performance of the Obligations. The Collateral Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits in
Permitted Investments, which investments shall be made at the option and sole
discretion of the Collateral Agent, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall (i) automatically be applied by the
Administrative Agent to reimburse the Issuing Bank for L/C Disbursements for
which it has not been reimbursed, (ii) be held for the satisfaction of the
reimbursement obligations of the Borrower for the L/C Exposure at such time and
(iii) if the maturity of the Loans has been accelerated, be applied to satisfy
the Obligations. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
<PAGE> 39
ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Bank and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and
each of the Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect, and (d)
has the corporate power and authority to execute, deliver and perform its
obligations under each of the Loan Documents and each other agreement or
instrument contemplated hereby to which it is or will be a party and, in the
case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents and the borrowings hereunder and
the other transactions contemplated hereby (collectively, the "Transactions")
(a) have been duly authorized by all requisite corporate and, if required,
stockholder action and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation, or of the certificate or articles of incorporation
or other constitutive documents or by-laws of Holdings, the Borrower or any
Subsidiary, (B) any order of any Governmental Authority or (C) any provision of
any material indenture, agreement or other instrument to which Holdings, the
Borrower or any Subsidiary is a party or by which any of them or any of their
property is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under, or
give rise to any right to accelerate or to require the prepayment, repurchase or
redemption of any obligation under any such indenture, agreement or other
instrument or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by
Holdings, the Borrower or any Subsidiary (other than any Lien created hereunder
or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by the each Loan party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally and equitable principles of general
applicability (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office, (b) recordation of the Mortgages and (c) such as have been made or
obtained and are in full force and effect.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders the consolidated balance sheets and statements of
income and cash flows of Neenah as of and for the fiscal year ended March 31,
1997, audited by and accompanied by the opinion of Ernst & Young LLP,
independent public accountants. Such financial statements present fairly the
<PAGE> 40
financial condition and results of operations and cash flows of Neenah and its
consolidated Subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto disclose all material liabilities, direct or
contingent, of Neenah and its consolidated Subsidiaries as of the dates thereof.
Such financial statements were prepared in accordance with GAAP applied on a
consistent basis.
(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma statements of income for the period of April 1, 1997 through and
including June 30, 1997. Such pro forma financial statements have been prepared
in good faith by the Borrower, based on the assumptions used to prepare the pro
forma financial information contained in the Confidential Information Memorandum
(which assumptions are believed by the Borrower on the Restatement Closing Date
to be reasonable), is based on the best information available to the Borrower as
of the date of delivery thereof.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects, condition,
financial or otherwise, or material agreements of the Borrower and the
Subsidiaries, taken as a whole, since March 31, 1997.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Holdings, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, all its material properties and assets (including
all Mortgaged Property), except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02.
(b) Each of Holdings, the Borrower and the Subsidiaries has complied
with all obligations under all material leases to which it is a party and all
such leases are in full force and effect. Each of Holdings, the Borrower and the
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) Neither Holdings nor the Borrower has received any notice of, nor
has any knowledge of, any pending or contemplated condemnation proceeding
materially and adversely affecting the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnation.
(d) Except as set forth on Schedule 3.07(d), none of Holdings, the
Borrower or any of the Subsidiaries is obligated under any right of first
refusal, option or other contractual right to sell, assign or otherwise dispose
of any Mortgaged Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the
Restatement Closing Date a list of all Subsidiaries and the percentage ownership
interest of the Borrower therein. The shares of capital stock or other ownership
interests so indicated on Schedule 3.08 are fully paid and non-assessable and
are owned by the Borrower, directly or indirectly, free and clear of all Liens
(other than Liens in favor of the Collateral Agent, created under the Security
Documents). Holdings owns 100% of the issued and outstanding capital stock of
the Borrower, free and clear of all Liens (other than Liens in favor of the
Collateral Agent, created under the Security Documents).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of Holdings or the Borrower, threatened against or affecting Holdings
or the Borrower or any Subsidiary or any business, property or rights of any
such person (i) that involve any Loan Document or the Transactions or (ii) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely
<PAGE> 41
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
(c) Except as set forth on Schedule 3.09(c), certificates of occupancy
and permits to the extent required by law are in effect for each Mortgaged
Property as currently constructed, and true and complete copies of such
certificates of occupancy have been delivered to the Collateral Agent as
mortgagee with respect to each Mortgaged Property.
SECTION 3.10. Agreements. (a) Except as set forth on Schedule 3.10,
none of Holdings, the Borrower or any of the Subsidiaries is a party to any
agreement or instrument or subject to any corporate restriction that has
resulted or could reasonably be expected to result in a Material Adverse
Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings,
the Borrower or any of the Subsidiaries is engaged principally, or as one of
its important activities, in the business of extending credit for the purpose
of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation G, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, the Borrower or any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal, material state,
material local and material foreign tax returns or materials required to have
been filed by it and has paid or caused to be paid all taxes shown on such
returns to be due and payable by it and all assessments received by it, except
taxes that are being contested in good faith by appropriate proceedings and for
which Holdings, the Borrower or such Subsidiary, as applicable, shall have set
aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule
<PAGE> 42
furnished by or on behalf of Holdings or the Borrower to the Administrative
Agent or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained, contains or will
contain any material misstatement of fact or omitted, omits or will omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were, are or will be made, not misleading;
provided that to the extent any such information, report, financial statement,
exhibit or schedule was based upon or constitutes a forecast or projection, each
of Holdings and the Borrower represents only that it acted in good faith and
utilized reasonable assumptions and due care in the preparation of such
information, report, financial statement, exhibit or schedule.
SECTION 3.16. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under all Plans in the aggregate (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $2,000,000 the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$4,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The properties owned or operated by Holdings, the Borrower and the
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last seven years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases at, from, under
or proximate to the Properties or otherwise in connection with the operations of
the Borrower or the Subsidiaries, which Releases or threatened Releases, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) None of Holdings, the Borrower or any of the Subsidiaries has
received any notice of an Environmental Claim in connection with the Properties
or the operations of the Borrower or the Subsidiaries or with regard to any
person whose liabilities for environmental matters Holdings, the Borrower or the
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, nor do Holdings, the Borrower
or the Subsidiaries have reason to believe that any such notice will be received
or is being threatened; and
(e) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in a manner that could reasonably be expected
to give rise to liability under any Environmental Law, nor have the Borrower or
the Subsidiaries retained or assumed any liability, contractually, by operation
of law or otherwise, with respect to the generation, treatment, storage or
disposal of Hazardous Materials, which transportation, generation, treatment,
storage
<PAGE> 43
or disposal, or retained or assumed liabilities, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the
Borrower for its Subsidiaries as of the Restatement Closing Date. As of such
date, such insurance is in full force and effect and all premiums have been duly
paid. The Borrower and its Subsidiaries have insurance in such amounts and
covering such risks and liabilities as are in accordance with normal industry
practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, for so long as the
Collateral Agent continues to hold such Collateral, the Pledge Agreement shall
constitute a fully perfected first priority Lien on, and security interest in,
all right, title and interest of the pledgors thereunder in such Collateral, in
each case prior and superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when financing statements in appropriate form are filed in the
offices specified on Schedule 6 to the Perfection Certificate, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property, as defined in the Security Agreement), in
each case prior and superior in right to any other person, other than with
respect to Liens expressly permitted by Section 6.02.
