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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K
Annual Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the fiscal year ended December 31, 1998
Commission File Number 0-6955
WALBRO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 38-1358966
(STATE OF INCORPORATION) (I.R.S. EMPLOYER ID NO.)
1227 Centre Road, Auburn Hills, Michigan 48236
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(248) 377-1800
(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:
Common Stock, $.50 par value
(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
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
The aggregate market value of the registrant's voting stock held by
non-affiliates of the registrant, based upon the last reported sale price of the
registrant's Common Stock on March 18, 1999.
$79,474,260
The number of shares outstanding of the registrant's Common Stock, par value
$.50, as of March 18, 1999.
8,688,294
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DOCUMENTS INCORPORATED BY REFERENCE
Certain sections of the registrant's Notice of Annual Meeting of
Stockholders and Proxy Statement for its Annual Meeting of Stockholders to be
held on May 4, 1999 are incorporated by reference into Part III of this report.
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PART I
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM
ACT OF 1995.
The statements contained in this discussion that are not historical
facts are forward-looking statements subject to the safe harbor created by the
Securities Litigation Reform Act of 1995. Whenever possible, the Company has
identified these forward-looking statements by words such as "anticipating,"
"believes," "estimates," "expects," and similar expressions. Walbro Corporation
cautions readers of this discussion that a number of important factors could
cause Walbro's actual consolidated results for 1999 and beyond to differ
materially from those expressed in any forward-looking statements made by, or on
behalf of, Walbro. These important factors include, without limitation, changes
in demand for automobiles and light trucks, relationships with significant
customers, price pressures, the timing and structure of future acquisitions or
dispositions including the restructuring program announced during the fourth
quarter of 1997, impact of environmental regulations, the year 2000 issue,
continued availability of adequate funding sources, currency and other risks
inherent in international sales, and general economic and business conditions.
These important factors and other factors which could affect Walbro's results
are more fully discussed in Walbro's filings with the Securities and Exchange
Commission. Readers of this discussion are referred to such filings. The Company
assumes no obligation to update publicly any forward-looking statements, whether
as a result of new information, future events or otherwise.
ITEM 1. BUSINESS
GENERAL
Walbro Corporation is a global leader in the design, development and
manufacture of precision fuel storage and delivery systems and products for
automotive and small engine markets worldwide. The Company manufactures plastic
fuel tanks, fuel pumps, fuel modules, plastic fuel rails and fuel level sensors
for sale to automotive original equipment manufacturers ("OEMs"). Products
manufactured for the small engine market include carburetors and ignitions for
chain saws, outboard marine engines, two-wheeled vehicles, industrial engines
and lawn and garden equipment, such as lawn mowers and weed trimmers. From 1993
to 1998, the Company increased net sales at the compound rate of approximately
20% per year. This growth was primarily due to the introduction of new
automotive products, penetration of additional automotive platforms and a
recovery in the small engine industry from depressed levels in the late 1980s.
The Company had net sales of $619.9 million and $678.0 million in 1997 and 1998.
Approximately 73% of the Company's net sales for 1998 were generated by
Walbro Automotive. Through Walbro Automotive, the Company designs, develops and
manufactures fuel storage and delivery systems and components for a broad range
of U.S. and foreign manufacturers of passenger automobiles and light trucks
(including minivans). The Company and its joint ventures hold a strong market
position in North America, Europe and South America and a growing market
presence in Asia. In July 1995, the Company substantially expanded its European
automotive business by acquiring the fuel systems business of Dyno Industrier
A.S. ("Dyno"). In 1998, management estimates that the Company supplied Chrysler
(Chrysler refers to the former Chrysler portion of DaimlerChrysler) with
approximately 75% of its fuel pump and fuel module requirements, including all
requirements for Chrysler's passenger cars and minivans and approximately 45% of
the requirements for Chrysler's light trucks. Management believes that the
Company manufactures substantially all of the fuel tank systems for Saab and
Volvo light vehicles and all of the fuel tanks for the Mercedes-Benz C Class,
Volkswagen Polo and Renault Twingo. Other automotive
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customers of the Company and its joint ventures include Audi, Daewoo, Fiat,
Ford, General Motors, Hyundai, Kia, Nedcar, Peugeot and Rover.
Approximately 21% of the Company's net sales for 1998 were generated by
Walbro Engine Management. Through Walbro Engine Management, the Company designs,
develops and manufactures diaphragm carburetors for portable engines (such as
those used in chain saws and weed trimmers), float feed carburetors for ground
supported engines (such as those used in lawn mowers and marine engines) and
ignition systems and other components for a variety of small engine products.
The Company believes that it is the world's largest independent manufacturer of
small engine carburetors, with an approximate 70% share of the global diaphragm
carburetor market including sales to such leading chain saw and weed trimmer
manufacturers as Poulan/Weedeater, Deere and Company (Homelite), Stihl
Incorporated, McCulloch Corporation, Ryobi Ltd. and Kioritz (Echo) Corporation.
The Company believes it has an approximate 10% share of the global float feed
carburetor market, including sales to Briggs & Stratton Corporation, the world's
largest small engine manufacturer, Kohler Company, Tecumseh Products Co., and
Mercury Marine, a major manufacturer of outboard marine engines. The Company
produces substantial volumes of float feed carburetors for the Chinese
two-wheeled vehicle market.
The remaining 6% of the Company's net sales for 1998 were primarily
related to replacement products for both the automotive and small engine
aftermarkets. The Company has recently begun pursuing initiatives to expand its
aftermarket customer base and product lines in an effort to grow this segment of
its business.
The Company was incorporated in Michigan in 1950 and reincorporated in
Delaware in 1972. The Company's principal executive offices are located at 1227
Centre Road, Auburn Hills, Michigan 48236, and its telephone number is (248)
377-1800.
WALBRO AUTOMOTIVE
AUTOMOTIVE INDUSTRY OVERVIEW
A number of trends within the global automotive market have had and
will continue to have a fundamental impact on the Company's future profitability
and growth prospects, including: the shift by OEMs to the purchase of "systems"
rather than individual components, the globalization of the OEM supplier base,
the expansion of OEM supplier responsibilities and increased emissions
regulation. These trends have contributed to a consolidation of OEM suppliers
which the Company expects will continue.
Purchase of Integrated Systems. Automotive OEMs are relying
increasingly on suppliers who can provide entire systems rather than a number of
different parts. OEMs can reduce their own internal engineering efforts and the
number of suppliers by purchasing systems rather than components. Management
believes the engineering and technological challenges facing systems suppliers
will continue to grow as these systems become more complex. To strengthen the
Company's position as a major supplier of automotive fuel systems, the Company
is investing in its engineering and testing capabilities and actively pursuing
its systems philosophy. The Company believes that the systems approach is being
adopted outside North America and that the Company will be able to provide
systems to the European market in the future.
Globalization of the OEM Supplier Base. Several OEMs, including Ford,
General Motors and Volkswagen, are introducing automobile models which are
designed for the world automotive market ("World Cars"). This departure from the
historical practice of designing separate models for each regional market is
requiring suppliers to establish international development and manufacturing
facilities capable
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of providing system components with consistent quality on a worldwide basis. The
Company believes it is well positioned as a major supplier of fuel storage and
delivery systems ("FSDS") to the world automotive markets.
Expansion of OEM Supplier Responsibilities. Since the 1980s, Ford,
DaimlerChrysler and General Motors have been actively reducing their respective
supplier bases to those who accept significant responsibility for product
management and meet increasingly strict standards for product quality, on time
delivery and manufacturing costs. These suppliers are expected to control all
aspects of production of system components, including design, development,
component sourcing, manufacturing, quality assurance, testing and delivery to
the customer's assembly plant. The Company believes that many suppliers do not
have the resources to meet these OEM requirements and that the automotive OEM
supplier market will be divided among a smaller group of key suppliers. The
Company has received a number of quality awards from its OEM customers,
including the Ford Q1 Award, DaimlerChrysler QE Award and General Motors
Supplier of the Year Award, and believes that this supplier consolidation
provides an opportunity for the Company's increased penetration of the OEM
market.
Increasing Emissions Regulation. Beginning in the late 1970s, U.S.
environmental regulations, including fuel economy regulations and the Clean Air
Act and its Amendments, have had a significant impact on fuel systems and the
controls placed on mobile source emissions. As a result, U.S. automotive fuel
systems have evolved from mechanically controlled carbureted systems to more
sophisticated, electronically controlled fuel injection systems. Governmental
action in many other parts of the world is forcing a similar transition to
engine management systems which produce less emissions. For example, the
European Economic Community, which previously had less stringent automotive
exhaust regulations, adopted exhaust standards effective January 1, 1993 which
are comparable to 1983 U.S. requirements.
Compliance with these regulations has resulted in efforts to reduce
evaporative emissions and the development of new "flexible" fuels such as
ethanol and methanol blends. In response to these changes, the Company has
developed a number of products including electric pumps designed for electronic
fuel injection systems, onboard running and vapor recovery ("ORVR") systems and
plastic fuel tanks which reduce hydrocarbon permeation and are corrosion
resistant to flexible fuels.
AUTOMOTIVE BUSINESS STRATEGY
The Company intends to capitalize on trends in the automotive industry
through the development of its fuel systems technology and expansion of its
product line and customer base. The key elements of the Company's strategy
include:
Systems Approach to Product Development. The Company is utilizing its
expertise to develop integrated FSDS which reduce evaporative emissions, are
compatible with the corrosive nature of flexible fuels and provide customers
with the cost savings and convenience of purchasing complete systems rather than
numerous individual components. The Company's "systems" approach to product
development is designed to allow the Company to increase product content on each
vehicle in which its products are installed while providing customers with
substantial performance and cost benefits. This systems approach has made
possible an increase in the dollar value of the Company's products per vehicle.
For example, the new Dodge Durango, which began volume production in the third
quarter of 1997, is equipped with the Company's fuel storage and delivery
system. These products have a selling price that range from $100 to $190,
compared to a typical 1987 vehicle equipped with only $15 of the Company's
products. The Company's ability to assume responsibility for the development of
FSDS allows OEMs to reduce internal engineering efforts and use fewer suppliers
through the purchase of systems rather than components.
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Global Capabilities. The Company's international manufacturing and
market presence allows the Company to offer its current and future FSDS
technology to the global automotive market. The Company's presence in Europe
provides it with additional resources and marketing contacts to supply
integrated fuel systems to both European and North American OEMs assembling
vehicles in Europe and European OEMs assembling vehicles in the United States.
The Company's international sales for 1998 were 39% of the Company's net sales
(excluding joint ventures) compared to 20% in 1994. The Company's plastic tank
manufacturing capability allows it to pursue its systems strategy in Europe and
serve OEM customers as they confront new environmental and regulatory challenges
worldwide and introduce World Cars designed for sale to the global automotive
market. In addition, the Company has a market presence in Brazil, South Korea
and Japan and it has entered into joint ventures with manufacturers in Brazil,
France, Japan, Mexico and Argentina which enable the Company to access those
foreign markets.
Technical and Product Development Capabilities. The Company's engineers
focus their research and development efforts to respond to the technical
challenges facing their customers. The Company has designed its current line of
FSDS products in response to U.S. fuel economy and emission regulations and
changing consumer demands over the past two decades. Management believes that
the Company is well positioned to capitalize on the emergence of more stringent
global emission regulations through the development of a new generation of
products and systems with greater fuel efficiency, reduced component weight,
improved durability, fuel vapor control and flexible fuel compatibility. An
example of these products is the ORVR system which captures fuel vapors from the
fuel system and routes them to a carbon canister for storage and reuse.
The Company has made substantial investments in fuel systems
technology, product design and test capability and technical personnel to
advance FSDS technology and respond to customer needs. A state-of-the-art
systems center in Auburn Hills, Michigan provides the Company with the
full-service product management capability which OEMs require of key suppliers
and provides the Company with a competitive advantage in the development of
proprietary fuel systems technology. Similarly, the Company opened a new systems
center during 1998 in Rastatt, Germany to provide product design and test
capabilities for European customers.
AUTOMOTIVE PRODUCTS
The Company's product development engineers design fuel storage and
delivery systems in response to customer needs and in anticipation of evolving
trends in the market. Today's electronic fuel injected engines demand an
uninterrupted supply of fuel under pressure and some vehicles require complex
fuel tank configurations. The Company specializes in technology employed in the
FSDS and currently manufactures and sells fuel pumps, fuel modules, fuel level
sensors, plastic fuel tanks, bracket assemblies and plastic fuel rails.
In response to the environmental and fuel efficiency demands on today's
automobiles, the Company has developed, and is continually taking steps to
improve, an electric pump designed to deliver fuel under pressure to electronic
fuel injection equipped engines. The pump is fastened to a bracket and flange
assembly, which allows the pump to be mounted in the fuel tank. The assembly has
been increasingly replaced with a single integrated unit, called a fuel module,
which performs all of the functions of the assembly described above. The fuel
module is a complete, value-added package for specific applications composed of
a fuel pump, plastic reservoir, fuel level sensor and related parts. These
injection-molded plastic units fit inside the fuel tank, ensuring continuous
fuel delivery under low fuel conditions, maximum vehicle driving range and
enhanced fuel delivery under high temperature conditions, all at a reduced noise
level. Although vehicles were not equipped with fuel modules until 1988,
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approximately 70% of cars and light trucks manufactured by General Motors, Ford
and DaimlerChrysler in North America in 1998 used fuel modules. In 1998, the
Company supplied approximately 20% of all of the fuel modules purchased in North
America, principally to Ford and Chrysler.
Approximately 40% of North American vehicles and 80% of European
vehicles produced in 1998 contained plastic fuel tanks. Plastic fuel tanks offer
several advantages over conventional steel tanks, including lighter weight,
greater corrosion resistance to new, cleaner-burning fuels like methanol and the
ability to be produced in unusual shapes to better use available space. In
anticipation of customer demand in North America for more sophisticated fuel
tanks, the Company built a new facility in Ossian, Indiana in 1993 to produce
plastic multi-layer fuel tanks. The Company produced three-layer plastic fuel
tanks during the fourth quarter of 1994, and during 1995 and 1996 for the Ford
Windstar. The multi-layer construction of the Company's new, six-layer plastic
tank substantially eliminates fuel permeation, making this one of the first
plastic tanks which complies with the EPA permeability requirements which became
effective beginning in model year 1996. The first production run of six-layer
tanks began in 1996 for the GM T600 and was followed in 1997 by production of
fuel tanks for the 1998 Saturn, the 1998 GM Yukon/Tahoe and the 1998 Chassis
Cab. In addition a new facility in Meriden, Connecticut began production of the
fuel tanks for the 1998 Dodge Durango in September 1997.
The Company is currently producing mono-layer plastic fuel tanks, which
include coatings and permeation barriers that meet European emission
requirements, for Audi, Mercedes-Benz, Nedcar, Peugeot, Renault, Rover, Saab,
Volkswagen and Volvo. The Company launched multi-layer tanks for Volvo during
1998, and expects that as other customers require more sophisticated fuel tanks,
the Company will likely provide additional multi-layer blow molding machines to
provide the Company's OEM customers in Europe with advanced, plastic fuel tank
technology.
The Company also produces plastic fuel rails suitable for a variety of
engine applications. An extension of the FSDS concept, these under-hood
components, located on the engine, deliver fuel to the individual fuel injectors
used in electronic multi-point fuel injection systems. The Company has designed
a plastic fuel rail which is superior to metal fuel rails in cost, weight and
handling of more corrosive flexible fuels. In 1994, Ford began to install this
new rail on the 3.0 liter engine in the Windstar. In 1997 Ford began to install
this new fuel rail on 3.0 liter 2-valve engines for Taurus and Sable vehicles,
as well as the 3.0 liter engines in the Windstar vans.
An important advantage of the Company's systems approach is that it
assists customers in responding to developments in safety and environmental
standards. For example, current environmental regulations call for a FSDS that
minimizes or eliminates the escape of fuel vapors during refueling, storage and
operation. In January 1994, the EPA announced regulations governing ORVR systems
as mandated by the 1990 Clean Air Act. The regulations require installation of
devices which trap hydrocarbon vapors on a phase-in basis for passenger cars
beginning in model year 1998 and for light trucks in model year 2001. In
anticipation of these regulations, the Company has developed a variety of ORVR
devices which help prevent fuel vapor loss from fuel delivery systems. The first
of these devices entered production during 1997.
AUTOMOTIVE MARKETS AND CUSTOMER BASE
The Company currently provides a wide variety of products to a diverse
customer base in a number of geographic areas.
North America. DaimlerChrysler is the Company's largest customer,
representing approximately 26% of net sales in 1998 (21% former Chrysler and 5%
former Daimler/Mercedes-Benz). General
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Motors, the Company's second largest customer, with approximately 11% of sales,
has become a significant customer as a result of substantial plastic fuel tank
programs launched since 1996. These customers have ongoing supply relationships
with the Company which are subject to continued satisfactory price, quality and
delivery. The Company is the primary outside supplier of fuel pumps, the core of
the FSDS, to DaimlerChrysler. In the past, the Company has capitalized on its
fuel system components penetration to supply additional fuel system products,
such as fuel modules and fuel rails, to DaimlerChrysler and Ford, and to assume
a key role in the development of new fuel system products, such as ORVR devices.
General Motors historically developed and produced substantially all of its fuel
storage and delivery systems internally but recently has sourced a significant
portion of plastic fuel tank programs to outside suppliers, including the
Company.
The Company has formed a joint venture ("VITEC") with a group of
minority business owners to produce automotive components in Detroit's
Empowerment Zone. VITEC is expected to manufacture FSDS products (including
blow-molded plastic fuel tanks). General Motors has awarded $450 million of new
business to the joint venture over a five-year period commencing in 1999.
Chrysler has also awarded new business to the joint venture. In September 1996,
the Company received a tax credit worth an estimated $13.6 million from the
Michigan Economic Growth Authority for this new facility.
Europe. In 1991, the Company began operations in Europe with the
establishment of its Marwal Systems joint venture in France with Magneti Marelli
S.p.A. of Italy to serve customers that include Fiat, Nissan, Peugeot, Renault,
Rover, Saab and Volvo. The Company is the only integrated FSDS supplier in
Europe, which has provided the Company with the immediate opportunity to
increase its participation in the European automotive market. In addition, the
Company is using its relationships in the U.S. to increase its sales to North
American manufacturers in Europe. Similarly, the Company is leveraging its
relationships with Mercedes-Benz, Peugeot, Renault, Saab, Volkswagen, Volvo and
other European manufacturers to enhance the Company's marketing efforts with
these European manufacturers around the world. Approximately 80% of the European
light duty vehicles and 40% of the North American light duty vehicles are
equipped with plastic fuel tanks. Management estimates that operations in Europe
produced plastic fuel tanks accounting for approximately 19% of the European
plastic fuel tank market in 1998.
South America. In January 1993, operations began at the Company's
Marwal do Brasil joint venture, which targets the South American automotive
market of approximately two million units per year. In September 1995, the
Company established Walbro Automotive do Brasil to manufacture plastic fuel
tanks for the Brazilian automotive market. It began production of plastic fuel
tanks for Volkswagen in November 1996. In 1996, the Company received an order
from Ford for a supply of plastic fuel tanks for Ranger trucks to be produced in
Argentina.
Asia. In December 1986, the Company entered into a joint venture in
Japan known as Mitsuba-Walbro, Inc. with Mitsuba Electric Manufacturing Company
to manufacture fuel pump components. In January 1998, the Company began
production and sale of FSDS products in South Korea for the domestic South
Korean automotive market.
AUTOMOTIVE COMPETITION
The Company competes with several other manufacturers, including the
OEMs themselves, many of which have greater sales and financial resources than
the Company. In the fuel pump market, the Company's major competitors include
Robert Bosch GmbH, Denso Corp., Ltd., VDO (a division of Mannesmann), Visteon
Automotive (Ford's component group) and Delphi Automotive Systems (formerly GM's
component group). In the fuel rail market, the Company's major competitors
include Delphi, Visteon Automotive, Echlin Inc. (which was acquired by Dana
Corporation in 1998) and Siemens A.G. The
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Company has competition in the fuel module market from Delphi, Robert Bosch
GmbH, Denso Corp., VDO and Visteon Automotive. The Company's largest competitors
in the plastic fuel tank market include Kautex Werke Reinold Hagen A.G. (which
was acquired by Textron Inc. in January 1997), Solvay S.A., Plastic Omnium
Industries, Inc. and Visteon Automotive. Steel tanks, manufactured primarily by
the OEMs, also compete with the Company's plastic fuel tanks.
The Company competes for new business both at the beginning of the
development of new models and upon the redesign of existing models. New model
development generally begins two to three years prior to a product introduction.
Once a producer has been designated to supply parts for a new program, an OEM
usually will continue to purchase those parts from the designated producer for
the life of the program, although not necessarily for a redesign. Competitive
factors in the market for fuel storage and delivery products include product
quality and reliability, cost and timely delivery, technical expertise and
development capability and new product innovation.
AUTOMOTIVE SALES AND ENGINEERING SUPPORT
Sales of the Company's FSDS products to automotive OEMs are made
directly by the Company's sales/engineering force, who not only sell the
products but assist customers with related engineering matters. Because of the
automobile design process, the Company is generally able to determine a few
years in advance the models for which it will supply products. The Company's
sales force works closely with the Company's engineering departments and systems
center in Auburn Hills in the research, design, development and improvement of
its products. Since the Company's systems center in Europe was completed in
1998, the Company has additional design and research capabilities to provide
OEMs in Europe with full-service product management. Because the Company has the
capability to provide comprehensive engineering resources with respect to its
product line and assume increasing responsibility for the development of FSDS
products, the Company has been successful in responding to the decisions by OEMs
to consolidate suppliers and reduce internal engineering resources.
AUTOMOTIVE WARRANTY AND OTHER PRODUCT EXPOSURE
The design and manufacture of fuel systems entails an inherent risk
that a governmental authority or a customer may require the recall of one of the
Company's products or a product in which one of the Company's products has been
installed. The Company has taken and intends to continue to take all reasonable
precautions to avoid the risk of exposure to an expensive recall campaign which
could have a material adverse effect on the business and financial condition of
the Company.
WALBRO ENGINE MANAGEMENT
SMALL ENGINE INDUSTRY OVERVIEW
The small engine industry is facing a number of environmentally-driven
changes which will require an increased emphasis on fuel systems technology and
the development of new fuel systems products. Growth opportunities outside of
the U.S. are expected to be driven by growth in the use of two-wheeled vehicles
and the increased use of gasoline-powered portable equipment in developing
countries.
Emphasis on Engine Management Systems and New Product Development.
Historically, exhaust emissions of gasoline-powered small engines were
unregulated. In 1992, the California Air Resources Board promulgated
comprehensive air quality regulations limiting small engine emissions, which
regulations became effective in August 1995. A more stringent phase is scheduled
to become effective in 1999. In addition, the EPA has implemented similar
regulations that became effective in August 1996, with a more stringent phase
expected to be phased in beginning 2002. The products designed to meet these new
emission standards in the small engine market will require more sophisticated
product research and
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new production capabilities. The increased technological content and
sophistication required to meet emission regulations is expected to result in
lower unit sales with greater value added per product and higher unit prices.
Growing Demand in Developing Countries. The Company expects significant
growth in the demand for float feed carburetors in developing countries as per
capita income increases and two-wheeled vehicles become more affordable.
Production of two-wheeled vehicles in the People's Republic of China, for
example, increased from approximately 49,000 units in 1980 to approximately 3.4
million in 1993, 5.2 million in 1994, 7.8 million in 1995 and management
estimates 1997 and 1998 production to have been approximately 10.0 million units
each year. In addition, management believes demand for diaphragm carburetors
used in gasoline-powered portable tools will grow in these developing countries.
The inaccessibility of electrical power distribution and geographic isolation of
many projects, such as the clearing of land and highway construction, hinder the
use of electric-powered equipment.
SMALL ENGINE BUSINESS STRATEGY
To respond to the promulgation of increasingly strict emission
regulations in the small engine industry, the Company is working to develop a
small engine management system which will comply with new emission standards. As
the leading developer of fuel systems technology for portable engines, the
Company is well positioned to draw upon its expertise in carburetor and ignition
system design and development, as well as its experience in responding to
emissions-driven challenges in the automotive sector. The Company's advanced
product design and development facilities in Michigan and Japan, which are
equipped with sophisticated emission measurement instruments, provide the
Company with the facilities necessary to develop more sophisticated small engine
management systems.
In addition to developing new technologies, the Company intends to grow
its small engine business through expansion into foreign markets. The Company's
presence in developing countries such as the People's Republic of China will
allow it to benefit from the growing market for carburetors for two-wheeled
vehicles and from infrastructure development which requires portable power
tools.
SMALL ENGINE PRODUCTS
The Company was founded as a manufacturer of carburetors for small
engine products such as lawn mowers and marine engines, and later expanded its
customer base to include manufacturers of chain saws, weed trimmers, snow
blowers and two-wheeled vehicles. The Company's carburetor technology has
continually evolved, with the Company now manufacturing diaphragm and float feed
carburetors, ignition systems and other components for small engine products and
aftermarket applications. The Company's diaphragm carburetor, float feed
carburetor and ignition system sales accounted for 50%, 28% and 15%,
respectively, of the Company's 1998 small engine net sales.
The diaphragm carburetor uses a diaphragm and a series of
interconnected passages to draw and regulate the amount of fuel delivered to the
engine from the fuel tank. The Company manufactures several basic models of
diaphragm carburetors from which are derived numerous variations. Diaphragm
carburetors are used on chain saw and weed trimmer engines because they will
operate in any position and minimize vapor lock. The Company believes that it is
the world's largest manufacturer of small engine diaphragm carburetors.
The float feed carburetor uses a float in a reservoir of fuel to
regulate the amount of fuel delivered to the engine. In contrast to the
diaphragm carburetor, which operates in all positions, the float feed carburetor
operates only in an upright position. The Company manufactures several basic
models of float
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feed carburetors from which are derived numerous variations. The Company's float
feed carburetors are used on engines for lawn mowers, garden tractors,
two-wheeled vehicles, marine outboard engines, generators and industrial
engines.
The ignition system uses rotating magnets in a flywheel, which induce
an electrical charge in the ignition module. The ignition module releases this
charge to the spark plug. The Company's ignition systems are used predominantly
in chain saw and weed trimmer applications.
In response to California and proposed EPA air quality regulations, the
Company is integrating its carburetor and ignition technology to develop an
engine management system which will electronically control both fuel delivery
and ignition functions to limit exhaust emissions. The Company has successfully
refined existing carburetors through the incorporation of extremely close
tolerances which provide more accurate control of the fuel/air mixture to meet
the first set of standards that became effective in California in 1995 and
nationwide in 1996. Company engineers are developing new technology to meet the
subsequent requirements which will become effective in California in 1999 and
nationwide during the period 2002 to 2005. This development effort focuses on
complete engine management systems that control air flow, fuel delivery and
ignition timing to enhance fuel efficiency and reduce pollution.
SMALL ENGINE MARKETS AND CUSTOMER BASE
The Company sells its small engine products in a global market.
Carburetors and small engine ignitions are sold by the Company's sales and
engineering staff directly to engine manufacturers. The Company sells a major
portion of its diaphragm carburetors to most of the leading chain saw and weed
trimmer manufacturers, including Poulan/Weedeater, Deere and Company (Homelite),
Stihl Incorporated, McCulloch Corporation, Ryobi Ltd. and Kioritz (Echo)
Corporation. The Company sells float feed carburetors to several of the leading
manufacturers of small engines, including Briggs & Stratton Corporation, the
world's largest small engine manufacturer. Mercury Marine, a major outboard
engine manufacturer, buys approximately 75% of its outboard engine carburetors
from the Company.
One of the Company's opportunities for growth in the small engine
industry is the Chinese market. In January 1994, the Company acquired a 60%
interest, increased to 70% in 1995, in Fujian Hualong Carburetor Co., Ltd.
(Fujian) which manufactures and markets carburetors for two-wheeled vehicles in
the People's Republic of China. In addition, the Company has built a new
manufacturing facility in Tianjin to provide additional capacity to take
advantage of growth in the two-wheeled vehicle market. This new facility began
production in October 1996.
SMALL ENGINE COMPETITION
The Company has several competitors that manufacture diaphragm
carburetors for the global small engine market, including Zama Industries, Ltd.,
Tillotson Commercial Motors Ltd. and Dell' Orto, some of which are divisions of
large diversified organizations which have total sales and financial resources
exceeding those of the Company. In the market for float feed carburetors, the
Company has several competitors, including Briggs & Stratton and Tecumseh
Products, both of which have greater sales and financial resources than the
Company. The Company's major competitors in the ignition systems market are R.E.
Phelon Company Inc. in the U.S.; Ikeda Denki, Oppama Kougyou, Iida Denki,
Kokusan Denki in Japan; and other internal suppliers to engine manufacturers.
AFTERMARKET PRODUCTS
The Company sells automotive aftermarket products for both carbureted
vehicle applications and electronic fuel injection vehicle applications through
independent distributors, such as Federal-Mogul
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<PAGE> 11
Corporation and Standard Motor Products, Inc., and jobbers and dealers
worldwide. Some automotive products are also sold to national manufacturing and
distribution organizations for sale under private brand names or to industrial
customers for use in special applications. The Company has recently begun
pursuing initiatives to expand its aftermarket customer base and product lines
in an effort to grow this segment of its business. Such initiatives include
entry into components for performance vehicles and recreational vehicles, as
well as broader coverage of fuel pumps and fuel modules.
The Company sells automotive aftermarket products to support its OEM
customers and to benefit from higher margins on aftermarket sales. Management
believes that the overall market size for automotive electronic fuel injection
systems components sold to the aftermarket will continue to grow as the
population of vehicles equipped with electronic fuel injection systems ages.
The Company sells its own brand name small engine aftermarket products
through independent distributors, jobbers and dealers worldwide. Some of these
products are also sold to national manufacturing and distribution organizations
for sale under private brand names or to industrial customers for use in special
applications.
ACQUISITION AND JOINT VENTURE STRATEGY
As part of a long-term strategy for growth and expansion into new
geographic and product markets, the Company may undertake select acquisitions
and strategic alliances in the form of joint ventures. The Company may make
select acquisitions of companies which can enhance the Company's traditional
products and technologies and can provide additional growth opportunities. These
acquisitions would contribute new product technology and open new markets to the
Company. In evaluating these acquisitions, the Company seeks high quality
operations which fit with the Company's expertise in markets where it has an
established customer base and a clear vision of opportunities, thus decreasing
transition costs and other financial risks associated with corporate
acquisitions. Similarly, each of the Company's joint ventures provides the
Company with the opportunity to benefit from established customer relationships
or a unique technological advancement which the Company could not develop on its
own without the risk and expense of establishing marketing and manufacturing
organizations alone. In management's opinion, the Company's joint ventures
ultimately reduce the cost of penetrating new markets and limit the Company's
financial exposure with respect to these operations. At the present time the
Company has no specific agreements with respect to any new acquisitions or joint
ventures.
MANUFACTURING AND FACILITIES
The Company conducts operations in approximately 2.4 million square
feet of space in 28 locations. Six additional sites are operated as joint
venture operations. The Company believes that substantially all of its property
and equipment are in good condition. The Company has not experienced significant
limitations on its ability to transfer products between, or sell products in,
various countries.
Each of the Company's manufacturing facilities practices advanced
inventory control procedures and has installed statistical process controls to
insure high levels of quality. In that regard, some of the Company's factories
have received the Ford Q1 Award and the DaimlerChrysler QE Award. In connection
with its sales to Saab, which is partially owned by General Motors, the
Company's Norway facility has been named a General Motors supplier of the year
five years in a row beginning in 1991. In 1995, Walbro Automotive was named
Supplier of the Year by General Motors. Various other Company factories have
been recognized by customers such as Mercury Marine, Stihl and Federal-Mogul
Corporation for excellence in product quality and delivery.
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<PAGE> 12
In addition, the Company's domestic automotive customers have
cooperated in the development of a broad based quality procedure for which their
suppliers are required to be certified. The procedure, known as QS 9000, has
been derived from the International Standards Organization's ISO 9000 procedure
and has become the primary quality discipline within the automotive industry.
All but one of the Company's automotive manufacturing locations around the world
have been certified.
When justified by volume, the Company has invested in labor-saving
automated machining, assembly and testing equipment. For example, the operation
in Meriden, Connecticut employs computer controlled molding machines to form the
Company's plastic in-tank reservoirs. These machines are individually
programmable so that variations can be reduced and refined as part of the
continuous control process. Another example is the Caro, Michigan manufacturing
facility's automated fuel pump assembly line, which is capable of producing
1,000 pumps per hour using only six persons. Over the past several years, the
Company has reduced the cost to manufacture its fuel pumps at this facility by
reducing both labor and material costs. In Ettlingen, Germany, the Company uses
a fully automated assembly line for production of plastic fuel tanks for the
Mercedes-Benz C Class. In addition to these examples of purchased automation,
the Company designs and builds major portions of its own machining and assembly
equipment. This in-house capability permits close control over the manufacturing
process and helps the Company stay competitive in both cost and quality.
PATENTS, RESEARCH AND PRODUCT DEVELOPMENT
The Company owns approximately 165 U.S. patents plus 400 international
patents in the fuel systems field and has a number of applications pending.
These patents include proprietary ownership of designs for control devices for
engines and engine systems, fuel pumps, fuel delivery systems, fuel regulators,
fuel level sensors, fuel reservoirs and fuel system vapor control devices,
carburetors and throttle bodies, as well as ancillary devices for engine and
vehicle applications.
Although these patents are significant to the Company, management
believes that in many cases the adaptation and use of the technology involved
and the proprietary process technology employed to manufacture these products
are more important. The Company maintains a systems center in Michigan for the
research, design and development of new products. The Company opened its new
European engineering center in 1998. The Company's engineering departments also
engage in design, development and testing. In 1998, 1997 and 1996, the Company
spent approximately $12.9 million, $17.3 million and $18.4 million,
respectively, for research and product development. The decrease in 1998 was
almost entirely due to the reclassification of certain product engineering and
testing expenses from research and development to cost of goods sold.
COMPONENTS, MATERIALS AND INVENTORY
The Company has a number of sources for the components used in
manufacturing its products. The suppliers who manufacture components often use
tools and dies owned by the Company. If a supplier were to discontinue supplying
any component, it could take the Company some time to replace the supplier;
however, the Company believes its operations would not be materially adversely
affected.
The Company's principal customers provide it with estimates of their
annual needs and make monthly purchase commitments. As a result, the Company
does not experience material backlog. Consequently, the Company manages its
manufacturing facilities on a just-in-time production basis.
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<PAGE> 13
EMPLOYEES
As of December 31, 1998, the Company had approximately 5,422 employees.
The Company believes that its relations with its employees are satisfactory. All
of the Company's approximately 600 European plant employees are unionized under
their traditional national organizations. The Company's United States plant
employees at two manufacturing sites in Michigan and one site in Connecticut
(approximately 707) are unionized. All other United States employees are
non-unioned. The Company's five-year contract with the bargaining unit for these
Michigan plants expires in November 2003. A three-year contract with the
Company's bargaining unit employees at Meriden, Connecticut expires March 20,
2002.
REGULATION
The Company's operations are subject to increasingly stringent
environmental laws and regulations governing air emissions, waste water
discharges, the generation, treatment, storage, disposal and remediation of
hazardous substances and wastes, and employee health and safety. Certain of
these laws can impose joint and several liability for releases or threatened
releases of material upon certain statutorily defined parties, including the
Company, regardless of fault or the lawfulness of the original activity or
disposal.
The Company believes it is currently in material compliance with
applicable environmental laws and regulations. The Company's compliance with
environmental laws and regulations has not materially affected the results of
its operations or the conduct of its business; however, the Company cannot
predict the future effects of such laws and regulations.
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<PAGE> 14
ITEM 2. PROPERTIES
The Company conducts operations in approximately 2.4 million square
feet of space in a total of 28 locations. Six additional sites are operated as
joint venture operations. The Company believes that substantially all of its
property and equipment are in good condition.
ITEM 3. LEGAL PROCEEDINGS
The Company is not a party to any litigation, and is not aware of any
pending or threatened litigation, that would have a material adverse effect on
the Company or its business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the
fourth quarter of 1998.
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<PAGE> 15
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
<TABLE>
<CAPTION>
Market Price DIVIDENDS
QUARTERS ENDED HIGH Low PER SHARE
---- --- ---------
<S> <C> <C> <C>
December 31, 1998........ 8 1/2 6 3/16 $ --
September 30, 1998....... 12 15/16 7 1/2 --
June 30, 1998............ 14 1/8 8 5/8 --
March 31, 1998........... 15 11 --
--
$ --
December 31, 1997........ 24 1/8 12 $.10
September 30, 1997....... 24 1/4 191/2 .10
June 30, 1997............ 21 1/2 15 .10
March 31, 1997........... 19 1/4 161/2 .10
--
$.40
</TABLE>
On February 23, 1999, the closing per share price was $10.00. The above prices
do not include retail markup, markdown, or commission. As of February 23, 1999,
the approximate number of shareholders was 1,024. Walbro is traded on the NASDAQ
National Market ("NNM") and reported by NNM under the symbol "WALB".
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The results of operations of the Company for each of the years in the three-year
period ended December 31, 1998 and balance sheet data as of December 31, 1998
and 1997, respectively, were derived from the audited Consolidated Financial
Statements of the Company, and the notes thereto, appearing elsewhere in this
Form 10-K.
<TABLE>
<CAPTION>
Years Ended December 31,
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
(In Thousands, Except Per Share Data)
<S> <C> <C> <C> <C> <C>
From Continuing Operations:
Net Sales.................... $677,990 $ 619,905 $585,389 $459,272 $325,205
Cost of Sales................ 571,992 538,751 488,134 377,755 261,501
Income (Loss) Before Extraordinary
Item...................... 5,191 (36,627) 11,229 13,830 14,595
Income (Loss) Per Share Before
Extraordinary Item
(basic and diluted)....... 0.60 (4.23) 1.30 1.61 1.70
Cash Dividends Per Share....... -- 0.40 0.40 0.40 0.40
Working Capital................ 96,926 75,273 68,275 95,713 58,378
Total Assets................... 648,667 610,593 589,649 493,473 257,366
Long-Term Debt................. 324,289 291,393 291,723 233,389 66,136
Stockholders' Equity........... 77,556 69,866 137,733 135,427 127,915
</TABLE>
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<PAGE> 16
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The following is a discussion of the financial condition and results of
operations of the Company for the years ended December 31, 1998, 1997 and 1996.
YEAR ENDED DECEMBER 31, 1998 COMPARED TO 1997, 1997 COMPARED TO 1996
SALES. The Company reported sales in 1998 of $678.0 million, an
increase of 9.4% from $619.9 million in 1997. The 1998 increase was generated by
a 8.6% increase in sales to the automotive original equipment market, a 13.1%
increase to the small engine market and a 12.8% increase in aftermarket sales.
Sales in 1997 of $619.9 million were 5.9% higher than the 1996 sales of $585.4
million. The 1997 sales increase came from increased automotive product sales in
North and South America and increased sales to the small engine market partially
offset by lower sales to the European automotive market caused by lower foreign
currency exchange rates. In addition, aftermarket sales increased by 17.5% in
1997 compared to 1996.
Sales of the Company's automotive products were $497.4 million in 1998
compared to $458.0 million in 1997, an increase of 8.6%. In 1998, North American
automotive product sales were up 11.4%, despite the General Motors strike that
affected sales in the second and third quarters by approximately $7.0 million
and several other factors which are described as follows. The Company sold its
automotive steel fuel rail operations in 1998, which represented a $17.2 million
decline in automotive sales for 1998 compared to 1997. The Company also began to
phase out the sale of component parts for fuel pumps to its joint ventures (the
joint ventures now buy direct from the parts manufacturers) which reduced U.S.
automotive sales by $17.3 million for 1998. The North American and European
automotive sales increase in 1998 resulted from increased sales of plastic fuel
tank systems as plastic fuel tanks continue to replace steel fuel tanks in both
markets. Sales of the Company's automotive products in Europe were up 5.0% for
1998 compared to 1997. However, automotive product sales in Brazil were down
22.0% due to the economic disruptions and reduced vehicle sales in that market.
The Company's new plastic fuel tank plant in South Korea started production in
January 1998 and added $2.6 million of new sales.
The 1997 sales of automotive products were $458.0 million, an increase
of 4.4% compared to $438.6 million in 1996. The increase resulted from increased
sales of plastic fuel tank systems to both North and South American OEM
customers, partially offset by lower sales of steel fuel rails in the U.S. and
lower sales dollars from the Company's European operations due to foreign
currency exchange rates, which declined 16% compared to the U.S. dollar. The
lower sales growth in North America during 1997 was due to insourcing of fuel
pumps and fuel modules by Ford Motor Company, and lower shipments to Chrysler in
the second quarter of 1997 because of a strike at Chrysler's Mound Road Engine
Plant.
Sales of the Company's small engine products were $142.4 million in
1998, an increase of 13.1%, compared to $125.9 million in 1997, which had
increased by 7.5% in 1997 compared to $117.1 million in 1996. The most
significant factors driving the 1998 sales increase was an 11.8% increase in
diaphragm carburetor sales, a 23.7% increase in ignition systems sales and an
80.4% increase in float feed carburetor sales in The People's Republic of China
("PRC"). For both ignition systems and PRC carburetors, the Company increased
its production capacity and broadened its product offering during 1997 and 1998,
which resulted in increased sales during 1998. The Company also gained market
share in The PRC during 1998 as importers lost sales due to higher import taxes.
The 1997 increase in small engine products was driven by a 25.9% increase in
ignition systems and a 6.4% increase in motorcycle carburetor sales in The
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<PAGE> 17
PRC. The 1997 PRC sales were less than expected as the Company experienced a
significant reduction in orders during the second half of 1997 as customers
reduced excess motorcycle inventories.
Sales of the Company's aftermarket products were $33.2 million in 1998,
an increase of 12.5%, compared to $29.5 million in 1997, which had increased by
17.5% compared to $25.1 million in 1996. Aftermarket sales growth in both years
was primarily due to growth in automotive product sales generated by the
addition of new products offered to aftermarket customers and by adding new
customers.
COST OF SALES. Cost of sales was $572.0 in 1998 compared to $538.8
million in 1997 compared to $488.1 million in 1996. Cost of sales as a percent
of sales was 84.4% in 1998 compared to 86.9% in 1997 compared to 83.4% in 1996
and consequently gross margin was 15.6% in 1998 compared to 13.1% in 1997
compared to 16.6% in 1996. Gross margin increased in 1998 due to higher
production volumes at most plants, lower launch costs for new plastic tank
programs and the benefits of the restructuring program started during the fourth
quarter of 1997. The restructuring program resulted in headcount reductions,
closure of the Company's small engine carburetor plant in Singapore and sale of
the Company's automotive steel fuel rail operations -- all of which contributed
to higher gross margin in 1998.
Gross margin declined in 1997 compared to 1996 because of lower margins
in both automotive and small engine products. Lower automotive gross margin was
due to a number of factors including the following: change in the mix of
products sold in the U.S., high launch costs for new plastic fuel tank programs,
start-up cost for new plants in Argentina and South Korea, relocation of two
plants in Europe and increased warranty costs. The change in mix of products
sold involved increased volume of new plastic fuel tank systems, which carry
lower gross margins since they include a high level of purchased components. In
addition, sales volume for steel fuel rails, fuel pumps and fuel modules was
lower in 1997 because of Ford in-sourcing of fuel systems, the Chrysler strike
and lower production of U.S. passenger cars.
The lower gross margin in 1997 for small engine products was caused by
start-up costs for the new plant in The PRC, lower volume at both facilities in
The PRC, the one-time cost of moving two plants in Mexico and increased warranty
costs.
SELLING AND ADMINISTRATIVE EXPENSES. Selling and Administrative ("S&A")
expenses were $55.6 million in 1998, a decrease of 8.6%, compared to $60.8
million in 1997. S&A expenses in 1997 included a number of one-time items
totaling $5.1 million which included increased professional fees, financing fees
for modifications to bank loan agreements, legal fees, settlement of legal
claims and other one-time charges. 1997 S&A expenses were also higher due to the
addition of new facilities in Argentina, South Korea and The PRC. The decrease
in 1998 was primarily due to headcount reductions and the sale of the Company's
steel fuel rail operations when compared to 1997 excluding the one-time charges
in 1997. As a percent of sales, S&A expenses were 8.2% in 1998, 9.8% in 1997 and
8.9% in 1996.
RESEARCH AND DEVELOPMENT EXPENSES. Research and Development ("R&D")
expenses were $12.9 million in 1998, a decrease of 25.4%, compared to $17.3
million in 1997 which declined by 6.0% compared to $18.4 million in 1996. The
decline in both 1998 and 1997 was caused by a shift of engineers out of R&D
activities and into product engineering activities, which is included in cost of
sales.
RESTRUCTURING AND IMPAIRMENT CHARGES. During the fourth quarter of
1997, the Company recorded a $27.0 million pretax charge for restructuring its
operations and other actions. The charge was comprised of a $17.0 million charge
for restructuring and a $10.0 million charge associated with asset impairments.
The restructuring actions included divestiture of the Company's Ligonier,
Indiana steel fuel rail manufacturing facility and disposition of its interest
in U.S. Coexcell Inc., a manufacturer of blow-
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<PAGE> 18
molded plastic drums in Maumee, Ohio. In addition, the Company consolidated its
small engine operations in the Asia Pacific region and restructured its European
automotive fuel tank operations. The asset impairment charge included the write
down to net realizable value certain tooling, machinery and equipment, write off
of its interest in Saginaw Plastics, an injection molder in Saginaw, Michigan
and charges related to its Korean automotive activities. Lastly, the
restructuring charge included a corporate-wide headcount reduction of
approximately 10 percent including reductions related to the divestitures and
restructuring. All of the restructuring activities were completed during 1998
except for the divestiture of U.S. Coexcell Inc.
INTEREST EXPENSE. Interest expense was $31.8 million in 1998 compared
to $25.4 million in 1997 and $20.5 million in 1996. In May 1998, the Company
obtained a new $150 million bank secured credit facility and in December 1997
the Company sold $100 million of its 10.125% senior notes and used the proceeds
to repay the previous secured credit facilities, for working capital and for
capital expenditures. The higher interest expense in both 1998 and 1997 was due
to higher levels of borrowing in each year and the shift to a higher percentage
of long-term fixed rate debt which raised the average cost of borrowing in each
year.
INTEREST INCOME. Interest income was $3.2 million in 1998 compared to
$0.7 million in 1997 and $2.7 million in 1996. The higher amounts in 1998 and
1996 were the result of interest income recorded for interest from the Internal
Revenue Service for interest due related to income tax refunds for prior years.
ROYALTY INCOME. Royalty income was $3.2 million in 1998 compared to
$3.9 million in 1997 and $1.4 million in 1996. The increased royalty income in
1997 versus 1996 was the result of receiving royalty income from the Marwal
joint ventures starting in the fourth quarter of 1996 and receiving a full year
in 1997. The decline in 1998 compared to 1997 resulted from lower sales by the
Marwal joint ventures in Brazil and Argentina.
INCOME TAXES. The provision for income taxes was $4.0 million in 1998
compared to a credit for income taxes of $10.1 million in 1997 and a provision
of $3.1 million in 1996. The effective tax rate in 1998 was 28.1% due to a large
portion of the taxable income earned in France, Germany and Japan, which have
higher income tax rates than the U.S. which was more than offset by the benefit
from tax deductible preferred stock dividends. The credit in 1997 was the result
of the taxable loss recorded in 1997 from the restructuring and other one-time
charges.
JOINT VENTURE INCOME. The Company's equity in income of joint ventures
was $0.8 million in 1998 compared to $3.1 million in 1997 and $4.2 million in
1996. The decrease in 1998 resulted from start-up costs at VITEC, the Company's
joint venture in Detroit's Empowerment Zone and by reduced earnings at other
automotive joint ventures around the world which were adversely affected by the
strong U.S. dollar. In addition, the Marwal joint ventures in Brazil and
Argentina were also affected by the difficult economic conditions in that
region. The decline in 1997 compared to 1996 resulted from lower earnings at the
Marwal joint ventures due to the payment of royalties to the Company, start-up
costs for Marwal Argentina and losses at Korea Automotive Fuel Systems, the
Company's joint venture in South Korea.
MINORITY INTEREST. Minority interest was $5.8 million in 1998 compared
to $5.0 million in 1997 and $0.5 million in 1996. The 1998 increase was due to a
full year of preferred dividends paid in 1998 on the Convertible Preferred
Securities of Walbro Capital Trust issued in February 1997. The 1996 minority
interest represented only minority earnings from less than wholly owned
subsidiaries.
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<PAGE> 19
INCOME (LOSS) BEFORE EXTRAORDINARY ITEM AND INCOME (LOSS) PER SHARE
BEFORE EXTRAORDINARY ITEM. Income before extraordinary item was $5.2 million in
1998 compared to a loss of $36.6 million in 1997 and income of $11.2 million in
1996. Income per share before extraordinary item was $0.60 in 1998 compared to
loss per share before extraordinary item of $4.23 in 1997 and income per share
of $1.30 in 1996.
EXTRAORDINARY ITEM. The extraordinary item in 1998 was $1.5 million net
of tax for the early payment premium for the retirement of the 2004 Senior Notes
that occurred in May 1998.
NET INCOME (LOSS) AND INCOME (LOSS) PER SHARE. Net income in 1998 was
$3.7 million compared to a net loss of $36.6 million in 1997 and net income of
$11.2 million in 1996. Net income per share was $0.43 in 1998 compared to net
loss per share of $4.23 in 1997 and net income per share of $1.30 in 1996. The
net loss for 1997 was the result of the reasons stated above including the
restructuring charge, warranty reserve and other one-time charges.
INFLATION. Inflation potentially affects the Company in two principal
ways. First, a portion of the Company's debt is tied to prevailing short-term
interest rates which may change as a result of inflation rates, translating into
changes in interest expense. Second, general inflation can impact material
purchases, labor and other costs. In many cases, the Company has limited ability
to pass through inflation-related cost increases due to the competitive nature
of the markets that the Company serves. In the past three years, however,
inflation has not been a significant factor for the Company.
FOREIGN CURRENCY TRANSACTIONS. Approximately 49% of the Company's sales
during 1998 were derived from international manufacturing operations in Europe,
Asia, South America and Mexico. The financial position and the results of
operations of the Company's subsidiaries in Europe (31% of sales), Asia (8% of
sales) and South America (2% of sales) are measured in local currency of the
countries in which they operate and translated into U.S. dollars. The effects of
foreign currency fluctuations in those regions are somewhat mitigated by the
fact that expenses are generally incurred in the same currencies in which sales
are generated, and the reported income of these subsidiaries will be higher or
lower, depending on a weakening or strengthening of the U.S. dollar.
For the Company's subsidiary in Mexico (8% of sales) the expenses are
generally incurred in the local currency but sales are generated in U.S.
dollars; therefore, results of operations are more directly influenced by a
weakening or strengthening of the local currency versus the U.S. dollar.
Approximately 44% of the Company's assets at December 31, 1998, are
based in its foreign operations and are translated into U.S. dollars at foreign
currency exchange rates in effect as of the end of each period. Accordingly, the
Company's consolidated stockholders' equity will fluctuate depending upon the
strengthening or weakening of the U.S. dollar. In addition, the Company has
equity investments in unconsolidated joint ventures in Argentina, Brazil,
France, Japan and Mexico. The Company's reported income from these joint
ventures will be higher or lower depending upon a weakening or strengthening of
the U.S. dollar.
The Company's strategy for management of currency risk relies primarily
upon the use of forward currency exchange contracts to manage its exposure to
foreign currency fluctuations related to its firm commitments in foreign
currencies.
THE YEAR 2000 ISSUE. The year 2000 issue ("Y2K") is the result of
computer programs that were written using two digits (rather than four) to
define the applicable year. Any of the Company's computer
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<PAGE> 20
programs that have time-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000, which could result in miscalculations
or system failures.
The Company is actively participating in the Automotive Industry Action
Group ("AIAG") for Y2K and is using AIAG procedures and standards as the
guideline for compliance. The Company's plan for compliance includes several
phases: (1) awareness, (2) assessment, (3) renovation, (4) validation and (5)
implementation. Each phase considers the impact of Y2K on information technology
systems, embedded technology (i.e. machinery and equipment with date sensitive
technology) and the Company's suppliers. None of the Company's products include
date sensitive technology.
The Company is currently at various stages of completion within each
phase. The Company has completed its assessment of its information technology
systems and embedded technology identifying those that need further evaluation.
The Company has also identified critical suppliers that need evaluation. This
phase of the process includes obtaining compliance certificates from suppliers
for all existing systems and embedded technology that are already Y2K compliant
and obtaining compliance certificates for all significant vendors.
The renovation phase, which is also in process, includes obtaining
revised software for existing systems and purchasing new computer programs and
replacement computer hardware for non-compliant systems. This phase is expected
to be complete by June 30, 1999. The estimated cost associated with the purchase
of these items is approximately $2.3 million. Existing staff will do all of the
implementation and testing. The Company does not have a project tracking system
that tracks the cost and time that its own internal employees spend on the Y2K
project. The validation and implementation phases are also in process and are
expected to be completed by June 30, 1999.
Management believes that this plan will effectively mitigate the risks
associated with Y2K. A worst-case scenario with respect to a Y2K failure in a
key internal system or supplier system would result in shipments of product to
customers to be temporarily interrupted. This could result in missing production
schedules with customers, which in turn could lead to lost sales and profits for
the Company and our customers.
As part of the Y2K strategy, we are in the process of developing
contingency plans on a site-by- site, system-by-system basis. These plans
include identifying alternative sources of materials and components as well as
potentially stockpiling some key raw materials. All plans will be documented and
will be executed if necessary.
LIQUIDITY AND CAPITAL RESOURCES. As of December 31, 1998, the Company
had outstanding $14.4 million in short-term debt, including current portion of
long-term debt, and $324.3 million in long-term debt. The approximate minimum
principal payments required on the Company's long-term debt in each of the five
fiscal years subsequent to December 31, 1998 are $2.4 million in 1999, $2.6
million in 2000, $2.6 million in 2001, $2.0 million in 2002, $95.9 million in
2003 and $221.3 million thereafter.
In May 1998, the Company obtained a $150 million Credit Facility
consisting of $125 million revolving line of credit and a $25 million capital
expenditure facility. The new credit facility is available for five years.
Proceeds of the new credit facility were initially used to retire $30 million
under the previous credit facility; to pay off the Purchase Money Loan
Agreement; to pay off the $45 million Senior Notes due 2004 including an early
retirement premium of $2.0 million. In addition, the facility will be used to
finance capital expenditures and to meet working capital needs. At December 31,
1998, the Company had borrowed $93.1 million on the revolving line of credit and
$2.5 million of the capital expenditure facility.
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<PAGE> 21
The Company's plans for 1999 capital expenditures for facilities,
equipment and tooling total approximately $40 million. The Company intends to
finance the capital expenditures with the credit facility, potential lease
financing, funds available in the capital markets and cash from operations.
As of December 31, 1998, accounts receivable amounted to $154.4
million, an increase of $9.4 million, compared to $145.0 million at December 31,
1997. The increase in accounts receivable was due to higher sales, larger
amounts of accounts receivable for customer tooling and additional sales to
foreign customers with longer payment terms. The average collection period at
December 31, 1998 was 90.2 days compared to the average collection period at
December 31, 1997 of 85.3 days.
Management believes that the Company's long-term cash needs will
continue to be provided principally by operating activities supplemented, to the
extent required, by borrowing under the Company's existing and future credit
facilities and by access to the capital markets. Management expects to replace
these credit facilities as they expire with comparable facilities.
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM
ACT OF 1995. The statements contained in this discussion that are not historical
facts are forward-looking statements subject to the safe harbor created by the
Securities Litigation Reform Act of 1995. Whenever possible, the Company has
identified these forward-looking statements by words such as "anticipating,"
"believes," "estimates," "expects," and similar expressions. The Company
cautions readers of this discussion that a number of important factors could
cause the Company's actual consolidated results for 1999 and beyond to differ
materially from those expressed in any forward-looking statements made by, or on
behalf of, the Company. These important factors include, without limitation,
changes in demand for automobiles and light trucks, relationships with
significant customers, price pressures, the timing and structure of future
acquisitions or dispositions including the restructuring program announced
during the fourth quarter of 1997, impact of environmental regulations, the year
2000 computer issue, continued availability of adequate funding sources,
currency and other risks inherent in international sales, and general economic
and business conditions. These important factors, and other factors which could
affect the Company's results, are more fully disclosed in the Company's filings
with the Securities and Exchange Commission. Readers of this discussion are
referred to such filings. The Company assumes no obligation to update publicly
any forward-looking statements, whether as a result of new information, future
events or otherwise.
20
<PAGE> 22
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated balance sheets are as of December 31, 1998 and 1997
and the consolidated statements of income, cash flows and stockholders equity
are for each of the years ended December 31, 1998, 1997 and 1996.
Report of Independent Public Accountants, page F-1.
Consolidated Balance Sheets, page F-2.
Consolidated Statements of Income, page F-3.
Consolidated Statements of Stockholders' Equity, page F-4.
Consolidated Statements of Cash Flows, page F-5.
Notes to Consolidated Financial Statements, pages F-6 through F-22.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
None.
21
<PAGE> 23
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Incorporated by reference to "Election of Directors" on pages 2 through
5, "Identification of Other Executive Officers" on page 7 and "Section 16(a)
Beneficial Ownership Reporting Compliance" on page 7 of the Company's Notice of
Annual Meeting of Stockholders and Proxy Statement for its Annual Meeting of
Stockholders to be held on May 4, 1999 (the "1999 Proxy Statement").
ITEM 11. EXECUTIVE COMPENSATION
Incorporated by reference to "Executive Compensation" on pages 8
through 11 and "Compensation of the Board of Directors" on page 5 of the 1999
Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
Incorporated by reference to "Security Ownership of Certain Beneficial
Owners and Management" on pages 13 and 14 of the 1999 Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Incorporated by reference to "Indebtedness of Management" on page 7 of
the 1999 Proxy Statement.
22
<PAGE> 24
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM
8-K
(a) The following documents are filed as part of this Form 10-K:
1. The following consolidated financial statements of the
Company and its subsidiaries, together with the applicable
report of independent public accountants, are included in Item
8:
Report of Independent Public Accountants, page F-1.
Consolidated Balance Sheets at December 31, 1998 and 1997, page
F-2.
Consolidated Statements of Income for the years ended December
31, 1998, 1997 and 1996, page F-3.
Consolidated Statements of Stockholders' Equity for the years
ended December 31, 1998, 1997 and 1996, page F-4.
Consolidated Statements of Cash Flows for the years ended
December 31, 1998, 1997 and 1996, page F-5.
Notes to Consolidated Financial Statements, page F-6 through
F-22.
2. The following consolidated supplemental financial information of
the Company and its subsidiaries for the three years ended December 31,
1998, 1997 and 1996 is filed as part of this Form 10-K.
Report of Independent Public Accountants, page S-1.
Supplemental Notes to Consolidated Financial Statements, page S-2
through S-12.
(1) Valuation and Qualifying Accounts.
(2) Supplemental Guarantor Condensed Consolidating Financial
Statements.
The information required to be submitted in Schedule II is
included in the Supplemental Note 1 to Consolidated Financial
Statements.
3. The following exhibits are filed with this report or incorporated
by reference as set forth below.
EXHIBIT NO.
3.1 Restated Certificate of Incorporation of the Company, filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-3,
File No. 333-18317. (2)
3.2 By-laws of the Company, as amended, filed as Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1989. (2)
23
<PAGE> 25
EXHIBIT NO.
3.3 Amendment to Section 2.9 of the By-laws of the Company, filed as
Exhibit 3.3 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994. (2)
4.1 Indenture for the 10 1/8% Senior Notes due 2007 dated as of
December 15, 1997 among the Company, Walbro Automotive
Corporation, Walbro Engine Management Corporation, Sharon
Manufacturing Company, Whitehead Engineered Products, Inc. and
Bankers Trust Company, as Trustee (including form of the Exchange
Note and form of Guarantee), filed as Exhibit 4.1 to the Company's
Registration Statement on Form S-4, File No. 333-45693. (2)
4.2 Purchase Agreement dated December 11, 1997 among the Company,
Walbro Automotive Corporation, Walbro Engine Management
Corporation, Sharon Manufacturing Company, Whitehead Engineered
Products, Inc. and Salomon Brothers Inc., filed as Exhibit 4.2 to
the Company's Registration Statement on Form S-4, File No.
333-45693. (2)
4.3 Registration Rights Agreement dated December 11, 1997 among the
Company, Walbro Automotive Corporation, Walbro Engine Management
Corporation, Sharon Manufacturing Company, Whitehead Engineered
Products, Inc. and Salomon Brothers Inc., filed as Exhibit 4.3 to
the Company's Registration Statement on Form S-4, File No.
333-45693. (2)
4.4 Form of the Exchange Note (included in Exhibit 4.1).
4.5 Form of Guarantee (included in Exhibit 4.1).
4.6 Loan Agreement between Walbro Automotive Corporation and the Town
of Ossian, Indiana, dated as of December 1, 1993, filed as Exhibit
4.13 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993. (2)
4.7 Indenture for the 9 7/8% Senior Notes due 2005 dated as of July
27, 1995 among the Company, Walbro Automotive Corporation, Walbro
Engine Management Corporation, Sharon Manufacturing Company,
Whitehead Engineered Products, Inc. and Bankers Trust Company, as
Trustee (including form of Exchange Note), filed as Exhibit 2.3 to
the Company's Current Report on Form 8-K dated July 27, 1995. (2)
4.8 Certificate of Trust of Walbro Capital Trust dated December 17,
1996 filed as Exhibit 4.10 to the Company's Registration Statement
on Form S-3, File No. 333-18317. (2)
4.9 Amended and Restated Declaration of Trust of Walbro Capital Trust
dated as of February 3, 1997 among Walbro Corporation, as Sponsor,
Bankers Trust (Delaware), as Delaware Trustee, and Lambert E.
Althaver, Daniel L. Hittler and Michael A. Shope, as Regular
Trustees, filed as Exhibit 4.11 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1996. (2)
4.10 Indenture between Walbro Corporation and Bankers Trust Company, as
Indenture Trustee, dated as of February 3, 1997, filed as Exhibit
4.12 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996. (2)
4.11 Form of Preferred Security issued by Walbro Capital Trust,
included as Exhibit A-1 to Exhibit 4.11 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996.
(2)
4.12 Convertible Debenture issued by Walbro Corporation to Walbro
Capital Trust, included as Exhibit A to Exhibit 4.12 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996. (2)
4.13 Preferred Securities Guarantee Agreement between Walbro
Corporation, as Guarantor, and Bankers Trust Company, as Guarantee
Trustee, with respect to the Preferred Securities of Walbro
Capital Trust dated as of February 3, 1997, filed as Exhibit 4.15
to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996. (2)
24
<PAGE> 26
EXHIBIT NO.
4.14 Rights Agreement dated as of June 30, 1998 between Walbro
Corporation and Harris Trust and Savings Bank, filed as
Exhibit 1 to the Company's Registration Statement on Form 8-A
filed on July 8, 1998. (2)
4.15 Financing and Security Agreement between the Company and
NationsBank N.A., as Administrative Agent and Lender, dated
May 29, 1998. (1)
4.16 Amendment No. 1 to the Financing and Security Agreement
between the Company and NationsBank, N.A., as Administrative
Agent and Lender, dated December 31, 1998. (1)
10.1 Joint Venture Agreement between the Company and Mitsuba
Electric Manufacturing Company, Ltd. dated December 12, 1986,
filed as Exhibit 10.4 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1986. (2)
10.2 The Company's Amended and Restated Equity Based Long-Term
Incentive Plan effective as of June 20, 1994. (1)(3)
10.3 Retirement Income Plan for Directors dated February 9, 1988,
filed as Exhibit 10.11 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1988. (2)(3)
10.4 The Company's Employee Stock Ownership Plan dated August 15,
1989, filed as Exhibit 10.14 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1989. (2)
10.5 Walbro Engine Management Incentive Compensation Plan, filed as
Exhibit 10.21 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1990.
(2)(3)
10.6 Joint Venture Agreement dated June 17, 1991 between the
Company and Jaeger S.A., an indirect, majority-controlled
subsidiary of Magneti Marelli S.p.A., relating to the Marwal
Systems S.A. joint venture, filed as Exhibit 10.23 to the
Company's Registration Statement on Form S-2, File No.
33-41425. (2)
10.7 Joint Venture Agreement between the Company and Jaeger S.A.
dated as of January 1, 1993 relating to the Marwal do Brasil
joint venture, filed as Exhibit 10.10 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31,
1992. (2)
10.8 The Company's Advantage Plan, filed as the Exhibit to the
Company's Registration Statement on Form S-8 filed October 28,
1991. (2)(3)
10.9 Joint Venture Contract among Walbro Engine Management
Corporation, Fujian Fuding Carburetor Factory and Twin Winner
Trading Co., Ltd. dated December 30, 1993 relating to the
Fujian Hualong Carburetor Co. Ltd. joint venture, filed as
Exhibit 10.14 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994. (2)
10.10 Agreement among the Company, Walbro Automotive Corporation and
Magneti Marelli France S.A. dated February 7, 1995, filed as
Exhibit 10.24 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994. (2)
10.11 Purchase and Sale Agreement dated as of April 7, 1995 between
the Company and Dyno Industrier AS, filed as Exhibit 2.1 to
the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995. (2)
10.12 Addendum to Purchase and Sale Agreement between the Company
and Dyno Industrier AS dated as of July 27, 1995, filed as
Exhibit 2.2 to the Company's Current Report on Form 8-K dated
July 27, 1995. (2)
10.13 General Partnership Agreement dated August 18, 1995 between
Iwaki Diecast U.S.A., Inc. and Walbro Tucson Corp., filed as
Exhibit 10.31 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995. (2)
10.14 Employment Agreement between the Company and Daniel L. Hittler
dated August 16, 1996, filed as Exhibit 10.23 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1996. (2)(3)
25
<PAGE> 27
EXHIBIT NO.
10.15 Termination and Change of Control Agreement between the
Company and Daniel L. Hittler dated August 16, 1996, filed as
Exhibit 10.24 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996. (2)(3)
10.16 Employment Agreement between the Company and Michael A. Shope
dated August 16, 1996, filed as Exhibit 10.25 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1996. (2)(3)
10.17 Termination and Change of Control Agreement between the
Company and Michael A. Shope dated August 16, 1996, filed as
Exhibit 10.26 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996. (2)(3)
10.18 Employment Agreement between the Company and Robert H. Walpole
dated August 16, 1996, filed as Exhibit 10.27 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1996. (2)(3)
10.19 Termination and Change of Control Agreement between the
Company and Robert H. Walpole dated August 16, 1996, filed as
Exhibit 10.28 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996. (2)(3)
10.20 Employment Agreement between the Company and R.H. Whitehead
III dated August 16, 1996, filed as Exhibit 10.29 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996. (2)(3)
10.21 Termination and Change of Control Agreement between the
Company and R.H. Whitehead III dated August 16, 1996, filed as
Exhibit 10.30 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996. (2)(3)
10.22 Amended and Restated Employment Agreement between the Company
and Frank E. Bauchiero effective as of April 17, 1998. (1)(3)
10.23 Amended and Restated Termination and Change of Control
Agreement between the Company and Frank E. Bauchiero effective
as of April 17, 1998. (1)(3)
10.24 The Company's Broad-Based Long Term Incentive Plan, filed as
Exhibit 10.33 to the Company's Registration Statement on Form
S-4, File No. 333-45693. (2)
21.1 Subsidiaries of the Company. (1)
23.1 Consent of Arthur Andersen LLP. (1)
27.1 Financial Data Schedule. (1)
- - ------------------
(1) Filed herewith.
(2) Incorporated by reference.
(3) Management contract or compensatory plan or arrangement.
(b) Reports on Form 8-K:
There was no report on Form 8-K filed during the last quarter of the
period covered by this Form 10-K.
26
<PAGE> 28
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, on the 29th day of
March, 1999.
WALBRO CORPORATION
By: /s/ MICHAEL A. SHOPE
-----------------------------------------
Michael A. Shope, Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
PRESIDENT, CHIEF OPERATING OFFICER AND
/S/ FRANK E. BAUCHIERO DIRECTOR (PRINCIPAL EXECUTIVE OFFICER) MARCH 29, 1999
- - -----------------------------
FRANK E. BAUCHIERO
CHIEF FINANCIAL OFFICER (PRINCIPAL FINANCIAL
/S/ MICHAEL A. SHOPE AND ACCOUNTING OFFICER) MARCH 29, 1999
- - -----------------------------
MICHAEL A. SHOPE
/S/ JOHN E. UTLEY CHAIRMAN OF THE BOARD MARCH 29, 1999
- - -----------------------------
John E. Utley
/S/ VERNON E. OECHSLE DIRECTOR MARCH 29, 1999
- - -----------------------------
VERNON E. OECHSLE
/S/ ROBERT D. TUTTLE DIRECTOR MARCH 29, 1999
- - ----------------------------
ROBERT D. TUTTLE
/S/ WILLIAM T. BACON, JR. DIRECTOR MARCH 29, 1999
- - -----------------------------
WILLIAM T. BACON, JR.
/S/ ROBERT H. WALPOLE DIRECTOR MARCH 29, 1999
- - -----------------------------
Robert H. Walpole
/S/ J. DWANE BAUMGARDNER DIRECTOR MARCH 29, 1999
- - -----------------------------
J. DWANE BAUMGARDNER
</TABLE>
27
<PAGE> 29
REPORT OF INDEPENDENT
PUBLIC ACCOUNTANTS
Walbro Corporation & Subsidiaries
TO THE BOARD OF DIRECTORS AND
STOCKHOLDERS OF WALBRO CORPORATION:
We have audited the accompanying consolidated balance sheets of Walbro
Corporation (a Delaware corporation) and subsidiaries as of December 31, 1998
and 1997, and the related consolidated statements of income, comprehensive
income, stockholders' equity and cash flows for each of the three years in the
period ended December 31, 1998. 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 did not audit the
financial statements of Marwal Systems, S.N.C. and Marwal do Brasil Ltda., the
investments in which are reflected in the accompanying consolidated financial
statements using the equity method of accounting. The investments in Marwal
Systems, S.N.C. and Marwal do Brasil Ltda. together represent 3.9% and 3.7% of
consolidated total assets in 1998 and 1997, respectively, and the equity in
their net income together represents income of $1,559,000, $3,710,000 and
$4,560,000 in 1998, 1997 and 1996, respectively. Those statements were audited
by other auditors whose reports have been furnished to us, and our opinion,
insofar as it relates to the amounts included for those entities, is based
solely on the reports of the other auditors.
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 consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated 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 and the reports of
other auditors provide a reasonable basis for our opinion.
In our opinion, based on our audits and the reports of other auditors, the
financial statements referred to above present fairly, in all material respects,
the financial position of Walbro Corporation and subsidiaries as of December 31,
1998 and 1997, and the results of their operations and their cash flows for each
of the three years in the period ended December 31, 1998, in conformity with
generally accepted accounting principles.
ARTHUR ANDERSEN LLP
Detroit, Michigan,
February 17, 1999.
F-1
<PAGE> 30
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
CONSOLIDATED
BALANCE SHEETS
December 31,
1998 and 1997
<TABLE>
<CAPTION>
1998 1997
-------- --------
(In Thousands,
Except Share Data)
<S> <C> <C>
ASSETS
Current Assets:
Cash...................................................... $ 19,647 $ 13,539
Accounts receivable, net.................................. 154,416 144,985
Inventories............................................... 60,871 56,207
Prepaid expenses and other................................ 11,734 17,405
Deferred and refundable income taxes...................... 10,735 8,519
-------- --------
Total Current Assets................................... 257,403 240,655
-------- --------
Plant and Equipment, at cost:
Land...................................................... 4,905 5,230
Buildings and improvements................................ 94,842 90,099
Machinery and equipment................................... 308,151 297,032
-------- --------
407,898 392,361
Less--Accumulated depreciation............................ 129,357 116,991
-------- --------
Net Plant and Equipment................................ 278,541 275,370
-------- --------
Other Assets:
Assets held for sale...................................... 3,175 --
Joint ventures............................................ 38,435 26,681
Investments............................................... 2,690 3,261
Goodwill, net............................................. 31,887 32,803
Notes receivable.......................................... 2,023 126
Deferred income taxes..................................... 5,612 8,179
Other..................................................... 28,901 23,518
-------- --------
Total Other Assets..................................... 112,723 94,568
-------- --------
Total Assets........................................... $648,667 $610,593
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt......................... $ 2,403 $ 13,960
Bank and other borrowings................................. 12,012 26,204
Accounts payable.......................................... 114,133 84,209
Accrued liabilities....................................... 31,009 39,221
Dividends payable......................................... 920 1,788
-------- --------
Total Current Liabilities.............................. 160,477 165,382
-------- --------
Long-Term Liabilities:
Long-term debt, less current portion...................... 324,289 291,393
Pension obligations and other............................. 11,585 11,823
Deferred income taxes..................................... 4,535 2,077
Minority interest......................................... 1,225 1,052
-------- --------
Total Long-Term Liabilities............................ 341,634 306,345
-------- --------
Company-obligated mandatorily redeemable convertible
preferred securities of Walbro Capital Trust holding
solely convertible debentures............................. 69,000 69,000
Stockholders' Equity:
Common stock, $.50 par value; authorized 25,000,000;
outstanding 8,688,294 in 1998 and 8,682,595 in 1997.... 4,344 4,341
Paid-in capital........................................... 66,088 66,151
Retained earnings......................................... 37,656 33,938
Deferred compensation..................................... (125) (379)
Accumulated other comprehensive income.................... (30,407) (34,185)
-------- --------
Total Stockholders' Equity............................. 77,556 69,866
-------- --------
Total Liabilities and Stockholders' Equity............. $648,667 $610,593
======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
F-2
<PAGE> 31
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS
OF INCOME
For the years ended
December 31,
1998, 1997 and 1996
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(In Thousands, Except Per Share Data)
<S> <C> <C> <C>
Net Sales...................................... $677,990 $619,905 $585,389
Costs and Expenses:
Cost of sales................................ 571,992 538,751 488,134
Selling and administrative expenses.......... 55,643 60,786 52,177
Research and development expenses............ 12,883 17,289 18,400
Restructuring and impairment charges......... -- 27,000 --
-------- -------- --------
Operating Income (Loss)........................ 37,472 (23,921) 26,678
Other Expense (Income):
Interest expense, net of capitalized interest
of $204 in 1998, $1,207 in 1997 and $3,683
in 1996................................... 31,806 25,410 20,535
Interest income.............................. (3,177) (674) (2,716)
Royalty income, net.......................... (3,228) (3,878) (1,410)
Foreign currency exchange gain............... (1,262) (308) (70)
Other........................................ (785) 365 (63)
-------- -------- --------
Income (Loss) Before (Provision) Credit for
Income Taxes, Minority Interest, Equity in
Income of Joint Ventures and Extraordinary
item......................................... 14,118 (44,836) 10,402
(Provision) Credit for Income Taxes............ (3,967) 10,131 (3,075)
Minority Interest.............................. (5,806) (5,035) (285)
Equity in Income of Joint Ventures............. 846 3,113 4,187
-------- -------- --------
Income (Loss) before Extraordinary Item........ 5,191 (36,627) 11,229
Extraordinary Item (net of tax of $762)........ (1,473) -- --
-------- -------- --------
Net Income (Loss).............................. $ 3,718 $(36,627) $ 11,229
======== ======== ========
Basic and Diluted Income (Loss) Per Share
before Extraordinary Item.................... $ 0.60 $ (4.23) $ 1.30
Extraordinary Item............................. (0.17) -- --
-------- -------- --------
Basic and Diluted Net Income (Loss) Per
Share........................................ $ 0.43 $ (4.23) $ 1.30
======== ======== ========
CONSOLIDATED STATEMENTS
OF COMPREHENSIVE
INCOME
For the years ended
December 31,
1998, 1997 and 1996
Net Income (Loss).............................. $ 3,718 $(36,627) $ 11,229
Other Comprehensive Income, net of tax:
Minimum pension liability adjustment......... -- -- 63
Unrealized loss on securities available for
sale...................................... (207) (620) (139)
Cumulative translation adjustments........... 3,985 (28,226) (6,580)
-------- -------- --------
Other Comprehensive Income (Loss).............. 3,778 (28,846) (6,656)
-------- -------- --------
Comprehensive Income (Loss).................... $ 7,496 $(65,473) $ 4,573
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
F-3
<PAGE> 32
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS
OF STOCKHOLDERS' EQUITY
For the years ended
December 31,
1998, 1997 and 1996
<TABLE>
<CAPTION>
Accumulated Other
Comprehensive Income
---------------------------------------
Unrealized
Gain (Loss)
Minimum on Securities Cumulative
Common Paid-in Retained Deferred Pension Available Translation
Stock Capital Earnings Compensation Liability for Sale Adjustments
------ ------- -------- ------------ --------- ------------- -----------
(In Thousands, Except Share Data)
<S> <C> <C> <C> <C> <C> <C> <C>
Balance--
December 31, 1995....... $4,290 $64,381 $ 66,256 $(817) $(63) $ 827 $ 553
Exercise of stock
options............... 21 750 -- -- -- -- --
ESOP debt payments...... -- -- -- 408 -- -- --
Restricted stock
issued................ 15 543 -- (558) -- -- --
Net income.............. -- -- 11,229 -- -- -- --
Adjust minimum pension
liability............. -- -- -- -- 63 -- --
Cash dividends ($.40 per
share)................ -- -- (3,446) -- -- -- --
Change in market value
of securities
available for sale.... -- -- -- -- -- (139) --
Translation
adjustments........... -- -- -- -- -- -- (6,580)
------ ------- -------- ----- ---- ----- --------
Balance--
December 31, 1996....... 4,326 65,674 74,039 (967) -- 688 (6,027)
Exercise of stock
options............... 15 477 -- -- -- -- --
ESOP debt payments...... -- -- -- 408 -- -- --
Change in restricted
stock................. -- -- -- 180 -- -- --
Net loss................ -- -- (36,627) -- -- -- --
Cash dividends ($.40 per
share)................ -- -- (3,474) -- -- -- --
Change in market value
of securities
available for sale.... -- -- -- -- -- (620) --
Translation
adjustments........... -- -- -- -- -- -- (28,226)
------ ------- -------- ----- ---- ----- --------
Balance--
December 31, 1997....... 4,341 66,151 33,938 (379) -- 68 (34,253)
Exercise of stock
options............... 3 54 -- -- -- -- --
ESOP debt payments...... -- -- -- 408 -- -- --
Change in restricted
stock................. -- (117) -- (154) -- -- --
Net income.............. -- -- 3,718 -- -- -- --
Change in market value
of securities
available for sale.... -- -- -- -- -- (207) --
Translation
adjustments........... -- -- -- -- -- -- 3,985
------ ------- -------- ----- ---- ----- --------
Balance--
December 31, 1998....... $4,344 $66,088 $ 37,656 $(125) $ -- $(139) $(30,268)
====== ======= ======== ===== ==== ===== ========
</TABLE>
The accompanying notes are an integral part of these statements.
F-4
<PAGE> 33
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS
OF CASH FLOWS
For the years ended
December 31, 1998, 1997 and 1996
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
(In Thousands)
<S> <C> <C> <C>
Cash Flows From Operating Activities:
Net income (loss)........................ $ 3,718 $ (36,627) $ 11,229
Adjustments to reconcile net income
(loss) to net cash provided by (used
in) operating activities--
Depreciation and amortization....... 36,683 31,417 29,736
(Gain) loss on disposition of
assets........................... (785) 1,459 774
Minority interest................... 286 (624) (238)
Equity in income of joint
ventures......................... (846) (3,113) (4,187)
Restructuring and impairment
charges.......................... -- 27,000 --
Change in assets and liabilities,
net of effects of
acquisitions--...................
Accounts receivable, net....... (10,499) (28,299) (16,956)
Inventories.................... (4,362) (8,674) (473)
Prepaid expenses and other..... 5,012 (10,933) (5,943)
Deferred and refundable income
taxes....................... 2,208 (8,631) (762)
Accounts payable and accrued
liabilities................. 22,874 12,687 25,507
Pension obligations and
other....................... 313 (1,888) (2,049)
--------- --------- ---------
Total adjustments................ 50,884 10,401 25,409
--------- --------- ---------
Net cash provided by (used in)
operating activities........... 54,602 (26,226) 36,638
--------- --------- ---------
Cash Flows From Investing Activities:
Purchase of plant and equipment.......... (42,006) (62,019) (99,147)
Acquisitions, net of cash acquired....... -- -- (1,018)
Purchase of other assets................. (5,476) (3,087) (3,434)
Investment in joint ventures and other... (11,569) 1,756 (1,451)
Proceeds from disposal of assets......... 8,379 5,415 4,156
--------- --------- ---------
Net cash used in investing
activities..................... (50,672) (57,935) (100,894)
--------- --------- ---------
Cash Flows From Financing Activities:
Borrowings under revolving
lines-of-credit....................... 230,453 199,981 200,548
Repayments under revolving
lines-of-credit....................... (157,109) (283,116) (135,298)
Debt repayments.......................... (68,831) (1,210) (1,104)
Proceeds from issuance of debt........... -- 105,404 2,772
Proceeds from issuance of convertible
preferred securities.................. -- 69,000 --
Proceeds from issuance of common stock
and options........................... 57 492 771
Financing fees paid...................... (2,603) (5,680) (508)
Cash dividends paid...................... (868) (3,463) (3,439)
--------- --------- ---------
Net cash provided by financing
activities..................... 1,099 81,408 63,742
--------- --------- ---------
Effect of Exchange Rate Changes on Cash.... 1,079 (1,921) (1,065)
--------- --------- ---------
Net Increase (Decrease) in Cash............ 6,108 (4,674) (1,579)
Cash at Beginning of Year.................. 13,539 18,213 19,792
--------- --------- ---------
Cash at End of Year........................ $ 19,647 $ 13,539 $ 18,213
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these statements.