(c) Assuming the Security Agreement has been filed in the United States
Patent and Trademark Office and the United States Copyright Office, the Security
Agreement constitutes a fully perfected Lien on, and security interest in, all
right, title and interest of the grantors thereunder in the Intellectual
Property (as defined in the Security Agreement), in each case prior and superior
in right to any other person (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the grantors after the date hereof).
(d) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of the Loan Parties' right, title and interest in and to
the Mortgaged Property thereunder and the proceeds thereof, and assuming the
Mortgages have been filed in the offices specified on Schedule 3.19(d), the
Mortgages constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Mortgaged Property and the
proceeds thereof, in each case prior and superior in right to any other person,
other than with respect to the rights of persons pursuant to Liens expressly
permitted by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20(a) lists completely and correctly as of the Restatement Closing
Date all real property owned by the Borrower and the Subsidiaries and the
addresses thereof. The Borrower and the Subsidiaries own in fee all the real
property set forth on Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the
Restatement Closing Date all real property leased by the Borrower and the
Subsidiaries and the addresses thereof. The
<PAGE> 44
Borrower and such Subsidiaries have valid leasehold interests in all the real
property set forth on Schedule 3.20(b)
SECTION 3.21. Labor Matters. As of the Restatement Closing Date, there
are no strikes, lockouts or slowdowns against Holdings, the Borrower or any
Subsidiary pending or, to the knowledge of Holdings or the Borrower, threatened.
The hours worked by and payments made to employees of Holdings, the Borrower and
the Subsidiaries have not been in material violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with
such matters. All payments due from Holdings, the Borrower or any Subsidiary, or
for which any claim may be made against Holdings, the Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of
Holdings, the Borrower or such Subsidiary. The consummation of the Transactions
will not give rise to any right of termination or right of renegotiation on the
part of any union under any collective bargaining agreement to which Holdings,
the Borrower or any Subsidiary is bound.
SECTION 3.22. Solvency. (a) Immediately after the consummation of the
Transactions to occur on the Restatement Closing Date and immediately following
the making of each Loan made on the Restatement Closing Date and after giving
effect to the application of the proceeds of such Loans, (i) the fair value of
the assets of each Loan Party, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (ii) the present fair
saleable value of the property of each Loan Party will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (iii) each Loan Party will be
able to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) each Loan Party
will not have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted following the Restatement Closing Date.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including on the date of each issuance of a Letter of Credit (each such event
being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance of a
Letter of Credit, the Issuing Bank and the Administrative Agent shall have
received a notice requesting the issuance of such Letter of Credit as required
by Section 2.22(b).
(b) Except in the case of a Borrowing that does not increase the
aggregate principal amount of Loans outstanding of any Lender, the
representations and warranties set forth in Article III hereof shall be true and
correct in all material respects on and as of the date of such Credit Event with
the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) No Event of Default or Default shall have occurred and be
continuing.
<PAGE> 45
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower and Holdings on the date of such Credit Event as to the matters
specified in paragraphs (b) (except as aforesaid) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Restatement Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Bank, a favorable written opinion
of Kirkland & Ellis, counsel for Holdings and the Borrower,
substantially to the effect set forth in Exhibit J, (i) dated the
Restatement Closing Date, (ii) addressed to the Issuing Bank, the
Administrative Agent and the Lenders, and (iii) covering such other
matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and Holdings and the
Borrower hereby request such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the
Borrowings and extensions of credit hereunder and the other Loan
Documents shall be satisfactory to the Lenders, to the Issuing Bank and
to Cravath, Swaine & Moore, counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a
certificate of the Secretary or Assistant Secretary of each Loan Party
dated the Restatement Closing Date and certifying (A) that attached
thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such Loan Party authorizing the execution,
delivery and performance of the Loan Documents to which such person is
a party and, in the case of the Borrower, the borrowings hereunder, and
that such resolutions have not been modified, rescinded or amended and
are in full force and effect, (B) that the certificate or articles of
incorporation and by-laws of such Loan Party have not been amended
since the July 1, 1997, (C) as to the incumbency and specimen signature
of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party; (ii) a
certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (i) above; and (iii) such other documents as
the Lenders, the Issuing Bank or Cravath, Swaine & Moore, counsel for
the Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a
certificate, dated the Restatement Closing Date and signed by a
Financial Officer of the Borrower, confirming compliance with the
conditions precedent set forth in paragraphs (b) and (c) of Section
4.01.
(e) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Restatement Closing
Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder or under any other Loan Document.
(f) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in
full force and effect, and all the outstanding Capital Stock of the
Borrower and the Subsidiaries shall have been duly and validly pledged
thereunder to the Collateral Agent for the ratable benefit of the
Secured Parties and certificates representing such shares, accompanied
by instruments of transfer and stock powers endorsed in blank, shall be
in the actual possession of the Collateral Agent; provided that, to the
extent to do so would cause adverse tax consequence to the Borrower,
(i) neither the Borrower nor any Domestic Subsidiary shall be required
to pledge more than 65% of the capital stock of any Foreign Subsidiary
and (ii) no Foreign Subsidiary shall be required to pledge the capital
stock of any of its Foreign Subsidiaries.
<PAGE> 46
(g) The Security Agreement shall have been duly executed by
the Loan Parties party thereto and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and
each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest
in and lien on the Collateral (subject to any Lien expressly permitted
by Section 6.02) described in such agreement shall have been delivered
to the Collateral Agent.
(h) The Collateral Agent shall have received the results of a
search of the Uniform Commercial Code (or equivalent filings) filings
made with respect to the Loan Parties in the states (or other
jurisdictions) in which the chief executive office of each such person
is located, any offices of such persons in which records have been kept
relating to Accounts and the other jurisdictions in which Uniform
Commercial Code filings (or equivalent filings) are to be made pursuant
to the preceding paragraph, together with copies of the financing
statements (or similar documents) disclosed by such search, and
accompanied by evidence satisfactory to the Collateral Agent that the
Liens indicated in any such financing statement (or similar document)
would be permitted under Section 6.02 or have been released.
(i) The Collateral Agent shall have received a Perfection
Certificate with respect to the Loan Parties dated the Restatement
Closing Date and duly executed by a Responsible Officer of the
Borrower.
(j) Each of the Security Documents, in form and substance
satisfactory to the Lenders, relating to each of the Mortgaged
Properties shall have been duly executed by the parties thereto and
delivered to the Collateral Agent and shall be in full force and
effect, (ii) each of such Mortgaged Properties shall not be subject to
any Lien other than those permitted under Section 6.02, (iii) each of
such Security Documents shall have been filed and recorded in the
recording office as specified on Schedule 3.19(d) (or a lender's marked
and redated title commitment for title insurance, in form and substance
acceptable to the Collateral Agent, insuring such Security Document as
a first lien on such Mortgaged Property (subject to any Lien permitted
by Section 6.02) shall have been received by the Collateral Agent) and,
in connection therewith, the Collateral Agent shall have received
evidence satisfactory to it of the title company's agreement to record
or file such Security Documents, as applicable, and (iv) the Collateral
Agent shall have received such other documents, including a policy or
policies of title insurance issued by a nationally recognized title
insurance company, together with such endorsements, coinsurance and
reinsurance as may be requested by the Collateral Agent and the
Lenders, insuring the Mortgages as valid first liens on the Mortgaged
Properties, free of Liens other than those permitted under Section
6.02, together with such surveys, abstracts, appraisals and legal
opinions required to be furnished pursuant to the terms of the
Mortgages or as reasonably requested by the Collateral Agent or the
Lenders.
(k) Each of the Parent Guarantee Agreement, the Subsidiary
Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement and the Tax Sharing Agreement shall have been duly executed
by the parties thereto, shall have been delivered to the Collateral
Agent and shall be in full force and effect.
<PAGE> 47
ARTICLE V
Affirmative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document (other than wholly contingent indemnification obligations)
shall have been paid in full and all Letters of Credit have been canceled or
have expired and all amounts drawn thereunder have been reimbursed in full or
cash collateralized to the satisfaction of the Administrative Agent and the
Issuing Bank, unless the Required Lenders shall otherwise consent in writing,
each of Holdings and the Borrower will, and will cause each of the Subsidiaries
to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect in all material respects the
rights, licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; maintain and
operate such business in substantially the manner in which it is presently
conducted and operated; comply in all material respects with all applicable
laws, rules, regulations (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Mortgaged Properties) and decrees and orders
of any Governmental Authority, whether now in effect or hereafter enacted,
except where such non-compliance could not reasonably be expected to result in a
Material Adverse Effect; and, except in the case of sales of assets permitted
pursuant to Section 6.05, at all times maintain and preserve all property
material to the conduct of such business and keep, in all material respects,
such property in good repair, working order and condition, normal wear and tear
excepted, and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.
SECTION 5.02. Insurance. In the case of the Borrower and each
Subsidiary:
(a) Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers; and maintain such
other insurance, to such extent and against such risks, including fire
and other risks insured against by extended coverage, in each case as
is customary with companies in the same or similar businesses operating
in the same or similar locations, including public liability insurance
against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies to be endorsed or otherwise
amended to include a "standard" or "New York" lender's loss payable
endorsement, in form and substance satisfactory to the Administrative
Agent and the Collateral Agent, which endorsement shall provide that,
from and after the Closing Date, if the insurance carrier shall have
received written notice from the Administrative Agent or the Collateral
Agent of the occurrence of an Event of Default, the insurance carrier
shall, during the continuance of such Event of Default, pay all
proceeds otherwise payable to the Borrower or the Loan Parties under
such policies directly to the Collateral Agent; cause all such policies
to provide that neither the Borrower, the Administrative Agent, the
Collateral Agent nor any
<PAGE> 48
other party shall be a coinsurer thereunder and to contain a
"Replacement Cost Endorsement", without any deduction for
depreciation, and such other provisions as the Administrative Agent or
the Collateral Agent may reasonably require from time to time to
protect their interests; deliver original or certified copies of all
such policies to the Collateral Agent; cause each such policy to
provide that it shall not be canceled, modified or not renewed (i) by
reason of nonpayment of premium upon not less than 10 days' prior
written notice thereof by the insurer to the Administrative Agent and
the Collateral Agent (giving the Administrative Agent and the
Collateral Agent the right to cure defaults in the payment of
premiums) or (ii) for any other reason upon not less than 30 days'
prior written notice thereof by the insurer to the Administrative
Agent and the Collateral Agent; deliver to the Administrative Agent
and the Collateral Agent, prior to the cancellation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or
replacement policy (or other evidence of renewal of a policy
previously delivered to the Administrative Agent and the Collateral
Agent) together with evidence satisfactory to the Administrative Agent
and the Collateral Agent of payment of the premium therefor.
(c) If at any time the area in which the Premises (as defined
in the Mortgages) are located is designated (i) a "flood hazard area"
in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), obtain flood insurance in
such total amount as the Administrative Agent, the Collateral Agent or
the Required Lenders may from time to time require, and otherwise
comply with the National Flood Insurance Program as set forth in the
Flood Disaster Protection Act of 1973, as it may be amended from time
to time, or (ii) a "Zone 1" area, obtain earthquake insurance in such
total amount as the Administrative Agent, the Collateral Agent or the
Required Lenders may from time to time require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made
for personal injury (including bodily injury, death and property
damage) and umbrella liability insurance against any and all claims, in
no event for a combined single limit of less than $25,000,000, naming
the Collateral Agent as an additional insured, on forms satisfactory to
the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained
under this Section 5.02 is taken out by the Borrower; and promptly
deliver to the Administrative Agent and the Collateral Agent a
duplicate original copy of such policy or policies.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien and,
in the case of a Mortgaged Property, there is no risk of forfeiture of such
property.
<PAGE> 49
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows showing the financial condition of
the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of
such Subsidiaries during such year, all audited by Ernst & Young LLP or
other independent public accountants of recognized national standing
acceptable to the Required Lenders and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect)
to the effect that such consolidated financial statements fairly
present the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows
showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Financial Officers as fairly presenting in all
material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments;
(c) concurrently with any delivery of financial statements
under sub-paragraph (a) or (b) above, a letter of the accounting firm
or certificate of the Financial Officer reporting on or certifying such
statements (which letter, when furnished by an accounting firm, may be
limited to accounting matters and disclaim responsibility for legal
interpretations) reporting that they are unaware that any Event of
Default has occurred, in the case of the accounting firm, or certifying
that no Event of Default or Default has occurred, in the case of the
Financial Officer, or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be; and
(e) prior to the beginning of each fiscal year, a copy of the
budget for its consolidated balance sheet and related statements of
income and cash flows for each quarter of such fiscal year; and
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower or any Subsidiary, or compliance with the terms of any
Loan Document, as the Administrative Agent or any Lender may reasonably
request.