F-5
<PAGE> 34
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES.
Principles of Consolidation:
- - -----------------------------
The consolidated financial statements include the accounts of Walbro Corporation
and its wholly-owned and majority-owned subsidiaries (the Company). Investments
in joint ventures are accounted for under the equity method (Note 8).
Significant transactions and balances among the Company and its subsidiaries
have been eliminated in the consolidated financial statements.
Foreign Currency Translation:
- - --------------------------------
The assets and liabilities of the Company's foreign operations are generally
translated into U.S. dollars at current exchange rates, and revenues and
expenses are translated at average exchange rates for the year. Resulting
translation adjustments are reflected as a separate component of stockholders'
equity.
Transaction gains and losses that arise from exchange rate fluctuations on
transactions denominated in a currency other than the functional currency,
except those transactions which operate as a hedge of an identifiable foreign
currency commitment or as a hedge of a foreign currency investment position, are
included in the results of operations as incurred.
Accounts Receivable:
- - -----------------------
Accounts receivable are net of allowances for doubtful accounts of $4,159,000
and $809,000 as of December 31, 1998 and 1997, respectively.
Inventories:
- - ------------
Inventories are stated at the lower of cost (first-in, first-out) or market.
Inventories include raw materials and component parts, work-in-process and
finished products. Work-in-process and finished products inventories include
material, labor and manufacturing overhead costs.
Inventory at December 31 consisted of the following:
<TABLE>
<CAPTION>
1998 1997
------- -------
(In Thousands)
<S> <C> <C>
Raw materials and
components.......... $34,804 $30,857
Work-in-process....... 6,287 6,545
Finished products..... 19,780 18,805
------- -------
$60,871 $56,207
======= =======
</TABLE>
Plant and Equipment:
- - -----------------------
The Company provides for depreciation of plant and equipment based upon the
acquisition costs and the estimated service lives of depreciable assets. The
straight-line method is the principal method used to compute depreciation for
financial reporting purposes. However, the units-of-production method is used to
compute depreciation of certain equipment. Estimated service lives of
depreciable assets are as follows: buildings and improvements - 10 to 40 years,
machinery and equipment - 5 to 15 years.
Investments:
- - -------------
The carrying value of marketable equity securities is market value.
The Company classifies certain investments in common stock securities as
"available-for-sale", recording these investments at fair market value with the
gross unrealized gains and losses, after-tax, included as a separate component
of stockholders' equity.
At December 31, 1998, the Company had no investments classified as "trading."
At December 31, 1997, the fair market value of investments classified as
"trading" was $687,000.
Goodwill:
- - ----------
Goodwill consists of purchase price and related acquisition costs in excess of
the fair value of the identifiable net assets acquired. Goodwill is amortized on
a straight-line basis over 15 to 40 years. The Company evaluates the carrying
value of goodwill for potential impairment on an ongoing basis. Such evaluations
compare the undiscounted expected future cash flows of the operations to which
the goodwill relates to the carrying value of the goodwill. The Company also
considers future anticipated operating results, trends and other circumstances
in making such evaluations.
Goodwill consisted of the following at December 31:
<TABLE>
<CAPTION>
1998 1997
------- -------
(In Thousands)
<S> <C> <C>
Goodwill.............. $39,559 $39,449
Less: Accumulated
amortization........ (7,672) (6,646)
------- -------
$31,887 $32,803
======= =======
</TABLE>
Income Taxes:
- - ---------------
Deferred income taxes represent the effect of cumulative temporary differences
between income and expense items reported for financial statement and tax
purposes, and between the bases of various assets and liabilities for financial
statement and tax purposes. Deferred tax assets are reduced by a valuation
allowance if, based on the
F-6
<PAGE> 35
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
Walbro Corporation & Subsidiaries
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES. (continued)
weight of evidence, it is deemed more likely than not that the assets will not
be realized.
Financial Instruments:
In order to manage exposure to fluctuations in foreign currency exchange rates,
the Company enters into forward currency exchange contracts. Gains and losses on
contracts that hedge specific foreign currency commitments are deferred and
recognized in net income in the period in which the related transaction is
consummated. Gains and losses on contracts that hedge net investments in foreign
joint ventures or subsidiaries are recognized as cumulative translation
adjustments in stockholders' equity. Gains and losses on forward currency
exchange contracts that do not qualify as hedges are recognized as foreign
currency exchange gain or loss.
Asset Impairments:
The Company continually evaluates whether events and circumstances have occurred
that indicate that the carrying amount of certain long-lived assets may not be
recoverable. When events and circumstances indicate that a long-lived asset
should be evaluated for possible impairment, the Company uses an estimate of the
expected undiscounted future cash flows to be generated by the asset to
determine whether the carrying amount is recoverable or if an impairment exists.
When it is determined that an impairment exists, the Company uses the fair
market value of the asset, usually measured by the expected discounted future
cash flows to be generated by the asset, to determine the amount of impairment
to be recorded in the financial statements.
Comprehensive Income:
During 1998, the Company adopted SFAS No. 130, "Reporting Comprehensive Income",
which establishes standards for the reporting and display of comprehensive
income. Comprehensive income is defined as all changes in a Company's net assets
except changes resulting from transactions with shareholders. It differs from
net income in that certain items currently recorded to equity are included in
comprehensive income. Prior years have been restated to conform to the
requirements of SFAS No. 130.
Reclassifications:
Certain amounts in prior years' consolidated financial statements have been
reclassified to conform with the presentation used in 1998.
Use of Estimates:
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reported period. Actual
results could differ from these estimates.
NOTE 2. RESTRUCTURING OF OPERATIONS AND OTHER ACTIONS.
During the fourth quarter of 1997, the Company recorded a $27,000,000 pre-tax
charge for restructuring its operations and other actions. The charge was
comprised of a $17,000,000 charge for restructuring and a $10,000,000 charge
associated with asset impairments. In addition, the Company recorded a pre-tax
charge of $5,700,000 for warranty costs (included in cost of sales) which became
known during the fourth quarter of 1997.
The components of the restructuring charge included $15,100,000 million for
the divestiture of non-strategic businesses and facilities, $1,200,000 for
personnel reductions and $700,000 for other actions. The divestiture component
included $8,100,000 related to the divestiture of the Company's Ligonier,
Indiana, steel fuel rail manufacturing facility, $5,700,000 related to the
planned disposition of its interest in U.S. Coexcell Inc., a manufacturer of
blow-molded plastic drums in Maumee, Ohio, $400,000 related to the movement of
small engine operations in Mexico to a larger facility, $500,000 related to the
divestiture of the Company's share of an automotive joint venture in Korea and
$400,000 related to the consolidation of small engine operations in the
Asia-Pacific region. Amounts paid to consolidate these small engine operations
were charged against the reserve during 1998 at approximately the amount
established as of December 31, 1997.
The $8,100,000 charge related to the divestiture of the Company's steel fuel
rail facility is comprised of $7,800,000 of non-cash asset revaluations and
$300,000 of exit
F-7
<PAGE> 36
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
Walbro Corporation & Subsidiaries
NOTE 2. RESTRUCTURING OF OPERATIONS AND OTHER ACTIONS. (continued)
cost liabilities. This facility was sold as of May 31, 1998, resulting in a gain
of approximately $500,000. Exit costs were paid and charged against the reserve
during 1998 at approximately the amount established as of December 31, 1997.
The $5,700,000 charge related to the planned disposition of the Company's
interest in U.S. Coexcell Inc. is comprised of $5,300,000 of non-cash asset
revaluations and $400,000 of exit cost liabilities. The Company did not complete
the disposition of U.S. Coexcell Inc. during 1998 and continued to operate the
facility. The Company is continuing to evaluate its options for U.S. Coexcell
Inc.. As such, no payments were made or charged against the reserve during 1998.
The $400,000 related to the movement of small engine operations in Mexico to a
larger facility represents primarily remaining lease payments on the old
facility for the period of time in which the Company will no longer use the
facility. Of the amount established as of December 31, 1997, $300,000 was paid
and charged against the reserve during 1998 and $100,000 remains accrued at
December 31, 1998 for the first quarter of 1999.
The $500,000 related to the divestiture of the Company's share of an
automotive joint venture in Korea represents a non-cash charge to reduce the
Company's investment to zero. During 1998, the Company divested its share of the
joint venture.
The $1,200,000 charge for personnel reductions relates to severance costs
associated with a corporate-wide headcount reduction program including
reductions related to the divestitures and restructuring. The Company planned to
reduce the overall work force by approximately 10% or 500 employees, working in
both manufacturing and administrative capacities. During 1998, approximately
$1,000,000 was paid and charged against the reserve. The remainder will be paid
and charged against the reserve during 1999.
The components of the $10,000,000 charge for asset impairments include
$4,200,000 to write-down to net realizable value certain tooling, machinery and
equipment, $2,800,000 to reserve for uncertainties related to its Korean
automotive activities, $1,300,000 to write-off its interest in Saginaw Plastics,
an injection molder in Saginaw, Michigan and $1,700,000 associated with other
impairment issues. No further circumstances arose during 1998 to question the
net realizable value of these assets.
NOTE 3. CONVERTIBLE TRUST PREFERRED SECURITIES.
In February 1997, the Company sold 2,760,000 Convertible Trust Preferred
Securities of Walbro Capital Trust, a wholly-owned subsidiary of the Company, at
a face value of $25 per share and an interest rate of 8% per annum. The
preferred securities are convertible into common stock of the Company at the
option of the security-holder at a rate of 1.1737 shares of common stock for
each preferred security. Net proceeds of the offering were approximately
$66,000,000 and were used to repay a portion of the Company's Old Revolving
Credit Facility.
NOTE 4. STOCKHOLDERS' EQUITY.
The Company has a stock rights plan which entitles the holder of each right,
upon the occurrence of certain events, to purchase one-hundredth of a share of a
new series of preferred stock (Series A Junior Participating Preferred Stock)
for $45. The rights will be exercisable only if a person or group acquires 15%
or more of the Company's common stock or announces a tender offer upon
consummation of which such person or group would own 15% or more of the
Company's common stock.
F-8
<PAGE> 37
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
NOTE 5. LONG-TERM DEBT AND LINES OF CREDIT.
Long-term debt consisted of the following at December 31:
<TABLE>
<CAPTION>
1998 1997
-------- --------
(In Thousands)
<S> <C> <C>
Senior notes due 2005, unsecured, stated interest at 9.875%
(9.92% effective interest rate), net of unamortized
discount of $253 and $292 at December 31, 1998 and 1997,
respectively(b)........................................... $109,747 $109,708
Senior notes due 2007, unsecured, interest at 10.125%(b).... 100,000 100,000
New Revolving Credit Facility, secured, interest at the
LIBOR or prime rate, plus an additional margin. (a)....... 93,312 --
New Purchase Money Loan Agreement, secured, interest at the
LIBOR or prime rate, plus an additional margin (a)........ 2,584 --
Old Revolving Credit Facility, repaid during 1998 (a)....... -- 19,700
Old Purchase Money Loan Agreement, repaid during 1998 (a)... -- 2,852
2004 Senior Notes, repaid during 1998 (a)................... -- 45,000
Industrial revenue bond, secured, issued by Town of Ossian,
Indiana, interest at a variable municipal bond rate, due
in 2023................................................... 9,000 9,000
Industrial revenue bond, issued by City of Ligonier,
Indiana, repaid during 1998............................... -- 6,300
Term loan, interest at 5.44% payable in Belgian Francs in
quarterly amounts from 2003 to 2007....................... 5,550 5,163
Term loan from the State of Connecticut, secured, interest
at 6% per annum, payable in monthly amounts from 1998 to
2006...................................................... 3,400 3,400
Capital lease obligation, interest at 7.5%, payable in
monthly amounts through February 2002..................... 2,399 3,042
Other....................................................... 700 1,188
-------- --------
326,692 305,353
Less--current portion....................................... 2,403 13,960
-------- --------
$324,289 $291,393
======== ========
</TABLE>
(a) In May 1998, the Company executed a new $150,000,000 multi-currency
revolving credit facility (New Credit Facility) for the Company and certain of
its wholly-owned domestic and foreign subsidiaries. The proceeds of the New
Credit Facility were used to retire the Old Revolving Credit Facility, the Old
Purchase Money Loan Agreement and the 2004 Senior Notes. The early retirement of
these debt instruments resulted in an extraordinary charge of $1,473,000 (net of
tax) during 1998. The New Credit Facility consists of a $125,000,000 revolving
line of credit (New Revolving Credit Facility) and a $25,000,000 capital
expenditure facility (New Purchase Money Loan Agreement). The New Credit
Facility is available through May 2003. Borrowings under the New Revolving
Credit Facility bear interest at either the London interbank offered rate
(LIBOR), plus 2.25% or at the prime rate, plus 0.25%. Availability under the New
Revolving Credit Facility is subject to a borrowing base, consisting of 85% of
the eligible accounts receivable of the Company and certain of its subsidiaries,
plus the lesser of (i) 60% of certain raw materials and finished products
inventory and 70% of commodity raw material resin inventory or (ii) $50,000,000,
less customary reserves. The New Purchase Money Loan Agreement bears interest at
either the LIBOR, plus 2.50% or at the prime rate, plus 0.50%. Amounts drawn
under the New Purchase Money Loan Agreement are repayable in 20 equal quarterly
principal installments, beginning one quarter after such draw. If the New
Revolving Credit Facility is terminated by the Company during the first three
years, certain pre-payment fees may be applicable.
The New Credit Facility contains numerous covenants, including financial
covenants such as a fixed charge coverage ratio and a senior secured funded
indebtedness to EBITDA (earnings before interest, taxes, depreciation and
amortization) ratio, and restrictions on additional indebtedness, liens, capital
expenditures, mergers and sales of assets, and events of default. Obligations
outstanding under the New Revolving Credit Facility are secured by accounts
receivable, inventory capital expenditure line equipment and general intangibles
of the Company and certain of its subsidiaries, and are also secured by a pledge
of the stock of certain of the material domestic subsidiaries of the Company and
65% of the stock of the material foreign subsidiaries of the Company. Each
advance under the New Purchase Money Loan Agreement is secured by the item of
equipment purchased with the proceeds of such advance. The collateral for the
New
F-9
<PAGE> 38
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
NOTE 5. LONG-TERM DEBT AND LINES OF CREDIT. (continued)
Purchase Money Loan Agreement does not constitute collateral for the New
Revolving Credit Facility. In addition, certain of the subsidiaries of the
Company provide guarantees of the obligation under the New Credit Facility.
(b) In July 1995, the Company sold $110,000,000 in aggregate principal amount
of 9.875% Senior Notes due 2005 (the 2005 Notes). In December 1997, the Company
sold $100,000,000 in aggregate principal amount of 10.125% Senior Notes due 2007
(the 2007 Notes). The 2005 Notes and 2007 Notes are general unsecured
obligations of the Company with interest payable semi-annually. The 2005 Notes
and 2007 Notes are guaranteed on a senior unsecured basis, jointly and
severally, by each of the Company's principal wholly-owned domestic operating
subsidiaries and certain of its indirect wholly-owned subsidiaries. Except as
noted below, the 2005 Notes and 2007 Notes are not redeemable at the Company's
option prior to July 15, 2000 and December 15, 2002, respectively. Thereafter,
the 2005 Notes and 2007 Notes will be redeemable, in whole or part, at the
option of the Company at various redemption prices as set forth in the 2005 Note
Indenture and 2007 Note Indenture. In the event of a change in control, the
Company will be obligated to make an offer to purchase all of the outstanding
2005 Notes and 2007 Notes at a premium. Also, in certain circumstances, the
Company will be required to make an offer to repurchase the 2005 Notes at a
price equal to 100% of the principal amount thereof, plus accrued interest to
the date of repurchase, with the net cash proceeds of certain asset sales.
As of December 31, 1998 and 1997, assets recorded under capital lease
obligations were approximately $4,793,000 and $5,127,000, respectively, net of
accumulated amortization of approximately $1,140,000 and $806,000, respectively.
Aggregate minimum principal payment requirements on long-term debt, including
capital lease obligations, in each of the five years subsequent to December 31,
1998 are as follows: 1999 - $2,403,000; 2000 - $2,573,000; 2001 - $2,627,000;
2002 - $1,974,000; 2003 - $95,861,000; thereafter - $221,254,000.
In addition to long-term debt, the Company and its subsidiaries have line of
credit arrangements with foreign banks for short-term borrowings of
approximately $15,493,000 and $27,600,000 at December 31, 1998 and 1997,
respectively. The weighted average interest rate on short-term bank borrowings
outstanding under these arrangements was 4.7% and 4.1% at December 31, 1998 and
1997, respectively.
- - --------------------------------------------------------------------------------
NOTE 6. LEASES.
The Company leases certain of its buildings, equipment and vehicles under
operating leases. The leases involving buildings contain options enabling the
Company to renew the leases at the end of the respective lease terms. Rent
expense was approximately $6,313,000, $6,178,000 and $7,702,000 for the years
ended December 31, 1998, 1997 and 1996, respectively.
Aggregate minimum future payments under noncancellable leases are as follows:
<TABLE>
<CAPTION>
Capital Operating
Leases Leases
------- ---------
(In Thousands)
<S> <C> <C>
1999.................. $ 900 $ 7,234
2000.................. 883 6,531
2001.................. 862 6,244
2002.................. 142 5,723
2003.................. -- 4,731
Thereafter............ -- 18,536
------ -------
Total minimum lease
payments......... 2,787 $48,999
=======
Amount representing
interest............ 315
------
Present value of
minimum lease
payments......... $2,472
======
</TABLE>
F-10
<PAGE> 39
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
NOTE 7. INCOME TAXES.
A summary of income (loss) before (provision) credit for income taxes, minority
interest, equity in income of joint ventures and extraordinary item and
components of the (provision) credit for the years ended December 31, are as
follows:
<TABLE>
<CAPTION>
1998 1997 1996
------- -------- -------
(In Thousands)
<S> <C> <C> <C>
Income (loss) before (provision) credit for
income taxes, minority interest, equity in
income of joint ventures and extraordinary item:
Domestic...................................... $ 4,255 $(31,095) $ 1,774
Foreign....................................... 9,863 (13,741) 8,628
------- -------- -------
$14,118 $(44,836) $10,402
======= ======== =======
(Provision) credit for income taxes:
Currently payable--
Domestic...................................... $ 632 $ (3,297) $ (384)
Foreign....................................... (1,185) (1,334) (2,456)
------- -------- -------
(553) (4,631) (2,840)
------- -------- -------
Deferred--
Domestic...................................... (2,511) 14,053 (988)
Foreign....................................... (1,946) 3,264 (1,544)
Utilization of tax credits.................... 2,861 1,000 2,517
Change in valuation allowance................. (1,818) (3,555) (220)
------- -------- -------
(3,414) 14,762 (235)
------- -------- -------
$(3,967) $ 10,131 $(3,075)
======= ======== =======
</TABLE>
Reconciliations of the U.S. Federal statutory income tax rates to the
Company's consolidated effective income tax rates for the years ended December
31, are as follows:
<TABLE>
<CAPTION>
1998 1997 1996
----- ----- -----
<S> <C> <C> <C>
U.S. Federal statutory income tax rate............... 35.0% (35.0)% 35.0%
Increase (decrease) in effective income tax rate
resulting from--
Differences between U.S. and foreign income tax
rates.............................................. (2.3) 6.4 9.4
Utilization of tax credits......................... (20.2) (2.2) (15.9)
Increase in valuation allowance.................... 12.9 7.9 2.1
Foreign taxes and dividends........................ 10.8 3.4 --
Goodwill amortization.............................. 4.3 .4 1.5
Tax benefit on deductible preferred stock
dividends....................................... (13.7) (3.9) --
Other, net......................................... 1.3 .4 (2.5)
----- ----- -----
Effective income tax rates........................... 28.1% (22.6)% 29.6%
===== ===== =====
</TABLE>
F-11
<PAGE> 40
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
NOTE 7. INCOME TAXES. (continued)
The components of the net deferred income tax asset at December 31 are
summarized as follows:
<TABLE>
<CAPTION>
1998 1997
-------- --------
(In Thousands)
<S> <C> <C>
Deferred income tax liabilities:
Depreciation and basis differences........................ $ 12,927 $ 8,715
Other..................................................... 756 279
-------- --------
13,683 8,994
-------- --------
Deferred income tax assets:
Estimated net operating loss carryforwards................ (7,406) (5,533)
Employee benefits......................................... (2,927) (2,802)
Foreign tax credit carryforwards.......................... (659) (980)
Accruals.................................................. (1,845) (3,444)
Other tax credit carryforwards............................ (8,965) (5,783)
Inventory................................................. (1,709) (931)
Accounts receivable reserve............................... (268) (114)
Write-down of investment.................................. (368) (368)
Loss on joint ventures.................................... (819) (1,086)
Other..................................................... (1,103) (1,936)
-------- --------
(26,069) (22,977)
Valuation allowance....................................... 6,337 4,519
-------- --------
(19,732) (18,458)
-------- --------
Net deferred income tax asset............................... $ (6,049) $ (9,464)
======== ========
</TABLE>
At December 31, 1998, the cumulative amount of undistributed earnings of foreign
subsidiaries was approximately $26,500,000. No deferred U.S. income taxes have
been provided on these earnings as such amounts are deemed to be permanently
reinvested. If such earnings were remitted, the impact of additional U.S. income
taxes or foreign withholding taxes would not be significant.
As of December 31, 1998, the Company has net operating loss carryforwards of
approximately $23,515,000, which expire in varying amounts between 2003 and
2012, available from certain of its subsidiaries. The Company has recorded a
deferred tax asset of $7,406,000 associated with these carryforwards.
Realization of the related deferred tax asset is dependent on generating
sufficient taxable income in specific countries prior to the expiration of the
loss carryforwards. Although realization is not assured, management believes it
is more likely than not that all of the deferred tax asset will be realized. The
amount of the net deferred tax asset considered realizable, however, could be
reduced in the near term if estimates of future taxable income during the
carryforward period are reduced.
Provisions (credits) for state income taxes are included in selling and
administrative expenses and amounted to $410,000 in 1998, $(22,000) in 1997 and
$197,000 in 1996.
F-12
<PAGE> 41
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
NOTE 8. JOINT VENTURES.
The investments in joint ventures as of December 31 are as follows:
<TABLE>
<CAPTION>
Percent Beneficial
Ownership
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Marwal Systems, S.N.C.
(France)............. 49% 49% 49%
Mitsuba-Walbro, Inc.
(Japan).............. 50% 50% 50%
Marwal do Brasil,
Ltda................. 49% 49% 49%
Korea Automotive Fuel
Systems, Ltd......... -- 49% 49%
Marwal de Mexico S.A.
de C.V............... 52% 52% 52%
Marwal Argentina
S.A. ................ 49% 49% --
Vitec L.L.C............ 48% -- --
</TABLE>
The above joint ventures are generally involved in the design and manufacture of
precision fuel systems products for the global automotive market.
All of the above investments in joint ventures are accounted for using the
equity method. Certain adjustments are made to the joint ventures' income so
that recorded income is stated in accordance with United States generally
accepted accounting principles. At December 31, 1998 and 1997, the cumulative
effect of these adjustments was to increase the Company's equity in its joint
ventures by approximately $3,884,000 and $3,158,000, respectively. At December
31, 1998, the amount included in retained earnings as undistributed earnings of
foreign joint ventures was approximately $8,056,000.
In 1996, the Company entered into a joint venture (Marwal de Mexico S.A. de
C.V.) with its 49% owned joint venture, Marwal Systems, S.N.C. The Company owns
5% of the venture directly and Marwal Systems S.N.C. owns the remaining 95%.
Marwal de Mexico S.A. de C.V. manufactures fuel pumps and fuel modules for the
Central American and Mexican automotive markets.
In 1996, the Company expanded its Marwal joint venture locations to include
Marwal Argentina S.A. This is a joint venture 1% owned by the Company, 1% owned
by Magneti Marelli and 98% owned by Marwal Systems S.N.C. Marwal Argentina S.A.
builds fuel sending units for the Argentinean automotive market.
In 1998, the Company reduced its equity in its Korean joint venture to zero.
Additionally, the Company invested in Vitec L.L.C., a joint venture in Detroit's
Empowerment Zone. Vitec manufactures and assembles fuel storage and delivery
systems for the U.S. automotive market.
Summarized combined financial information for joint ventures accounted for
using the equity method is as follows (Unaudited, in Thousands):
<TABLE>
<CAPTION>
As of
December 31,
1998 1997
------- -------
<S> <C> <C>
Balance sheet data:
Current assets............................................ $93,934 $90,358
Long-term assets.......................................... 58,395 44,365
Current liabilities....................................... 81,936 65,162
Long-term liabilities..................................... 11,666 13,355
</TABLE>
<TABLE>
<CAPTION>
For the Year Ended December 31,
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Income statement data:
Net sales.................................... $209,627 $248,527 $200,276
Gross margin................................. 30,435 31,846 24,806
Income before provision for income taxes..... 2,998 12,769 14,510
Net income................................... 1,715 5,978 7,515
</TABLE>
Dividends from joint ventures of approximately $1,052,000 and $3,418,000 were
received by the Company during 1998 and 1997, respectively. No dividends were
received from joint ventures during 1996. The Company had sales to joint
ventures of approximately $37,125,000, $64,109,000 and $42,413,000 during 1998,
1997 and 1996, respectively. Included in accounts receivable are trade
receivables from joint ventures of approximately $4,675,000 and $12,741,000 as
of December 31, 1998 and 1997,
F-13
<PAGE> 42
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
NOTE 8. JOINT VENTURES. (continued)
respectively and royalty receivables of $1,012,000 and $1,674,000 as of December
31, 1998 and 1997, respectively. The Company had purchases from joint ventures
of approximately $35,558,000, $41,447,000 and $33,149,000 during 1998, 1997 and
1996, respectively. Included in accounts payable are trade payables to joint
ventures of approximately $8,295,000 and $5,277,000 as of December 31, 1998 and
1997, respectively.
- - --------------------------------------------------------------------------------
NOTE 9. STOCK OPTION PLANS AND LONG-TERM INCENTIVE PLANS.
Under the Walbro Corporation Equity Based Long Term Incentive Plan (Equity
Plan), 856,457 shares of common stock are reserved for issuance to officers,
directors and key employees. Options are granted yearly based on certain
financial performance criteria as compared to the annual business plan and other
factors. In addition, Stock Performance Award Grants (Grants) are awarded
annually when the common stock price appreciates and Grants are exchanged for
common stock at the end of the five-year term. If the Company's common stock
price appreciates at a 17% compounded rate over the term, the number of Grants
awarded, valued at the common stock price, will equal the dollar amount
necessary to exercise the stock options. Participants will receive a greater or
lesser number of Grants based on the actual market performance of the common
stock over the term. The number of Grants outstanding was 2,331 and 4,900 as of
December 31, 1998 and 1997, respectively.
Effective December 1997, the Company approved a Broad-Based Long Term
Incentive Plan (Broad-Based Plan), which consists of 572,129 shares of common
stock that are reserved and available for distribution to employees and
consultants to the Company, its subsidiaries and affiliates. The purpose of the
Broad-Based Plan is to enable these persons to participate in the Company's
future and to aid in retaining employees of merit.
Effective January 1, 1996, the Company adopted SFAS No. 123, "Accounting for
Stock-Based Compensation." The Company continues to apply Accounting Principles
Board Opinion No. 25 for expense recognition. All stock options issued by the
Company are exercisable at a price equal to the market price at the date of the
grant. Accordingly, no compensation cost has been recognized for any of the
options granted.
A summary of the stock option transactions of the 1983 Plan (closed with no
options outstanding as of December 31, 1998), the Equity Plan, and the
Broad-Based Plan for the years ended December 31, 1998, 1997 and 1996 is as
follows:
<TABLE>
<CAPTION>
Number of Options
Exercisable Outstanding Option price (per share)
----------- ----------- ------------------------
<S> <C> <C> <C>
December 31, 1995.................... 321,695 432,092 $ 9.25-33.25
Granted............................ 117,385 18.19-21.75
Exercised.......................... (12,279) 9.25-18.00
Canceled........................... (5,458) 26.00-33.25
--------
December 31, 1996.................... 418,936 531,740 9.25-33.25
Granted............................ 19,804 13.75-22.75
Exercised.......................... (29,480) 9.25-19.125
Canceled........................... (83,698) 9.25-33.25
--------
December 31, 1997.................... 424,016 438,366 9.25-33.25
Granted............................ 493,966 9.25-13.25
Exercised.......................... (3,700) 9.25
Canceled........................... (164,679) 13.25-33.25
--------
December 31, 1998.................... 663,953 763,953 $9.25-27.125
========
</TABLE>
The weighted-average fair value of options granted during the year is $7.15
and $5.01 for the years ended December 31, 1998 and 1997, respectively.
F-14
<PAGE> 43
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
NOTE 9. STOCK OPTION PLANS AND LONG-TERM INCENTIVE PLANS. (continued)
The following table summarizes information about options outstanding at
December 31, 1998:
<TABLE>
<S> <C> <C> <C>
Options Outstanding:
Range of Exercise Prices............. $ 9.25 $13.25-19.75 $20.00-27.25
Number Outstanding at 12/31/98....... 109,175 539,692 115,086
Weighted-Average:
Remaining Contractual Life
(years)......................... 9.03 8.17 5.55
Exercise Price.................... $ 9.25 $ 15.20 $ 25.48
Options Exercisable:
Number Exercisable at 12/31/98....... 9,175 539,692 115,086
Weighted Average Exercise Price...... $ 9.25 $ 15.20 $ 25.48
</TABLE>
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option-pricing model with the following weighted average
assumptions by year:
<TABLE>
<CAPTION>
ASSUMPTIONS 1998 1997 1996
- - --------------------- ------- ------- -------
<S> <C> <C> <C>
Risk-free interest
rate............... 4.6% 5.7% 6.4%
Expected life........ 10 yrs. 10 yrs. 10 yrs.
Expected
volatility......... 37.8% 34.6% 35.2%
Expected dividends... 0.0% 2.0% 2.0%
</TABLE>
Had compensation cost for the plans been determined based on the fair value at
the grant dates for awards under those plans consistent with the method
described in SFAS No. 123, the Company's net income (loss) and basic net income
(loss) per share would have been reduced to the pro forma amounts indicated
below:
<TABLE>
<CAPTION>
1998 1997 1996
------ -------- -------
(In thousands)
<S> <C> <C> <C> <C>
Net income (loss)................................ As reported $3,718 $(36,627) $11,229
Pro forma 1,422 (36,644) 10,601
Basic net income (loss) per share................ As reported 0.43 (4.23) 1.30
Pro forma 0.16 (4.23) 1.23
</TABLE>
The Company cautions that the pro forma net income (loss) and per share
results in the initial years of adoption are overstated due to the recognition
of pro forma compensation cost over the vesting period.
During 1996, the Walbro Engine Management Corporation Incentive Compensation
Plan reached the end of its five-year measurement term, and the first of four
annual payments was made. The second and third of four payments were made during
1997 and 1998, respectively. The Company accrued approximately $1,659,000 and
$3,287,000 as of December 31, 1998 and 1997, respectively, under this plan.
Participants can elect to receive their payments in either cash or common stock
of the Company.
- - --------------------------------------------------------------------------------
NOTE 10. COMMITMENTS AND CONTINGENCIES.
The manufacture of automotive components entails the risk that a customer or
governmental authority may require the recall of one of the Company's products
or a product in which one of the Company's products has been installed. The
Company has taken and will continue to take all reasonable precautions to avoid
the risk of exposure to a recall or warranty claim that would have a material
effect on the financial position of the Company. The Company does not believe
that significant insurance coverage is available to protect against potential
product recall/warranty liability. The Company provides for warranty claims on
its products on a specific identification basis.
While there can be no assurance that the Company will not incur substantial
recall or warranty expense in the future, management believes that any liability
resulting from these matters will not have a material impact on the financial
position or future results of operations of the Company.
F-15
<PAGE> 44
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
NOTE 11. PENSION AND OTHER POSTRETIREMENT BENEFIT PLANS.
The Company sponsors pension plans covering substantially all domestic
collectively bargained employees and certain foreign employees. The plan
covering domestic collectively bargained employees provides benefits of stated
amounts for each year of service. Plans covering certain foreign employees
provide payments at termination which are based upon length of service,
compensation rate and whether termination was voluntary or involuntary. The
Company annually contributes to the plans covering domestic employees and
certain foreign employees amounts which are actuarially determined to provide
the plans with sufficient assets to meet future benefit payment requirements.
The plans covering foreign employees in certain countries are not funded.
The Company also provides postretirement health care, dental benefit and
prescription drug coverage to a limited number of current retirees.
Postretirement benefits are not available for active employees.
Effective January 1, 1998, the Company adopted the Statement of Financial
Accounting Standards No. 132, "Employers Disclosures about Pensions and Other
Postretirement Benefits" (SFAS No. 132). In accordance with SFAS No. 132, the
following tables provide a reconciliation of the change in benefit obligation,
the change in plan assets and the net amount recognized in the consolidated
balance sheets (In Thousands).
<TABLE>
<CAPTION>
Other
Postretirement
Pension Benefits Benefits
------------------- --------------------
1998 1997 1998 1997
------- ------ ------- -------
<S> <C> <C> <C> <C>
CHANGE IN BENEFIT OBLIGATION
Benefit obligation at beginning of year.... $ 6,573 $5,771 $ 3,800 $ 4,068
Service cost............................... 371 301 -- --
Interest cost.............................. 460 408 255 283
Foreign currency changes................... (3) (9) -- --
Amendments................................. 664 -- -- --
Actuarial (gain) loss...................... 658 227 40 (166)
Benefits paid.............................. (151) (125) (321) (385)
------- ------ ------- -------
Benefit obligation at end of year.......... $ 8,572 $6,573 $ 3,774 $ 3,800
======= ====== ======= =======
CHANGE IN PLAN ASSETS
Fair value of plan assets at beginning of
year..................................... $ 6,617 $5,612 $ -- $ --
Actual return on plan assets............... 519 789 -- --
Employer contributions..................... 216 492 -- --
Foreign currency changes................... (32) (151) -- --
Benefits paid.............................. (151) (125) -- --
------- ------ ------- -------
Fair value of plan assets at end of year... $ 7,169 $6,617 $ -- $ --
======= ====== ======= =======
Funded status.............................. $(1,403) $ 44 $(3,774) $(3,800)
Unrecognized net actuarial (gain) loss..... 117 (210) (501) (606)
Unrecognized net asset at transition....... -- (9) -- --
Unrecognized prior service cost............ 1,613 780 -- --
------- ------ ------- -------
Net amount recognized...................... $ 327 $ 605 $(4,275) $(4,406)
======= ====== ======= =======
</TABLE>
F-16
<PAGE> 45
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTE 11. PENSION AND OTHER POSTRETIREMENT BENEFIT PLANS. (continued)
<TABLE>
<CAPTION>
Other
Postretirement
Pension Benefits Benefits
-------------------- --------------------
1998 1997 1998 1997
------- ------- ------- -------
<S> <C> <C> <C> <C>
AMOUNTS RECOGNIZED IN CONSOLIDATED BALANCE
SHEETS CONSIST OF:
Prepaid benefit cost...................... $ 1,070 $ 1,083 $ -- $ --
Accrued benefit liability................. (743) (478) (4,275) (4,406)
------- ------- ------- -------
Net amount recognized..................... $ 327 $ 605 $(4,275) $(4,406)
======= ======= ======= =======
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
WEIGHTED-AVERAGE ASSUMPTIONS
Discount rate............................. 6- 6 - 7% 6.75% 7.00%
6.75%
Expected return on plan assets............ 6- 6 - 7% -- --
6.75%
Rate of compensation increase............. 2.50- 3% -- --
3.00%
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
COMPONENTS OF NET PERIODIC BENEFIT COST
Service cost.............................. $ 371 $ 301 $ 255 $ 283
Interest cost............................. 460 408 -- --
Expected return on plan assets............ (455) (404) -- --
Amortization of transition (asset)
obligation.............................. (9) (22) -- --
Amortization of prior service cost........ 95 41 -- --
Amortization of unrecognized (gain)
loss.................................... -- -- (12) --
Recognized actuarial loss................. (21) -- -- --
------- ------- ------- -------
Net periodic benefit cost................. $ 441 $ 324 $ 243 $ 283
======= ======= ======= =======
</TABLE>
For measurement purposes, a 6.75% annual rate of increase was assumed in per
capita cost of covered health and dental care benefits for 1998. The rate was
assumed to gradually decrease to 4.75% by the year 2004 and remain at that level
thereafter. The health care cost trend rate assumption has a significant impact
on the accumulated postretirement benefit obligation and on future amounts
accrued. A one percentage point increase each year in the assumed health care
cost would increase the accumulated postretirement benefit obligation at
December 31, 1998 by $363,000 and the interest cost component of net periodic
postretirement benefit cost for the year ended December 31, 1998 by $24,000.
A one percentage point decrease each year in the assumed health care cost
would increase the accumulated postretirement benefit obligation at December 31,
1998 by $318,000 and the interest cost component of net periodic postretirement
benefit cost for the year ended December 31, 1998 by $21,000.
The Company also sponsors a defined contribution plan for non-union domestic
employees under which the Company makes matching contributions of 50% of each
participant's before-tax contribution of up to 6% of each participant's annual
income and retirement contribution of up to 3% (subject to change on an annual
basis) of each participant's annual income. The cost of defined contributions
charged to earnings during 1998, 1997 and 1996 was approximately $1,808,000,
$2,108,000 and $2,252,000, respectively.
Certain non-union employees, excluding officers, are eligible to participate
in the Walbro Corporation Employee Stock Ownership Plan (ESOP). The Company
makes annual contributions to a trust in the form of either cash or common stock
of the Company. The amount of the annual contribution is discretionary, except
that it must be sufficient to enable the trust to meet its current obligations.
Contribution expense related to the ESOP amounted to $408,000, $463,000 and
$416,000 during 1998, 1997 and 1996, respectively. Contribution expense is net
of dividends of $105,000 in 1997 and 1996. As of December 31, 1998 and 1997, the
ESOP held 207,000 and 238,000 shares, respectively, which are all allocated to
participant accounts.
F-17
<PAGE> 46
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
NOTE 12. DISCLOSURES ABOUT DERIVATIVE FINANCIAL INSTRUMENTS AND FAIR VALUE OF
FINANCIAL INSTRUMENTS.
The Company is a party to financial instruments with off-balance sheet risk in
the normal course of business to help meet financing needs and to reduce
exposure to fluctuating foreign currency exchange rates. The Company is exposed
to credit loss in the event of nonperformance by the other parties to the
financial instruments described below. However, the Company does not anticipate
nonperformance by the other parties. The Company does not engage in trading
activities with these financial instruments and does not generally require
collateral or other security to support these financial instruments. The
notional amounts of derivatives summarized below do not represent the amounts
exchanged by the parties and, thus, are not a measure of the exposure of the
Company through its use of derivatives. The amounts exchanged are calculated on
the basis of the notional amounts and the other terms of the derivatives.
Financial Instruments with Off-Balance
Sheet Risk
The Company enters into forward currency exchange contracts to manage its
foreign currency exchange risk. As of December 31, 1998 and 1997, the notional
amounts of contracts outstanding were approximately $2,125,000 and $885,000,
respectively.
The Company enters into forward currency exchange contracts to reduce its
exposure against fluctuations in foreign currency exchange rates. During 1998,
the Company had seventy-seven forward currency exchange contracts, sixty-eight
of which matured during 1998, which exchanged 65,200,000 Swedish krona,
4,400,000 Norwegian krone and 110,300,000 French francs. During 1997, the
Company had seventeen forward currency exchange contracts, thirteen of which
matured during 1997, which exchanged 540,000,000 Japanese yen, 1,626,900
Deutsche marks and 7,000,000 Swedish krona. During 1996, the Company had fifteen
forward currency exchange contracts, which matured during 1996, which exchanged
939,000,000 Japanese yen and 20,200,000 Deutsche marks. The amounts included in
foreign currency exchange (gain) loss in the accompanying consolidated
statements of income related to these contracts were zero for the year ended
December 31, 1998, a gain of approximately $483,000 for the year ended December
31, 1997 and a gain of approximately $339,000 for the year ended December 31,
1996.
Fair Value of Financial Instruments
The following methods and assumptions were used to estimate the fair value of
each class of financial instruments for which it is practicable to estimate that
value:
Notes Receivable
The fair value is estimated using the expected future cash flows discounted at
current interest rates.
Marketable Equity Securities
The fair value of marketable equity securities is estimated by quoted market
prices when the investment is traded on a public stock exchange. For investments
not publicly traded, a combination of book value and fair market value of assets
is used.