<PAGE> 50
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice
of the following:
(a) the occurrence of any Event of Default or Default,
specifying the nature and extent thereof and the corrective action (if
any) taken or proposed to be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $1,000,000; and
(d) any development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 5.06. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities. Each
Loan Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of Holdings, the Borrower
or any Subsidiary at reasonable times and upon reasonable notice and as often as
reasonably requested and to make extracts from and copies of such financial
records, and permit any representatives designated by the Administrative Agent
or any Lender to discuss the affairs, finances and condition of Holdings, the
Borrower or any Subsidiary with the officers thereof and independent accountants
therefor; provided, however, that, unless a Default or Event of Default shall
have occurred and be continuing, in no event shall the Administrative Agent or
any Lender or any of their respective designees contact any customer or supplier
of the Borrower or any Subsidiary regarding this Agreement and the Indebtedness
hereunder without the prior consent of the Borrower.
SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in
the preamble to this Agreement.
SECTION 5.08. Compliance with Environmental Laws. Except for any
non-compliance that could not reasonably be expected to result in a Material
Adverse Effect, comply, and cause all lessees and other persons occupying its
Properties to comply, with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all Environmental
Permits necessary for its operations and Properties; and conduct any Remedial
Action in accordance with Environmental Laws; provided, however, that none of
Holdings, the Borrower or any of the Subsidiaries shall be required to undertake
any Remedial Action to the extent that its obligation to do so is being
contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances.
SECTION 5.09. Preparation of Environmental Reports. If a Default caused
by reason of a breach of Section 3.17 or 5.08 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such default prepared by an environmental consulting
firm acceptable to the Administrative Agent and indicating the presence or
absence of Hazardous
<PAGE> 51
Materials and the estimated cost of any compliance or Remedial Action in
connection with such Properties.
SECTION 5.10. [Intentionally Omitted.]
SECTION 5.11. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. The Borrower will cause any
subsequently acquired or organized Domestic Subsidiary to execute a Subsidiary
Guarantee Agreement, Indemnity Subrogation and Contribution Agreement and each
applicable Security Document in favor of the Collateral Agent. In addition, from
time to time, the Borrower will, at its cost and expense, promptly secure the
Obligations by pledging or creating, or causing to be pledged or created,
perfected security interests with respect to such of its assets and properties
as the Administrative Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall be
secured by, among other things, substantially all the assets of the Borrower
(including real and other properties acquired subsequent to the Closing Date)).
Such security interests and Liens will be created under the Security Documents
and other security agreements, mortgages, deeds of trust and other instruments
and documents in form and substance satisfactory to the Collateral Agent, and
the Borrower shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including legal opinions, title insurance policies
and lien searches) as the Collateral Agent shall reasonably request to evidence
compliance with this Section. The Borrower agrees to provide such evidence as
the Collateral Agent shall reasonably request as to the perfection and priority
status of each such security interest and Lien.
ARTICLE VI
Negative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that, until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document (other than wholly contingent indemnification obligations)
have been paid in full and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in full or cash
collateralized to the satisfaction of the Administrative Agent and the Issuing
Bank, unless the Required Lenders shall otherwise consent in writing, neither
Holdings nor the Borrower will, nor will they cause or permit any of the
Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the
Restatement Closing Date and set forth in Schedule 6.01;
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) the Senior Subordinated Notes (or the notes exchanged
therefor pursuant to and in accordance with Section 6.09(c));
<PAGE> 52
(d) Earn-Out Obligations in an aggregate principal amount at
any time outstanding not exceeding $15,000,000;
(e) Indebtedness consisting of purchase money Indebtedness or
Capital Lease Obligations incurred in the ordinary course of business
after the Original Closing Date to finance Consolidated Capital
Expenditures; provided that (i) a description of the assets financed
thereby shall have been furnished to the Administrative Agent for any
assets for which the purchase price is greater than $1,000,000 and (ii)
the aggregate principal amount of any Indebtedness or Capital Lease
Obligations incurred pursuant to this paragraph (d) outstanding at any
time shall not exceed $5,000,000;
(f) intercompany loans and advances permitted by Section
6.04(c);
(g) Indebtedness of the Borrower or any Subsidiary to
Holdings; provided that such Indebtedness (i) is subordinated to the
prior payment in full of the Obligations on terms satisfactory to the
Administrative Agent and (ii) is evidenced by an intercompany note
pledged by Holdings to the Collateral Agent pursuant to the Pledge
Agreement for the benefit of the Secured Parties;
(h) ordinary course Interest Rate Protection Agreements and
ordinary course, non-speculative foreign exchange and commodity
protection agreements;
(i) Indebtedness arising out of judgments or awards (other
than any judgment that is described in clause (i) of Article VII and
constitutes a Default or Event of Default thereunder) in respect of
which the Borrower shall in good faith be prosecuting an appeal or
proceedings for review and in respect of which it shall have secured a
subsisting stay of execution pending such appeal or proceedings for
review, provided the Borrower shall have set aside on its books
adequate reserves, in accordance with GAAP, with respect to such
judgment or award;
(j) Indebtedness under performance bonds in an aggregate
principal amount at any time outstanding not exceeding $2,000,000; and
(k) additional unsecured Indebtedness in an aggregate amount
at any time outstanding not exceeding $20,000,000.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the Restatement Closing Date and set forth in
Schedule 6.02; provided that such Liens shall secure only those
obligations which they secure on the date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition (except as permitted pursuant to Section 6.02(i)),
(ii) such Lien does not apply to any other property or assets of the
Borrower or any Subsidiary and (iii) such Lien does not (A) materially
interfere with the use, occupancy and operation of any Mortgaged
Property, (B) materially reduce the fair
<PAGE> 53
market value of such Mortgaged Property but for such Lien or
(C) result in any material increase in the cost of operating,
occupying or owning or leasing such Mortgaged Property;
(d) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising, in the case of such other like
Liens, in the ordinary course of business and securing obligations that
are not due and payable or which are being contested in compliance with
Section 5.03;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred, in the case of such other similar encumbrances, in the
ordinary course of business which, in the aggregate, are not
substantial in amount and do not materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any Subsidiary;
provided that (i) such security interests secure Indebtedness permitted
by Section 6.01(e), (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby
does not exceed 85% of the lesser of the cost or the fair market value
of such real property, improvements or equipment at the time of such
acquisition (or construction) (or if such Indebtedness exceeds such 85%
limit, such Indebtedness is non-recourse to Holdings, the Borrower and
the Subsidiaries) and (iv) such security interests do not apply to any
other property or assets of the Borrower or any Subsidiary;
(j) any Lien disclosed on the marked and redated title
insurance commitments delivered to the Collateral Agent on the Original
Closing Date;
(k) Liens arising out of judgments or awards (other than any
judgment that is described in clause (i) of Article VII and constitutes
a Default or Event of Default thereunder) in respect of which the
Borrower shall in good faith be prosecuting an appeal or proceedings
for review and in respect of which it shall have secured a subsisting
stay of execution pending such appeal or proceedings for review,
provided the Borrower shall have set aside on its books adequate
reserves, in accordance with GAAP, with respect to such judgment or
award; and
(l) additional Liens on property or assets securing
obligations (other than Indebtedness for borrowed money) not exceeding
$500,000 at any time, provided that, to the extent any such Lien
applies to any Collateral (as defined in any such Security
<PAGE> 54
Document), such Lien does not have priority over the Liens
created under the Security Documents.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by the Borrower existing on the Restatement
Closing Date in the capital stock of the Subsidiaries and additional
investments by Holdings in the Capital Stock of the Borrower or by the
Borrower in the Capital Stock of the Subsidiary Guarantors;
(b) Permitted Investments;
(c) investments, loans or advances made by any Loan Party to
the Borrower or any Subsidiary, provided that any such loans or
advances are evidenced by an intercompany note pledged to the
Collateral Agent pursuant to the Pledge Agreement for the benefit of
the Secured Parties;
(d) investments consisting of non-cash consideration received
in connection with a sale of assets permitted by Section 6.05(b);
(e) loans and advances to employees and officers of the
Borrower or any of the Subsidiaries for travel, entertainment and
relocation expenses in the ordinary course of business in an aggregate
principal amount outstanding at any one time not to exceed $250,000;
(f) loans and advances in an aggregate principal amount
outstanding at any one time not to exceed $250,000 to management and
other employees of the Borrower, the proceeds of which are used in
their entirety to purchase capital stock of Holdings and other
investments pursuant to retirement savings programs;
(g) the Borrower may make any Permitted Acquisition; provided
that (i) the aggregate purchase price of all such Permitted
Acquisitions consummated after the Restatement Closing Date does not
exceed $65,000,000 and (ii) the Borrower shall have delivered to the
Administrative Agent a certificate certifying that at the time of and
immediately after giving effect to such Permitted Acquisition, (A) no
Event of Default or Default shall have occurred and be continuing and
(B) the Borrower shall be in compliance on a pro forma basis (including
as adjusted to reduce or exclude any identified costs that will be
reduced or will cease to be incurred after such Permitted Acquisition)
with the covenants set forth in Sections 6.11, 6.12 and 6.13, in each
case as of the last day of the most recent fiscal quarter adjusted to
give effect (as if such event had occurred on the first day of the four
fiscal quarter period ended on such last day) to such Permitted
Acquisition and the financing therefor, and the adjustments and
calculations set forth in such certificate shall be based on
assumptions and otherwise in form and substance satisfactory to the
Administrative Agent;
<PAGE> 55
(h) Consolidated Capital Expenditures permitted pursuant to
Section 6.10;
(i) Accounts; and
(j) ordinary course Interest Rate Protection Agreements and
ordinary course, non-speculative foreign exchange and commodity
protection agreements.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of its assets (whether now owned or hereafter acquired) or
any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in
one transaction or a series of transactions) all or any substantial part of the
assets of any other person, except that (i) the Borrower and any Subsidiary may
purchase and sell inventory and scrap, obsolete, excess and worn out assets in
the ordinary course of business, (ii) if at the time thereof and immediately
after giving effect thereto no Event of Default or Default shall have occurred
and be continuing (w) any wholly owned Subsidiary may merge into the Borrower in
a transaction in which the Borrower is the surviving corporation, (x) any wholly
owned Subsidiary may merge into or consolidate with any other wholly owned
Domestic Subsidiary in a transaction in which the surviving entity is a wholly
owned Domestic Subsidiary and no person other than the Borrower or a wholly
owned Domestic Subsidiary receives any consideration, (y) Holdings may merge
into ACP Holdings or the Borrower in a transaction in which the Borrower is the
surviving corporation (in the case of any such merger of Holdings into the
Borrower) so long as concurrently with any merger of Holdings with and into the
Borrower, or any merger of Holdings with and into ACP Holdings in which Holdings
is not the surviving corporation, ACP Holdings assumes all the obligations of
Holdings under this Agreement and the other Loan Documents (including entering
into a supplement to the Pledge Agreement to pledge 100% of the Capital Stock of
the Borrower to the Collateral Agent for the benefit of the Secured Parties) and
(z) following any merger described in clause (y), ACP Holdings may merge into
ACP Products or the Borrower in a transaction in which the Borrower is the
surviving corporation (in the case of any such merger of ACP Holdings into the
Borrower) so long as concurrently with any merger of ACP Holdings with and into
the Borrower, or any merger of ACP Holdings with and into ACP Products in which
ACP Holdings is not the surviving corporation, ACP Products assumes all the
obligations of ACP Holdings under this Agreement and the other Loan Documents
(including entering into a supplement to the Pledge Agreement to pledge 100% of
the Capital Stock of the Borrower to the Collateral Agent for the benefit of the
Secured Parties), (iii) the Borrower and any Subsidiary may make Permitted
Acquisitions permitted by Section 6.04(g), (iv) the Borrower and any Subsidiary
may make Consolidated Capital Expenditures permitted by Section 6.10 and (v) the
Borrower and any Subsidiary may engage in any Asset Sale of capital stock or
other assets acquired pursuant to a Permitted Acquisition permitted pursuant to
Section 6.04(g).