Long-Term Debt
The fair value of the Company's public debt is estimated using quoted market
prices. The fair value of the Company's other long-term debt is estimated using
the expected future cash flows discounted at the current interest rates offered
to the Company for debt of the same remaining maturities.
Forward Currency Exchange Contracts
The fair value of forward currency exchange contracts is estimated by obtaining
quotes from brokers.
F-18
<PAGE> 47
Walbro Corporation & Subsidiaries
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
- - --------------------------------------------------------------------------------
NOTE 12. DISCLOSURES ABOUT DERIVATIVE FINANCIAL INSTRUMENTS AND FAIR VALUE OF
FINANCIAL INSTRUMENTS. (continued)
The estimated fair values of the Company's financial instruments at December
31 are as follows:
<TABLE>
<CAPTION>
1998 1997
------------------------- -------------------------
Carrying Fair Carrying Fair
Value Value Value Value
-------- -------- -------- --------
(In Thousands)
<S> <C> <C> <C> <C>
Notes receivable................ $ 2,023 $ 2,023 $ 140 $ 140
Long-term debt.................. 326,692 319,951 305,353 298,232
</TABLE>
- - --------------------------------------------------------------------------------
NOTE 13. ACCRUED LIABILITIES.
Accrued liabilities consist of the following at December 31:
<TABLE>
<CAPTION>
1998 1997
------- -------
(In Thousands)
<S> <C> <C>
Compensation related... $10,911 $13,760
Facilities and employee
relocation........... -- 606
Interest............... 6,367 7,385
Restructuring (Note
2)................... 700 5,697
Other.................. 13,031 11,773
------- -------
$31,009 $39,221
======= =======
</TABLE>
- - --------------------------------------------------------------------------------
NOTE 14. BUSINESS SEGMENT INFORMATION.
The Company has adopted SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information." SFAS No. 131 establishes standards for
reporting information about operating segments in annual financial statements
and requires selected information about operating segments in interim financial
reports issued to stockholders. It also establishes standards for related
disclosures about products and services, geographic areas and major customers.
Management uses information at the plant level for evaluating performance and
allocating resources. Management also uses information from the plants at the
product line and geographic levels as the basis for management decisions. The
Company's reportable segments are managed separately as each business utilizes
different technology and marketing strategies. The Company's reportable segments
are grouped as follows:
1. Automotive, which designs, develops and manufactures fuel storage and
delivery products for a broad range of U.S. and non-U.S. manufacturers of
passenger automobiles and light trucks (including minivans),
2. Small Engine, which designs, develops and manufactures diaphragm
carburetors for portable engines, float feed carburetors for ground supported
engines and ignition systems and other components for a variety of small engine
products,
3. Aftermarket, which provides replacement parts for both the automotive and
small engine markets and,
4. Corporate, which includes corporate headquarters and direct investments.
The accounting policies of the reportable segments are the same as those
described in the summary of significant accounting policies. The Company
evaluates performance based on earnings before interest, income taxes, minority
interest, equity in income of joint ventures and extraordinary items (EBIT). The
Company accounts for intercompany sales as if they were to third parties, that
is, at current market prices. The Company accounts for property transfers at net
book value.
F-19
<PAGE> 48
Walbro Corporation & Subsidiaries
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
- - -----------------------------------------------------------------------
NOTE 14. BUSINESS SEGMENT INFORMATION. (continued)
The following tables present financial information at and for the year ended
December 31 by reportable segment:
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
(In Thousands)
<S> <C> <C> <C>
Net sales to external customers
Automotive...................................... $ 497,449 $ 458,057 $ 438,596
Small Engine.................................... 142,406 125,937 117,102
Aftermarket..................................... 33,239 29,466 25,102
Corporate....................................... 4,896 6,445 4,589
--------- --------- ---------
Total net sales to external customers............. 677,990 619,905 585,389
--------- --------- ---------
Intercompany sales
Automotive...................................... 76,465 66,304 64,330
Small Engine.................................... 44,805 38,161 37,357
Aftermarket..................................... 911 1,044 890
Corporate....................................... 1,253 225 634
--------- --------- ---------
Total intercompany sales.......................... 123,434 105,734 103,211
Elimination of intercompany sales................. (123,434) (105,734) (103,211)
--------- --------- ---------
Total net sales................................... $ 677,990 $ 619,905 $ 585,389
========= ========= =========
Depreciation and amortization
Automotive...................................... $ 27,309 $ 24,491 $ 20,779
Small Engine.................................... 6,594 5,553 6,150
Aftermarket..................................... 261 166 184
Corporate....................................... 2,519 1,207 2,623
--------- --------- ---------
Total depreciation and amortization............... $ 36,683 $ 31,417 $ 29,736
========= ========= =========
Restructuring and impairment charges
Automotive...................................... $ -- $ 19,608 $ --
Small Engine.................................... -- 750 --
Aftermarket..................................... -- -- --
Corporate....................................... -- 6,642 --
--------- --------- ---------
Total restructuring and impairment charges........ $ -- $ 27,000 $ --
========= ========= =========
EBIT
Automotive...................................... $ 45,121 $ 3,291 $ 25,541
Small Engine.................................... 6,651 6,545 5,920
Aftermarket..................................... 8,228 7,003 6,540
Corporate....................................... (17,253) (36,939) (9,780)
--------- --------- ---------
Total EBIT........................................ 42,747 (20,100) 28,221
--------- --------- ---------
Unallocated amounts
Interest income.............................. 3,177 674 2,716
Interest expense............................. (31,806) (25,410) (20,535)
Minority interest, net of tax................ (5,806) (5,035) (285)
Equity in income of joint ventures, net of
tax........................................ 846 3,113 4,187
--------- --------- ---------
Total income (loss) before income taxes and
extraordinary item.............................. $ 9,158 $ (46,758) $ 14,304
========= ========= =========
Investment in equity method investees
Automotive...................................... $ 38,435 $ 26,681 $ 28,955
Small Engine.................................... -- -- --
Aftermarket..................................... -- -- --
Corporate....................................... -- -- --
--------- --------- ---------
Total investment in equity method investees....... $ 38,435 $ 26,681 $ 28,955
========= ========= =========
</TABLE>
F-20
<PAGE> 49
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
Walbro Corporation & Subsidiaries
- - -----------------------------------------------------------------------
NOTE 14. BUSINESS SEGMENT INFORMATION. (continued)
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
(In Thousands)
<S> <C> <C> <C>
Expenditures for fixed assets
Automotive...................................... $ 29,338 $ 46,464 $ 84,293
Small Engine.................................... 10,928 13,107 11,560
Aftermarket..................................... 197 180 209
Corporate....................................... 1,543 2,268 3,085
--------- --------- ---------
Total expenditures for fixed assets............... $ 42,006 $ 62,019 $ 99,147
========= ========= =========
Assets
Automotive...................................... $ 448,123 $ 477,238 $ 463,144
Small Engine.................................... 94,621 87,468 67,020
Aftermarket..................................... 9,051 10,574 7,640
Corporate....................................... 96,872 35,313 51,845
--------- --------- ---------
Total assets...................................... $ 648,667 $ 610,593 $ 589,649
========= ========= =========
</TABLE>
The following tables present financial information at and for the year ended
December 31 by geographic area:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(In Thousands)
<S> <C> <C> <C>
Net sales to external customers(a)
United States...................................... $414,190 $372,600 $321,527
Other(b)........................................... 263,800 247,305 263,862
-------- -------- --------
Total net sales to external customers................ $677,990 $619,905 $585,389
======== ======== ========
Long-Lived Assets
United States...................................... $219,896 $210,062 $215,427
Other (b).......................................... 165,756 151,697 157,292
-------- -------- --------
Total long-lived assets.............................. $385,652 $361,759 $372,719
======== ======== ========
</TABLE>
(a) Net sales to external customers are attributed to countries based on
location of Walbro facility.
(b) Other includes Walbro facilities in Canada, Mexico, Italy, Netherlands,
France, Belgium, Germany, United Kingdom, Spain, Norway, Argentina, Brazil,
Korea, Japan, Singapore and China.
A majority of the Company's sales are to automobile manufacturing companies.
Sales to one customer amounted to $141,942,000, $117,040,000 and $115,090,000 in
1998, 1997 and 1996, respectively. Sales to another customer amounted to
$20,793,000, $33,421,000 and $59,176,000 in 1998, 1997 and 1996, respectively.
- - --------------------------------------------------------------------------------
NOTE 15. SUPPLEMENTAL CASH FLOW INFORMATION.
In 1998, 1997 and 1996, the Company paid $4,738,000, $4,376,000 and $5,048,000
for income taxes and $31,260,000, $29,957,000 and $21,674,000 for interest,
respectively.
F-21
<PAGE> 50
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(continued)
Walbro Corporation & Subsidiaries
- - --------------------------------------------------------------------------------
NOTE 16. EARNINGS PER SHARE.
In 1997, the Company adopted SFAS No. 128, "Earnings per Share," which changes
the calculation of earnings per share to be more consistent with countries
outside of the United States. In general, SFAS No. 128 requires two calculations
of earnings per share to be disclosed, basic net income (loss) per share and
diluted net income (loss) per share. Basic net income (loss) per share is
computed using the weighted average common outstanding during the period.
Diluted net income (loss) per share is computed using the average share price
during the period when calculating the dilutive effect of stock options. The
following is the Company's calculation of diluted common shares outstanding:
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
Weighted average common shares outstanding........... 8,686,213 8,661,432 8,608,837
Dilutive effect of stock options..................... -- 6,664 40,543
--------- --------- ---------
Diluted common shares outstanding.................... 8,686,213 8,668,096 8,649,380
========= ========= =========
</TABLE>
- - --------------------------------------------------------------------------------
NOTE 17. QUARTERLY FINANCIAL INFORMATION (UNAUDITED).
Selected quarterly financial information for the years ended December 31, 1998
and 1997 is as follows:
<TABLE>
<CAPTION>
Quarter
First Second Third Fourth Total
-------- -------- -------- -------- --------
(In Thousands, Except Per Share Data)
<S> <C> <C> <C> <C> <C>
1998--
Net sales..................... $169,292 $168,136 $165,648 $174,914 $677,990
Cost of sales................. 144,058 139,369 138,682 149,883 571,992
-------- -------- -------- -------- --------
Gross profit............... $ 25,234 $ 28,767 $ 26,966 $ 25,031 $105,998
======== ======== ======== ======== ========
Income before extraordinary
item....................... $ 572 $ 1,568 $ 538 $ 2,513 $ 5,191
======== ======== ======== ======== ========
Net income.................... $ 572 $ 95 $ 538 $ 2,513 $ 3,718
======== ======== ======== ======== ========
Basic and Diluted income per
share before extraordinary
item....................... $ 0.07 $ 0.18 $ 0.06 $ 0.29 $ 0.60
======== ======== ======== ======== ========
Basic and Diluted income per
share...................... $ 0.07 $ 0.01 $ 0.06 $ 0.29 $ 0.43
======== ======== ======== ======== ========
1997--
Net sales..................... $154,019 $153,842 $146,523 $165,521 $619,905
Cost of sales................. 129,821 131,437 125,911 151,582 538,751
-------- -------- -------- -------- --------
Gross profit............... $ 24,198 $ 22,405 $ 20,612 $ 13,939 $ 81,154
======== ======== ======== ======== ========
Net income (loss)............. $ 2,362 $ 1,184 $ (1,190) $(38,983) $(36,627)
======== ======== ======== ======== ========
Basic and Diluted net income
(loss) per share........... $ 0.27 $ 0.14 $ (0.14) $ (4.49) $ (4.23)
======== ======== ======== ======== ========
</TABLE>
Per share amounts and weighted average shares are computed independently for
each of the quarters presented. Therefore, the sum of the quarterly per share
amounts may not equal the per share total for the year.
F-22
<PAGE> 51
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and
Stockholders of Walbro Corporation:
We have audited in accordance with generally accepted auditing standards, the
consolidated financial statements included in Walbro Corporation and
Subsidiaries' annual report to shareholders included or incorporated by
reference in this Form 10-K, and have issued our report thereon dated February
17, 1999. Our audits were made for the purpose of forming an opinion on those
consolidated statements taken as a whole. The supplemental notes to the
consolidated financial statements on pages S-2 to S-12 are the responsibility of
the Company's management and are presented for purposes of complying with the
Securities and Exchange Commission's rules and are not a required part of the
basic consolidated financial statements. The information contained in these
supplemental notes has been subjected to the auditing procedures applied in our
audits of the basic consolidated financial statements and, in our opinion,
fairly states in all material respects the financial data required to be set
forth therein in relation to the basic consolidated financial statements taken
as a whole.
/s/ ARTHUR ANDERSEN LLP
Detroit, Michigan,
February 17, 1999.
S-1
<PAGE> 52
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) VALUATION AND QUALIFYING ACCOUNTS
Following is a summary of changes in the valuation and qualifying
accounts for the three years ended December 31, 1998 (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
ALLOWANCE FOR DOUBTFUL ACCOUNTS:
Balance Beginning of Year $ 809 $ 753 $ 978
Additions charged to operations 869 378 302
Other 2,818 -- --
Deductions for uncollectible accounts
written off, net of recoveries (470) (238) (508)
Currency translation adjustment 133 (84) (19)
-------- -------- --------
Balance End of Year $ 4,159 $ 809 $ 753
======== ======== ========
RESERVE FOR INVENTORY VALUATION:
Balance Beginning of Year $ 2,645 $ 668 $ 808
Additions charged to operations 1,033 3,425 724
Deductions for inventory disposal (2,299) (1,380) (870)
Currency translation adjustment 33 (68) 6
-------- -------- --------
Balance End of Year $ 1,412 $ 2,645 $ 668
======== ======== ========
</TABLE>
S-2
<PAGE> 53
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
DECEMBER 31, 1998
---------------------------------------------------------------------------
WALBRO
CORPORATION CONSOLIDATION
GUARANTOR NONGUARANTOR (PARENT AND ELIMINATION CONSOLIDATED
SUBSIDIARIES SUBSIDIARIES CORPORATION) ENTRIES TOTAL
------------ ------------ ------------ --------------- ------------
(IN THOUSANDS, EXCEPT SHARE DATA)
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash..................................... $ 1,190 $ 18,563 $ (106) $ -- $ 19,647
Accounts receivable, net................. 66,739 55,015 32,662 -- 154,416
Accounts receivable, intercompany........ (103,735) (37,056) 141,663 (872) --
Inventories.............................. 21,898 37,918 1,055 -- 60,871
Prepaid expenses and other............... 1,690 9,007 1,037 -- 11,734
Deferred and refundable income taxes..... -- 1,507 9,228 -- 10,735
---------- --------- --------- ---------- ---------
Total current assets................... (12,218) 84,954 185,539 (872) 257,403
---------- --------- --------- ---------- ---------
PLANT AND EQUIPMENT, NET................... 109,941 160,478 8,014 108 278,541
---------- --------- --------- ---------- ---------
OTHER ASSETS:
Assets held for sale..................... -- 3,175 -- -- 3,175
Joint ventures........................... 20,169 18,266 -- -- 38,435
Investments.............................. 134,676 24,766 68,408 (225,160) 2,690
Goodwill, net............................ 13,886 9,460 -- 8,541 31,887
Notes receivable......................... 2,000 8,310 -- (8,287) 2,023
Deferred income taxes.................... -- 5,266 346 -- 5,612
Other.................................... 9,705 4,740 14,456 -- 28,901
---------- --------- --------- ---------- ---------
Total other assets..................... 180,436 73,983 83,210 (224,906) 112,723
---------- --------- --------- ---------- ---------
Total assets............................... $278,159 $319,415 $276,763 $(225,670) $648,667
========== ========= ========= ========== =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term debt........ $ 776 $ 134 $ 1,493 $ -- $ 2,403
Bank and other borrowings................ -- 12,012 -- -- 12,012
Accounts payable......................... 28,094 79,454 6,585 -- 114,133
Accrued liabilities...................... 13,164 14,440 2,176 1,229 31,009
Dividends payable........................ -- 920 -- -- 920
---------- --------- --------- ---------- ---------
Total current liabilities.............. 42,034 106,960 10,254 1,229 160,477
---------- --------- --------- ---------- ---------
LONG-TERM LIABILITIES:
Long-term debt, less current portion..... 165,617 18,882 181,757 (41,967) 324,289
Pension obligations and other............ -- 3,754 7,831 -- 11,585
Deferred income taxes.................... -- 5,170 (635) -- 4,535
Minority interest........................ -- 1,225 -- -- 1,225
---------- --------- --------- ---------- ---------
Total long-term liabilities............ 165,617 29,031 188,953 (41,967) 341,634
---------- --------- --------- ---------- ---------
COMPANY-OBLIGATED MANDATORILY REDEEMABLE
CONVERTIBLE PREFERRED SECURITIES OF
WALBRO CAPITAL TRUST HOLDING SOLELY
CONVERTIBLE DEBENTURES..................... -- 69,000 -- -- 69,000
STOCKHOLDERS' EQUITY:
Common stock, $.50 par value;
authorized 25,000,000; outstanding
8,688,294 in 1998...................... -- 25,678 4,344 (25,678) 4,344
Paid-in capital.......................... -- 73,618 66,088 (73,618) 66,088
Retained earnings........................ 73,816 34,118 37,656 (107,934) 37,656
Deferred compensation.................... -- -- (125) -- (125)
Accumulated other comprehensive income... (3,308) (18,990) (30,407) 22,298 (30,407)
---------- --------- --------- ---------- ---------
Total stockholders' equity............. 70,508 114,424 77,556 (184,932) 77,556
---------- --------- --------- ---------- ---------
Total liabilities and stockholders'
equity............................... $278,159 $319,415 $276,763 $(225,670) $648,667
========== ========= ========= ========== =========
</TABLE>
S-3
<PAGE> 54
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
DECEMBER 31, 1997
---------------------------------------------------------------------------
WALBRO
CORPORATION CONSOLIDATION
GUARANTOR NONGUARANTOR (PARENT AND ELIMINATION CONSOLIDATED
SUBSIDIARIES SUBSIDIARIES CORPORATION) ENTRIES TOTAL
------------ ------------ ------------ --------------- ------------
(IN THOUSANDS, EXCEPT SHARE DATA)
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash..................................... $ (744) $ 13,431 $ 852 $ -- $ 13,539
Accounts receivable, net................. 80,936 63,194 855 -- 144,985
Accounts receivable, intercompany........ (144,222) (37,755) 171,052 10,925 --
Inventories.............................. 26,086 29,012 1,109 -- 56,207
Prepaid expenses and other............... 5,988 9,549 1,868 -- 17,405
Deferred and refundable income taxes..... 470 1,253 6,796 -- 8,519
----------- ---------- ----------- -------------- ----------
Total current assets................... (31,486) 78,684 182,532 10,925 240,655
----------- ---------- ----------- -------------- ----------
PLANT AND EQUIPMENT, NET................... 123,635 144,423 7,204 108 275,370
----------- ---------- ----------- -------------- ----------
OTHER ASSETS:
Joint ventures........................... 10,739 15,942 -- -- 26,681
Investments.............................. 117,720 24,433 50,959 (189,851) 3,261
Goodwill, net............................ 14,342 11,444 (1,524) 8,541 32,803
Notes receivable......................... -- 6,499 196,198 (202,571) 126
Deferred and refundable income taxes..... -- 4,001 4,178 -- 8,179
Other.................................... 9,045 2,860 11,613 -- 23,518
----------- ---------- ----------- -------------- ----------
Total other assets..................... 151,846 65,179 261,424 (383,881) 94,568
----------- ---------- ----------- -------------- ----------
Total assets............................... $ 243,995 $ 288,286 $ 451,160 $ (372,848) $ 610,593
=========== ========== =========== ============== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term debt........ $ 7,026 $ 76 $ 6,858 $ -- $ 13,960
Bank and other borrowings................ -- 26,204 -- -- 26,204
Accounts payable......................... 21,540 55,730 6,939 -- 84,209
Accrued liabilities...................... 1,103 18,699 20,127 (708) 39,221
Dividends payable........................ -- 920 868 -- 1,788
----------- ---------- ----------- -------------- ----------
Total current liabilities.............. 29,669 101,629 34,792 (708) 165,382
----------- ---------- ----------- -------------- ----------
LONG-TERM LIABILITIES:
Long-term debt, less current portion..... 164,581 11,818 339,809 (224,815) 291,393
Pension obligations and other............ 2,505 2,625 6,693 -- 11,823
Deferred income taxes.................... -- 2,077 -- -- 2,077
Minority interest........................ -- 1,052 -- -- 1,052
----------- ---------- ----------- -------------- ----------
Total long-term liabilities............ 167,086 17,572 346,502 (224,815) 306,345
----------- ---------- ----------- -------------- ----------
COMPANY-OBLIGATED MANDATORILY REDEEMABLE
CONVERTIBLE PREFERRED SECURITIES OF
WALBRO CAPITAL TRUST HOLDING SOLELY
CONVERTIBLE DEBENTURES.................... -- 69,000 -- -- 69,000
STOCKHOLDERS' EQUITY:
Common stock, $.50 par value;
authorized 25,000,000; outstanding
8,682,595 in 1997...................... -- 23,935 4,341 (23,935) 4,341
Paid-in capital.......................... -- 72,819 66,151 (72,819) 66,151
Retained earnings........................ 49,827 28,747 33,938 (78,574) 33,938
Deferred compensation.................... -- -- (379) -- (379)
Accumulated other comprehensive income... (2,587) (25,416) (34,185) 28,003 (34,185)
----------- ---------- ----------- -------------- ----------
Total stockholders' equity............. 47,240 100,085 69,866 (147,325) 69,866
----------- ---------- ----------- -------------- ----------
Total liabilities and stockholders'
equity............................... $ 243,995 $ 288,286 $ 451,160 $ (372,848) $ 610,593
=========== ========== =========== ============== ==========
</TABLE>
S-4
<PAGE> 55
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
(CONTINUED)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1998
----------------------------------------------------------------------------
WALBRO
CORPORATION CONSOLIDATION
GUARANTOR NONGUARANTOR (PARENT AND ELIMINATION CONSOLIDATED
SUBSIDIARIES SUBSIDIARIES CORPORATION) ENTRIES TOTAL
------------ ------------ ------------ --------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
NET SALES............................. $357,379 $339,813 $ 2,624 $(21,826) $677,990
COSTS AND EXPENSES:
Cost of sales....................... 296,326 295,254 2,238 (21,826) 571,992
Selling, administrative, research
and development expenses......... 30,331 26,574 11,621 - 68,526
-------- -------- -------- -------- --------
OPERATING INCOME (LOSS)............... 30,722 17,985 (11,235) - 37,472
OTHER EXPENSE (INCOME):
Interest expense.................... 25,649 10,486 26,117 (30,446) 31,806
Interest income..................... (7,809) (6,823) (18,991) 30,446 (3,177)
Royalty income, net................ (3,667) 439 - - (3,228)
Foreign currency exchange loss
(gain)........................... (73) (1,173) (16) - (1,262)
Other............................... (721) 490 (554) - (785)
-------- -------- -------- -------- --------
Income before (provision) credit for
income taxes, minority interest,
equity in income (loss) of joint
ventures and subsidiaries and
extraordinary item.................. 17,343 14,566 (17,791) - 14,118
(Provision) credit for income taxes... (5,496) (3,110) 4,639 - (3,967)
Minority interest..................... - (5,806) - - (5,806)
Equity in income (loss) of joint
ventures............................ (353) 1,199 - - 846
Equity in income (loss) of
subsidiaries........................ 8,226 - 18,343 (26,569) -
-------- -------- -------- -------- --------
Income before extraordinary item...... 19,720 6,849 5,191 (26,569) 5,191
Extraordinary item.................... - - (1,473) - (1,473)
-------- -------- ------- -------- --------
Net income............................ $ 19,720 $ 6,849 $ 3,718 $(26,569) $ 3,718
======== ======== ======= ======== ========
Net income............................ $ 19,720 $ 6,849 $ 3,718 $(26,569) $ 3,718
Other comprehensive income, net of tax:
Unrealized loss on securities
for sale.......................... - - (207) - (207)
Cumulative translation adjustments.. (721) 6,426 3,985 (5,705) 3,985
-------- -------- -------- -------- --------
Other comprehensive income............ (721) 6,426 3,778 (5,705) 3,778
-------- -------- -------- -------- --------
Comprehensive income.................. $ 18,999 $ 13,275 $ 7,496 $(32,274) $ 7,496
======== ======== ======== ======== ========
</TABLE>
S-5
<PAGE> 56
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
(CONTINUED)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1997
----------------------------------------------------------------------------
WALBRO
CORPORATION CONSOLIDATION
GUARANTOR NONGUARANTOR (PARENT AND ELIMINATION CONSOLIDATED
SUBSIDIARIES SUBSIDIARIES CORPORATION) ENTRIES TOTAL
------------ ------------ ------------ --------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
NET SALES............................. $323,189 $316,828 $ 2,302 $ (22,414) $ 619,905
COSTS AND EXPENSES:
Cost of sales and restructuring and.
impairment charges............... 299,913 286,119 2,133 (22,414) 565,751
Selling, administrative, research
and development expenses......... 38,423 27,354 12,298 78,075
-------- -------- -------- --------- ---------
OPERATING INCOME (LOSS)............... (15,147) 3,355 (12,129) -- (23,921)
OTHER EXPENSE (INCOME):
Interest expense.................... 23,060 14,720 22,313 (34,683) 25,410
Interest income..................... (11,671) (6,079) (17,607) 34,683 (674)
Royalty income, net................. (4,477) 599 -- -- (3,878)
Foreign currency exchange loss
(gain)........................... (900) 534 58 -- (308)
Other............................... 425 (50) (10) -- 365
-------- -------- -------- --------- ---------
Income before (provision) credit for
income taxes, minority interest,
equity in income (loss) of joint
ventures and subsidiaries........... (21,584) (6,369) (16,883) -- (44,836)
(Provision) credit for income taxes... 7,818 28 2,285 -- 10,131
Minority interest..................... (450) (4,585) -- -- (5,035)
Equity in income of joint
ventures............................ 1,007 2,106 -- -- 3,113
Equity in income (loss) of
subsidiaries........................ (4,036) -- (22,028) 26,064 --
-------- -------- -------- --------- ---------
Net income............................ $(17,245) $ (8,820) $(36,626) $ 26,064 $ (36,627)
======== ======== ======== ========= =========
Net income............................ $(17,245) $ (8,820) $(36,626) $ 26,064 $ (36,627)
Other comprehensive income, net of tax:
Unrealized loss on securities
available for sale................ -- -- (620) -- (620)
Cumulative translation adjustments.. (2,607) (23,790) (28,226) 26,397 (28,226)
-------- -------- -------- --------- ---------
Other comprehensive income............ (2,607) (23,790) (28,846) 26,397 (28,846)
-------- -------- -------- --------- ---------
Comprehensive income.................. $(19,852) $(32,610) $(65,472) $ 52,461 $ (65,473)
======== ======== ======== ========= =========
</TABLE>
S-6
<PAGE> 57
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
(CONTINUED)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1996
------------------------------------------------------------------------------
WALBRO
CORPORATION CONSOLIDATION
GUARANTOR NONGUARANTOR (PARENT AND ELIMINATION CONSOLIDATED
SUBSIDIARIES SUBSIDIARIES CORPORATION) ENTRIES TOTAL
------------ ------------ ----------- --------------- ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
NET SALES.......................... $325,547 $284,812 $ 1,671 $ (26,641) $585,389
COSTS AND EXPENSES:
Cost of sales.................... 264,824 248,589 1,362 (26,641) 488,134
Selling administrative, research
and development expenses...... 49,599 21,607 (629) -- 70,577
-------- -------- --------- --------- --------
OPERATING INCOME (LOSS)............ 11,124 14,616 938 -- 26,678
OTHER EXPENSE (INCOME):
Interest expense................. 14,824 5,773 22,214 (22,276) 20,535
Interest income.................. (5,416) (1,999) (17,577) 22,276 (2,716)
Royalty income, net.............. (2,042) 632 -- -- (1,410)
Foreign currency exchange
loss (gain)................... (309) (131) 370 -- (70)
Other............................ (4) 158 (217) -- (63)
-------- -------- --------- --------- --------
Income before (provision) credit
for income taxes, minority
interest, equity in income
of joint ventures and
subsidiaries .................... 4,071 10,183 (3,852) -- 10,402
(Provision) credit for income
taxes............................ (1,240) (4,155) 2,320 -- (3,075)
Minority interest ................. -- (285) -- -- (285)
Equity in income of joint
ventures......................... 552 3,635 -- -- 4,187
Equity in income of
subsidiaries..................... 9,932 518 12,761 (23,211) --
-------- -------- --------- --------- --------
Net income ........................ $ 13,315 $ 9,896 $ 11,229 $ (23,211) $ 11,229
======== ======== ========= ========= ========
Net income ........................ $ 13,315 $ 9,896 $ 11,229 $ (23,211) $ 11,229
Other comprehensive income, net of
tax:
Minimum pension liability
adjustment...................... -- -- 63 -- 63
Unrealized loss on securities
available for sale.............. -- -- (139) -- (139)
Cumulative translation
adjustments.................... (551) (5,085) (6,580) 5,636 (6,580)
-------- -------- --------- --------- --------
Other comprehensive income......... (551) (5,085) (6,656) 5,636 (6,656)
-------- -------- --------- --------- --------
Comprehensive income............... $ 12,764 $ 4,811 $ 4,573 $ (17,575) $ 4,573
======== ======== ========= ========= ========
</TABLE>
S-7
<PAGE> 58
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
(CONTINUED)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1998
---------------------------------------------------------------------------
WALBRO
CORPORATION CONSOLIDATION
GUARANTOR NONGUARANTOR (PARENT AND ELIMINATION CONSOLIDATED
SUBSIDIARIES SUBSIDIARIES CORPORATION) ENTRIES TOTAL
------------ ------------ ------------ --------------- ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in)
operating activities.............. $ 33,107 $ 53,196 $(31,701) $-- $ 54,602
--------- --------- --------- ----- --------
CASH FLOWS FROM INVESTING
ACTIVITIES:
Purchase of plant and
equipment.................... (16,474) (25,237) (295) -- (42,006)
Acquisitions, net of cash
acquired..................... -- -- -- -- --
Purchase of other assets....... 12,235 (11,320) (6,391) -- (5,476)
Investment in joint ventures
and other.................... (22,201) 3,240 7,392 -- (11,569)
Proceeds/(payments) of
intercompany note
receivable................... -- -- -- -- --
Proceeds from disposal of
assets....................... 2,211 653 5,515 -- 8,379
-------- -------- -------- ----- --------
Net cash provided by (used in)
investing activities.............. (24,229) (32,664) 6,221 -- (50,672)
-------- -------- -------- ----- --------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Net borrowings (repayments)
under revolving
line-of-credit
agreements................... -- -- 73,344 -- 73,344
Debt repayments................ (6,944) (16,479) (45,408) -- (68,831)
Proceeds from issuance of
long-term debt............... -- -- -- -- --
Proceeds from issuance of
common stock and options..... -- -- 57 -- 57
Financing fees paid............ -- -- (2,603) -- (2,603)
Cash dividends paid............ -- -- (868) -- (868)
-------- -------- -------- ----- --------
Net cash provided by (used in)
financing activities.............. (6,944) (16,479) 24,522 -- 1,099
-------- -------- -------- ----- --------
EFFECT OF EXCHANGE RATE CHANGES ON
CASH.............................. -- 1,079 -- -- 1,079
-------- -------- -------- ----- --------
NET INCREASE (DECREASE) IN CASH..... 1,934 5,132 (958) -- 6,108
CASH AT BEGINNING OF YEAR........... (744) 13,431 852 -- 13,539
-------- -------- -------- ----- --------
CASH AT END OF YEAR................. $ 1,190 $ 18,563 $ (106) $-- $ 19,647
========= ======== ======== ===== ========
</TABLE>
S-8
<PAGE> 59
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
(CONTINUED)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1997
---------------------------------------------------------------------------
WALBRO
CORPORATION CONSOLIDATION
GUARANTOR NONGUARANTOR (PARENT AND ELIMINATION CONSOLIDATED
SUBSIDIARIES SUBSIDIARIES CORPORATION) ENTRIES TOTAL
------------ ------------ ------------ --------------- ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in)
operating activities.............. $ 25,529 $ 12,845 $(64,600) $ -- $(26,226)
-------- -------- -------- ------- --------
CASH FLOWS FROM INVESTING
ACTIVITIES:
Purchase of plant and
equipment.................... (29,952) (31,783) (284) -- (62,019)
Acquisitions, net of cash
acquired..................... -- -- -- -- --
Purchase of other assets....... (2,974) (27) (86) -- (3,087)
Investment in joint ventures
and other.................... (2,350) 8,142 (4,036) -- 1,756
Proceeds/(payments) of
intercompany note
receivable................... -- -- -- -- --
Proceeds from disposal of
assets....................... 9,370 (5,247) 1,292 -- 5,415
-------- -------- -------- ------- --------
Net cash provided by (used in)
investing activities.............. (25,906) (28,915) (3,114) -- (57,935)
-------- -------- -------- ------- --------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Net borrowings (repayments)
under revolving
line-of-credit
agreements................... -- 8,375 (91,510) -- (83,135)
Debt repayments................ (666) (136) (408) -- (1,210)
Proceeds from issuance of
long-term debt............... -- (63,596) 169,000 -- 105,404
Proceeds from issuance of
convertible preferred
securities................... -- 69,000 -- -- 69,000
Proceeds from issuance of
common stock and options..... -- -- 492 -- 492
Financing fees paid............ -- -- (5,680) -- (5,680)
Cash dividends paid............ -- -- (3,463) -- (3,463)
-------- -------- -------- ------- --------
Net cash provided by (used in)
financing activities.............. (666) 13,643 68,431 -- 81,408
-------- -------- -------- ------- --------
EFFECT OF EXCHANGE RATE CHANGES ON
CASH.............................. -- (1,921) -- -- (1,921)
-------- -------- -------- ------- --------
NET INCREASE (DECREASE) IN CASH..... (1,043) (4,348) 717 -- (4,674)
CASH AT BEGINNING OF YEAR........... 299 17,779 135 -- 18,213
-------- -------- -------- ------- --------
CASH AT END OF YEAR................. $ (744) $ 13,431 $ 852 $ -- $ 13,539
======== ======== ======== ======= ========
</TABLE>
S-9
<PAGE> 60
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
(CONTINUED)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1996
--------------------------------------------------------------------------
WALBRO
CORPORATION CONSOLIDATION
GUARANTOR NONGUARANTOR (PARENT AND ELIMINATION CONSOLIDATED
SUBSIDIARIES SUBSIDIARIES CORPORATION) ENTRIES TOTAL
------------ ------------ ----------- --------------- ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in)
operating activities............... $ 61,606 $ 50,441 $(75,409) $ -- $ 36,638
-------- -------- -------- ----- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of plant and
equipment..................... (38,884) (60,417) 154 -- (99,147)
Acquisitions, net of cash
acquired...................... -- (1,018) -- -- (1,018)
Purchase of other assets........ (2,041) (1,297) (96) -- (3,434)
Investment in joint ventures and
other......................... (22,509) 10,609 10,449 -- (1,451)
Proceeds/(payments) of
intercompany note
receivable.................... -- -- -- -- --
Proceeds from disposal of
assets........................ 7 328 3,821 -- 4,156
-------- -------- -------- ----- --------
Net cash provided by (used in)
investing activities............... (63,427) (51,795) 14,328 -- (100,894)
-------- -------- -------- ----- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net borrowings (repayments)
under revolving line-of-credit
agreements.................... -- 1,189 64,061 -- 65,250
Debt repayments................. (555) (141) (408) -- (1,104)
Proceeds from issuance of
long-term debt................ 2,600 172 -- -- 2,772
Proceeds from issuance of common
stock and options............. -- -- 771 -- 771
Financing fees paid ............ -- -- (508) -- (508)
Cash dividends paid ............ -- -- (3,439) -- (3,439)
-------- -------- -------- ----- --------
Net cash provided by (used in)
financing activities............... 2,045 1,220 60,477 -- 63,742
-------- -------- -------- ----- --------
EFFECT OF EXCHANGE RATE CHANGES ON
CASH............................... -- (1,306) 241 -- (1,065)
-------- -------- -------- ----- --------
NET INCREASE (DECREASE) IN CASH...... 224 (1,440) (363) -- (1,579)
CASH AT BEGINNING OF YEAR............ 75 19,219 498 -- 19,792
-------- -------- -------- ----- --------
CASH AT END OF YEAR.................. $ 299 $ 17,779 $ 135 $ -- $ 18,213
======== ======== ======== ===== ========
</TABLE>
S-10
<PAGE> 61
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
(CONTINUED)
Basis of Presentation -- In July 1995, the Company issued
$110,000,000 in aggregate principal amount of 9.875% Senior Notes due in 2005
(the 2005 Notes). In December 1997, the Company sold $100,000,000 in aggregate
principal amount of 10.125% Senior Notes due in 2007 (the 2007 Notes). The
2005 and 2007 Notes are guaranteed on a senior unsecured basis, jointly and
severally, by each of the Company's principal wholly-owned domestic operating
subsidiaries and certain of its indirect wholly-owned subsidiaries (the
Guarantors). The Guarantors include Walbro Automotive Corporation, Walbro
Engine Management Corporation, Whitehead Engineered Products, Inc. and Sharon
Manufacturing Co. The condensed consolidating financial statements of the
Guarantors are presented on pages S-2 through S-10 and should be read in
connection with the consolidated financial statements of the Company. Separate
financial statements of the Guarantors are not presented because the Guarantors
are jointly, severally and unconditionally liable under the guarantees, and the
Company believes the condensed consolidating financial statements presented are
more meaningful in understanding the financial position of the Guarantors.
Distributions -- There are no significant restrictions on the ability
of the Guarantors to make distributions to Walbro Corporation.
Selling and Administrative Expenses -- During 1998, 1997 and 1996 the
Parent Corporation allocated $3,399,000, $5,267,000 and $10,422,000,
respectively, of corporate selling and administrative expenses to its
operating subsidiaries.
S-11
<PAGE> 62
WALBRO CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) SUPPLEMENTAL GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
(CONTINUED)
Long-term debt of the Parent Corporation and the Guarantors consisted of
the following at December 31 (in thousands):
<TABLE>
<CAPTION>
1998 1997
------ -------
<S> <C> <C>
Senior notes due 2005, unsecured, stated interest at 9.875%
(9.92% effective interest rate) net of unamortized discount
of $331 and $369 as of December 31, 1996 and 1995,
respectively. $109,747 $109,708
Senior notes due 2007, unsecured, interest at 10.125%............ 100,000 100,000
New Revolving Credit Facility, secured, interest at the LIBOR or
prime rate, plus an additional margin ......................... 93,312 --
New Purchase Money Loan Agreement, secured,
interest at the LIBOR or prime rate,
plus an additional margin...................................... 2,584 --
Old Revolving Credit Facility, repaid during 1998................ -- 19,700
Old Purchase Money Loan Agreement, repaid during 1998............ -- 2,852
Term loan from the State of Connecticut, secured, interest at 6%
per annum, payable in monthly amounts from 1997 to 2005 ....... 3,400 3,400
2004 Senior Notes, repaid during 1998............................ -- 45,000
Industrial revenue bond, issued by Town of Ossian, Indiana,
interest at a variable municipal bond rate, due in 2023........ 9,000 9,000
Industrial revenue bond, issued by City of Ligonier, Indiana,
repaid during 1998............................................. -- 6,300
Capital lease obligations, interest at 7.5%, payable in monthly
installments through February 2002............................. 2,399 3,042
Other............................................................ -- 462
-------- --------
320,442 299,464
Less -- Current portion.......................................... 2,269 13,884
-------- --------
$318,173 $285,580
======== ========
</TABLE>
For a more detailed description of the above indebtedness, see Note 5 of
Notes to Consolidated Financial Statements.
Aggregate minimum principal payment requirements on long-term debt,
including capital lease obligations, in each of the five years subsequent to
December 31, 1998 are as follows (in thousands): 1999 - $2,269; 2000 - $2,447;
2001 - $2,515; 2002 - $1,867; 2003 - $90,199 and thereafter - $221,145.
S-12
<PAGE> 63
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBITS DESCRIPTION PAGE NO.
<S> <C> <C>
4.15 Financing and Security Agreement between the Company and
NationsBank, N.A., as Administrative Agent and Lender,
dated May 29, 1998.
4.16 Amendment No. 1 to the Financing and Security Agreement
between the Company and NationsBank, N.A., as
Administrative Agent and Lender, dated December 31, 1998.
10.2 The Company's Amended and Restated Equity Based Long-Term
Incentive Plan effective as of June 20, 1994.
10.22 Amended and Restated Employment Agreement between the
Company and Frank E. Bauchiero effective as of April 17,
1998.
10.23 Amended and Restated Termination and Change of Control
Agreement between the Company and Frank E. Bauchiero
effective as of April 17, 1998.
21.1 Subsidiaries of the Company.
23.1 Consent of Arthur Andersen LLP, independent public
accountants.
27.1 Financial Data Schedule.
</TABLE>
<PAGE> 1
EXHIBIT 4.15
Financing and Security Agreement
Dated May 29, 1998
By and Between
WALBRO CORPORATION and Subsidiaries
and
NationsBank, N. A., as Administrative Agent and Lender
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C> <C>
FINANCING AND SECURITY AGREEMENT 1
RECITALS 1
AGREEMENTS 1
ARTICLE I DEFINITIONS 1
SECTION 1.1 CERTAIN DEFINED TERMS. 1
SECTION 1.2 ACCOUNTING TERMS AND OTHER DEFINITIONAL PROVISIONS. 28
ARTICLE II THE CREDIT FACILITIES 29
SECTION 2.1 THE REVOLVING CREDIT FACILITY. 29
2.1.1 Revolving Credit Facility. 29
2.1.2 Procedure for Making Advances Under the Revolving Loans; Lender Protection Loans. 31
2.1.3 Borrowing Base. 32
2.1.4 Borrowing Base Report. 33
2.1.5 Revolving Credit Notes. 34
2.1.6 Mandatory Prepayments of Revolving Loan. 34
2.1.7 Optional Prepayments of Revolving Loan. 34
2.1.8 The Collateral Accounts. 34
2.1.9 Revolving Loan Account. 36
2.1.10 Revolving Credit Unused Line Fee. 36
2.1.11 Early Termination Fee. 37
2.1.12 Required Availability under the Revolving Credit Facility. 38
SECTION 2.2 THE LETTER OF CREDIT FACILITY. 39
2.2.1 Letters of Credit. 39
2.2.2 Letter of Credit Fees. 39
2.2.3 Terms of Letters of Credit; Post-Expiration Date Letters of Credit. 40
2.2.4 Procedures for Letters of Credit. 41
2.2.5 Payments of Letters of Credit. 41
2.2.6 Change in Law; Increased Cost. 43
2.2.7 General Letter of Credit Provisions. 43
2.2.8 Participations in the Letters of Credit. 44
2.2.9 Payments by the Lenders to the Appropriate Letter of Credit Issuer. 45
SECTION 2.3 MULTI-CURRENCY PARTICIPATIONS. 46
2.3.1 Multi-Currency Participants. 46
2.3.2 Representations of Multi-Currency Lender and Multi-Currency Letter of Credit Issuer. 47
2.3.3 Standing of Multi-Currency Participant. 48
2.3.4 Reports of Multi-Currency Agent 49
SECTION 2.4 THE CAPITAL EXPENDITURE LINE FACILITY. 49
2.4.1 Capital Expenditure Line Facility. 49
2.4.2 Procedure for Making Advances Under the Capital Expenditure Line. 49
2.4.3 Capital Expenditure Line Notes. 50
2.4.4 Payments of Capital Expenditure Line. 51
2.4.5 Optional Prepayments of Capital Expenditure Line. 51
2.4.6 Application of Capital Expenditure Line Partial Prepayments. 51
SECTION 2.5 INTEREST. 52
2.5.1 Applicable Interest Rates. 52
2.5.2 Selection of Interest Rates. 53
2.5.3 Inability to Determine Eurodollar Base Rate. 55
2.5.4 Indemnity. 55
2.5.5 Payment of Interest. 56
SECTION 2.6 GENERAL FINANCING PROVISIONS. 56
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
2.6.1 Borrowers' Representatives. 56
2.6.2 Computation of Interest and Fees. 58
2.6.3 Liens; Setoff. 58
2.6.4 Requirements of Law. 59
2.6.5 Administrative Agency Fees. 59
2.6.6 Origination Fee. 59
2.6.7 Funds Transfer Services. 59
2.6.8 Guaranty. 61
SECTION 2.7 SETTLEMENT AMONG LENDERS. 64
2.7.1 Capital Expenditure Line. 64
2.7.2 Revolving Loan. 64
2.7.3 Settlement Procedures as to Revolving Loan. 64
2.7.4 Settlement of Other Obligations. 67
2.7.5 Presumption of Payment. 67
SECTION 2.8 ASSESSMENTS; WITHHOLDING. 69
2.8.1 Payment of Assessments. 69
2.8.2 Indemnification. 69
2.8.3 Receipts. 70
2.8.4 Foreign Bank Certifications. 70
ARTICLE III THE COLLATERAL 72
SECTION 3.1 DEBT AND OBLIGATIONS SECURED. 72
SECTION 3.2 GRANT OF LIENS. 72
SECTION 3.3 COLLATERAL DISCLOSURE LIST. 73
SECTION 3.4 ADDITIONAL COLLATERAL. 73
SECTION 3.5 RECORD SEARCHES. 73
SECTION 3.6 COSTS. 74
SECTION 3.7 RELEASE. 74
SECTION 3.8 INCONSISTENT PROVISIONS. 74
ARTICLE IV REPRESENTATIONS AND WARRANTIES 75
SECTION 4.1 REPRESENTATIONS AND WARRANTIES. 75
4.1.1 Subsidiaries. 75
4.1.2 Good Standing. 75
4.1.3 Power and Authority. 75
4.1.4 Binding Agreements. 75
4.1.5 No Conflicts. 76
4.1.6 No Defaults, Violations. 76
4.1.7 Compliance with Laws. 76
4.1.8 Margin Stock. 76
4.1.9 Investment Company Act; Margin Securities. 76
4.1.10 Litigation. 77
4.1.11 Financial Condition. 77
4.1.12 Full Disclosure. 77
4.1.13 Indebtedness for Borrowed Money. 77
4.1.14 Subordinated Debt. 78
4.1.15 Taxes. 78
4.1.16 ERISA. 78
4.1.17 Title to Properties. 79
4.1.18 Patents, Trademarks, Etc. 79
4.1.19 Employee Relations. 79
4.1.20 Presence of Hazardous Materials or Hazardous Materials Contamination. 80
4.1.21 Perfection and Priority of Collateral. 80
4.1.22 Places of Business and Location of Collateral. 80
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
4.1.23 Business Names and Addresses. 80
4.1.24 Capital Expenditure Line Equipment. 80
4.1.25 Inventory. 81
4.1.26 Accounts. 81
4.1.27 Assigned Local Currency Receivables. 81
4.1.28 Compliance with Eligibility Standards. 81
4.1.29 Year 2000 Compliance 82
SECTION 4.2 SURVIVAL; UPDATES OF REPRESENTATIONS AND WARRANTIES. 82
ARTICLE V CONDITIONS PRECEDENT 83
SECTION 5.1 CONDITIONS TO THE INITIAL ADVANCE AND INITIAL LETTER OF CREDIT. 83
5.1.1 Organizational Documents - Domestic Borrowers. 83
5.1.2 Opinion of Domestic Borrowers' Counsel. 84
5.1.3 Opinion of Local Currency Borrowers' Counsel. 84
5.1.4 Consents, Licenses, Approvals, Etc. 84
5.1.5 Notes. 84
5.1.6 Financing Documents and Collateral. 84
5.1.7 Additional Financial Matters. 84
5.1.8 Solvency Certificate. 84
5.1.9 Other Financing Documents. 85
5.1.10 Other Documents, Etc. 85
5.1.11 Payment of Fees. 85
5.1.12 Collateral Disclosure List. 85
5.1.13 Recordings and Filings. 85
5.1.14 Insurance Certificate. 85
5.1.15 Landlord's Waivers. 85
5.1.16 Bailee Acknowledgements. 86
5.1.17 Field Examination. 86
5.1.18 Stock Certificates and Stock Powers. 86
5.1.19 Collateral Account Acknowledgments. 86
SECTION 5.2 CONDITIONS TO ADVANCES AND LETTERS OF CREDIT FOR LOCAL CURRENCY BORROWERS. 86
5.2.1 Organizational Documents - Local Currency Borrowers. 86
5.2.2 Opinion of Local Currency Borrowers' Counsel. 87
5.2.3 Consents, Licenses, Approvals, Etc. 87
SECTION 5.3 CONDITIONS TO MULTI-CURRENCY LOANS AND MULTI-CURRENCY LETTERS OF CREDIT. 87
SECTION 5.4 CONDITIONS TO ALL EXTENSIONS OF CREDIT. 88
5.4.1 Compliance. 88
5.4.2 Borrowing Base. 88
5.4.3 Default. 88
5.4.4 Representations and Warranties. 88
5.4.5 Adverse Change. 88
5.4.6 Legal Matters. 89
ARTICLE VI COVENANTS OF THE BORROWERS 89
SECTION 6.1 AFFIRMATIVE COVENANTS. 89
6.1.1 Financial Statements. 89
6.1.2 Reports to SEC and to Stockholders. 91
6.1.3 Rights of Inspection, Field Examination, Etc. 91
6.1.4 Corporate Existence. 92
6.1.5 Compliance with Laws. 93
6.1.6 Preservation of Properties. 93
6.1.7 Line of Business. 93
6.1.8 Insurance. 93
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
6.1.9 Taxes. 94
6.1.10 ERISA. 94
6.1.11 Notification of Events of Default and Adverse Developments. 94
6.1.12 Hazardous Materials; Contamination. 95
6.1.13 Disclosure of Significant Transactions. 96
6.1.14 Financial Covenants. 96
6.1.15 Collection of Receivables. 97
6.1.16 Assignments of Receivables. 97
6.1.17 Government Accounts. 98
6.1.18 Notice of Returned Goods, etc. 98
6.1.19 Inventory. 98
6.1.20 Insurance With Respect to Capital Expenditure Line Equipment and Inventory. 99
6.1.21 Maintenance of the Collateral. 99
6.1.22 Assigned Local Currency Receivables 100
6.1.23 Capital Expenditure Line Equipment. 100
6.1.24 Defense of Title and Further Assurances. 100
6.1.25 Business Names; Locations. 101
6.1.26 Subsequent Opinion of Counsel as to Recording Requirements. 101
6.1.27 Use of Premises and Equipment. 101
6.1.28 Protection of Collateral. 102
SECTION 6.2 NEGATIVE COVENANTS. 102
6.2.1 Mergers, Acquisition or Sale of Assets. 102
6.2.2 Subsidiaries. 102
6.2.3 Purchase or Redemption of Securities, Dividend Restrictions. 102
6.2.4 Indebtedness for Borrowed Money. 103
6.2.5 Investments, Loans and Other Transactions. 104
6.2.6 Stock of Subsidiaries. 104
6.2.7 Subordinated Indebtedness. 105
6.2.8 Liens. 105
6.2.9 Transactions with Affiliates. 105
6.2.10 Other Businesses. 106
6.2.11 ERISA Compliance. 106
6.2.12 Prohibition on Hazardous Materials. 106
6.2.13 Method of Accounting; Fiscal Year. 106
6.2.14 Compensation. 106
6.2.15 Transfer of Collateral. 107
6.2.16 Sale and Leaseback. 107
6.2.17 Disposition of Collateral. 107
ARTICLE VII DEFAULT AND RIGHTS AND REMEDIES 107
SECTION 7.1 EVENTS OF DEFAULT. 107
7.1.1 Failure to Pay. 107
7.1.2 Breach of Representations and Warranties. 107
7.1.3 Failure to Comply with Covenants. 108
7.1.4 Default Under Other Financing Documents or Obligations. 108
7.1.5 Receiver; Bankruptcy. 108
7.1.6 Involuntary Bankruptcy, etc. 108
7.1.7 Judgment. 109
7.1.8 Execution; Attachment. 109
7.1.9 Default Under Other Borrowings. 109
7.1.10 Challenge to Agreements. 109
7.1.11 Material Adverse Change. 110
7.1.12 Liquidation, Termination, Dissolution, Change in Control etc. 110
7.1.13 Change in Control. 110
SECTION 7.2 REMEDIES. 110
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
7.2.1 Acceleration. 110
7.2.2 Further Advances. 110
7.2.3 Uniform Commercial Code. 111
7.2.4 Specific Rights With Regard to Collateral. 112
7.2.5 Application of Proceeds. 113
7.2.6 Performance by Administrative Agent. 113
7.2.7 Other Remedies. 114
ARTICLE VIII THE AGENT 114
SECTION 8.1 APPOINTMENT. 114
SECTION 8.2 NATURE OF DUTIES. 114
8.2.1 In General 114
8.2.2 Express Authorization 115
SECTION 8.3 RIGHTS, EXCULPATION, ETC. 116
SECTION 8.4 RELIANCE. 117
SECTION 8.5 INDEMNIFICATION. 117
SECTION 8.6 NATIONSBANK INDIVIDUALLY. 117
SECTION 8.7 SUCCESSOR ADMINISTRATIVE AGENT. 118
8.7.1 Resignation. 118
8.7.2 Appointment of Successor. 118
8.7.3 Successor Agents. 118
SECTION 8.8 COLLATERAL MATTERS. 119
8.8.1 Release of Collateral, Guaranties. 119
8.8.2 Confirmation of Authority, Execution of Releases. 120
8.8.3 Absence of Duty. 120
SECTION 8.9 AGENCY FOR PERFECTION. 121
SECTION 8.10 EXERCISE OF REMEDIES. 121
SECTION 8.11 CONSENTS. 121
SECTION 8.12 DISSEMINATION OF INFORMATION. 121
SECTION 8.13 DISCRETIONARY ADVANCES. 122
ARTICLE IX MISCELLANEOUS 122
SECTION 9.1 NOTICES. 122
SECTION 9.2 AMENDMENTS; WAIVERS. 123
9.2.1 In General. 123
9.2.2 Circumstances Where Consent of all of the Lenders is Required. 124
SECTION 9.3 CUMULATIVE REMEDIES. 125
SECTION 9.4 SEVERABILITY. 126
SECTION 9.5 ASSIGNMENTS BY LENDERS. 126
SECTION 9.6 PARTICIPATIONS BY LENDERS. 127
SECTION 9.7 DISCLOSURE OF INFORMATION BY LENDERS. 127
SECTION 9.8 SUCCESSORS AND ASSIGNS. 127
SECTION 9.9 CONTINUING AGREEMENTS. 127
SECTION 9.10 ENFORCEMENT COSTS. 128
SECTION 9.11 APPLICABLE LAW; JURISDICTION. 128
9.11.1 Applicable Law. 128
9.11.2 Submission to Jurisdiction. 128
9.11.3 Appointment of Administrative Agent for Service of Process. 129
9.11.4 Service of Process. 129
SECTION 9.12 DUPLICATE ORIGINALS AND COUNTERPARTS. 129
SECTION 9.13 HEADINGS. 130
SECTION 9.14 NO AGENCY. 130
SECTION 9.15 DATE OF PAYMENT. 130
SECTION 9.16 ENTIRE AGREEMENT. 130
</TABLE>
-v-
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 9.17 WAIVER OF TRIAL BY JURY. 130
SECTION 9.18 LIABILITY OF THE ADMINISTRATIVE AGENT AND THE LENDERS. 131
SECTION 9.19 INDEMNIFICATION. 131
SECTION 9.20 CONFIDENTIALITY. 132
LIST OF SCHEDULES 136
SCHEDULE 1.1-A DOMESTIC BORROWERS 136
SCHEDULE 1.1-B LOCAL CURRENCY BORROWERS 136
</TABLE>
-vi-
<PAGE> 8
FINANCING AND SECURITY AGREEMENT
THIS FINANCING AND SECURITY AGREEMENT (this "Agreement") is made this
29th day of May, 1998, by and among WALBRO CORPORATION, a corporation organized
under the laws of the State of Delaware (the "Parent"), and each corporation
identified on Schedule 1.1-A attached to and made a part of this Agreement (each
a "Domestic Borrower," collectively, the "Domestic Borrowers"), jointly and
severally (each of Parent and each Domestic Borrower, a "Borrower"; Parent and
the Domestic Borrowers collectively, the "Borrowers"); and NATIONSBANK, N. A., a
national banking association ("NationsBank"), and each other Person which is a
party to this Agreement whether by execution of this Agreement or otherwise as a
lender (collectively, the "Lenders" and individually, a "Lender"); NATIONSBANK,
N. A., a national banking association, in its capacity as both collateral and
administrative agent for each of the Lenders (the "Administrative Agent").
RECITALS
A. The Borrowers have applied to the Lenders for credit
facilities consisting of (i) a revolving credit facility in the maximum
principal amount of $125,000,000 and (iii) a capital expenditure line facility
in the maximum principal amount of $25,000,000, to be used by the Borrowers for
the Permitted Uses described in this Agreement.
B. The Lenders severally are willing to make those credit
facilities available jointly and severally to the Borrowers upon the terms and
subject to the conditions set forth in this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms.
As used in this Agreement, the terms defined in the Preamble and
Recitals hereto shall have the respective meanings specified therein, and the
following terms shall have the following meanings:
"Account" individually and "Accounts" collectively mean all presently
existing or hereafter acquired or created accounts, accounts receivable,
contract rights, notes, drafts, instruments, acceptances, chattel paper, leases
and writings evidencing a monetary obligation or a security interest in, or a
lease of, goods, all rights to receive the payment of money or other
consideration under present or future contracts (including, without limitation,
all rights to receive payments under presently existing or hereafter acquired or
created letters of credit), or by virtue
-1-
<PAGE> 9
of merchandise sold or leased, services rendered, loans and advances made or
other considerations given, by or set forth in or arising out of any present or
future chattel paper, note, draft, lease, acceptance, writing, bond, insurance
policy, instrument, document or general intangible, and all extensions and
renewals of any thereof, all rights under or arising out of present or future
contracts, agreements or general interest in merchandise which gave rise to any
or all of the foregoing, including all goods, all claims or causes of action now
existing or hereafter arising in connection with or under any agreement or
document or by operation of law or otherwise, all collateral security of any
kind (including, without limitation, real property mortgages and deeds of trust)
and letters of credit given by any Person with respect to any of the foregoing,
all books and records in whatever media (paper, electronic or otherwise)
recorded or stored, with respect to any or all of the foregoing and all
equipment and general intangibles necessary or beneficial to retain, access
and/or process the information contained in those books and records, and all
proceeds (cash and non-cash) of the foregoing.
"Account Debtor" means any Person who is obligated on a Receivable and
"Account Debtors" mean all Persons who are obligated on the Receivables.
"Additional Borrower" means each Person that has executed and delivered
an Additional Borrower Joinder Supplement that has been accepted and approved by
the Administrative Agent.
"Additional Borrower Joinder Supplement" means an Additional Borrower
Joinder Supplement in substantially the form attached hereto as Exhibit A, with
the blanks appropriately completed and executed and delivered by the Additional
Borrower and accepted by the Parent on behalf of the Borrowers.
"Administrative Agency Fee" and "Administrative Agency Fees" have the
meanings described in Section 2.6.5 (Administrative Agency Fees).
"Affiliate" means, with respect to any designated Person, any other
Person, (a) directly or indirectly controlling, directly or indirectly
controlled by, or under direct or indirect common control with the Person
designated, (b) directly or indirectly owning or holding five percent (5%) or
more of any equity interest in such designated Person, or (c) five percent (5%)
or more of whose stock or other equity interest is directly or indirectly owned
or held by such designated Person. For purposes of this definition, the term
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with") means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of voting securities or
other equity interests or by contract or otherwise.
"Administrative Agent" means the Person defined as the "Administrative
Agent" in the preamble of this Agreement and shall also include any successor
Administrative Agent appointed pursuant to Section 8.7.3 (Successor Agents).
"Agent" means the reference to the Administrative Agent, the
Syndication Agent, the Multi-Currency Agent, or any other Person designated from
time to time as an "Agent" under this Agreement, as the case may be and each of
their respective successors and assigns; and "Agent" means each of the
Administrative Agent, the Syndication Agreement, the Multi-
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Currency Agent and any other Person designated as an "Agent" under this
Agreement and each of their respective successors and assigns.
"Agents' Obligations" means the collective reference to any and all
Obligations payable solely to and for the exclusive benefit of any one or more
of the Agents by any or all of the Borrowers under the terms of this Agreement
and/or any of the other Financing Documents, including, without limitation,
Interest Rate Exposure, Foreign Exchange Exposure, the Origination Fee, any and
all Letter of Credit Fronting Fees, and/or Administrative Agency Fees.
"Agreement" means this Financing and Security Agreement, as amended,
restated, supplemented or otherwise modified in writing in accordance with the
provisions of Section 9.2 (Amendments; Waivers).
"Applicable Interest Rate" means (a) the Eurodollar Rate, or (b) the
Base Rate.
"Applicable Margin" means the applicable rate per annum added, as set
forth in Section 2.5.1 (Applicable Interest Rates), to the Eurodollar Base Rate
or the Prime Rate.
"Appropriate Letter of Credit Issuer" means, at any time, with respect
to matters relating to US Letters of Credit, the US Letter of Credit Issuer and,
with respect to matters relating to Multi-Currency Letters of Credit issued for
the account of any Local Currency Borrower, the Multi-Currency Letter of Credit
Issuer.
"Appropriate Notice Office" shall mean with respect (i) to US Revolving
Loans and US Letters of Credit and funding of participations in Multi-Currency
Revolving Loans or Current Letter of Credit Obligations, the office of the
Administrative Agent located at 100 South Charles Street, 4th Floor, Baltimore,
Maryland 21201, Attention: David B. Thayer, or such other office or person as
the Administrative Agent may designate to the Borrowers and the Lenders from
time to time and (ii) Multi-Currency Revolving Loans and Multi-Currency Letters
of Credit denominated in any Currency, the office of the Multi-Currency Agent as
the Multi-Currency Agent may designate to the Local Currency Borrowers and the
Lenders from time to time.
"Appropriate Payment Office" shall mean with respect (i) to US
Revolving Loans, US Letters of Credit and funding of participations in
Multi-Currency Revolving Loans or Current Letter of Credit Obligations, the
office of the Administrative Agent located at 100 South Charles Street, 4th
Floor, Baltimore, Maryland 21201, Attention: David B. Thayer or such other
office or person as the Administrative Agent may designate to the Borrowers and
the Lenders from time to time, and (ii) Multi-Currency Revolving Loans and
Multi-Currency Letters of Credit denominated in any Currency, the office of the
Multi-Currency Agent as the Multi-Currency Agent may designate to the Local
Currency Borrowers and the Lenders from time to time.
"Approved Foreign Currency" means each of Irish Pounds, Pounds
Sterling, French Francs, German Marks, Japanese Yen, Belgian Francs and such
other currencies as shall be agreed among the relevant Local Currency Borrower,
the Parent, the Multi-Currency Agent and the Agent from time to time and shall
also mean, as applicable, the European Monetary Unit or such other European
common currency unit equivalent thereof.
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"Assessments" has the meaning set forth in Section 2.8.1(a).
"Assets" means at any date all assets that, in accordance with GAAP
consistently applied, should be classified as assets on a consolidated balance
sheet of the Borrowers and their respective Subsidiaries.
"Assigned Local Currency Receivable" means each account of a Local
Currency Borrower (a) which is the subject of an assignment which (i) is valid,
binding and enforceable according to its terms, (ii) assigns to the Parent
absolutely all right, title and interest in the Account free and clear of all
claims of creditors, the Local Currency Borrower (including, without limitation,
its successors, assigns, and others who at any time derive any interest from the
Account Debtor) Governmental Authority and all other Persons whatsoever, and
(iii) entitles the Parent under all applicable Laws to collect and enforce the
Account directly against the Account Debtor without any limitation whatsoever
(including, without limitation, any requirement for notice or filing) which has
not been accomplished, (b) which is subject to no Liens other than Liens arising
under the Security Documents, (c) the assignment of which complies with all
applicable Laws and does not constitute a breach of any agreement of the Local
Currency Borrower, the Parent or any of the other Borrowers, and (d) which
immediately upon assignment is subject to a Lien in favor of the Administrative
Agent, for the benefit of the Lenders ratably and the Agents, which Lien is
perfected as to the account by the filing of financing statements in the State
of Michigan naming the Parent only as debtor and which Lien constitutes a first
priority security interest and Lien.
"Assignee" means any Person to which any Lender assigns all or any
portion of its interests under this Agreement, any Commitment, and any Loan, in
accordance with the provisions of Section 9.5 (Assignments by Lenders), together
with any and all successors and assigns of such Person; "Assignees" means the
collective reference to all Assignees.
"Assignments of Patents" means the collective reference to each
collateral assignment of patents, as the same may be amended, modified,
restated, substituted, extended and renewed at any time and from time to time,
from the Parent to the Administrative Agent for the benefit of the Lenders
ratably and the Agents.
"Assignments of Purchase Agreement" means the collective reference to
each collateral assignment of Purchase Agreement, as the same may be amended,
modified, restated, substituted, extended and renewed at any time and from time
to time, identified on Schedule 1.1-C attached to and made and made a part of
this Agreement.
"Assignments of Trademarks" means the collective reference to each
collateral assignment of trademarks, as the same may be amended, modified,
restated, substituted, extended and renewed at any time and from time to time,
from the Parent to the Administrative Agent for the benefit of the Lenders
ratably and the Agents.
"Bankruptcy Code" means the United States Bankruptcy Code, as amended
from time to time, and any successor Laws.
"Base Rate" means the sum of (a) the Applicable Margin plus (b) the
Prime Rate.
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"Base Rate Loan" means any Loan for which interest is to be computed
with reference to the Base Rate.
"Borrower" means each Person defined as a "Borrower" in the preamble of
this Agreement and each Additional Borrower; "Borrowers" means the collective
reference to all Persons defined as "Borrowers" in the preamble to this
Agreement and all Additional Borrowers.
"Borrowing" means the incurrence of one Type of Loan by any Borrower
from all of the Lenders on a pro rata basis on a given date (or resulting from
conversions on a given date), having in the case of Eurodollar Loans the same
Interest Period.
"Borrowing Base" has the meaning described in Section 2.1.3 (Borrowing
Base).
"Borrowing Base Deficiency" has the meaning described in Section 2.1.3
(Borrowing Base).
"Borrowing Base Report" has the meaning described in Section 2.1.4
(Borrowing Base Report).
"Business Day" shall mean (i) for all purposes other than as covered by
clauses (ii) and (iii) below, any day excluding Saturday, Sunday and any day
which shall be in Baltimore, Maryland or in the case of the Lenders other than
NationsBank, in the jurisdictions identified in the addresses stated after their
names on the signature pages of this Agreement, designated as a legal holiday or
a day on which banking institutions are authorized by law or other governmental
actions to close, (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (i) and which is also a day
for trading by and between banks in US dollar deposits in the London interbank
Eurodollar market, and (iii) if the applicable Business Day relates to any
Multi-Currency Loans or Multi-Currency Letters of Credit, any day on which banks
are not required or authorized to close in the city of the jurisdiction of such
Currency where the Appropriate Payment Office for such Currency is located.
"Capital Expenditure" means an expenditure (whether payable in cash or
other property or accrued as a liability) for assets which are required to be
included in or reflected by, the property, plant and equipment or similar fixed
asset accounts on the balance sheet prepared in accordance with GAAP.
"Capital Expenditure Line" has the meaning described in Section 2.4.1
(Capital Expenditure Line Facility).
"Capital Expenditure Line Commitment" means the agreement of a Lender
relating to the making the Capital Expenditure Line and advances thereunder
subject to and in accordance with the provisions of this Agreement; and "Capital
Expenditure Line Commitments" means the collective reference to the Capital
Expenditure Line Commitment of each of the Lenders.
"Capital Expenditure Line Commitment Period" means the period of time
from the Closing Date to the earlier of March 31, 2003 or the Capital
Expenditure Line Termination Date.
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"Capital Expenditure Line Committed Amount" has the meaning described
in Section 2.4.1 (Capital Expenditure Line Facility).
"Capital Expenditure Line Equipment" means all equipment, machinery,
furniture, and fixtures now or hereafter purchased or financed with the proceeds
of the Capital Expenditure Line, whether or not the same shall be deemed to be
affixed to real property, together with all accessions, additions, fittings,
accessories, parts, special tools, improvements thereto and substitutions
therefor and all parts and equipment which may be attached to or which are
necessary or beneficial for the operation, use and/or disposition of such
personal property, all licenses, warranties, franchises and general intangibles
related thereto or necessary or beneficial for the operation, use and/or
disposition of the same, together with all Accounts, chattel paper, instruments
and other consideration received by any Borrower on account of the sale, lease
or other disposition of all or any part of the foregoing, and together with all
rights under or arising out of present or future documents and contracts
relating to the foregoing and all proceeds (cash and non-cash) of the foregoing.
"Capital Expenditure Line Expiration Date" means May 1, 2003.
"Capital Expenditure Line Facility" means the facility established by
the Lenders pursuant to Section 2.4.1 (Capital Expenditure Line Facility).
"Capital Expenditure Line Note" and "Capital Expenditure Line Notes"
have the meaning described in Section 2.4.3 (Capital Expenditure Line Notes).
"Capital Expenditure Line Notice" has the meaning described in Section
2.4.2.
"Capital Expenditure Line Optional Prepayment" and "Capital Expenditure
Line Optional Prepayments" have the meanings described in Section 2.4.5 (Capital
Expenditure Line Optional Prepayment).
"Capital Expenditure Line Pro Rata Share" has the meaning described in
Section 2.4.1 (Capital Expenditure Line Facility).
"Capital Expenditure Line Payment Schedule" has the meaning described
in Section 2.4.4 (Payments of Capital Expenditure Line).
"Capital Expenditure Line Termination Date" means the earlier of (a)
the Capital Expenditure Line Expiration Date, or (b) the Revolving Credit
Termination Date.
"Capital Lease" means with respect to any Person any lease of real or
personal property, for which the related Lease Obligations have been or should
be, in accordance with GAAP consistently applied, capitalized on the balance
sheet of that Person.
"Cash Equivalents" means (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit with
maturities of one (1) year or less from the date of acquisition of, or money
market accounts maintained with, the Administrative Agent, any
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<PAGE> 14
Affiliate of the Administrative Agent, or any other domestic commercial bank
having capital and surplus in excess of One Hundred Million Dollars
($100,000,000.00) or such other domestic financial institutions or domestic
brokerage houses to the extent disclosed to, and approved by, the Administrative
Agent and (c) commercial paper of a domestic issuer rated at least either A-1 by
Standard & Poor's Corporation (or its successor) or P-1 by Moody's Investors
Service, Inc. (or its successor) with maturities of six (6) months or less from
the date of acquisition.
"Closing Date" means the Business Day, in any event not later than May
29, 1998, on which the Administrative Agent shall be satisfied that the
conditions precedent set forth in Section 5.1 (Conditions to Initial Advance)
have been fulfilled or otherwise waived by the Administrative Agent.
"Collateral" means all property of each and every Borrower subject from
time to time to the Liens of this Agreement, any of the Security Documents
and/or any of the other Financing Documents, together with any and all cash and
non-cash proceeds and products thereof.
"Collateral Account" has the meaning described in Section 2.1.8 (The
Collateral Account).
"Collateral Disclosure List" has the meaning described in Section 3.3
(Collateral Disclosure List).
"Collection" means each check, draft, cash, money, instrument, item,
and other remittance in payment or on account of payment of the Accounts or
otherwise with respect to any Collateral, including, without limitation, cash
proceeds of any returned, rejected or repossessed goods, the sale or lease of
which gave rise to an Account, and other proceeds of Collateral; and
"Collections" means the collective reference to all of the foregoing.
"Commitment" means with respect to each Lender, such Lender's Revolving
Credit Commitment, the Letter of Credit Commitment, and Capital Expenditure Line
Commitment as the case may be, and "Commitments" means the collective reference
to the Revolving Credit Commitments and Capital Expenditure Line Commitments of
all of the Lenders.
"Committed Amount" means with respect to each Lender, such Lender's
Revolving Loan Committed Amount or Capital Expenditure Line Committed Amount, as
the case may be, and "Committed Amounts" means collectively the Revolving Loan
Committed Amount and Capital Expenditure Line Committed Amount of each of the
Lenders.
"Compliance Certificate" means a periodic Compliance Certificate
described in Section 6.1.1 (Financial Statements).
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with any Borrower within the meaning
of Section 414(b) or (c) of the Internal Revenue Code.
"Consolidated Net Income" shall mean, for any period, net income or
loss (income after tax payments) determined on a consolidated basis for
Borrowers and their Subsidiaries in
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<PAGE> 15
accordance with GAAP; provided, however, that there shall not be included in
such Consolidated Net Income:
(i) any net income of any person if such person is not a
Subsidiary, except that equity in the net income of such person for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such person as a
dividend or other distribution (subject, in the case of a dividend or
other distribution to a Subsidiary, to the limitation contained in
clause (iii) below);
(ii) any net income of any person acquired in a pooling
of interest transaction for any period prior to the date of such
acquisition;
(iii) any net income of any Subsidiary if such
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Subsidiary,
directly or indirectly, to the Parent, except that equity in the net
income of any such Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Subsidiary during such period as a dividend or
other distribution;
(iv) any gain or loss realized upon the sale or other
disposition of any property, plant or equipment (including pursuant to
any sale-leaseback arrangement) which is not sold or otherwise disposed
of in the ordinary course of business and any gain or loss realized
upon the sale or other disposition of any capital stock of any person;
gains or losses arising solely from currency fluctuations; or
(v) other extraordinary items including, without
limitation, one-time charges for the fourth quarter of fiscal year
1997.
"Credit Facility" means with respect to each Lender, such Lender's Pro
Rata Share of the Revolving Credit Facility, the Letter of Credit Facility or
the Capital Expenditure Line Facility, as the case may be, and "Credit
Facilities" means collectively with respect to each Lender, such Lender's Pro
Rata Share of the Revolving Credit Facility, the Letter of Credit Facility and
the Capital Expenditure Line Facility and any and all other credit facilities
now or hereafter extended under or secured by this Agreement.
"Currency" means US Dollars or any Approved Foreign Currency.
"Default" means an event which, with the giving of notice or lapse of
time, or both, could or would constitute an Event of Default under the
provisions of this Agreement.
"Dollar Equivalent" means, with respect to any amount denominated in a
currency other than Dollars on the date of determination thereof, the Foreign
Currency Equivalent of such amount in US Dollars.
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"Dollars" and "$" mean the lawful money of the United States of
America.
"Domestic Borrower" means each of the Parent and each Domestic
Borrower, as the case may be and each of their respective successors and
assigns, and "Domestic Borrowers" means the Parent and each of the Domestic
Borrowers and each of their respective successors and assigns.
"Early Termination Fee" has the meaning described in Section 2.1.11
(Early Termination Fee).
"EBITDA" means as to each Borrower and its Subsidiaries for any period
of determination thereof, the sum of (a) Consolidated Net Income determined in
accordance with GAAP consistently applied, plus (b) interest expense, regularly
scheduled preferred dividends paid with respect to the Parent's $69,000,000
aggregate principal amount 8% Convertible Subordinated Debentures due 2017, and
income tax provisions for such period, plus (c) depreciation, amortization and
other non-cash charges and credits (including, without limitation, amortization
of goodwill, deferred financing fees and other intangibles) for such period, but
only to the extent the items described in items (b) and (c) were deducted in the
determination of Consolidated Net Income for such period.
"Eligible Inventory" means the collective reference to all Inventory of
each Domestic Borrower held for sale in the ordinary course of business, valued
(in Dollars or Dollar Equivalent) at the lowest of the net purchase cost or net
manufacturing cost, the lowest bulk market price, such Domestic Borrower's
lowest bulk selling price, minus estimated expenses for completion and disposal,
and minus an allowance for normal profit margin for bulk sales, any ceiling
prices which may be established by any Law of any Governmental Authority or
prevailing market value, excluding, however, any Inventory which consists of:
(a) any Inventory located outside of a jurisdiction in
which the Administrative Agent has properly and unavoidably perfected
the Liens of the Administrative Agent and the Lenders under this
Agreement by filing in that jurisdiction, free and clear of all other
Liens, except to the extent provided in subsection (d)(ii) below;
(b) any Inventory not in the actual possession of a
Domestic Borrower, except to the extent provided in subsection (d)
below;
(c) any Inventory in the possession of a bailee,
warehouseman, consignee or similar third party, except to the extent
that such bailee, warehouseman, consignee or similar third party has
entered into an agreement with the Administrative Agent in which such
bailee, warehouseman, consignee or similar third party consents and
agrees to the Administrative Agent's and Lenders' Lien on such
Inventory and to such other terms and conditions as may be required by
the Administrative Agent;
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(d) (i) except as set forth on Schedule 1.1-D and (ii)
except for Inventory in transit subject to a commercial Letter of
Credit issued by NationsBank for which documents of title required as a
condition of draw under the Letter of Credit have been delivered to
NationsBank, to include inventory subject to commercial letters of
credit issued by NationsBank requiring delivery of documents of title
as a condition of draw, any Inventory located on premises leased or
rented to a Domestic Borrower or otherwise not owned by a Domestic
Borrower, unless the Administrative Agent has received a waiver and
consent from the lessor, landlord and/or owner, in form and substance
satisfactory to the Administrative Agent and from any mortgagee of such
lessor, landlord or owner to the extent required by the Administrative
Agent;
(e) any Inventory the sale or other disposition of which
has given rise to an Account or other receivable;
(f) any Inventory which fails to meet all standards and
requirements imposed by any Governmental Authority over such Inventory
or its production, storage, use or sale;
(g) work-in-process, supplies, displays, packaging and
promotional materials;
(h) any Inventory as to which the Administrative Agent
determines in the reasonable exercise of its discretion at any time and
in good faith is not in good condition or is defective, unmerchantable,
post-seasonal, slow moving or obsolete; and
(i) any Inventory which the Administrative Agent in the
reasonable exercise of its discretion has deemed to be ineligible
because the Administrative Agent otherwise considers the collateral
value to the Administrative Agent and the Lenders to be impaired or its
or their ability to realize such value to be insecure.
In the event of any dispute under the foregoing criteria as to whether Inventory
is, or has ceased to be, Eligible Inventory, the decision of the Administrative
Agent in the reasonable exercise of its discretion shall control.