(b) Neither the Borrower nor any Subsidiary shall engage in any Asset
Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is
for consideration at least 85% of which is cash, (ii) such consideration is at
least equal to the fair market value (as determined in good faith by the
Borrower's board of directors) of the assets being sold, transferred, leased or
disposed of and (iii) the fair market value (as determined in good faith by the
Borrower's board of directors) of all assets sold, transferred, leased or
disposed of pursuant to this paragraph (b) (except for assets sold, transferred,
leased or disposed of pursuant to Section 6.05(a)(v)) shall not exceed (i)
$2,000,000 in any fiscal year or (ii) $10,000,000 in the aggregate.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any shares of its Capital Stock or directly or indirectly redeem, purchase,
retire or otherwise acquire for value (or permit any Subsidiary to purchase or
<PAGE> 56
acquire) any shares of any class of its Capital Stock or set aside any amount
for any such purpose; provided, however, that
(i) any Subsidiary may declare and pay dividends or make
other distributions to the Borrower;
(ii) the Borrower may declare and pay dividends or make other
distributions to Holdings (A) to pay the Borrower Tax Amount required
to be paid by Holdings and (B) to fund payments to be made by Holdings
as permitted by clause (iv) below in an aggregate amount not to exceed
the amounts of such payments;
(iii) so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower may declare and pay dividends
or make other distributions to Holdings to pay the actual operating
costs of Holdings and ACP Holdings in an aggregate amount not exceeding
$250,000 in any fiscal year of the Borrower;
(iv) Holdings may, or Holdings may declare and pay dividends
or make other distributions to ACP Holdings to permit ACP Holdings or
ACP Products to, purchase, redeem, retire or otherwise acquire (A)
shares of its Capital Stock, or options or warrants to purchase shares
of its Capital Stock, held by officers, directors or employees of
Holdings, the Borrower or any Subsidiary pursuant to a compensation
plan or arrangement in connection with the death, disability or
termination of employment of any such officer, director or employee or
(B) shares of its capital stock owned by any officer, director or
employee of Holdings, the Borrower or any Subsidiary pursuant to the
exercise of options or warrants to purchase such Capital Stock by such
officer, director or employee or to pay taxes incurred in connection
with such exercise of options or warrants in an aggregate amount for
all such transactions described in clauses (A) and (B) not exceeding
the sum of (x) $2,000,000 plus (y) the proceeds of any substantially
concurrent issuance of Capital Stock of ACP Products, ACP Holdings or
Holdings to any officer, director or employee of Holdings, the Borrower
or any Subsidiary;
(v) Holdings may declare and pay dividends or make other
distributions to ACP Holdings to pay the Borrower Tax Amount required
to be paid by ACP Holdings; and
(vi) so long as no Default or Event of Default shall have
occurred and be continuing, Holdings may declare and pay dividends or
make other distributions to ACP Holdings, out of the proceeds of
dividends or distributions received by Holdings pursuant to clause
(iii) above, to pay ACP Holdings' actual operating costs.
(b) Permit its subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other interest or (ii)
make or repay any loans or advances to the Borrower or the parent of such
subsidiary.
SECTION 6.07. Transactions with Affiliates. Except as set forth on
Schedule 6.07, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that the Borrower or any
Subsidiary may engage in (a) any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) the transactions permitted pursuant to
Sections 6.05 and 6.06, and (c) the Transactions.
SECTION 6.08. Business of Borrower and Subsidiaries. Engage at any
time in any business or business activity other than Related Businesses.
<PAGE> 57
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, determination or release of (i) the Merger
Agreement or the Tax Sharing Agreement or (ii) any indenture, instrument or
agreement pursuant to which any Indebtedness or preferred stock of the Borrower
or any Subsidiary is outstanding in an aggregate outstanding principal amount in
excess of $1,000,000, or modify its charter or by-laws, in each case to the
extent that any such waiver, supplement, modification, amendment, termination or
release would be adverse to the Lenders in any material respect.
(b) (i) Make any distribution, whether in cash, property, securities or
a combination thereof, other than regular scheduled payments of principal and
interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, any Indebtedness
for borrowed money of the Borrower or any Subsidiary in an outstanding principal
amount exceeding $1,000,000 or (ii) pay in cash any amount in respect of such
Indebtedness that may at the obligor's option be paid in kind or in other
securities.
(c) Notwithstanding anything contained in this Section 6.09 to the
contrary, the Borrower shall be permitted to exchange the Senior Subordinated
Notes for substantially identical notes in accordance with the Exchange and
Registration Rights Agreements with respect thereto.
SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Consolidated Capital Expenditures (other than Consolidated Capital Expenditures
for patterns and Permitted Acquisitions permitted by Section 6.04(g)) made by
the Borrower and the Subsidiaries, taken as a whole, in any fiscal year to
exceed the sum of (a) $10,000,000, (b) the proceeds of any Equity Issuance made
during such fiscal year and substantially concurrently used to fund Consolidated
Capital Expenditures, and (c) other Consolidated Capital Expenditures not
covered by clauses (a) and (b) above financed by Loans, so long as the aggregate
principal amount of such Loans at any time outstanding used to finance all such
Consolidated Capital Expenditures pursuant to this clause (c) does not exceed
the excess of (A) $40,000,000 over (B) the aggregate principal amount of
outstanding Loans used to finance Permitted Acquisitions pursuant to Section
6.04(g); provided, however, that the amount of Consolidated Capital Expenditures
in any fiscal year of the Borrower permitted to be incurred pursuant to clause
(a) above shall be increased by an amount equal to the amount of unused
Consolidated Capital Expenditures permitted to be incurred pursuant to clause
(a) above for the immediately preceding fiscal year of the Borrower (without
giving effect to this proviso).
SECTION 6.11. Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the end of any fiscal quarter falling in any period set
forth below to be in excess of the ratio set forth below for such period.
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
July 1, 1997 through September 30, 1999 6.00 to 1.00
October 1, 1999 through September 30, 2000 5.75 to 1.00
Thereafter 5.50 to 1.00
</TABLE>
SECTION 6.12. Permit Consolidated Net Worth (a) on the Original Closing
Date, to be less than $35,000,000 or (b) on the last day of any fiscal quarter
thereafter, to be less than the sum of (i) $35,000,000 plus (ii) 50% of the
cumulative amount of positive Consolidated Net Income for each fiscal year
ending after the Original Closing Date.
<PAGE> 58
SECTION 6.13. Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the end of any fiscal quarter to be
less than 1.50 to 1.00.