"Eligible Receivable" and "Eligible Receivables" mean, at any time of
determination thereof, the unpaid portion (valued in Dollars) of each account
(which may include Assigned Local Currency Receivables) (net of any returns,
discounts, claims, credits, charges, accrued rebates or other allowances,
offsets, deductions, counterclaims, disputes or other defenses and reduced by
the aggregate amount of all reserves (including, without limitation, reserves to
cover value added taxes or sales taxes), limits and deductions provided for by
the Administrative Agent in the reasonable exercise of its discretion )
receivable by the Borrower (other than a Local Currency Borrower) in United
States Dollars or, in the case of a Local Currency Borrower, receivable as part
of the Assigned Local Currency Receivables by the Parent in United States
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Dollars or in the Approved Foreign Currency of the applicable Local Currency
Borrower, provided each account conforms and continues to conform to the
following criteria to the satisfaction of the Administrative Agent:
(a) the account arose in the ordinary course of a
Borrower's business from a bona fide outright sale of Inventory by such
Borrower or from services performed by such Borrower (including,
without limitation, accounts arising from a written agreement with a
customer of the Borrower to provide tools and/or dies for the
customer);
(b) the account is a valid, legally enforceable
obligation of the Account Debtor and requires no further act on the
part of any Person under any circumstances to make the account payable
by the Account Debtor;
(c) the account is based upon an enforceable order or
contract, written or oral, for Inventory shipped or for services
performed, and the same were shipped or performed substantially in
accordance with such order or contract;
(d) if the account arises from the sale of Inventory,
the Inventory the sale of which gave rise to the account has been
shipped or delivered to the Account Debtor on an absolute sale basis
and not on a bill and hold sale basis, a consignment sale basis, a
guaranteed sale basis, a sale or return basis, or on the basis of any
other similar understanding;
(e) if the account arises from the performance of
services, such services have been fully rendered and do not relate to
any warranty claim or obligation;
(f) the account is evidenced by an invoice or other
documentation in form reasonably acceptable to the Administrative
Agent, dated no later than the date of shipment or performance and
containing only terms normally offered by the respective Borrower to
the Account Debtor in question;
(g) the amount shown on the books of a Borrower and on
any invoice, certificate, schedule or statement delivered to the
Administrative Agent is owing to such Borrower and no partial payment
has been received unless reflected with that delivery;
(h) the account is not outstanding more than ninety (90)
days from the date of the invoice therefor;
(i) the account is not owing by any Account Debtor for
which the Administrative Agent has deemed fifty percent (50%) or more
of such Account Debtor's other accounts (or any portion thereof) due to
a Borrower, individually, or all of the Borrowers collectively, to be
non-Eligible Receivables;
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(j) the account is not owing by an Account Debtor or a
group of affiliated Account Debtors to any Borrower whose then existing
accounts owing to that Borrower individually exceed in aggregate face
amount fifteen percent (15%) of that Borrower's total Eligible
Receivables and is not owing by an Account Debtor or a group of
affiliated Account Debtors whose then existing accounts to any and all
of the Borrowers collectively exceed in aggregate face amount fifteen
percent (15%) of the total Eligible Receivables of all Borrowers;
(k) the Account Debtor has not returned, rejected or
refused to retain, or otherwise notified a Borrower of any dispute
concerning, or claimed nonconformity of, any of the Inventory or
services from the sale or furnishing of which the account arose;
(l) the account is not subject to any present or
contingent (and the applicable Borrower has no notice of any facts
which exist which are the basis for any future) offset, claim,
deduction or counterclaim, dispute or defense in law or equity on the
part of such Account Debtor, or any claim for credits, allowances, or
adjustments by the Account Debtor because of returned, inferior, or
damaged Inventory or unsatisfactory services, or for any other reason
including, without limitation, those arising on account of a breach of
any express or implied representation or warranty;
(m) except with respect to such joint venture net
receivables as the Administrative Agent may approve from time to time,
the Account Debtor is not a Subsidiary or Affiliate of any Borrower or
an employee, officer, director or shareholder of any Borrower or any
Subsidiary or Affiliate of any Borrower;
(n) the Account Debtor with respect to such account is
not insolvent or the subject of any bankruptcy or insolvency
proceedings of any kind or of any other proceeding or action,
threatened or pending;
(o) the Account Debtor is not a Governmental Authority,
unless all rights of each Borrower with respect to such account have
been assigned to the Administrative Agent for the benefit of the
Lenders ratably and the Administrative Agent on terms acceptable to the
Administrative Agent pursuant to the Assignment of Claims Act of 1940,
as amended;
(p) no Borrower is indebted in any manner to the Account
Debtor (as creditor, lessor, supplier or otherwise), with the exception
of customary credits, adjustments and/or discounts given to an Account
Debtor by a Borrower in the ordinary course of its business;
(q) the account does not arise from services under or
related to any warranty obligation of a Borrower or out of service
charges, finance charges or other fees for the time value of money;
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(r) the account is not evidenced by chattel paper or an
instrument of any kind and is not secured by any letter of credit,
unless the same is in the possession of the Administrative Agent as
part of the Collateral;
(s) the title of the respective Borrower to the account
is absolute and is not subject to any prior assignment, claim, Lien, or
security interest, except Permitted Liens and except in the case of
Assigned Local Currency Receivables, title thereto is in the Parent;
(t) no bond or other undertaking by a guarantor or
surety has been or is required to be obtained, supporting the
performance of any Borrower or any other obligor in respect of any of
such Borrower's agreements with the Account Debtor unless the same is
part of the Collateral;
(u) no bond or other undertaking by a guarantor or
surety has been or is required to be obtained, supporting the account
and any of the Account Debtor's obligations in respect of the account;
(v) the Borrower (or, in the case of Assigned Local
Currency Receivables, the Parent only) has the full and unqualified
right and power to assign and grant a security interest in, and Lien
on, the account to the Administrative Agent and the Lenders as security
and collateral for the payment of the Obligations and the Agents'
Obligations;
(w) the account does not arise out of a contract with,
or order from, an Account Debtor that, by its terms or by applicable
Laws, forbids, makes void or unenforceable, limits, or affects the
first Lien priority of the assignment or grant of a security interest
by the Borrower (or, in the case of Assigned Local Currency
Receivables, the Parent only) to the Administrative Agent, for the
benefit of the Lenders ratably and the Administrative Agent, of the
account arising from such contract or order;
(x) the account is subject to a Lien in favor of the
Administrative Agent, for the benefit of the Lenders ratably and the
Administrative Agent, which Lien is perfected as to the account by the
filing of financing statements and which Lien upon such filing
constitutes a first priority security interest and Lien;
(y) the Inventory giving rise to the account was not, at
the time of the sale thereof, subject to any Lien, except those in
favor of the Administrative Agent, for the benefit of the Lenders
ratably and the Administrative Agent, and except, with respect to
Assigned Local Currency Receivables, those Liens which attach to
inventory of the Local Currency Borrower as a matter of applicable Laws
in the jurisdiction of such Local Currency Borrower, but which do not
attach to the Assigned Local Currency Receivables or any of the other
Collateral;
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<PAGE> 21
(z) except for those representing customer tooling, no
part of the account represents a progress billing or a retainage;
(aa) the Administrative Agent in the reasonable exercise
of its discretion has not deemed the account ineligible because of
uncertainty as to the creditworthiness of the Account Debtor or because
the Administrative Agent otherwise considers the collateral value of
such account to the Administrative Agent and the Lenders to be impaired
or its or their ability to realize such value to be insecure.
For purposes of calculating the Dollar Equivalent of Eligible Receivables
included in the Borrowing Base and not denominated in US Dollars, the Dollar
Equivalent shall decrease by such percentage (not to exceed two percent (2%)) as
the Administrative Agent in its reasonable discretion may determine. In the
event of any dispute, under the foregoing criteria, as to whether an account is,
or has ceased to be, an Eligible Receivable, the decision of the Administrative
Agent in the good faith exercise of its discretion shall control.
"Enforcement Costs" means all expenses, charges, costs and fees
whatsoever (including, without limitation, reasonable outside and, without
duplication, allocated in-house counsel attorney's fees and expenses) of any
nature whatsoever paid or incurred by or on behalf of the Administrative Agent
and/or any of the Lenders in connection with (a) any or all of the Obligations,
this Agreement and/or any of the other Financing Documents, (b) the creation,
perfection, collection, maintenance, preservation, defense, protection,
realization upon, disposition, sale or enforcement of all or any part of the
Collateral, this Agreement or any of the other Financing Documents, including,
without limitation, those costs and expenses more specifically enumerated in
Section 3.6 (Costs) and/or Section 9.10 (Enforcement Costs), and (c) the
monitoring, administration, processing and/or servicing of any or all of the
Obligations, the Financing Documents, and/or the Collateral.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Base Rate" means for any Interest Period with respect to
any Eurodollar Loan, the per annum interest rate rounded upward, if necessary,
to the nearest 1/100 of 1%, appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at or about
11:00 a.m. (London time) on the date that is two (2) Eurodollar Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two (2) Eurodollar Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%).
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<PAGE> 22
"Eurodollar Business Day" means any Business Day on meeting the
requirements of clause (ii) of the definition of "Business Day."
"Eurodollar Loan" means any Loan for which interest is to be computed
with reference to the Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Loan, (a) the Applicable Margin, plus (b) the per annum rate of
interest calculated pursuant to the following formula:
Eurodollar Base Rate
-------------------------
1.00 - Reserve Percentage
"Event of Default" has the meaning described in ARTICLE VII (Default
and Rights and Remedies).
"Facilities" means the collective reference to the loan, letter of
credit, interest rate protection, foreign exchange risk, cash management, and
other credit facilities now or hereafter provided to any one or more of the
Borrowers by the Administrative Agent or the Lenders under this Agreement or
otherwise by NationsBank.
"Federal Funds Rate" means for any day of determination, 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 for such
day (or, if such day is not a Business Day) by the Federal Reserve Bank for the
next preceding Business Day) by the Federal Reserve Bank of Richmond or, if such
rate is not so published for any day that is a Business Day, the average of
quotations for such day on such transactions received by the Administrative
Agent from three (3) Federal funds brokers of recognized standing selected by
the Administrative Agent.
"Fees" means the collective reference to each fee payable to the
Administrative Agent, for its own account or for the ratable benefit of the
Lenders, under the terms of this Agreement or under the terms of any of the
other Financing Documents, including, without limitation, the Revolving Credit
Unused Line Fees, the Letter of Credit Fees, the Early Termination Fee, the
Origination Fee, and the Administrative Agency Fees.
"Financing Documents" means at any time collectively this Agreement,
the Notes, the Security Documents, the Letter of Credit Documents, Foreign
Exchange Protection Agreement, Interest Rate Protection Agreements, and any
other instrument, agreement or document previously, simultaneously or hereafter
executed and delivered by any Borrower and/or any other Person, singly or
jointly with another Person or Persons, evidencing, securing, guarantying or in
connection with this Agreement, any Note, any of the Security Documents, any of
the Facilities, and/or any of the Obligations.
"Fixed Charges" means as to the Borrowers and their Subsidiaries for
any period of determination, the scheduled or required payments for principal
and interest (excluding, if otherwise included, the Administrative Agent's
annual $100,000 administrative fee) on all Indebtedness For Borrowed Money of
the Borrowers and their Subsidiaries, plus unfinanced
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<PAGE> 23
Capital Expenditures of the Borrowers and their Subsidiaries, plus cash
dividends paid, plus cash income taxes paid, by the Borrowers and their
Subsidiaries. For the purposes of this definition "unfinanced Capital
Expenditures" shall be calculated by deducting from Capital Expenditures an
amount equal to the sum of (i) gross financed Capital Expenditures plus (ii) the
cash proceeds or purchase price credit received by the Borrowers and their
Subsidiaries from the sale or sale-leaseback of fixed or capital assets during
the period tested.
"Fixed or Capital Assets" of a Person at any date means all assets
which would, in accordance with GAAP consistently applied, be classified on the
balance sheet of such Person as property, plant or equipment or similar fixed
asset accounts at such date.
"Foreign Currency Equivalent" means, on any date of determination, the
equivalent in any Approved Foreign Currency of an amount in US dollars, or in US
dollars of an amount in any Approved Foreign Currency, determined at the rate of
exchange quoted by the Multi-Currency Agent in New York City, at 9:00 A.M. (New
York City time) on such date of determination, to prime banks in New York City
for the spot purchase in the New York foreign exchange market of such amount of
US dollars with such Approved Foreign Currency or such amount of such Approved
Foreign Currency with US Dollars.
"Foreign Exchange Protection Agreement" means any foreign exchange,
currency spot, foreign exchange forward contracts and other similar agreements
and arrangements between any Borrower and a Person acceptable to the
Administrative Agent in its reasonable credit judgement, providing for the
transfer or mitigation of foreign exchange currency risks either generally or
under specific contingencies.
"Foreign Exchange Exposure" means at any time and from time to time of
determination, the amount of the obligations and liabilities of any or all of
the Borrowers with respect to each Foreign Exchange Protection Agreement with a
Person who is the Administrative Agent, a Lender or an Affiliate of the
Administrative Agent or any Lender arising as a result of a determination of the
amount of Dollars required at such time to purchase such amount of the foreign
currency covered by such Foreign Exchange Protection Agreement at the Spot Rate.
"Funded Debt to EBITDA Ratio" means the ratio, determined for the
Borrowers on a consolidated basis, of (a) Funded Indebtedness which is secured
and which is not subordinated to all other Indebtedness for Borrowed Money of
the Borrowers to (b) EBITDA.
"Funded Indebtedness" shall mean all (a) Indebtedness for Borrowed
Money under the Credit Facilities, and (b) all other Indebtedness for Borrowed
Money.
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time.
"General Intangibles" means all general intangibles of every nature,
whether presently existing or hereafter acquired or created, and without
implying any limitation of the foregoing, further means all books and records,
claims (including without limitation all claims for income tax and other
refunds), chooses in action, claims, causes of action in tort or equity,
contract rights, judgments, customer lists, patents, trademarks, licensing
agreements, rights in intellectual
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<PAGE> 24
property, goodwill (including goodwill of any Borrower's business symbolized by
and associated with any and all trademarks, trademark licenses, copyrights
and/or service marks), royalty payments, licenses, rights as lessee under any
lease of real or personal property, literary rights, copyrights, service names,
service marks, logos, trade secrets, amounts received as an award in or
settlement of a suit in damages, deposit accounts, interests in joint ventures,
general or limited partnerships, or limited liability companies or partnerships,
rights in applications for any of the foregoing, books and records in whatever
media (paper, electronic or otherwise) recorded or stored, with respect to any
or all of the foregoing and all equipment and general intangibles necessary or
beneficial to retain, access and/or process the information contained in those
books and records, and all proceeds (cash and non-cash) of the foregoing.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any department, agency or instrumentality thereof.
"Hazardous Materials" means (a) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act of 1976, as amended from time to time,
and regulations promulgated thereunder; (b) any "hazardous substance" as defined
by the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, and regulations promulgated thereunder; (c)
any substance the presence of which on any property now or hereafter owned,
acquired or operated by any of the Borrowers is prohibited by any Law similar to
those set forth in this definition; and (d) any other substance which by Law
requires special handling in its collection, storage, treatment or disposal.
"Hazardous Materials Contamination" means the contamination (whether
presently existing or occurring after the date of this Agreement) by Hazardous
Materials of any property owned, operated or controlled by any of the Borrowers
or for which any of the Borrowers has responsibility, including, without
limitation, improvements, facilities, soil, ground water, air or other elements
on, or of, any property now or hereafter owned, acquired or operated by any of
the Borrowers, and any other contamination by Hazardous Materials for which any
of the Borrowers is, or is claimed to be, responsible.
"Indebtedness for Borrowed Money" of a Person means at any date,
without duplication, (i) liabilities for borrowed money and redemption
obligations in respect of mandatorily redeemable preferred stock, (ii)
liabilities for the deferred purchase price of acquired property (excluding
accounts payable arising in the ordinary course of business but including all
liabilities created through any conditional sale or title retention agreement
with respect to acquired property), (iii) rentals capitalized in accordance with
GAAP under any Capital Lease, (iv) liabilities for borrowed money secured by a
Lien or any other charge on assets, (v) all liabilities in respect of
unreimbursed draws under letters of credit, bankers acceptances or similar
instruments, (vi) net payment obligations with respect to interest rate swaps,
currency swaps and similar obligations which require payments, whether
periodically or upon the happening of a contingency, (viii) all indebtedness or
other obligations of others with respect to which such Person has become liable
through a guarantee or an obligation of indemnification to the extent that the
indebtedness or obligations guaranteed are obligations that would constitute
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<PAGE> 25
Indebtedness for Borrowed Money, and (ix) liabilities, whether or not in any
such case the same was for money borrowed, (x) represented by notes payable, and
drafts accepted, that represent extensions of credit, (y) constituting
obligations evidenced by bonds, debentures, notes or similar instruments, or (z)
upon which interest charges are customarily paid or that was issued or assumed
as full or partial payment for property (other than trade credit that is
incurred in the ordinary course of business).
"Indemnified Parties" has the meaning set forth in Section 9.19.
"Insolvency Proceeding" means any receivership, conservatorship,
general meeting of creditors, insolvency or bankruptcy proceeding, assignment
for the benefit of creditors, or any proceeding or action by or against any
Borrower for any relief under any bankruptcy or insolvency law or other Laws
relating to the relief of debtors, readjustment of indebtedness,
reorganizations, dissolution, liquidation, compositions or extensions, or the
appointment of any receiver, intervenor or conservator of, or trustee, or
similar officer for, any Borrower or any substantial part of its properties or
assets, including, without limitation, proceedings under the Bankruptcy Code, or
under other Laws of the United States or any other Governmental Authority, all
whether now or hereafter in effect.
"Instrument" means a negotiable instrument (as defined under Article 3
of the Uniform Commercial Code), a "certificated security" (as defined under
Article 8 of the Uniform Commercial Code), or any other writing which evidences
a right to payment of money and is not itself a security agreement or lease and
is of a type which is in the ordinary course of business transferred by delivery
with any necessary endorsement.
"Intercompany Allocation" has the meaning described in Section 6.1.1(d)
(Monthly Statements and Certificates).
"Interest Payment Date" means with respect to the Revolving Loan the
first day of each calendar month commencing on July 1, 1998 and continuing
thereafter until the Obligations have been irrevocably paid in full.
"Interest Period" means as to any Eurodollar Loan, the period
commencing on and including the date such Eurodollar Loan is made (or on the
effective date of the Borrowers' election to convert any Base Rate Loan to a
Eurodollar Loan in accordance with the provisions of this Agreement) and ending
on and including the day which is one month, two months, three months or six
months thereafter, as selected by the Borrowers in accordance with the
provisions of this Agreement, and thereafter, each period commencing on the last
day of the then preceding Interest Period for such Eurodollar Loan and ending on
and including the day which is one month, two months, three months or six months
thereafter, as selected by the Borrowers in accordance with the provisions of
this Agreement; provided, however that:
(a) the first day of any Interest Period shall be a
Eurodollar Business Day;
(b) if any Interest Period would end on a day that shall
not be a Eurodollar Business Day, such Interest Period shall be
extended to the next succeeding
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<PAGE> 26
Eurodollar Business Day unless such next succeeding Eurodollar Business
Day would fall in the next calendar month, in which case, such Interest
Period shall end on the next preceding Eurodollar Business Day; and
(c) no Interest Period shall extend beyond the Revolving
Credit Expiration Date or the scheduled maturity date of the Capital
Expenditure Line, as appropriate.
"Interest Rate Election Notice" has the meaning described in Section
2.5.2(e).
"Interest Rate Protection Agreement" means any interest rate or
currency swap agreements, hedging, cap, floor, and collar agreements, currency
spot and forward contracts and other similar agreements and arrangements with
the Administrative Agent or any Affiliate of the Administrative Agent.
"Interest Rate Exposure" means at any time and from time to time of
determination, the amount, determined on a mark-to-market basis, of the
obligations and liabilities of any or all of the Borrowers with respect to each
Interest Rate Protection Agreement.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the Income Tax Regulations issued and proposed to
be issued thereunder.
"Inventory" means all inventory of each Borrower and all right, title
and interest of each Borrower in and to all of its now owned and hereafter
acquired goods, merchandise and other personal property furnished under any
contract of service or intended for sale or lease, including, without
limitation, all raw materials, work-in-process, finished goods and materials and
supplies of any kind, nature or description which are used or consumed in any
Borrower's business or are or might be used in connection with the manufacture,
packing, shipping, advertising, selling or finishing of such goods, merchandise
and other licenses, warranties, franchises, general intangibles, personal
property and all documents of title or documents relating to the same and all
proceeds (cash and non-cash) of the foregoing.
"Item of Payment" means each check, draft, cash, money, instrument,
item, and other remittance in payment or on account of payment of the
Receivables or otherwise with respect to any Collateral, including, without
limitation, cash proceeds of any returned, rejected or repossessed goods, the
sale or lease of which gave rise to a Receivable, and other proceeds of
Collateral; and "Items of Payment" means the collective reference to all of the
foregoing.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs, or decrees of any Governmental Authority.
"Lease Obligations" of a Person means for any period the rental
commitments of such Person for such period under leases for real and/or personal
property (net of rent from subleases thereof, but including taxes, insurance,
maintenance and similar expenses which such Person, as the lessee, is obligated
to pay under the terms of said leases, except to the extent that such taxes,
insurance, maintenance and similar expenses are payable by sublessees),
including rental commitments under Capital Leases.
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<PAGE> 27
"Letter of Credit" and "Letters of Credit" shall have the meanings
described in Section 2.2.1 (Letters of Credit).
"Letter of Credit Agreement" means the collective reference to each
letter of credit application and agreement substantially in the form of the
Appropriate Letter of Credit Issuer's then standard form of application for
letter of credit or such other form as may be approved by the Administrative
Agent and the Appropriate Letter of Credit Issuer, executed and delivered by any
one or more of the Borrowers in connection with the issuance of a Letter of
Credit, as the same may from time to time be amended, restated, supplemented or
modified; and "Letter of Credit Agreements" means all of the foregoing in effect
at any time and from time to time.
"Letter of Credit Documents" means any and all drafts under or
purporting to be under a Letter of Credit, any Letter of Credit Agreement, and
any other instrument, document or agreement executed and/or delivered by any one
or more of the Borrowers or any other Person under, pursuant to or in connection
with a Letter of Credit or any Letter of Credit Agreement.
"Letter of Credit Facility" means the facility established pursuant to
Section 2.2 (Letter of Credit Facility).
"Letter of Credit Commitment Fee" and "Letter of Credit Commitment
Fees" have the meanings described in Section 2.2.2 (Letter of Credit Fees).
"Letter of Credit Fronting Fee" and "Letter of Credit Fronting Fees"
have the meanings described in Section 2.2.2(a) (Letter of Credit Fees).
"Letter of Credit Obligations" means the collective reference to all
Obligations of any one or more of the Borrowers with respect to the Letters of
Credit and the Letter of Credit Agreements.
"Liabilities" means at any date all liabilities that in accordance with
GAAP consistently applied should be classified as liabilities on a consolidated
balance sheet of the Borrowers and their respective Subsidiaries.
"Lien" means any mortgage, deed of trust, deed to secure debt, grant,
pledge, security interest, assignment, encumbrance, judgment, lien,
hypothecation, provision in any instrument or other document for confession of
judgment, cognovit or other similar right or remedy, claim or charge of any
kind, whether perfected or unperfected, avoidable or unavoidable, including,
without limitation, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction,
excluding the precautionary filing of any financing statement by any lessor in a
true lease transaction, by any bailor in a true bailment transaction or by any
consignor in a true consignment transaction under the Uniform Commercial Code of
any jurisdiction or the agreement to give any financing statement by any lessee
in a true lease transaction, by any bailee in a true bailment transaction or by
any consignee in a true consignment transaction. Rights of setoff arising by
operation of law are not included in the definition of "Liens".
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<PAGE> 28
"Loan" means each of the Revolving Loan or the Capital Expenditure Line
as the case may be, and "Loans" means the collective reference to the Revolving
Loan and the Capital Expenditure Line.
"Loan Notice" has the meaning described in Section 2.1.2(a) (Procedure
for Making Advances).
"Local Currency Borrower" means each corporation identified on Schedule
1.1-B attached to and made a part of this Agreement and "Local Currency
Borrowers" means the collective reference to all Local Currency Borrowers.
"Lockbox" has the meaning described in Section 2.1.8 (The Collateral
Account).
"Material Adverse Effect" means a material adverse effect upon the (i)
business, properties, operations or financial condition of the Borrowers, taken
as a whole, (ii) ability of the Borrowers to perform their respective
obligations under the Financing Documents, (iii) ability of the Lenders to
enforce their rights and remedies under the Financing Documents, or (iv) value
of, or the ability of the Agents and/or the Lenders to realize upon the value
of, the Collateral as security for the Obligations and/or the Agents'
Obligations with the priority required by this Agreement.
"Multi-Currency Agent" means a Person who is designated by NationsBank
to perform the duties of Multi-Currency Agent and who has assumed those duties
by a joinder to this Agreement, and shall include any successor to the
Multi-Currency Agent appointed pursuant to 8.7.3(Successor Agents).
"Multi-Currency Lender" means such Lenders as shall be agreed from time
to time among the Lenders, the Multi-Currency Agent, the Administrative Agent
and the Borrowers to be Multi-Currency Lenders.
"Multi-Currency Letter of Credit" shall have the meanings described in
Section 2.2.1 (Letters of Credit).
"Multi-Currency Letter of Credit Issuer" means the Multi-Currency
Agent.
"Multi-Currency Letter of Credit Obligations" means, at any time, the
sum of, without duplication, all Letter of Credit Obligations with respect to
Multi-Currency Letters of Credit.
"Multi-Currency Participant" shall have the meaning provided in 2.3.1.
"Multi-Currency Revolving Loan", and, collectively, the "Multi-Currency
Revolving Loans" have the meaning set forth in Section 2.1.1(d).
"Multi-employer Plan" means a Plan which is a Multi-employer plan as
defined in Section 4001(a)(3) of ERISA.
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<PAGE> 29
"Net Outstandings" of any Lender means, at any time, the sum of (a) all
amounts paid by such Lender (other than pursuant to Section 8.5
(Indemnification)) to the Administrative Agent in respect to the Revolving Loan
or otherwise under this Agreement, minus (b) all amounts paid by the
Administrative Agent to such Lender which are received by the Administrative
Agent and which, pursuant to this Agreement, are paid over to such Lender for
application in reduction of the outstanding principal balance of the Revolving
Loan.
"Non-Ratable Loan" means an advance under the Revolving Loan made by
NationsBank in accordance with the provisions of Section 2.7.3(b) (Selection of
Settlement Dates).
"Note" means any Revolving Credit Note or any Capital Expenditure Line
Note as the case may be, and "Notes" means collectively each Revolving Credit
Note, each Capital Expenditure Line Note, and any other promissory note which
may from time to time evidence all or any portion of the Obligations.
"Obligations" means all present and future indebtedness, duties,
obligations, and liabilities, whether now existing or contemplated or hereafter
arising, of any one or more of the Borrowers to the Lenders and/or
Administrative Agent and/or the other Agents under, arising pursuant to, in
connection with and/or on account of the provisions of this Agreement, each
Note, each Security Document, Foreign Exchange Protection Agreement, Interest
Rate Protection Agreement and/or any of the other Financing Documents, the
Loans, and/or any of the Facilities including, without limitation, the principal
of, and interest on, each Note, late charges, the Fees, Interest Rate Exposure,
Foreign Exchange Exposure, Enforcement Costs, and prepayment fees (if any),
letter of credit fees or fees charged with respect to any guaranty of any letter
of credit; whether owed to the Administrative Agent, other Agents, the Lenders,
and/or to NationsBank or its Affiliates pursuant to or in connection with the
transactions contemplated by any of the Financing Documents of any nature
whatsoever regardless of whether such debts, obligations and liabilities be
direct, indirect, primary, secondary, joint, several, joint and several, fixed
or contingent; and also means any and all renewals, extensions, substitutions,
amendments, restatements and rearrangements of any such debts, obligations and
liabilities.
"Origination Fee" has the meaning described in Section 2.6.6
(Origination Fee).
"Outstanding Letter of Credit Obligations" has the meaning described in
Section 2.2.3 (Terms of Letters of Credit).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Liens" means: (a) Liens for Taxes which are not delinquent
or which the Administrative Agent has determined in the exercise of its sole and
absolute discretion (i) are being diligently contested in good faith and by
appropriate proceedings, and such contest operates to suspend collection of the
contested Taxes and enforcement of a Lien, (ii) the respective Borrower has the
financial ability to pay, with all penalties and interest, at all times without
materially and adversely affecting such Borrower, and (iii) are not, and will
not be with appropriate filing, the giving of notice and/or the passage of time,
entitled to priority over any Lien of the Administrative Agent and/or the
Lenders; (b) deposits or pledges to secure obligations under workers'
compensation, social security or similar laws, or under unemployment
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<PAGE> 30
insurance in the ordinary course of business; (c) Liens securing the
Obligations; (d) judgment Liens to the extent the entry of such judgment does
not constitute an Event of Default under the terms of this Agreement or result
in the sale or levy of, or execution on, any of the Collateral; (e) Liens
securing the Senior Notes but only to the limited extent (i) such Liens do not
cover any Collateral described in Section 3.2, (ii) the property and assets
covered by such Liens equally and ratably secure the Obligations and the Agents'
Obligations by Liens which arose by operation of Section 3.4, and (iii) the
failure to grant such Liens at the time the Liens were granted to secure the
Obligations and the Agents' Obligations would have constituted an event of
default under the Indentures (excluding any modifications thereto), (f)
statutory liens of landlords, statutory liens of carriers, warehousemen,
mechanics, suppliers, materialmen and repairmen and other statutory liens which
arise by operation of law, which liens are incurred in the ordinary course of
business and which liens are not overdue for a period of more than 60 days or
are being contested in good faith by appropriate proceedings diligently pursued
provided that in the case of any such contest (i) any proceedings commenced for
the enforcement of such liens and encumbrances shall have been duly suspended;
and (ii) such provision for the payment of such liens and encumbrances has been
made on the books of such Person as may be required by GAAP; (g) easements,
zoning restrictions and other similar encumbrances with respect to real property
which do not interfere materially with the ordinary conduct of the business of
the Borrowers; (h) Liens arising from the filing of UCC financing statements for
precautionary purposes in connection with true leases of personal property; and
(i) such other Liens, if any, as are set forth on Schedule 4.1.21. attached
hereto and made a part hereof.
"Permitted Uses" means (a) with respect to the initial advance under
the Revolving Loan, the repayment of the existing indebtedness under the
Parent's 7.68% Senior Notes due 2004 and to Comerica Bank and transaction costs
related to the closing of this Agreement, (b) with respect to the initial
advance under the Capital Expenditure Line, the repayment of the existing
equipment financing indebtedness under the Borrowers' credit facility with
Comerica Bank, (c) the purchase of equipment or the repayment of any advances
under the Revolving Loan used for the purchase of equipment, and (d) with
respect to subsequent advances under the Revolving Loan, the ongoing, ordinary
course working capital needs of each Borrower's business.
"Person" means and includes an individual, a corporation, a
partnership, a joint venture, a limited liability company or partnership, a
trust, an unincorporated association, a Governmental Authority, or any other
organization or entity.
"Plan" means any pension plan that is covered by Title IV of ERISA and
in respect of which any Borrower or a Commonly Controlled Entity is an
"employer" as defined in Section 3 of ERISA.
"Post-Default Rate" means the Prime Rate plus the Applicable Margin
plus two hundred (200) basis points.
"Prepayment" means a Revolving Loan Mandatory Prepayment, a Revolving
Loan Optional Prepayment or a Capital Expenditure Line Optional Prepayment, as
the case may be, and "Prepayments" mean collectively all Revolving Loan
Mandatory Prepayments, all Revolving Loan Optional Prepayments and all Capital
Expenditure Line Optional Prepayments.
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<PAGE> 31
"Pricing Ratio" means the Funded Debt to EBITDA Ratio.
"Prime Rate" means the floating and fluctuating per annum prime
commercial lending rate of interest of the Administrative Agent, as established
and declared by the Administrative Agent at any time or from time to time. The
Prime Rate shall be adjusted automatically, without notice, as of the effective
date of any change in such prime commercial lending rate. The Prime Rate does
not necessarily represent the lowest rate of interest charged by the
Administrative Agent or any of the Lenders to borrowers.
"Pro Rata Share" means at any time and as to any Lender, the percentage
derived by dividing the unpaid principal amount of the Loans and Letter of
Credit Obligations owing to that Lender by the aggregate unpaid principal amount
of all Loans and Letter of Credit Obligations then outstanding; or if no Loans
or Letter of Credit Obligations are outstanding, by dividing the total amount of
such Lender's Commitments by the total amount of the Commitments of the
Administrative Agent and all of the Lenders.
"Purchase Agreements" means the collective reference to each assignment
and other agreement by which a Local Currency Borrower transfers all of its
accounts and related rights to the Parent for the purpose of having such
accounts included among the Assigned Local Currency Receivables, and further
means each acknowledgement by a Local Currency Borrower that each such
assignment and agreement is subject to an Assignment of Purchase Agreement.
"Receivable" means one of each Borrower's now owned and hereafter
owned, acquired or created Accounts, chattel paper, General Intangibles and
instruments which are part of the Collateral; and "Receivables" means all of
each Borrower's now or hereafter owned, acquired or created Accounts, chattel
paper, General Intangibles and instruments which are part of the Collateral, and
all cash and non-cash proceeds and products thereof.
"Relevant Currency Time" means, for any Borrowing in any currency, the
local time in the city where the Appropriate Payment Office for such currency is
located.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder.
"Reserve Percentage" means, at any time, the then current maximum rate
for which reserves (including any basic, special, supplemental, marginal and
emergency reserves) are required to be maintained by member banks of the Federal
Reserve System under Regulation D of the Board of Governors of the Federal
Reserve System against "Eurocurrency liabilities", as that term is defined in
Regulation D. Without limiting the effect of the foregoing, the Reserve
Percentage shall reflect any other reserves required to be maintained by such
member banks with respect to (i) any category of liabilities which includes
deposits by reference to which the Eurodollar Rate is to be determined, or (ii)
any category of extensions of credit or other assets which include Eurodollar
Loans. The Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Percentage.
"Responsible Officer" means for each Borrower, its chief executive
officer or president or, with respect to financial matters, its chief financial
officer or Treasurer.
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"Requisite Lenders" means at any time of determination one or more of
the Lenders holding at least sixty-six and two-thirds percent (66-2/3%) of the
Commitments.
"Revolving Credit Commitment" means the agreement of a Lender relating
to the making the Revolving Loan and advances thereunder subject to and in
accordance with the provisions of this Agreement; and "Revolving Credit
Commitments" means the collective reference to the Revolving Credit Commitment
of each of the Lenders.
"Revolving Credit Commitment Period" means the period of time from the
Closing Date to the Business Day preceding the Revolving Credit Termination
Date.
"Revolving Credit Committed Amount" has the meaning described in
Section 2.1.1 (Revolving Credit Facility).
"Revolving Credit Expiration Date" means May 31, 2003, extending
automatically for successive periods of one (1) year (but in no event later than
May 31, 2008) unless the Administrative Agent in the exercise of its sole and
absolute discretion has notified the Parent, or the Parent in the exercise of
its sole and absolute discretion has notified the Administrative Agent, no later
than the February 28th immediately preceding the next scheduled Revolving Credit
Expiration Date of its intention to terminate the Revolving Credit Facility as
of the next scheduled Revolving Credit Expiration Date..
"Revolving Credit Facility" means the facility established by the
Lenders pursuant to Section 2.1 (Revolving Credit Facility).
"Revolving Credit Note" and "Revolving Credit Notes" have the meanings
described in Section 2.1.5 (Revolving Credit Notes).
"Revolving Credit Pro Rata Share" has the meaning described in Section
2.1.1 (Revolving Credit Facility).
"Revolving Credit Termination Date" means the earlier of (a) the
Revolving Credit Expiration Date, or (b) the date on which the Revolving Credit
Commitments are terminated pursuant to Section 7.2 (Remedies) or otherwise.
"Revolving Credit Unused Line Fee" and "Revolving Credit Unused Line
Fees" have the meanings described in Section 2.1.10 (Revolving Credit Unused
Line Fee).
"Revolving Loan" has the meaning described in Section 2.1.1 (Revolving
Credit Facility).
"Revolving Loan Account" has the meaning described in Section 2.1.9
(Revolving Loan Account).
"Revolving Loan Mandatory Prepayment" and "Revolving Loan Mandatory
Prepayments" have the meanings described in Section 2.1.6 (Mandatory Prepayments
of Revolving Loan).
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"Revolving Loan Optional Prepayment" and "Revolving Loan Optional
Prepayments" have the meanings described in Section 2.1.7 (Optional Prepayments
of Revolving Loan).
"Security Documents" means collectively any assignment, pledge
agreement, security agreement, mortgage, deed of trust, deed to secure debt,
financing statement and any similar instrument, document or agreement under or
pursuant to which a Lien is now or hereafter granted to, or for the benefit of,
the Administrative Agent and/or the Lenders on any real or personal property of
any Person to secure all or any portion of the Obligations, all as the same may
from time to time be amended, restated, supplemented or otherwise modified,
including, without limitation, this Agreement, Stock Pledge Agreements, the
Assignments of Patents, the Assignments of Trademarks, and the Assignments of
Purchase Agreement.
"Security Procedures" means the rules, policies and procedures adopted
and implemented by the Administrative Agent and its Affiliates at any time and
from time to time with respect to security procedures and measures relating to
electronic funds transfers, all as the same may be amended, restated,
supplemented, terminated, or otherwise modified at any time and from time to
time by the Administrative Agent in its sole and absolute discretion.
"Senior Notes" means the collective reference to (a) $110,000,000
aggregate principal amount 9-7/8% Senior Notes due 2005 issued pursuant to the
provisions of an indenture dated as of July 27, 1995, among the Parent, certain
of the Domestic Borrowers as the Guarantors (as defined herein), and Bankers
Trust Company, as trustee , and (b) $100,000,000 aggregate principal amount
10-1/8% Senior Notes due 2007 issued pursuant to the provisions of an indenture
dated as of December 15, 1997, among the Parent, certain of the Domestic
Borrowers as the Guarantors (as defined herein), and Bankers Trust Company, as
trustee.
"Senior Notes Indentures" means the collective reference to the
indentures described in the definition of "Senior Notes."
"Senior Notes Trustees" means the collective reference to the trustees
under the Senior Notes Indentures."
"Settlement Date" means each Business Day after the Closing Date
selected by the Administrative Agent in its sole discretion subject to and in
accordance with the provisions of Section 2.7.3 (Settlement Procedures as to
Revolving Loan) as of which a Settlement Report is delivered by the
Administrative Agent and on which settlement is to be made among the Lenders in
accordance with the provisions of Section 2.7 (Settlement Among Lenders).
"Settlement Report" means each report prepared by the Administrative
Agent and delivered to each Lender and setting forth, among other things, as of
the Settlement Date indicated thereon and as of the next preceding Settlement
Date, the aggregate outstanding principal balance of the Revolving Loan, each
Lender's Revolving Credit Pro Rata Share thereof, each Lender's Net Outstandings
and all Non-Ratable Loans made, and all payments of principal, interest and Fees
received by the Administrative Agent from the Borrowers during the period
beginning on such next preceding Settlement Date and ending on such Settlement
Date.
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"Spot Rate" means, as of any determination with respect to the
conversion of an amount in a currency into Dollars, the rate of exchange quoted
at 11:00 a.m. (Baltimore time) by "CRT" tele-rate service for the spot purchase
in the foreign exchange market in Chicago of such amount of that currency with
Dollars.
"State" means the State of Maryland.
"Stock Pledge Agreements" means collective reference to each pledge,
assignment and security agreement dated the date hereof from the Parent and from
Walbro Automotive Corporation to the Administrative Agent for the benefit of the
Lenders ratably and the Agents, as the same may from time to time be amended,
restated, supplemented or otherwise modified covering collectively 100% of the
common stock of the Domestic Borrowers (but not the Parent) and 65% of the
common stock of the Local Currency Borrowers.
"Subordinated Indebtedness" means all Indebtedness for Borrowed Money,
including, without limitation, the Subordinated Debt, incurred at any time by
any one or more of the Borrowers, which is in amounts, subject to repayment
terms, and subordinated to the Obligations, as set forth in one or more written
agreements, all in form and substance satisfactory to the Administrative Agent
in its sole and absolute discretion.
"Subsidiary" means as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions of such entity), and any partnership or joint venture if more
than 50% of the interest in the profits or capital thereof is owned by such
Person or one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries).
"Subsidiary Securities" means the collective reference to each and
every "investment property" (as defined under the provisions of Title 9 of the
Uniform Commercial Code in the State, whether or not that Title actually applies
to or governs) of the Parent of any one or more of the Borrowers in a
Subsidiary.
"Syndication Date" shall mean the date upon which the Administrative
Agent determines (and notifies the Borrowers) that the primary syndication (and
resultant addition of Persons as Lenders pursuant to Section 9.5) has been
completed (it being understood and agreed that prior to the 180th day after the
Closing Date the Administrative Agent agrees to use its reasonable efforts to
have the Syndication Date occur on the last day of an Interest Period applicable
to outstanding Eurodollar Loans).
"Taxes" means all taxes and assessments whether general or special,
ordinary or extraordinary, or foreseen or unforeseen, of every character
(including all penalties or interest thereon), which at any time may be
assessed, levied, confirmed or imposed by any Governmental Authority on any or
all of the Borrowers or any of its or their properties or assets or any part
thereof or in respect of any of its or their franchises, businesses, income or
profits.
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"Total Capital Expenditure Line Committed Amount" has the meaning
described in Section 2.4.1.
"Total Revolving Credit Committed Amount" has the meaning described in
Section 2.1.1.
"Type" means any type of Loan determined with respect to the interest
option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.
"Unused Availability" means as of the date of determination the
Borrowing Base minus the outstanding principal amount of the aggregate of (a)
the Revolving Loan plus (b) without duplication, Outstanding Letter of Credit
Obligations plus (c) Interest Rate Exposure plus (d) Foreign Exchange Exposure.
"US Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
"US Letter of Credit" shall have the meanings described in Section
2.2.1 (Letters of Credit).
"US Letter of Credit Issuer" shall mean NationsBank.
"Uniform Commercial Code" means, unless otherwise provided in this
Agreement, the Uniform Commercial Code as adopted by and in effect from time to
time in the State or in any other jurisdiction, as applicable.
"Wholly Owned Subsidiary" means any corporation all the shares of stock
of all classes of which (other than directors' qualifying shares) at the time
are owned directly or indirectly by a Borrower and/or by one or more Wholly
Owned Subsidiaries of a Borrower.
"Wire Transfer Procedures" means the rules, policies and procedures
adopted and implemented by the Administrative Agent and its Affiliates at any
time and from time to time with respect to electronic funds transfers,
including, without limitation, the Security Procedures, all as the same may be
amended, restated, supplemented, terminated or otherwise modified at any time
and from time to time by the Administrative Agent in its sole and absolute
discretion.
"Year 2000 Problem" has the meaning set forth in Section 4.1.29 (Year
2000 Compliance).
Section 1.2 Accounting Terms and Other Definitional Provisions.
Unless otherwise defined herein, as used in this Agreement and in any
certificate, report or other document made or delivered pursuant hereto,
accounting terms not otherwise defined herein, and accounting terms only partly
defined herein, to the extent not defined, shall have the respective meanings
given to them under GAAP, as consistently applied to the applicable Person.
Unless otherwise defined herein, all terms used herein which are defined by the
Uniform Commercial Code shall have the same meanings as assigned to them by the
Uniform Commercial Code unless and to the extent varied by this Agreement. The
words "hereof",
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"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and article, section, subsection, schedule and exhibit
references are references to articles, sections or subsections of, or schedules
or exhibits to, as the case may be, this Agreement unless otherwise specified.