SECTION 6.14. Fiscal Year. Permit the fiscal year of the Borrower to
end on a day other than September 30.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement
or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant
to any Loan Document, shall prove to have been false or misleading in
any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of
any Loan or the reimbursement with respect to any L/C Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Fee or L/C Disbursement or any other amount (other than
an amount referred to in (b) above) due under any Loan Document, when
and as the same shall become due and payable, and such default shall
continue unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance
by Holdings, the Borrower or any Subsidiary of any covenant, condition
or agreement contained in Section 5.01(a), 5.05 or 5.07 or in Article
VI;
(e) default shall be made in the due observance or performance
by Holdings, the Borrower or any Subsidiary of any covenant, condition
or agreement contained in any Loan Document (other than those specified
in (b), (c) or (d) above) and such default shall continue unremedied
for a period of 30 days after notice thereof from the Administrative
Agent or any Lender to the Borrower;
(f) Holdings, the Borrower or any Subsidiary shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of
any Indebtedness in a principal amount in excess of $1,750,000, when
and as the same shall become due and payable, or (ii) fail to observe
or perform any other term, covenant, condition or agreement contained
in any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause
(ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of Holdings, the Borrower or
any Subsidiary, or of a substantial part of the property or assets of
<PAGE> 59
Holdings, the Borrower or a Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of the property or
assets of Holdings, the Borrower or a Subsidiary or (iii) the
winding-up or liquidation of Holdings, the Borrower or any Subsidiary;
and such proceeding or petition shall continue undismissed for 60 days
or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings,
the Borrower or any Subsidiary or for a substantial part of the
property or assets of Holdings, the Borrower or any Subsidiary, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the
foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $1,750,000, which amount is not covered
by insurance (provided that in the event such a judgment is covered by
insurance, the Administrative Agent is provided with satisfactory
evidence that the insurance provider will provide the coverage relating
thereto) shall be rendered against Holdings, the Borrower, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to levy upon assets or properties of Holdings,
the Borrower or any Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
(i) $1,000,000 in any year or (ii) $5,000,000 for all periods; or
(k) any security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by the
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent
to maintain possession of certificates representing securities pledged
under the Pledge Agreement or to continue previously filed financing
statements prior to the expiration thereof and except to the extent
that such loss is covered by a lender's title insurance policy and the
related insurer promptly after such loss shall have acknowledged in
writing that such loss is covered by such title insurance policy; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the
<PAGE> 60
Administrative Agent may, and at the request of the Required Lenders shall,
by notice to the Borrower, take either or both of the following actions, at the
same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding, if any, to be forthwith due and payable in
whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and
all other liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein or in any other Loan Document
to the contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
The Chase Manhattan Bank is hereby appointed to act as Administrative Agent and
Collateral Agent on behalf of the Lenders and the Issuing Bank (for purposes of
this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the "Agents"). Each of the Lenders and each assignee
of any such Lender, hereby irrevocably authorizes the Agents to take such
actions on behalf of such Lender or assignee or the Issuing Bank and to exercise
such powers as are specifically delegated to the Agents by the terms and
provisions hereof and of the other Loan Documents, together with such actions
and powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders and the Issuing Bank, without hereby
limiting any implied authority, (a) to receive on behalf of the Lenders and the
Issuing Bank all payments of principal of and interest on the Loans, all
payments in respect of L/C Disbursements and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in
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acting, or refraining from acting, in accordance with written instructions
signed by the Required Lenders and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders. Each Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or sent by the
proper person or persons. Neither the Agents nor any of their respective
directors, officers, employees or agents shall have any responsibility in
their capacity as such to the Borrower or any other Loan Party on account of the
failure of or delay in performance or breach by any Lender or the Issuing Bank
of any of its obligations hereunder or to any Lender or the Issuing Bank on
account of the failure of or delay in performance or breach by any other Lender
or the Issuing Bank or the Borrower or any other Loan Party of any of their
respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. Each of the Agents may execute any and all
duties hereunder by or through agents or employees and shall be entitled to rely
upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor, subject to the Borrower's approval, not to be
unreasonably withheld, so long as no Default or Event of Default shall have
occurred and be continuing. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall 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 hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its Commitments hereunder) of any
expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, that shall not have been reimbursed by the Borrower
and (b) to indemnify and hold harmless each Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such pro rata share,
from and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by or asserted
against it in its capacity as Agent, or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower or any other
Loan Party, provided that no Lender shall be liable
<PAGE> 62
to an Agent or any such other indemnified person for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Agent or any of its directors, officers,
employees or agents. Each Lender agrees to reimburse and indemnify the Issuing
Bank to the same extent and subject to the same limitations as provided for the
Agents in the preceding sentence.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, or sent by telecopy, as follows:
(a) if to the Borrower or Holdings, to it at 2121 Brooks
Avenue, Neenah, WI 54956, Attention of President or Chief Financial
Officer (Telecopy No. (414) 729-3633) with copies to (which shall not
constitute notice to the Borrower) Citicorp Venture Capital, Ltd., 399
Park Avenue, 14th Floor, Zone 4, New York, NY 10043, Attention of Mr.
David F. Thomas and Mr. John D. Weber (Telecopy No. (212) 888-2940) and
Kirkland & Ellis, Citicorp Center, 153 East 53rd Street, New York, NY
10022, Attention of Kirk A. Radke, Esq. (Telecopy No. (212) 446-4900);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Manhattan Plaza, 8th
Floor, New York, New York 10081, Attention of Janet Belden (Telecopy
No. (212) 552-5658), with a copy to The Chase Manhattan Bank, One Chase
Manhattan Plaza, 5th Floor, New York, New York 10081, Attention of
James H. Ramage (Telecopy No. (212) 552-5555); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Holdings herein and in
the certificates or other instruments
<PAGE> 63
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
and the Issuing Bank and shall survive the making by the Lenders of the Loans
and the issuance of Letters of Credit by the Issuing Bank, regardless of any
investigation made by the Lenders or the Issuing Bank or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any Fee or any other amount then due and payable
under this Agreement or any other Loan Document is outstanding and unpaid
(other than wholly-contingent indemnification obligations) or any Letter of
Credit is outstanding and so long as the Commitments have not been terminated.
The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, Holdings and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, Holdings, the
Administrative Agent, the Issuing Bank or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of, or an Approved Fund with respect to, such Lender, (x) the
Borrower, the Administrative Agent and the Issuing Bank must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld) and (y) the amount of the Commitment of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 (or, if less, the entire remaining amount of such
Lender's Commitment), (ii) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 and (iii) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 9.04, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof, (A) 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 and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees
accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other
<PAGE> 64
and the other parties hereto as follows: (i) such assigning Lender warrants that
it is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim and that its Commitment, and the outstanding
balances of its Loans, in each case without giving effect to assignments thereof
which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with
this Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto, or the financial
condition of the Borrower or any Subsidiary or the performance or observance by
the Borrower or any Subsidiary of any of its obligations under this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements referred to in Section 3.05(a) or delivered
pursuant to Section 5.04 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent and the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agent and the Collateral Agent,
respectively, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank, the Collateral Agent
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Issuing
Bank and the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders and the Issuing Bank. No assignment shall be effective unless it has
been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing
Bank or the Administrative 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 Commitment and the Loans owing to
it); provided, however, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participating banks or other
<PAGE> 65
entities shall be entitled to the benefit of the cost protection provisions
contained in Sections 2.14, 2.16 and 2.20 to the same extent as if they were
Lenders and (iv) the Borrower, the Administrative Agent, the Issuing Bank
and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans or L/C Disbursements and to approve any
amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans or increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to the Borrower by the assigning Lender
hereunder.