As used herein, the singular number shall include the plural, the plural the
singular and the use of the masculine, feminine or neuter gender shall include
all genders, as the context may require. Reference to any one or more of the
Financing Documents shall mean the same as the foregoing may from time to time
be amended, restated, substituted, extended, renewed, supplemented or otherwise
modified. Reference in this Agreement and the other Financing Documents to the
"Borrower", the "Borrowers", "each Borrower" or otherwise with respect to any
one or more of the Borrowers shall mean each and every Borrower and any one or
more of the Borrowers, jointly and severally, unless a specific Borrower is
expressly identified.
ARTICLE II
THE CREDIT FACILITIES
Section 2.1 The Revolving Credit Facility.
2.1.1 Revolving Credit Facility.
(a) Subject to and upon the provisions of this Agreement, the
Lenders collectively, but severally, establish a revolving credit facility in
favor of the Borrowers. The amount of each Lender's commitment to lend under the
Revolving Loan is herein called such Lender's "Revolving Credit Committed
Amount" and is set forth below each Lender's signature to this Agreement. The
total of each Lender's Revolving Credit Committed Amount equals One Hundred
Twenty-five Million Dollars ($125,000,000) and is herein called the "Total
Revolving Credit Committed Amount." The proportionate share set forth below each
Lender's signature is herein called such Lender's "Revolving Credit Pro Rata
Share." Neither the Administrative Agent nor any of the Lenders shall be
responsible for the Revolving Credit Commitment of any other Lender, nor will
the failure of any Lender to perform its obligations under its Revolving Credit
Commitment in any way relieve any other Lender from performing its obligations
under its Revolving Credit Commitment.
(b) During the Revolving Credit Commitment Period, any or all of
the Borrowers may request advances under the Revolving Credit Facility (each, a
"Revolving Loan" and, collectively, the "Revolving Loans") in accordance with
the provisions of this Agreement; provided that after giving effect to any
Borrower's request:
(i) the aggregate outstanding principal balance of the
Revolving Loans and all Letter of Credit Obligations would not exceed
the lesser of (A) the Total Revolving Credit Committed Amount minus
Interest Rate Exposure minus Foreign Exchange Exposure, or (B) the
Borrowing Base; and
(ii) the outstanding principal balance of each Lender's
Pro Rata Share of the Revolving Loans and of the Letter of
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Credit Obligations would not exceed the lesser of (A) such Lender's
Revolving Credit Committed Amount minus an amount equal to such
Lender's Revolving Credit Pro Rata Share multiplied by the aggregate of
(1) Interest Rate Exposure plus (2) the Foreign Exchange Exposure, or
(B) such Lender's Revolving Credit Pro Rata Share of the Borrowing
Base.
(c) As part of the Revolving Credit Facility and subject
to the further limitations of 2.1.1(b), each Lender severally agrees, on the
terms and conditions set forth herein, to make Revolving Loans denominated in US
Dollars (each, a "US Revolving Loan" and, collectively, the "US Revolving
Loans") to the Parent and the Domestic Borrowers from time to time.
(d) As part of the Revolving Credit Facility and subject
to the further limitations of 2.1.1(b) and subject to fulfillment of the
additional conditions set forth in Section 5.3, each Multi-Currency Lender
agrees, on the terms and conditions set forth in this Agreement, to make its
Revolving Credit Pro Rata Share of Revolving Loans denominated in the currency
(which shall be an Approved Foreign Currency) of the jurisdiction where the
applicable Local Currency Borrower is located (each, a "Multi-Currency Revolving
Loan", and, collectively, the "Multi-Currency Revolving Loans") to any Local
Currency Borrower from time to time in an amount which, when added to the
Multi-Currency Lender's Revolving Credit Pro Rata Share of the aggregate
principal amount of all Multi-Currency Revolving Loans then outstanding and owed
by such Local Currency Borrower plus the aggregate amount of all Multi-Currency
Letter of Credit Obligations issued for the account of such Local Currency
Borrower at such time, would not exceed the applicable limitations established
pursuant to Section 5.3
(e) Each Revolving Loan (i) shall be denominated in US
Dollars or an Approved Foreign Currency, and (ii) except as hereinafter
provided, may, at the option of the Borrower to which such Revolving Loan was
made, be incurred and maintained as and/or converted into Base Rate Loans or
Eurodollar Loans, provided that (x) all Revolving Loans made as part of the same
Borrowing shall, unless otherwise specifically provided herein, consist of
Revolving Loans of the same Type and (y) unless the Administrative Agent has
determined that the Syndication Date has occurred (at which time this clause (y)
shall no longer be applicable), each Borrowing of Eurodollar Loans may only have
an Interest Period of one month.
(f) Notwithstanding any other provision of this
Agreement to the contrary, the Borrowers and the Administrative Agent
acknowledge and agree that all Revolving Loans shall be US Revolving Loans and
all Letters of Credit shall be US Letters of Credit unless and until the Parent
gives the Administrative Agent notice that the Parent wishes to obtain
Multi-Currency Revolving Loans and a Multi-Currency Agent has been designated by
the Administrative Agent and has joined into this Agreement to assume the duties
of Multi-Currency Agent under this Agreement and the other Financing Documents
and the other conditions set forth in Section 5.3 have been met. The parties to
this Agreement agree that to be effective such joinder and assumption may be in
a writing signed only by the Administrative Agent and the Multi-Currency Agent,
with a copy delivered to the Parent, provided, however, the parties agree to
execute and deliver promptly such acknowledgements and agreements with respect
thereto as the Administrative Agent may reasonably request.
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2.1.2 Procedure for Making Advances Under the Revolving Loans; Lender
Protection Loans.
(a) Whenever a Borrower desires to incur Loans, (i) with respect
to any Borrowing of US Revolving Loans, it shall give the Administrative Agent
at the Appropriate Notice Office, prior to noon (Baltimore City time), (x) at
least three Business Days' prior written notice (or telephonic notice promptly
confirmed by telecopy) of each Borrowing of Eurodollar Loans and (y) same day
written notice (or telephonic notice promptly confirmed by telecopy) of each
Borrowing of Base Rate Loans to be made hereunder and (ii) with respect to any
Borrowing of Multi-Currency Revolving Loans, it shall give the Multi-Currency
Agent at the Appropriate Notice Office, prior to 12:00 P.M. (Relevant Currency
Time), (x) at least three Business Days' prior written notice (or telephonic
notice promptly confirmed by telecopy) of each Borrowing of Eurodollar Loans and
(y) at least one Business Day's prior written notice (or telephonic notice
promptly confirmed by telecopy) of each Borrowing of Base Rate Loans to be made
hereunder. Each such notice (each, a "Loan Notice") shall, except under the
circumstances described in Section 2.5.3, be irrevocable, and, in the case of
each written notice and each confirmation of telephonic notice, shall specify
(i) the aggregate principal amount and the Approved Foreign Currency, if any, of
the Loans to be made pursuant to such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (ii) whether the respective Borrowing shall
consist of Base Rate Loans or, to the extent permitted hereunder, Eurodollar
Loans and, if Eurodollar Loans, the Interest Period to be initially applicable
thereto and (iii) in the case of a Borrowing of Multi-Currency Loans, the
Multi-Currency Lender requested to make such Multi-Currency Revolving Loan. The
Administrative Agent or the Multi-Currency Agent, as the case may be, shall
promptly give each Lender written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing, of such Lender's proportionate
share thereof, if any, and of the other matters covered by the Loan Notice. The
Administrative Agent or the Multi-Currency Agent, as applicable, promptly will
make available to the requesting Borrower by depositing to its account at such
Appropriate Payment Office the aggregate of the amounts received made available
in the type of funds received.
(b) Without in any way limiting the obligation of any Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent, the Multi-Currency Agent, or any Letter of Credit Issuer
(in the case of the issuance of Letters of Credit), as the case may be, may
prior to receipt of written confirmation act without liability upon the basis of
such telephonic notice, believed by the Administrative Agent, the Multi-Currency
Agent, or such Letter of Credit Issuer, as the case may be, in good faith to be
from a Responsible Officer of the relevant Borrower. In each such case, each
Borrower hereby waives the right to dispute the Administrative Agent's, the
Multi-Currency Agent's, or any Letter of Credit Issuer's record of the terms of
such telephonic notice, absent manifest error.
(c) In the case of any Borrowing that the related Loan Notice
specifies is to be comprised of Eurodollar Loans, the Parent and the requesting
Borrower shall indemnify, except under the circumstances described in Section
2.5.3, each Lender against any loss, cost or expense incurred by such Lender as
a result of any failure to fulfill on or before the date specified in such Loan
Notice for such Borrowing the applicable conditions set forth in
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Section 5.2 (Conditions to All Extensions of Credit), including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the Loan
to be made by such Lender as part of such Borrowing when such Loan, as a result
of such failure, is not made on such date.
(d) Upon receipt of any such Loan Notice, the
Administrative Agent shall promptly notify each Lender of the amount of each
advance to be made by such Lender on the requested borrowing date under such
Lender's Revolving Credit Commitment.
(e) Not later than 1:00 p.m. (Baltimore City Time) on
each requested borrowing date for the making of advances under the Revolving
Credit Facility, each Lender shall, if it has received timely notice from the
Administrative Agent of the Borrowers' request for such advances, make available
to the Administrative Agent, in funds immediately available to the
Administrative Agent at the Administrative Agent's office set forth in Section
9.1 (Notices), such Lender's Pro Rata Share of the advances to be made on such
date.
(f) In addition, each of the Borrowers hereby
irrevocably authorize the Lenders at any time and from time to time, without
further request from, but with notice to follow to the Parent, to make advances
under the Revolving Credit Facility which the Administrative Agent, in its sole
and absolute discretion, deems necessary or appropriate to protect the interests
of the Administrative Agent, the Multi-Currency Agent, other Agents and/or any
or all of the Lenders under this Agreement, including, without limitation,
advances under the Revolving Credit Facility made to cover debit balances in the
Revolving Loan Account, principal of, and/or interest on, any Loan, the
Obligations (including any Letter of Credit Obligations), and/or Enforcement
Costs, prior to, on, or after the termination of other advances under this
Agreement, regardless of whether the outstanding principal amount of the
Revolving Credit Facility which the Lenders may advance hereunder exceeds the
Total Revolving Credit Committed Amount.
2.1.3 Borrowing Base.
As used in this Agreement, the term "Borrowing Base" means at any
time, an amount equal to the aggregate of (a) eighty-five percent (85%) of the
amount of Eligible Receivables, plus (b) the lesser of (i) the sum of sixty
percent (60%) of the amount of Eligible Inventory consisting of raw materials
(other than resin raw materials) and finished goods plus seventy percent (70%)
of the amount of Eligible Inventory consisting of resin raw materials or (ii)
Fifty Million Dollars ($50,000,000), less (c) such reserves as the
Administrative Agent shall deem proper in its reasonable judgment based on
customary asset-based lending practices.
The Borrowing Base shall be computed based on the Borrowing Base
Report most recently delivered to and accepted by the Administrative Agent in
its sole and absolute discretion. In the event the Borrowers fail to furnish a
Borrowing Base Report required by Section 2.1.4 (Borrowing Base Report), or in
the event the Administrative Agent believes that a Borrowing Base Report is no
longer accurate, the Administrative Agent may, in its sole and absolute
discretion exercised from time to time and without limiting other rights and
remedies under this Agreement, but with a substantially concurrent notice to the
Borrowers, direct the
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Lenders to suspend the making of or limit advances under the Revolving Credit
Facility. The Borrowing Base shall be subject to reduction by amounts credited
to the Collateral Account since the date of the most recent Borrowing Base
Report and by the amount of any Receivable or any Inventory which was included
in the Borrowing Base but which the Administrative Agent determines in its good
faith discretion fails to meet the respective criteria applicable from time to
time for Eligible Receivables or Eligible Inventory.
If at any time the total of the aggregate principal amount of the
Revolving Loans, Outstanding Letter of Credit Obligations, plus Interest Rate
Exposure plus Foreign Exchange Exposure, exceeds the Borrowing Base, a borrowing
base deficiency ("Borrowing Base Deficiency") shall exist. Each time a Borrowing
Base Deficiency exists, the Borrowers at the sole and absolute discretion of the
Administrative Agent exercised from time to time shall pay the Borrowing Base
Deficiency ON DEMAND to the Administrative Agent for the benefit of the Lenders
from time to time.
Without implying any limitation on the Administrative Agent's
discretion with respect to the Borrowing Base, the criteria for Eligible
Receivables and for Eligible Inventory contained in the respective definitions
of Eligible Receivables and of Eligible Inventory are in part based upon the
business operations of the Borrowers existing on or about the Closing Date and
upon information and records furnished to the Administrative Agent by the
Borrowers. If at any time or from time to time hereafter, the business
operations of the Borrowers change or such information and records furnished to
the Administrative Agent is incorrect or misleading, the Administrative Agent in
its discretion may at any time and from time to time during the duration of this
Agreement change such criteria or add new criteria. The Administrative Agent
shall communicate such changed or additional criteria to the Borrowers from time
to time either orally or in writing.
2.1.4 Borrowing Base Report.
The Borrowers will furnish to the Administrative Agent no less
frequently than monthly and at such other times as may be requested by the
Administrative Agent a report of the Borrowing Base (each a "Borrowing Base
Report"; collectively, the "Borrowing Base Reports") in the form required from
time to time by the Administrative Agent, appropriately completed and duly
signed. The Borrowing Base Report shall contain the amount and payments on the
Receivables, the value of Inventory, and the calculations of the Borrowing Base,
all in such detail, and accompanied by such supporting and other information, as
the Administrative Agent may from time to time request. Upon the Administrative
Agent's request and upon the creation of any Receivables, or at such intervals
as the Administrative Agent may require, the Borrowers will provide the
Administrative Agent with (a) confirmatory assignment schedules; (b) copies of
Account Debtor invoices; (c) evidence of shipment or delivery; and (d) such
further schedules, documents and/or information regarding the Receivables and
the Inventory as the Administrative Agent may reasonably require. The items to
be provided under this subsection shall be in form satisfactory to the
Administrative Agent, and certified as true and correct by a Responsible
Officer, and delivered to the Administrative Agent from time to time solely for
the Administrative Agent's convenience in maintaining records of the Collateral.
Any Borrowers' failure to deliver any of such items to the Administrative Agent
shall not affect, terminate,
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modify, or otherwise limit the Liens of the Administrative Agent and the Lenders
in the Collateral.
2.1.5 Revolving Credit Notes.
The obligation of the Borrowers to pay each Lender's Pro Rata
Share of the Revolving Loan, with interest, shall be evidenced by a series of
promissory notes (as from time to time extended, amended, restated, supplemented
or otherwise modified, collectively the "Revolving Credit Notes" and
individually a "Revolving Credit Note") substantially in the form of EXHIBIT
"B-1" attached hereto and made a part hereof, with appropriate insertions. Each
Lender's Revolving Credit Note shall be dated as of the Closing Date, shall be
payable to the order of such Lender at the times provided in the Revolving
Credit Note, and shall be in the principal amount of such Lender's Revolving
Credit Pro Rata Share. Each of the Borrowers acknowledge and agree that, if the
outstanding principal balance of the Revolving Loan outstanding from time to
time exceeds the aggregate face amount of the Revolving Credit Notes, the excess
shall bear interest at the rates provided from time to time for advances under
Revolving Loan evidenced by the Revolving Credit Notes and shall be payable,
with accrued interest, ON DEMAND. The Revolving Credit Notes shall not operate
as a novation of any of the Obligations or nullify, discharge, or release any
such Obligations or the continuing contractual relationship of the parties
hereto in accordance with the provisions of this Agreement.
2.1.6 Mandatory Prepayments of Revolving Loan.
The Borrowers shall make the mandatory prepayments (each a
"Revolving Loan Mandatory Prepayment" and collectively, the "Revolving Loan
Mandatory Prepayments") of the Revolving Loan at any time and from time to time
in such amounts requested by the Administrative Agent pursuant to Section 2.1.3
(Borrowing Base) in order to cover any Borrowing Base Deficiency.
2.1.7 Optional Prepayments of Revolving Loan.
The Borrowers shall have the option at any time and from time to
time prepay (each a "Revolving Loan Optional Prepayment" and collectively the
"Revolving Loan Optional Prepayments") the Revolving Loan, in whole or in part
without premium or penalty.
2.1.8 The Collateral Accounts.
(a) The Borrowers will deposit, or cause to be deposited,
all Items of Payment into bank accounts designated or approved by the
Administrative Agent (collectively, the "Collateral Accounts; " each a
"Collateral Account"). The Borrowers agree that following an Event of Default
and/or if the Borrowers at any time fail to maintain the availability required
by the Section 2.1.12(b), the Administrative Agent, at its option, shall have
sole power of access to and withdrawal from the Collateral Accounts. Each
depository bank of a Collateral Account shall confirm in a writing that,
following notice from the Administrative Agent, the depository bank will honor
only the Administrative Agent's instructions with respect to the Collateral
Account for which it is the depository.
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(b) Each deposit to the Collateral Accounts shall be made
not later than the next Business Day after the date of receipt of the Items of
Payment. The Items of Payment shall be deposited in precisely the form received,
except for the endorsements of the Borrowers where necessary to permit the
collection of any such Items of Payment, which endorsement the Borrowers hereby
agree to make. In the event the Borrowers fail to do so, the Borrowers hereby
authorize the Administrative Agent to make the endorsement in the name of any or
all of the Borrowers. Prior to such a deposit, the Borrowers will not commingle
any Items of Payment with any of the Borrowers' other funds or property, but
will hold them separate and apart in trust and for the account of the
Administrative Agent for the benefit of the Lenders ratably and the Agents.
(c) Notwithstanding the provisions of subsections (a) and
(b) above, prior to an Event of Default and/or the Borrowers' failure to
maintain the availability required by the Section 2.1.12(b), (i) the Parent may
continue to use its demand deposit account with Thumb National Bank consistent
with past practices and with balances consistent with the Parent's immediate
cash needs and (ii) the Local Currency Borrowers may continue to use their
demand deposit account with local banks consistent with past practices and with
balances consistent with their immediate cash needs.
(d) In addition, if so directed by the Administrative Agent
following an Event of Default and/or if the Borrowers at any time fail to
maintain the availability required by the Section 2.1.12(b), the Borrowers shall
direct the mailing of all Items of Payment from their Account Debtors to one or
more post-office boxes designated by the Administrative Agent, or to such other
additional or replacement post-office boxes pursuant to the request of the
Administrative Agent from time to time (collectively, the "Lockbox"). The
Administrative Agent shall have unrestricted and exclusive access to the
Lockbox.
(e) The Borrowers hereby authorize the Administrative
Agent, from and after the occurrence and during the continuation of an Event of
Default, and/or for so long as the Borrowers fail to maintain the availability
required by Section 2.1.12(b), to inspect all Items of Payment, endorse all
Items of Payment in the name of any or all of the Borrowers, and deposit such
Items of Payment in the Collateral Accounts. The Administrative Agent reserves
the right, exercised in its sole and absolute discretion, from and after the
occurrence and during the continuation of an Event of Default, and/or for so
long as the Borrowers fail to maintain the availability required by Section
2.1.12(b), to provide to the Collateral Accounts credit prior to final
collection of an Item of Payment and to disallow credit for any Item of Payment
which is unsatisfactory to the Administrative Agent. In the event Items of
Payment are returned to the Administrative Agent for any reason whatsoever, the
Administrative Agent may, in the exercise of its discretion from time to time,
forward such Items of Payment a second time. Any returned Items of Payment shall
be charged back to the Collateral Accounts, the Revolving Loan Account, or other
account, as appropriate.
(f) Unless the Administrative Agent has notified the
Borrowers otherwise following an Event of Default and/or if the Borrowers at any
time fail to maintain the availability required by the Section 2.1.12(b), the
Borrowers may use the amounts
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deposited in the Collateral Accounts for those uses which are Permitted Uses for
the Revolving Loan after the Closing Date.
(g) In the event the Administrative Agent determines the
application of proceeds of the Collateral Accounts pursuant to this Section
2.1.8, the Administrative Agent will apply the whole or any part of the
collected funds received by the Administrative Agent from the Collateral
Accounts against the Revolving Loan (or with respect to Items of Payment which
are not proceeds of Accounts or Inventory or after an Event of Default, against
any of the Obligations).
2.1.9 Revolving Loan Account.
The Administrative Agent will establish and maintain a loan
account on its books (the "Revolving Loan Account") to which the Administrative
Agent will (a) debit (i) the principal amount of each advance under the
Revolving Loan made by the Lenders hereunder as of the date made, (ii) the
amount of any interest accrued on the Revolving Loan as and when due, and (iii)
any other amounts due and payable by the Borrowers to the Administrative Agent
and/or the Lenders from time to time under the provisions of this Agreement in
connection with the Revolving Loan, including, without limitation, Enforcement
Costs, Fees, late charges, and service and collection fees, as and when due and
payable, and (b) credit all payments made by the Borrowers to the Administrative
Agent on account of the Revolving Loan as of the date made including, without
limitation, funds credited to the Revolving Loan Account from the Collateral
Account. The Administrative Agent may debit the Revolving Loan Account for the
amount of any Item of Payment which is returned to the Administrative Agent
unpaid. All credit entries to the Revolving Loan Account are conditional and
shall be readjusted as of the date made if final and indefeasible payment is not
received by the Administrative Agent in cash or solvent credits. The Borrowers
hereby promise to pay to the order of the Administrative Agent for the ratable
benefit of the Lenders, ON DEMAND, an amount equal to the excess, if any, of all
debit entries over all credit entries recorded in the Revolving Loan Account
under the provisions of this Agreement. Any and all periodic or other statements
or reconciliations, and the information contained in those statements or
reconciliations, of the Revolving Loan Account shall be presumed conclusively to
be correct, and shall constitute an account stated between the Administrative
Agent, the Lenders and the Borrowers unless the Administrative Agent receives
specific written objection thereto from any Borrower and/or any Lender within
thirty (30) Business Days after such statement or reconciliation shall have been
sent by the Administrative Agent. Any and all periodic or other statements or
reconciliations, and the information contained in those statements or
reconciliations, of the Revolving Loan Account shall be final, binding and
conclusive upon the Borrowers in all respects, absent manifest error, unless the
Administrative Agent receives specific written objection thereto from the
Borrowers within thirty (30) Business Days after such statement or
reconciliation shall have been sent by the Administrative Agent.
2.1.10 Revolving Credit Unused Line Fee.
(a) The Borrowers shall pay to the Administrative Agent for
the ratable benefit of the Lenders a monthly revolving credit facility fee
(collectively, the "Revolving Credit Unused Line Fees" and individually, a
"Revolving Credit Unused Line Fee")
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based on the average daily unused and undisbursed portion of the Total Revolving
Credit Committed Amount in effect from time to time accruing during the
preceding month. The accrued and unpaid portion of the Revolving Credit Unused
Line Fee shall be paid by the Borrowers to the Administrative Agent on the first
day of each month, commencing on the first such date following the date hereof,
and on the Revolving Credit Termination Date.
(b) The Revolving Credit Unused Line Fee shall initially be
thirty-seven and one-half (37.5) basis points per annum. Changes in the
Revolving Credit Unused Line Fee shall be made not more frequently than
quarterly based on the Borrowers' Pricing Ratio from the fiscal quarter reports
required by Section 6.1.1(c), except that the first such determination shall be
made based on the Borrowers' annual financial statements required by Section
6.1.1(a) for the Borrowers' fiscal year ended December 31, 1998. The Revolving
Credit Unused Line Fee (expressed as basis points) shall vary depending upon the
Borrowers' Pricing Ratio, as follows:
---------------------------------------------------------------------------
Pricing Ratio Revolving Credit Unused Line Fee
---------------------------------------------------------------------------
Equal to or greater than 4.0 to 1.0 37.5
---------------------------------------------------------------------------
Equal to or greater than 3.0 to 1.0 25.0
---------------------------------------------------------------------------
Less than 3.0 to 1.0 12.5
---------------------------------------------------------------------------
(c) Notwithstanding the foregoing, following the occurrence
and during the continuance of an Event of Default, at the option of the
Administrative Agent, the Revolving Credit Unused Line Fee shall equal to
thirty-seven and one-half (37.5) basis points per annum.
2.1.11 Early Termination Fee.
In the event of the termination by, or on behalf of, the
Borrowers, of the Revolving Credit Commitment, the Borrowers shall pay a fee
(the "Early Termination Fee") equal to following amount at the following times:
Period Early Termination Fee
Closing Date through and including, May 31, 1999 $500,000
June 1, 1999, through and including, May 31, 2000 $250,000
June 1, 2000 through and including, May 31, 2001 $100,000
Thereafter $ 0
Payment of the Revolving Loan in whole or in part by or on behalf
of the Borrowers, by court order or otherwise, following and as a result of the
institution of any bankruptcy proceeding by or against the Borrowers, shall be
deemed to be a prepayment of the Revolving Loan subject to the Early Termination
Fee provided in this subsection. The Early Termination Fee shall be paid to the
Administrative Agent for the ratable benefit of the Lenders.
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Notwithstanding the foregoing, there shall not, however, be an
Early Termination Fee due if the termination of the Revolving Credit Commitments
and Letters of Credit and repayment of the Revolving Credit Facility is made
solely as a result of (a) a replacement credit facility extended by NationsBank
and/or its Affiliates to the Borrowers, which generates sufficient proceeds and
is in fact used to repay all Obligations (including all Letter of Credit
Obligations) in full and, if, in connection with such repayment of all
Obligations, all Letters of Credit are terminated, secured by cash or
back-to-back letter of credit, and/or released or if the issuers release the
Lenders from their obligations to the issuer with respect to the Letters of
Credit, or (b) a simultaneous initial public offering of the Parent's common
stock with net proceeds to the Parent, of $20,000,000 or more, or (c) the
generation and retention of "excess cash flow" sufficient to have maintained the
outstanding principal balance of the Revolving Loan at zero for at least one
fiscal quarter and the demonstration to the Administrative Agent's reasonable
satisfaction that there is no use, need for or contemplation of senior revolving
debt for the next four (4) fiscal quarters. As used in this paragraph "excess
cash flow" means for any annual period of determination, as determined on a
consolidated basis, an amount equal to the Borrowers' EBITDA less Debt Service
minus cash taxes paid, minus increases in working capital plus decreases in
working capital, minus unfinanced Capital Expenditures, as shown on the annual
financial statements for such annual period, furnished to the Administrative
Agent in accordance with Section 6.1.1(a); or in the event that the Borrowers
fail to deliver such financial statements to the Administrative Agent as and
when required, the Administrative Agent shall estimate, in its good faith
discretion, the amount of excess cash flow for such period.
2.1.12 Required Availability under the Revolving Credit Facility.
(a) On the Closing Date, Unused Availability (after
allowance for the payment of the amount of the Permitted Uses of the Revolving
Loan required to be made on the Closing Date and the amount of the costs
relating to the closing of this Agreement (including, without limitation,
applicable Fees, recording costs, recording taxes, and the fees and expenses of
the Borrowers' and the Lender's professionals and allowance for the payment the
amount of the Borrowers' trade payables in the ordinary course of their
businesses and after giving effect to the receipt by the Administrative Agent of
the net proceeds from the sale on the Closing Date of the assets of Sharon
Manufacturing Company) shall not be less than Twenty Million Dollars
($20,000,000).
(b) After the Closing Date, Unused Availability shall at
no time be less than Five Million Dollars ($5,000,000). The Parent agrees to use
all reasonable efforts to cause Walbro Automotive S. A., its Subsidiary
corporation organized under the laws of France, and Walbro Japan, Inc. its
Subsidiary corporation organized under the laws of Japan, to enter into Purchase
Agreements and provide such other documents and information as the
Administrative Agent may reasonably require, which would allow their respective
accounts to be included among Assigned Local Currency Receivables on or before
June 30, 1998. In the event of such inclusion for either or both of those
Subsidiaries, Unused Availability shall at no time be less than Ten Million
Dollars ($10,000,000)
(c) The Borrowers shall make a Revolving Loan Mandatory
Prepayment pursuant to the provisions of Section 2.1.6 (Mandatory Prepayments of
Revolving Loan) to the extent necessary to achieve compliance with this Section.
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Section 2.2 The Letter of Credit Facility.
2.2.1 Letters of Credit.
Subject to and upon the provisions of this Agreement, and as a
part of the Revolving Credit Commitments, each of the Borrowers, upon the prior
approval of the Administrative Agent, may obtain commercial and standby letters
of credit for drawing in US Dollars (each a "US Letter of Credit", and
collectively, the "US Letters of Credit") from the US Letter of Credit Issuer,
and for drawing in an Approved Foreign Currency (each a "Multi-Currency Letter
of Credit" and, collectively, the "Multi-Currency Letters of Credit") from the
Multi-Currency Letter of Credit Issuer (the US Letters of Credit and the
Multi-Currency Letters of Credit being collectively, the "Letters of Credit;"
and each a "Letter of Credit") from time to time from the Closing Date until the
Business Day preceding the Revolving Credit Termination Date. The Borrowers will
not be entitled to obtain a Letter of Credit unless (a) the Borrowers are then
able to obtain a Revolving Loan (subject to any applicable Approved Local
Currency or other restrictions) from the Lenders in an amount not less than the
proposed face amount of the Letter of Credit requested by the Borrowers, and (b)
the sum of the then Outstanding Letter of Credit Obligations (including the
amount of the requested Letter of Credit) does not exceed Twenty-five Million
Dollars ($25,000,000).
2.2.2 Letter of Credit Fees.
(a) The Borrowers shall pay to the Appropriate Letter of
Credit Issuer, for its own account, a fee of twenty-five (25) basis points per
annum of the aggregate face amount of the Letters of Credit outstanding on the
first day of the month, without regard for provisions contained in the Letters
of Credit which may give rise to a reduction in the outstanding principal amount
of the Letters of Credit unless such reduction has actually occurred (each a
"Letter of Credit Fronting Fee" and collectively, the "Letter of Credit Fronting
Fees"). The accrued and unpaid portion of each Letter of Credit Fronting Fee
shall be paid in arrears on the first day of each month and upon the expiration
or termination date of the respective Letter of Credit Agreements. In addition,
the Borrowers shall pay to the Appropriate Letter of Credit Issuer, for its own
account, any and all additional issuance, negotiation, processing, transfer or
other charges to the extent and as and when required by the provisions of any
Letter of Credit Agreement. All Letter of Credit Fronting Fees and such other
charges are included in and are a part of the "Fees" payable by the Borrowers
under the provisions of this Agreement and are for the sole and exclusive
benefit of the Appropriate Letter of Credit Issuer and are a part of the Agents'
Obligations.
(b) In addition and in connection with each Letter of
Credit Agreement, the Borrowers shall pay to the Administrative Agent for the
ratable (based upon each Lender's Revolving Credit Pro Rata Share) benefit of
the Lenders a fee (each a "Letter of Credit Commitment Fee" and collectively the
"Letter of Credit Commitment Fees") in an amount equal to one hundred
seventy-five (175) basis points per annum (calculated monthly in arrears on the
basis of actual number of days elapsed in a year of 360 days) of the outstanding
face amount of each Letter of Credit on the first day of the month, without
regard for provisions contained in the Letters of Credit which may give rise to
a reduction in the outstanding principal amount of the
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Letters of Credit unless such reduction has actually occurred. The accrued and
unpaid portion of each Letter of Credit Commitment Fee shall be paid in arrears
on the first day of each month and upon the expiration or termination date of
the respective Letter of Credit Agreements.
2.2.3 Terms of Letters of Credit; Post-Expiration Date Letters of
Credit.
Each Letter of Credit shall (a) be opened pursuant to a Letter of
Credit Agreement and (b) expire on a date not later than the Business Day
preceding the Revolving Credit Expiration Date; provided, however, if any Letter
of Credit does have an expiration date later than the Business Day preceding the
Revolving Credit Termination Date (each a "Post-Expiration Date Letter of
Credit" and collectively, the "Post-Expiration Date Letters of Credit"),
effective as of the Business Day preceding the Revolving Credit Termination Date
and without prior notice to or the consent of the Borrowers, the Lenders shall
make advances under the Revolving Loan for the account of the Borrowers in the
aggregate face amount of all such Letters of Credit. The amount of each Lender's
advance shall be equal to its Revolving Credit Pro Rata Share of the aggregate
face amount of all such Post-Expiration Date Letters of Credit. The
Administrative Agent shall deposit the proceeds of such advances into one or
more non-interest bearing accounts with and in the name of the Administrative
Agent and over which the Administrative Agent alone shall have exclusive power
of access and withdrawal (collectively, the "Letter of Credit Cash Collateral
Account"). The Letter of Credit Cash Collateral Account is to be held by the
Administrative Agent, for the ratable benefit of the Lenders, as additional
collateral and security for any Letter of Credit Obligations relating to the
Post-Expiration Date Letters of Credit. The Borrowers hereby assign, pledge,
grant and set over to the Administrative Agent, for the ratable benefit of the
Lenders, a first priority security interest in, and Lien on, all of the funds on
deposit in the Letter of Credit Cash Collateral Account, together with any and
all proceeds (cash and non-cash) and products thereof as additional collateral
and security for the Letter of Credit Obligations relating to the
Post-Expiration Date Letters of Credit. The Borrowers acknowledge and agree that
the Administrative Agent shall be entitled to fund any draw or draft on any
Post-Expiration Date Letter of Credit from the monies on deposit in the Letter
of Credit Cash Collateral Account without notice to or consent of the Borrowers
or any of the Lenders. The Borrowers further acknowledge and agree that the
Administrative Agent's election to fund any draw or draft on any Post-Expiration
Date Letter of Credit from the Letter of Credit Cash Collateral shall in no way
limit, impair, lessen, reduce, release or otherwise adversely affect the
Borrowers' obligation to pay any Letter of Credit Obligations under or relating
to the Post-Expiration Date Letters of Credit. At such time as all
Post-Expiration Date Letters of Credit have expired and all Letter of Credit
Obligations relating to the Post-Expiration Date Letters of Credit have been
paid in full, the Administrative Agent agrees to apply the amount of any
remaining funds on deposit in the Letter of Credit Cash Collateral Account to
the then unpaid balance of the Obligations under the Revolving Credit Facility
in such order and manner as the Administrative Agent shall determine in its sole
and absolute discretion in accordance with the provisions of this Agreement.
Each Letter of Credit shall be used to support the Borrowers'
ordinary course working capital purposes and shall be in a face amount at least
equal to Two Hundred Fifty Thousand Dollars ($250,000) or the Foreign Currency
Equivalent thereof. The aggregate face amount of all Letters of Credit at any
one time outstanding and issued by the Appropriate
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Letter of Credit Issuer pursuant to the provisions of this Agreement, including,
without limitation, any and all Post-Expiration Date Letters of Credit, plus the
amount of any unpaid Letter of Credit Fees accrued or scheduled to accrue
thereon, and less the aggregate amount of all drafts issued under or purporting
to have been issued under such Letters of Credit that have been paid by the
Appropriate Letter of Credit Issuer and for which the Appropriate Letter of
Credit Issuer has been reimbursed by the Borrowers in full in accordance with
Section 2.2.5 below and the Letter of Credit Agreements, and for which the
Appropriate Letter of Credit Issuer has no further obligation or commitment to
restore all or any portion of the amounts drawn and reimbursed, is herein called
the "Outstanding Letter of Credit Obligations".
2.2.4 Procedures for Letters of Credit.
The Borrowers shall give the Appropriate Letter of Credit Issuer
written notice at least five (5) Business Days prior to the date on which a
Borrower desires the Appropriate Letter of Credit Issuer to issue a Letter of
Credit. Such notice shall be accompanied by a duly executed Letter of Credit
Agreement specifying, among other things: (a) the name and address of the
intended beneficiary of the Letter of Credit, (b) the requested face amount of
the Letter of Credit, (c) whether the Letter of Credit is to be revocable or
irrevocable, (d) the Business Day on which the Letter of Credit is to be opened
and the date on which the Letter of Credit is to expire, (e) the terms of
payment of any draft or drafts which may be drawn under the Letter of Credit,
and (f) any other terms or provisions the Borrowers desire to be contained in
the Letter of Credit. Such notice shall also be accompanied by such other
information, certificates, confirmations, and other items as the Appropriate
Letter of Credit Issuer may require to assure that the Letter of Credit is to be
issued in accordance with the provisions of this Agreement and a Letter of
Credit Agreement. In the event of any conflict between the provisions of this
Agreement and the provisions of a Letter of Credit Agreement, the provisions of
this Agreement shall prevail and control unless otherwise expressly provided in
the Letter of Credit Agreement. Upon (x) receipt of such notice, (y) payment of
all Letter of Credit Fees and all other Fees payable in connection with the
issuance of such Letter of Credit, and (z) receipt of a duly executed Letter of
Credit Agreement, the Appropriate Letter of Credit Issuer shall process such
notice and Letter of Credit Agreement in accordance with its customary
procedures and open such Letter of Credit on the Business Day specified in such
notice.
2.2.5 Payments of Letters of Credit.
The Borrowers hereby promise to pay to the Appropriate Letter of
Credit Issuer, ON DEMAND and in United States Dollars, the following which are
herein collectively referred to as the "Current Letter of Credit Obligations":
(a) the amount which the Appropriate Letter of
Credit Issuer has paid or will be required to pay under each draft or
draw on a Letter of Credit, whether such demand be in advance of the
Appropriate Letter of Credit Issuer's payment or for reimbursement for
such payment;
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(b) any and all reasonable charges and expenses
which the Appropriate Letter of Credit Issuer may pay or incur relative
to the Letter of Credit and/or such draws or drafts; and
(c) interest on the amounts described in (a) and
(b) not paid by the Borrowers as and when due and payable under the
provisions of (a) and (b) above from the day the same are due and
payable until paid in full at a rate per annum equal to the
Post-Default Rate.
In addition, the Borrowers hereby promise to pay any and all
other Letter of Credit Obligations as and when due and payable in accordance
with the provisions of this Agreement and the Letter of Credit Agreements. The
obligation of the Borrowers to pay Current Letter of Credit Obligations and all
other Letter of Credit Obligations shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrowers or any other account party may have or have had
against the beneficiary of such Letter of Credit, the Appropriate Letter of
Credit Issuer, the Agents, any of the Lenders, or any other Person, including,
without limitation, any defense based on the failure of any draft or draw to
conform to the terms of such Letter of Credit, any draft or other document
proving to be forged, fraudulent or invalid, or the legality, validity,
regularity or enforceability of such Letter of Credit, any draft or other
documents presented with any draft, any Letter of Credit Agreement, this
Agreement, or any of the other Financing Documents, all whether or not the
Appropriate Letter of Credit Issuer, any Agent or any of the Lenders had actual
or constructive knowledge of the same, and irrespective of any Collateral,
security or guarantee therefor or right of offset with respect thereto and
irrespective of any other circumstances whatsoever which constitutes, or might
be construed to constitute, an equitable or legal discharge of the Borrowers for
any Letter of Credit Obligations, in bankruptcy or otherwise; provided, however,
that the Borrowers shall not be obligated to reimburse the Appropriate Letter of
Credit Issuer for any wrongful payment under such Letter of Credit made as a
result of the Appropriate Letter of Credit Issuer's gross negligence or willful
misconduct. The obligation of the Borrowers to pay the Letter of Credit
Obligations shall not be conditioned or contingent upon the pursuit by the
Appropriate Letter of Credit Issuer or any other Person at any time of any right
or remedy against any Person which may be or become liable in respect of all or
any part of such obligation or against any Collateral, security or guarantee
therefor or right of offset with respect thereto.
The Letter of Credit Obligations shall continue to be effective,
or be reinstated, as the case may be, if at any time payment of all or any
portion of the Letter of Credit Obligations is rescinded or must otherwise be
restored or returned by the Appropriate Letter of Credit Issuer or any of the
Agents or Lenders upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Person, or upon or as a result of the appointment of a
receiver, intervenor, or conservator of, or trustee or similar officer for, any
Person, or any substantial part of such Person's property, all as though such
payments had not been made.
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2.2.6 Change in Law; Increased Cost.
If any change in any law or regulation or in the interpretation
thereof by any court or other Governmental Authority charged with the
administration thereof shall either (a) impose, modify or deem applicable any
reserve, special deposit or similar requirement against Letters of Credit issued
by the Appropriate Letter of Credit Issuer, or (b) impose on the Appropriate
Letter of Credit Issuer or any of the Agents or Lenders any other condition
regarding this Agreement or any Letter of Credit, and the result of any event
referred to in clauses (a) or (b) above shall be to increase the cost to the
Appropriate Letter of Credit Issuer of issuing, maintaining or extending the
Letter of Credit or the cost to any of the Lenders of funding any obligation
under or in connection with the Letter of Credit (which increase in cost shall
be the result of the Appropriate Letter of Credit Issuer's reasonable allocation
of the aggregate of such cost increases resulting from such events), then, upon
demand by the Appropriate Letter of Credit Issuer, the Borrowers shall
immediately pay to the Appropriate Letter of Credit Issuer from time to time as
specified by the Appropriate Letter of Credit Issuer, additional amounts which
shall be sufficient to compensate the Appropriate Letter of Credit Issuer, the
Agents and the Lenders for such increased cost, together with interest on each
such amount from the date demanded until payment in full thereof at a rate per
annum equal to the then highest current rate of interest on the Revolving Loan.