(i) Neither Holdings nor the Borrower shall assign or delegate any of
its rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, Moody's
Investors Service, Inc., and Thompson's BankWatch (or InsuranceWatch Ratings
Service, in the case of Lenders that are insurance companies (or Best's
Insurance Reports, if such insurance company is not rated by Insurance Watch
Ratings Service)) shall, after the date that any Lender becomes a Lender,
downgrade the long-term certificate deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a
Lender that is an insurance company (or B, in the case of an insurance company
not rated by InsuranceWatch Ratings Service)), then the Issuing Bank shall have
the right, but not the obligation, at its own expense, upon notice to such
Lender and the Administrative Agent, to replace (or to request the Borrower to
use its reasonable efforts to replace) such Lender with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in paragraph (b)
above) all its interests, rights and obligations in respect of its Commitment to
such assignee; provided, however, that (i) no such assignment shall conflict
with any law, rule and regulation or order of any Governmental Authority and
(ii) the Issuing Bank or such assignee, as the case may be, shall pay to such
Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Holdings agree,
jointly and severally, to pay all out-of-pocket expenses incurred by the
Administrative Agent, the Collateral
<PAGE> 66
Agent and the Issuing Bank in connection with the syndication of the credit
facilities provided for herein and the preparation and administration of this
Agreement and the other Loan Documents or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions hereby or thereby contemplated shall be consummated) or incurred
by the Administrative Agent, the Collateral Agent or any Lender in connection
with the enforcement or protection of its rights in connection with this
Agreement and the other Loan Documents or in connection with the Loans made or
Letters of Credit issued hereunder, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agent
and the Collateral Agent, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel
for the Administrative Agent, the Collateral Agent or any Lender.
(b) The Borrower and Holdings agree, jointly and severally, to
indemnify the Administrative Agent, the Collateral Agent, each Lender and the
Issuing Bank, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
of (i) the execution or delivery of this Agreement or any other Loan Document or
any agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use of
the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged
presence or Release of Hazardous Materials on any property owned or operated by
the Borrower or any of the Subsidiaries, or any Environmental Claim related in
any way to the Borrower or the Subsidiaries; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of any Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or the Issuing Bank. All amounts due under this Section 9.05 shall be
payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower or Holdings against any of and all
the obligations of the Borrower or Holdings now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF
<PAGE> 67
CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH,
THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR
RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS
(1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 (THE
"UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower or Holdings in
any case shall entitle the Borrower or Holdings to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, Holdings and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan or any date for reimbursement of an L/C
Disbursement, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan or L/C Disbursement, without the prior
written consent of each Lender affected thereby, (ii) change or extend the
Commitment or decrease or extend the date for payment of the Commitment Fees of
any Lender without the prior written consent of such Lender or (iii) amend or
modify the provisions of Section 2.17 or 9.04(i), the provisions of this
Section, the definition of the term "Required Lenders" or release any Guarantor
or all or any substantial part of the Collateral, without the prior written
consent of each Lender; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent, the
Collateral Agent or the Issuing Bank hereunder or under any other Loan Document
without the prior written consent of the Administrative Agent, the Collateral
Agent or the Issuing Bank.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
<PAGE> 68
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof (including, following the Restatement
Closing Date, the Commitment Letter dated July 28, 1997 among the Administrative
Agent, Chase Securities Inc. and the Borrower) is superseded by this Agreement
and the other Loan Documents and shall be terminated on the Restatement Closing
Date. Nothing in this Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the parties hereto and
thereto any rights, remedies, obligations or liabilities under or by reason of
this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any
<PAGE> 69
other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower, Holdings or their
respective properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the Collateral
Agent, the Issuing Bank and each of the Lenders agrees to keep confidential (and
to use its best efforts to cause its respective agents and representatives to
keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority, (c) to the extent otherwise required by applicable laws and
regulations or by any subpoena or similar legal process, (d) in connection with
any suit, action or proceeding relating to the enforcement of its rights
hereunder or under the other Loan Documents or (e) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 9.16 or (ii) becomes available to the Administrative Agent, the
Issuing Bank, any Lender or the Collateral Agent on a nonconfidential basis from
a source other than the Borrower or Holdings. For the purposes of this Section,
"Information" shall mean all financial statements, certificates, reports,
agreements and information (including all analyses, compilations and studies
prepared by the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender based on any of the foregoing) heretofore or hereafter received from
the Borrower or Holdings or any of their respective Affiliates and related to
the Borrower or Holdings, any shareholder or Affiliate of the Borrower or
Holdings or any employee, customer or supplier of the Borrower or Holdings,
other than any of the foregoing that were available to the Administrative Agent,
the Collateral Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to its disclosure thereto by the Borrower or Holdings, and which are in
the case of Information provided after the date hereof, clearly identified at
the time of delivery as confidential. The provisions of this Section 9.16 shall
remain operative and in full force and effect regardless of the expiration and
term of this Agreement.
SECTION 9.17. Termination. Subject to the last sentence of Section
9.02, this Agreement and the other Loan Documents shall terminate when all the
Obligations have been indefeasibly paid in full, the Lenders have no further
commitment to lend, the L/C Exposure has been reduced to zero and the Issuing
Bank has no further commitment to issue Letters of Credit under this Agreement,
at which time the Collateral Agent shall execute and deliver to the Borrower,
Holdings and the Subsidiary Guarantors all Uniform Commercial Code termination
statements and similar documents which the Borrower, Holdings and the Subsidiary
Guarantors shall reasonably request to evidence such termination.
<PAGE> 70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NEENAH FOUNDRY COMPANY,
by
-------------------------
Name:
Title:
NFC CASTINGS, INC.,
by
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent, Collateral
Agent and Issuing Bank,
by
-------------------------
Name:
Title:
<PAGE> 1
Exhibit 21.1
Subsidiaries of the Registrants
1. Neenah Foundry Company
Hartley Controls Corporation - wholly owned.
Neenah Transport, Inc. - wholly owned.
2. Hartley Controls Corporation
None.
3. Neenah Transport, Inc.
None.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS OF NEENAH FOUNDRY COMPANY AS OF AND
FOR THE FIVE MONTHS ENDED SEPTEMBER 30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 5-MOS
<FISCAL-YEAR-END> SEP-30-1997
<PERIOD-START> MAY-1-1997
<PERIOD-END> SEP-30-1997
<CASH> 20,344
<SECURITIES> 0
<RECEIVABLES> 30,318
<ALLOWANCES> 386
<INVENTORY> 19,639
<CURRENT-ASSETS> 71,928
<PP&E> 103,710
<DEPRECIATION> 3,131
<TOTAL-ASSETS> 328,425
<CURRENT-LIABILITIES> 32,098
<BONDS> 197,522
100
0
<COMMON> 0
<OTHER-SE> 47,120
<TOTAL-LIABILITY-AND-EQUITY> 328,425
<SALES> 87,093
<TOTAL-REVENUES> 87,093
<CGS> 60,166
<TOTAL-COSTS> 60,166
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (9,199)
<INCOME-PRETAX> 7,329
<INCOME-TAX> 3,479
<INCOME-CONTINUING> 3,850
<DISCONTINUED> 0
<EXTRAORDINARY> (1,630)
<CHANGES> 0
<NET-INCOME> 2,220
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