A certificate as to such increased cost incurred by the Appropriate Letter of
Credit Issuer and/or any of the Lenders or Agents, submitted by the
Administrative Agent to the Borrowers, shall be conclusive, absent manifest
error. Notwithstanding the foregoing, each Lender hereby agrees to (i) use good
faith efforts to change its Appropriate Payment Office, if such change (A) would
eliminate the necessity for the payment of such additional amounts and (B) not
have an adverse effect on such Lender and (ii) treat the Borrowers in
substantially the same manner as it treats all similarly situated borrowers with
respect to the requirement to pay such additional amounts.
2.2.7 General Letter of Credit Provisions.
The Borrowers hereby instruct the Appropriate Letter of Credit
Issuer to pay any draft complying with the terms of any Letter of Credit
irrespective of any instructions of the Borrowers to the contrary. The Borrowers
assume all risks of the acts and omissions of the beneficiary and other users of
any Letter of Credit. The Appropriate Letter of Credit Issuer, the Agents, the
Lenders and their respective branches, Affiliates and/or correspondents shall
not be responsible for and the Borrowers hereby indemnify and hold the
Appropriate Letter of Credit Issuer, the Agents, the Lenders and their
respective branches, Affiliates and/or correspondents harmless from and against
all liability, loss and expense (including reasonable attorney's fees and costs)
incurred by the Appropriate Letter of Credit Issuer, the Agents, the Lenders
and/or their respective branches, Affiliates and/or correspondents relative to
and/or as a consequence of (a) any failure by the Borrowers to perform the
agreements hereunder and under any Letter of Credit Agreement, (b) any Letter of
Credit Agreement, this Agreement, any Letter of Credit and any draft, draw
and/or acceptance under or purported to be under any Letter of Credit, (c) any
action taken or omitted by the Appropriate Letter of Credit Issuer, any of the
Lenders, Agents and/or any of their respective branches, Affiliates and/or
correspondents at the request of the Borrowers, (d) any failure or inability to
perform in accordance with the terms of any Letter of Credit by reason of any
control or restriction rightfully or wrongfully exercised by any de facto or de
jure
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<PAGE> 51
Governmental Authority, group or individual asserting or exercising governmental
or paramount powers, and/or (e) any consequences arising from causes beyond the
control of the Appropriate Letter of Credit Issuer, any of the Lenders, Agents
and/or any of their respective branches, Affiliates and/or correspondents.
Except for gross negligence or willful misconduct, the
Appropriate Letter of Credit Issuer, the Lenders, the Agents and their
respective branches, Affiliates and/or correspondents, shall not be liable or
responsible in any respect for any (a) error, omission, interruption or delay in
transmission, dispatch or delivery of any one or more messages or advices in
connection with any Letter of Credit, whether transmitted by cable, telegraph,
mail or otherwise and despite any cipher or code which may be employed, and/or
(b) action, inaction or omission which may be taken or suffered by it or them in
good faith or through inadvertence in identifying or failing to identify any
beneficiary or otherwise in connection with any Letter of Credit.
Any Letter of Credit may be amended, modified or revoked only
upon the receipt by the Appropriate Letter of Credit Issuer from the Borrowers
and the beneficiary (including any transferee and/or assignee of the original
beneficiary), of a written consent and request therefor.
If any Laws, order of court and/or ruling or regulation of any
Governmental Authority of the United States (or any state thereof) and/or any
country other than the United States permits a beneficiary under a Letter of
Credit to require the Appropriate Letter of Credit Issuer, the Lenders, the
Agents and/or any of their respective branches, Affiliates and/or correspondents
to pay drafts under or purporting to be under a Letter of Credit after the
expiration date of the Letter of Credit, the Borrowers shall reimburse the
Appropriate Letter of Credit Issuer and the Lenders and Agents, as appropriate,
for any such payment pursuant to provisions of Section 2.2.6 (Change in Law;
Increased Cost).
Except as may otherwise be specifically provided in a Letter of
Credit or Letter of Credit Agreement, the laws of the State of Maryland and the
Uniform Customs and Practice for Documentary Credits, 1993 Revision,
International Chamber of Commerce Publication No. 500 shall govern the Letters
of Credit. The Laws, rules, provisions and regulations of the Uniform Customs
and Practice for Documentary Credits are hereby incorporated by reference. In
the event of a conflict between the Uniform Customs and Practice for Documentary
Credits and the laws of the State of Maryland, the Uniform Customs and Practice
for Documentary Credits shall prevail.
2.2.8 Participations in the Letters of Credit.
Each Lender hereby irrevocably authorizes the Appropriate Letter
of Credit Issuer to issue Letters of Credit in accordance with the provisions of
this Agreement. As of the date each Letter of Credit is opened or issued by the
Appropriate Letter of Credit Issuer pursuant to the provisions of this
Agreement, each Lender shall have an undivided participating interest in (a) the
rights and obligations of the Appropriate Letter of Credit Issuer under such
Letter of Credit, and (b) the Outstanding Letter of Credit Obligations of the
Borrowers with
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respect to such Letter of Credit, in an amount equal to each Lender's Revolving
Credit Pro Rata Share of such Outstanding Letter of Credit Obligations.
2.2.9 Payments by the Lenders to the Appropriate Letter of Credit
Issuer.
If the Borrowers fail to pay to the Appropriate Letter of Credit
Issuer any Current Letter of Credit Obligations as and when due and payable, the
Appropriate Letter of Credit Issuer shall promptly notify each of the Lenders
and shall demand payment from each of the Lenders such Lender's Revolving Credit
Pro Rata Share of such unpaid Current Letter of Credit Obligations. In addition,
if any amount paid to the Appropriate Letter of Credit Issuer on account of
Current Letter of Credit Obligations is rescinded or required to be restored or
turned over by the Appropriate Letter of Credit Issuer upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrowers or upon
or as a result of the appointment of a receiver, intervenor, trustee,
conservator or similar officer for the Borrowers, or is otherwise not
indefeasibly covered by an advance under the Revolving Loan, the Appropriate
Letter of Credit Issuer shall promptly notify each of the Lenders and shall
demand payment from each of the Lenders of its Revolving Credit Pro Rata Share
of its portion of the Current Letter of Credit Obligations to be remitted to the
Borrowers.
Each of the Lenders irrevocably and unconditionally agrees to
honor any such demands for payment under this Section and promises to pay to the
Appropriate Letter of Credit Issuer's account on the same Business Day as
demanded the amount of its Revolving Credit Pro Rata Share of the Current Letter
of Credit Obligations in immediately available funds, without any setoff,
counterclaim or deduction of any kind. Any payment by a Lender hereunder shall
in no way release, discharge or lessen the obligation of the Borrowers to pay
Current Letter of Credit Obligations to the Appropriate Letter of Credit Issuer
in accordance with the provisions of this Agreement.
The obligation of each of the Lenders to remit the amounts of its
Revolving Credit Pro Rata Share of Current Letter of Credit Obligations for the
account of the Appropriate Letter of Credit Issuer pursuant to this Section
shall be unconditional and irrevocable under any and all circumstances and may
not be terminated, suspended or delayed for any reason whatsoever, provided that
all payments of such amounts by each of the Lenders shall be without prejudice
to the rights of each of the Lenders with respect to the Appropriate Letter of
Credit Issuer's alleged willful misconduct. Any claim any Lender may have
against the Appropriate Letter of Credit Issuer as a result of the Appropriate
Letter of Credit Issuer's alleged willful misconduct may be brought by such
Lender in a separate action against the Appropriate Letter of Credit Issuer but
may not be used as a defense to payment under the provisions of this Section.
No failure of any Lender to remit the amount of its Revolving
Credit Pro Rata Share of Current Letter of Credit Obligations to the Appropriate
Letter of Credit Issuer pursuant to this Section shall affect the obligations of
the Appropriate Letter of Credit Issuer under any Letter of Credit, and if any
Lender does not remit to the Appropriate Letter of Credit Issuer the amount of
its Revolving Credit Pro Rata Share of Current Letter of Credit Obligations
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on the same day as demanded, then without limiting such Lender's obligation to
transmit funds on the same Business Day as demanded, such Lender shall be
obligated to pay, on demand of the Appropriate Letter of Credit Issuer and
without setoff, counterclaim or deduction of any kind whatsoever interest on the
unpaid amount at the Federal Funds Rate for each day from the date such amount
shall be due and payable to the Appropriate Letter of Credit Issuer until the
date such amount shall have been paid in full to the Appropriate Letter of
Credit Issuer by such Lender.
Section 2.3 Multi-Currency Participations.
2.3.1 Multi-Currency Participants.
At any time that a Multi-Currency Lender makes a Multi-Currency
Loan or the Multi-Currency Letter of Credit Issuer issues a Multi-Currency
Letter of Credit, each other Lender shall be deemed, without further action by
any Person, to have purchased from such Multi-Currency Lender or Multi-Currency
Letter of Credit Issuer, as the case may be, an unfunded participation in any
such Multi-Currency Loan or Multi-Currency Letter of Credit, as the case may be,
in an amount equal to such Lender's Revolving Credit Pro Rata Share of the
aggregate principal amount of such Multi-Currency Revolving Loan or stated
amount of such Multi-Currency Letter of Credit and shall be obligated to fund
such participation at such time and in the manner provided below. Upon (i) the
occurrence and during the continuance of a Default, and (ii) the demand
(confirmed within a reasonable time in writing) (notwithstanding any other fact
or circumstance) by any Multi-Currency Lender or Multi-Currency Letter of Credit
of Credit Issuer, as the case may be to the Multi-Currency Agent and the
Administrative Agent (with prompt telephonic notice of such demand followed by a
copy of such written demand to each other Lender, each such other Lender, a
"Multi-Currency Participant") and each Borrower with respect to any outstanding
Multi-Currency Revolving Loan made by such Multi-Currency Lender or Current
Letter of Credit Obligations in respect of any drawing under a Multi-Currency
Letter of Credit, each Multi-Currency Participant shall purchase from such
Multi-Currency Lender or Multi-Currency Letter of Credit Issuer, as the case may
be, without recourse to such Multi-Currency Lender or Multi-Currency Letter of
Credit Issuer, as the case may be (except in the case of a breach of the
representation and warranty set forth below in this clause (ii)), and such
Multi-Currency Lender shall sell and assign to each such Multi-Currency
Participant, such Multi-Currency Participant's Revolving Credit Pro Rata Share
of the aggregate principal amount of such outstanding Multi-Currency Revolving
Loan or such Current Letter of Credit Obligations with respect to a
Multi-Currency Letter of Credit as of the date of such demand. Any such demand
made by a Multi-Currency Lender or Multi-Currency Letter of Credit Issuer, as
the case may be, shall specify the amount of US Dollars (based upon the actual
exchange rate at which the Multi-Currency Agent anticipates being able to obtain
the relevant Foreign Currency (with any excess payment being refunded to the
Multi-Currency Participants and any deficiency remaining payable by the
Multi-Currency Participants)) required from such Multi-Currency Participant in
order to effect the purchase and funding by such Multi-Currency Participant of
its Revolving Credit Pro Rata Share of the aggregate principal amount of any
such Multi-Currency Revolving Loan or such Current Letter of Credit Obligations
with respect to a Multi-Currency Letter of Credit. Each Multi-Currency
Participant shall effect such purchase, sale, assignment and funding by making
available to the Multi-Currency Agent for the account
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of such Multi-Currency Lender or Multi-Currency Letter of Credit Issuer, as the
case may be, by deposit to the Appropriate Payment Office, in same day funds in
US Dollars, such amount required to effect the purchase by such Multi-Currency
Participant of its Revolving Credit Pro Rata Share of the aggregate principal
amount of such outstanding Multi-Currency Revolving Loan or such Current Letter
of Credit Obligations with respect to a Multi-Currency Letter of Credit. Each
Borrower hereby agrees to each such purchase, sale and assignment. Each
Multi-Currency Participant agrees to purchase and fund its Revolving Credit Pro
Rata Share of the aggregate principal amount of an outstanding Multi-Currency
Revolving Loan or Current Letter of Credit Obligations in respect of any drawing
under a Multi-Currency Letter of Credit on (1) the US Business Day on which
demand therefor is made by a Multi-Currency Lender or Multi-Currency Letter of
Credit Issuer, as the case may be, provided that notice of such demand is given
not later than 11:00 a.m. (Baltimore City time) on such US Business Day or (2)
the first US Business Day next succeeding such demand if notice of such demand
is given after such time.
2.3.2 Representations of Multi-Currency Lender and Multi-Currency
Letter of Credit Issuer.
Upon any such purchase, sale and assignment by a Multi-Currency
Lender or a Multi-Currency Letter of Credit Issuer to any Multi-Currency
Participant of a portion of a Multi-Currency Revolving Loan or Current Letter of
Credit Obligations under a Multi-Currency Letter of Credit, such Multi-Currency
Lender or Multi-Currency Letter of Credit Issuer, as applicable, represents and
warrants to such Multi-Currency Participant that such Multi-Currency Lender or
Multi-Currency Letter of Credit Issuer, as applicable, is the legal and
beneficial owner of such interest being sold and assigned by it, but makes no
other representation or warranty and assumes no responsibility with respect to
such Multi-Currency Revolving Loan or Multi-Currency Letter of Credit, the
Financing Documents or any Credit Party. If and to the extent that any
Multi-Currency Participant shall not have so made the amount of its purchase
price with respect to such Multi-Currency Revolving Loan or Current Letter of
Credit Obligations in respect of any drawing under a Multi-Currency Letter of
Credit available to the Multi-Currency Letter of Credit Issuer, such
Multi-Currency Participant agrees to pay to the Multi-Currency Letter of Credit
Issuer forthwith on demand such amount together with interest thereon, for each
day from the date of demand by such Multi-Currency Lender or Multi-Currency
Letter of Credit Issuer to the date such amount is paid to the Multi-Currency
Letter of Credit Issuer, at the Federal Funds Rate. If such Multi-Currency
Participant shall pay to the Multi-Currency Letter of Credit Issuer such amount
for the account of a Multi-Currency Lender or Multi-Currency Letter of Credit
Issuer on any Business Day, such amount so paid in respect of principal shall
constitute a Multi-Currency Revolving Loan made by such Multi-Currency
Participant in its capacity as a Lender (and for such purposes such Lender shall
be deemed to be a Multi-Currency Lender with respect to such Multi-Currency
Revolving Loan) on such Business Day for purposes of this Agreement, and the
outstanding principal amount of such Multi-Currency Revolving Loan originally
made by such Multi-Currency Lender shall be reduced by such amount on such
Business Day. Each Multi-Currency Participant acknowledges and agrees that,
notwithstanding anything in this Agreement to the contrary, its obligation to
purchase and fund its Revolving Credit Pro Rata Share of the aggregate principal
amount of any Multi-Currency Revolving Loan or in respect of any drawing under a
Multi-Currency Letter of Credit hereunder is absolute and
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unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, (i) the occurrence and continuance of any Default
or Event of Default, (ii) the existence of any claim, set-off, defense or other
right that such Multi-Currency Participant may have at any time against any
Multi-Currency Lender, any Multi-Currency Letter of Credit Issuer, any other
Lender, any Borrower or any other Person, whether in connection with the
transactions contemplated by this Agreement or any unrelated transaction or
(iii) any other circumstance that might otherwise constitute a defense available
to, or a discharge of, such Multi-Currency Participant.
2.3.3 Standing of Multi-Currency Participant.
If, and for so long as any Multi-Currency Participant's public
debt rating (as defined below) is below A- by S&P or Moody's (or, with respect
to any Multi-Currency Participant that does not have such a public debt rating
at any time of determination, the Multi-Currency Lenders shall determine that
such Multi-Currency Participant's ability to meet such Multi-Currency
Participant's obligations under Section 2.3.1 above has declined since the date
such Multi-Currency Participant became a Multi-Currency Participant hereunder),
(1) such Multi-Currency Participant shall, immediately upon demand by any
Multi-Currency Lender or Multi-Currency Letter of Credit Issuer, as the case may
be, cash collateralize its Revolving Credit Pro Rata Share of the aggregate
principal amount of all outstanding Multi-Currency Revolving Loans and all
outstanding Multi-Currency Letters of Credit by depositing an amount equal to
such Revolving Credit Pro Rata Share into a cash collateral account designated
by the Administrative Agent (and, if necessary, established for such purposes
and, so long as no Default or Event of Default has occurred and is continuing,
established in such location as determined after consultation with the
Borrowers), and (2) each such Multi-Currency Participant shall, if so demanded
by any Multi-Currency Lender in its sole discretion, or by any Multi-Currency
Letter of Credit Issuer in its sole discretion, as the case may be, by written
notice to the Administrative Agent, the Multi-Currency Agent, the Borrowers and
such Multi-Currency Participant, prior to the funding by the Multi-Currency
Lender of any Multi-Currency Revolving Loans in connection with each additional
Multi-Currency Revolving Loan and prior to the issuance of each additional
Multi-Currency Letter of Credit, deposit to such cash collateral account an
amount equal to such Multi-Currency Participant's Revolving Credit Pro Rata
Share of the aggregate amount of such Multi-Currency Revolving Loan or the
Letter of Credit Obligations with respect to such Multi-Currency Letter of
Credit, as the case may be. Amounts deposited by any Multi-Currency Participant
in any such cash collateral account shall be held for the benefit of the
Multi-Currency Lenders, shall be applied by the Administrative Agent to satisfy
such Multi-Currency Participant's obligations under clause (i) above and shall,
to the extent such amounts exceed at any time such Multi-Currency Participant's
Revolving Credit Pro Rata Share of all outstanding Multi-Currency Revolving
Loans and all outstanding Multi-Currency Letters of Credit, be returned to such
Multi-Currency Participant. The term "public debt rating" means, as of any date
with respect to any Person, the rating that has been most recently announced by
either S&P or Moody's, as the case may be, for any class of non-credit enhanced
long-term senior unsecured debt issued by such Person.
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<PAGE> 56
2.3.4 Reports of Multi-Currency Agent
The Multi-Currency Agent shall furnish to the Administrative
Agent and each Lender on the first Business Day of each week a written report
summarizing the aggregate principal amount of Multi-Currency Revolving Loans
outstanding in each Approved Foreign Currency (including the U.S. Dollar Foreign
Currency Equivalent thereof) during the preceding week.
Section 2.4 The Capital Expenditure Line Facility.
2.4.1 Capital Expenditure Line Facility.
Subject to and upon the provisions of this Agreement, the Lenders
collectively, but severally, establish a capital expenditure line facility in
favor of the Borrowers. The aggregate of all advances under the Capital
Expenditure Line Facility are sometimes referred to in this Agreement
collectively as the "Capital Expenditure Line".
The amount set forth below each Lender's signature to this
Agreement is herein called such Lender's "Capital Expenditure Line Committed
Amount" and the total of each Lender's Capital Expenditure Line Committed Amount
equals Twenty-five Million Dollars ($25,000,000) and is herein called the "Total
Capital Expenditure Line Committed Amount". The proportionate share set forth
below each Lender's signature to this Agreement is herein called such Lender's
"Capital Expenditure Line Pro Rata Share."
During the Capital Expenditure Line Commitment Period, any or all
of the Borrowers may request advances under the Capital Expenditure Line
Facility in accordance with the provisions of this Agreement; provided that
after giving effect to any Borrower's request:
(a) the outstanding principal balance of each Lender's
Capital Expenditure Line Pro Rata Share of the Capital Expenditure Line
would not exceed such Lender's Capital Expenditure Line Pro Rata Share;
and
(b) the aggregate outstanding principal balance of the
Capital Expenditure Line would not exceed the Total Capital Expenditure
Line Committed Amount.
Amounts repaid on the Capital Expenditure Line may not be
reborrowed.
2.4.2 Procedure for Making Advances Under the Capital Expenditure
Line.
The Borrowers may borrow under the Capital Expenditure Line
Facility on any Business Day. A Borrower shall give the Administrative Agent
written notice (a "Capital Expenditure Line Notice") at least five (5) Business
Days prior to the date on which such Borrower desires an advance under the
Capital Expenditure Line. Each Capital Expenditure Line Notice shall be
accompanied by (a) a contract of sale, purchase order or invoice, in form
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and substance reasonably satisfactory to the Administrative Agent, which
accurately and completely describes the equipment which is the subject of the
requested advance and the purchase price therefor, and in the case of Capital
Expenditure Line Equipment, expressly identifying and excluding the costs of
delivery, installation, taxes, and other "soft" costs, and (b) evidence
satisfactory to the Administrative Agent indicating that such equipment has been
delivered to and accepted by the respective Borrower not more than 90 days prior
to the date of the advance. Each Capital Expenditure Line Notice shall also be
accompanied by such other information, certificates, confirmations, and other
items as the Administrative Agent may require to determine the value and the
delivery of the subject equipment and compliance with the other terms of this
Agreement. The amount to be advanced with respect to a Capital Expenditure Line
Notice shall not exceed the lesser of (a) the amount requested by such Borrower
or (b) 80% of the purchase price (excluding the costs of delivery, installation,
taxes, and other "soft" costs) of the Capital Expenditure Line Equipment. The
Administrative Agent must be satisfied that the equipment for which an advance
is requested shall, at the time of advance and at all other times (i) not be
affixed to any real property, (ii) not be subject to any Liens in favor of
parties other than the Agents and Lenders hereunder, (iii) be free of, and not
become, accessions, additions, fittings and accessories which are subject to a
Lien in favor of any other person including, without limitation, the holders of
the Senior Notes or the Senior Notes Trustees or others acting on their behalf,
and (iv) not be subject to any claim by any Person including, without
limitation, the holders Senior Notes, that such Person is entitled to pari passu
lien. Upon receipt of any such Capital Expenditure Line Notice, the
Administrative Agent shall promptly notify each Lender of the amount of each
advance to be made by such Lender on the requested borrowing date under such
Lender's Capital Expenditure Line Commitment. Each advance under the Capital
Expenditure Line shall be not less than $500,000.
Not later than 2:00 p.m. (Baltimore City Time) on each requested
borrowing date for the making of advances under the Capital Expenditure Line,
each Lender shall, if it has received timely notice from the Administrative
Agent of the Borrower's request for such advances, make available to the
Administrative Agent, in funds immediately available to the Administrative Agent
at the Administrative Agent's office set forth in Section 9.1, such Lender's
Capital Expenditure Line Pro Rata Share of the advances to be made on such date.
2.4.3 Capital Expenditure Line Notes.
The obligation of the Borrowers to pay each Lender's Capital
Expenditure Line Pro Rata Share of the Capital Expenditure Line, with interest,
shall be evidenced by a series of promissory notes (as from time to time
extended, amended, restated, supplemented or otherwise modified, collectively
the "Capital Expenditure Line Notes" and individually a "Capital Expenditure
Line Note") substantially in the form of EXHIBIT "B-2" attached hereto and made
a part hereof, with appropriate insertions. Each Lender's Capital Expenditure
Line Note shall be dated as of the Closing Date, shall be payable to the order
of such Lender at the times provided in the Capital Expenditure Line Note, and
shall be in the principal amount of such Lender's Capital Expenditure Line Pro
Rata Share. Each of the Borrowers acknowledges and agrees that, if the
outstanding principal balance of the Capital Expenditure Line outstanding from
time to time exceeds the aggregate face amount of the Capital Expenditure Line
Notes, the excess shall bear interest at the rates provided from time to time
for the Capital Expenditure Line
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evidenced by the Capital Expenditure Line Notes and shall be payable, with
accrued interest, ON DEMAND. The Capital Expenditure Line Notes shall not
operate as a novation of any of the Obligations or nullify, discharge, or
release any such Obligations or the continuing contractual relationship of the
parties hereto in accordance with the provisions of this Agreement.
2.4.4 Payments of Capital Expenditure Line.
Each advance under the Capital Expenditure Line shall be repayable
in installment payments of principal quarterly (on the first day of each August,
November, February, and May after the date of such advance) in an amount equal
to 1/20th of the amount of the advance. At the time of each advance under the
Capital Expenditure Line, the Parent on behalf of the Borrowers shall furnish a
"Capital Expenditure Line Payment Schedule" substantially in the form of EXHIBIT
"B-3" attached hereto and made a part hereof, with appropriate insertions, which
shall set forth the installment payments with respect to the advance and the
aggregate payments due thereafter on all Capital Expenditure Line advances. The
Capital Expenditure Line Payment Schedules shall not operate as a novation of
any of the Obligations or nullify, discharge, or release any such Obligations or
the continuing contractual relationship of the parties hereto in accordance with
the provisions of this Agreement or the Capital Expenditure Line Notes. In
addition, in the event Capital Expenditure Line Equipment is sold or otherwise
disposed of (by casualty or otherwise) and the proceeds of such sale or
disposition which are received by the Lenders for application to the Capital
Expenditure Line are not sufficient to pay in full an amount equal to the
aggregate of the quarterly installment payments of principal remaining with
respect to the advance for such Capital Expenditure Line Equipment, then the
Borrowers shall pay to the Administrative Agent UPON DEMAND the amount of such
deficiency for application to the Capital Expenditure Line and the Borrowers
shall furnish a Capital Expenditure Line Payment Schedule reflecting the amount
repaid and the new installment amounts.
2.4.5 Optional Prepayments of Capital Expenditure Line.
The Borrowers may, at their option, at any time and from time to
time prepay (each a "Capital Expenditure Line Optional Prepayment" and
collectively the "Capital Expenditure Line Optional Prepayments") the Capital
Expenditure Line, in whole or in part without premium or penalty. The amount to
be so prepaid, together with interest accrued thereon to date of prepayment if
the amount is intended as a prepayment of the Capital Expenditure Line in whole,
shall be paid by the Borrowers to the Administrative Agent for the ratable
(based upon each Lender's Capital Expenditure Line Pro Rata Share) benefit of
the Lenders on the date specified for such prepayment.
2.4.6 Application of Capital Expenditure Line Partial Prepayments.
Partial Capital Expenditure Line Loan Optional Prepayments shall
be in an amount not less than the aggregate amount of the next principal
installment under the Capital Expenditure Line Notes and shall be applied first
to all accrued and unpaid interest on the principal of the Capital Expenditure
Line Notes, and then pro rata to the balloon payment due at maturity and to the
principal installment payments, which proration for each payment shall be
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equal to the amount to be prepaid times a fraction, the numerator of which is
the amount of the balloon or installment (as applicable) payment and the
denominator of which is the aggregate outstanding principal balance of the
Capital Expenditure Line immediately prior to the prepayment. The Borrowers may
not, however, make a partial Capital Expenditure Line Optional Prepayment unless
the Borrowers have furnished a Capital Expenditure Line Payment Schedule
reflecting the amount to be prepaid and the new installment amounts.
Section 2.5 Interest.
2.5.1 Applicable Interest Rates.
(a) Each Loan shall bear interest until maturity (whether by
acceleration, declaration, extension or otherwise) at either the Base Rate or
the Eurodollar Rate, as selected and specified by the Borrowers in an Interest
Rate Election Notice furnished to the Lender in accordance with the provisions
of Section 2.5.2(e), or as otherwise determined in accordance with the
provisions of this ARTICLE II, and as may be adjusted from time to time in
accordance with the provisions of Section 2.5.3 (Inability to Determine
Eurodollar Base Rate).
(b) Notwithstanding the foregoing, following the occurrence
and during the continuance of an Event of Default, at the option of the
Administrative Agent, all Loans and all other Obligations shall bear interest at
the Post-Default Rate.
(c) The Applicable Margin for (i) Eurodollar Loans shall be
225 basis points per annum, and (ii) Base Rate Loans shall be 25 basis points
per annum unless and until a change is required by the operation of Section
2.5.1(d).
(d) Changes in the Applicable Margin shall be made not more
frequently than quarterly based on the Borrowers' Pricing Ratio determined as of
the end of each fiscal quarter by the Administrative Agent based on the
Borrowers' statements required by Section 6.1.1(c) (Quarterly Statements and
Certificates), except that the first such determination shall be made based on
the Borrowers' annual financial statements required by Section 6.1.1(a) (Annual
Statements and Certificates ) for the Borrowers' fiscal year ended December 31,
1998 and shall be effective as of the first day of the first month after the
Administrative Agent receives such statements.
(e) The Applicable Margin (expressed as basis points) for the
Revolving Credit Facility shall vary depending upon the Borrowers' Pricing
Ratio, as follows:
<TABLE>
<CAPTION>
- - ---------------------------------------------------------------------------------------------------------
Pricing Ratio Applicable Margin for Applicable Margin for Base
Eurodollar Loans Rate Loans
- - ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
Equal to or greater than 4.0 to 1.0 225 25
- - ---------------------------------------------------------------------------------------------------------
Equal to or greater than 3.0 to 1.0 200 0
- - ---------------------------------------------------------------------------------------------------------
Less than 3.0 to 1.0 175 0
- - ---------------------------------------------------------------------------------------------------------
</TABLE>
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(f) The Applicable Margin (expressed as basis points) for the
Capital Expenditure Line shall vary depending upon the Borrowers' Pricing Ratio,
as follows:
<TABLE>
<CAPTION>
- - ---------------------------------------------------------------------------------------------------------
Pricing Ratio Applicable Margin for Applicable Margin for Base
Eurodollar Loans Rate Loans
- - ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
Equal to or greater than 4.0 to 1.0 250 50
- - ---------------------------------------------------------------------------------------------------------
Equal to or greater than 3.0 to 1.0 225 25
- - ---------------------------------------------------------------------------------------------------------
Less than 3.0 to 1.0 200 0
- - ---------------------------------------------------------------------------------------------------------
</TABLE>
2.5.2 Selection of Interest Rates.
(a) The Borrowers may select the initial Applicable Interest
Rate or Applicable Interest Rates to be charged on the Loans.
(b) From time to time after the date of this Agreement as
provided in this Section, by a proper and timely Interest Rate Election Notice
furnished to the Administrative Agent in accordance with the provisions of
Section 2.5.2(e), the Borrowers may select an initial Applicable Interest Rate
or Applicable Interest Rates for any Loans or may convert the Applicable
Interest Rate and, when applicable, the Interest Period, for any existing Loan
to any other Applicable Interest Rate or, when applicable, any other Interest
Period.
(c) The Borrowers' selection of an Applicable Interest Rate
and/or an Interest Period, the Borrowers' election to convert an Applicable
Interest Rate and/or an Interest Period to another Applicable Interest Rate or
Interest Period, and any other adjustments in an interest rate are subject to
the following limitations:
(i) the Borrowers shall not at any time select or
change to an Interest Period that extends beyond the Revolving Credit
Expiration Date in the case of the Revolving Loan or beyond the
scheduled maturity of the Capital Expenditure Line in the case of the
Capital Expenditure Line;
(ii) except as otherwise provided in Section 2.5.4
(Indemnity), no change from the Eurodollar Rate to the Base Rate shall
become effective on a day other than a Business Day and on a day which
is the last day of the then current Interest Period, no change of an
Interest Period shall become effective on a day other than the last day
of the then current Interest Period, and no change from the Base Rate
to the Eurodollar Rate shall become effective on a day other than a day
which is a Eurodollar Business Day;
(iii) any Applicable Interest Rate change for any Loan
to be effective on a date on which any principal payment on account of
such Loan is scheduled to be paid shall be made only after such payment
shall have been made;
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(iv) no more than ten (10) different Eurodollar Rates
may be outstanding at any time and from time to time with respect to
the Revolving Loan;
(v) only three (3) Eurodollar Rates may be
outstanding at any time and from time to time with respect to the
Capital Expenditure Line;
(vi) the first day of each Interest Period shall be a
Eurodollar Business Day;
(vii) as of the effective date of a selection, there
shall not exist an Event of Default; and
(viii) the minimum principal amount of a Eurodollar Loan
shall be One Million Dollars ($1,000,000).
(d) If a request for an advance under the Loans is not
accompanied by an Interest Rate Election Notice or does not otherwise include a
selection of an Applicable Interest Rate and, if applicable, an Interest Period,
or if, after having made a selection of an Applicable Interest Rate and, if
applicable, an Interest Period, the Borrowers fail or are not otherwise entitled
under the provisions of this Agreement to continue such Applicable Interest Rate
or Interest Period, the Borrowers shall be deemed to have selected the Base Rate
as the Applicable Interest Rate until such time as the Borrowers have selected a
different Applicable Interest Rate and specified an Interest Period in
accordance with, and subject to, the provisions of this Section.
(e) The Lenders will not be obligated to make Loans, to
convert the Applicable Interest Rate on Loans to another Applicable Interest
Rate, or to change Interest Periods, unless the Administrative Agent shall have
received an irrevocable written or telephonic notice (an "Interest Rate Election
Notice") from the Borrowers specifying the following information:
(i) the amount to be borrowed or converted;
(ii) a selection of the Base Rate or the Eurodollar
Rate;
(iii) the length of the Interest Period if the
Applicable Interest Rate selected is the Eurodollar Rate; and
(iv) the requested date on which such election is to
be effective.
Any telephonic notice must be confirmed by telecopy within
three (3) Business Days. Each Interest Rate Election Notice must be received by
the Administrative
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Agent not later than 10:00 a.m. (Baltimore City time) on the Business Day of any
requested borrowing or conversion in the case of a selection of the Base Rate
and not later than 10:00 a.m. (Baltimore City time) on the third Business Day
before the effective date of any requested borrowing or conversion in the case
of a selection of the Eurodollar Rate.
2.5.3 Inability to Determine Eurodollar Base Rate.
In the event that (a) the Administrative Agent shall have
determined that, by reason of circumstances affecting the London interbank
eurodollar market, adequate and reasonable means do not exist for ascertaining
the Eurodollar Base Rate for any requested Interest Period with respect to a
Loan the Borrowers have requested to be made as or to be converted to a
Eurodollar Loan or (b) the Administrative Agent shall determine that the
Eurodollar Base Rate for any requested Interest Period with respect to a Loan
the Borrowers have requested to be made as or to be converted to a Eurodollar
Loan does not adequately and fairly reflect the cost to the Lenders of funding
or converting such Loan, the Administrative Agent shall give telephonic or
written notice of such determination to the Borrowers at least one (1) day prior
to the proposed date for funding or converting such Loan. If such notice is
given, any request for a Eurodollar Loan shall be made as or converted to a Base
Rate Loan. Until such notice has been withdrawn by the Administrative Agent, the
Borrowers will not request that any Loan be made as or converted to a Eurodollar
Loan.
2.5.4 Indemnity.
(a) The Borrowers agree to indemnify and reimburse the
Administrative Agent and the Lenders and to hold the Administrative Agent and
the Lenders harmless from any loss (including loss of anticipated profits), cost
(including administrative costs) or expense which any one or more of the
Administrative Agent or the Lenders may sustain or incur as a consequence of (a)
a default by the Borrowers in payment when due of the principal amount of or
interest on any Eurodollar Loan, (b) the failure of the Borrowers to make, or
convert the Applicable Interest Rate of, a Loan after the Borrowers has given a
Loan Notice or an Interest Rate Election Notice, (c) the failure of the
Borrowers to make any prepayment of a Eurodollar Loan after the Borrowers have
given notice of such intention to make such a prepayment, and/or (d) the making
by the Borrowers of a prepayment of a Eurodollar Loan on a day which is not the
last day of the Interest Period for such Eurodollar Loan including, without
limitation, any such loss (including loss of anticipated profits) or expense
arising from the reemployment of funds obtained by the Lenders to maintain any
Eurodollar Loan or from fees payable to terminate the deposits from which such
funds were obtained.
(b) In addition to the foregoing, until the earlier of (i)
the Syndication Date and (ii) the 180th day following the Closing Date, each
Borrower severally shall compensate each Lender (including each Person that
becomes a Lender pursuant to Section 9.5), upon its written request (which
request shall set forth the basis for requesting such compensation), for all
reasonable losses, expenses and liabilities (including, without limitation, any
loss, expense or liability incurred by reason of the liquidation or reemployment
of deposits or other funds required by such Lender to fund such Borrower's
Eurodollar Loans including loss of anticipated profit with respect to any
Eurodollar Loans) which such Lender may sustain in
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connection with the Administrative Agent's and the Syndication Agent's
syndication of this Agreement to additional Lenders during such period to the
extent that such losses, expenses and liabilities arise from assignments of,
incurrences of, or repayments of, Eurodollar Loans, provided, however, that the
Lenders agree to use good faith efforts to cause the syndication date to occur
at the end of an Interest Period.
2.5.5 Payment of Interest.
(a) Unpaid and accrued interest on any portion of the Loans
which consists of a Base Rate Loan shall be paid monthly, in arrears, on the
first day of each calendar month, commencing on the first such date after the
date of this Agreement, and on the first day of each calendar month thereafter,
and at maturity (whether by acceleration, declaration, extension or otherwise).
(b) Notwithstanding the foregoing, any and all unpaid and
accrued interest on any Base Rate Loan converted to a Eurodollar Loan or prepaid
shall be paid immediately upon such conversion and/or prepayment, as
appropriate.
(c) Unpaid and accrued interest on any Eurodollar Loan shall
be paid monthly and on the last Business Day of each Interest Period for such
Eurodollar Loan and at maturity (whether by acceleration, declaration, extension
or otherwise); provided, however that any and all unpaid and accrued interest on
any Eurodollar Loan prepaid prior to expiration of the then current Interest
Period for such Eurodollar Loan shall be paid immediately upon prepayment.
Section 2.6 General Financing Provisions.
2.6.1 Borrowers' Representatives.
The Borrowers hereby represent and warrant to the
Administrative Agent and the Lenders that each of them will derive benefits,
directly and indirectly, from each Letter of Credit and from each Loan, both in
their separate capacity and as a member of the integrated group to which each of
the Borrowers belong and because the successful operation of the integrated
group is dependent upon the continued successful performance of the functions of
the integrated group as a whole, because (a) the terms of the consolidated
financing provided under this Agreement are more favorable than would otherwise
would be obtainable by the Borrowers individually, and (b) the Borrowers'
additional administrative and other costs and reduced flexibility associated
with individual financing arrangements which would otherwise be required if
obtainable would substantially reduce the value to the Borrowers of the
financing. The Borrowers in the discretion of their respective managements are
to agree among themselves as to the allocation of the benefits of Letters of
Credit and the proceeds of Loans, provided, however, that the Borrowers shall be
deemed to have represented and warranted to the Administrative Agent and the
Lenders at the time of allocation that each benefit and use of proceeds is a
Permitted Use.
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For administrative convenience, each Borrower hereby
irrevocably appoints the Parent as such Borrower's attorney-in-fact, with power
of substitution (with the prior written consent of the Administrative Agent in
the exercise of its sole and absolute discretion), in the name of the Parent or
in the name of such Borrower or otherwise to take any and all actions with
respect to the this Agreement, the other Financing Documents, the Obligations
and/or the Collateral (including, without limitation, the proceeds thereof) as
the Parent may so elect from time to time, including, without limitation,
actions to (i) request advances under the Loans, apply for and direct the
benefits of Letters of Credits, and direct the Administrative Agent to disburse
or credit the proceeds of any Loan directly to an account of the Parent, any one
or more of the Borrowers or otherwise, which direction shall evidence the making
of such Loan and shall constitute the acknowledgement by each of the Borrowers
of the receipt of the proceeds of such Loan or the benefit of such Letter of
Credit, (ii) enter into, execute, deliver, amend, modify, restate, substitute,
extend and/or renew this Agreement, any Additional Borrower Joinder Supplement,
any other Financing Documents, security agreements, mortgages, deposit account
agreements, instruments, certificates, waivers, letter of credit applications,
releases, documents and agreements from time to time, and (iii) endorse any
check or other item of payment in the name of such Borrower or in the name of
the Parent. The foregoing appointment is coupled with an interest, cannot be
revoked without the prior written consent of the Administrative Agent, and may
be exercised from time to time through the Parent's duly authorized officer,
officers or other Person or Persons designated by the Parent to act from time to
time on behalf of the Parent.
Each of the Borrowers hereby irrevocably authorizes each of
the Lenders to make Loans to any one or more all of the Borrowers, and hereby
irrevocably authorizes the Administrative Agent to issue or cause to be issued
Letters of Credit for the account of any or all of the Borrowers, pursuant to
the provisions of this Agreement upon the written, oral or telephone request any
one or more of the Persons who is from time to time a Responsible Officer of a
Borrower under the provisions of the most recent certificate of corporate
resolutions and/or incumbency of the Borrowers on file with the Administrative
Agent and also upon the written, oral or telephone request of any one of the
Persons who is from time to time a Responsible Officer of the Parent under the
provisions of the most recent certificate of corporate resolutions and/or
incumbency for the Parent on file with the Administrative Agent.
Neither the Administrative Agent nor any of the Lenders assumes
any responsibility or liability for any errors, mistakes, and/or discrepancies
in the oral, telephonic, written or other transmissions of any instructions,
orders, requests and confirmations between the Administrative Agent and the
Borrowers or the Administrative Agent and any of the Lenders in connection with
the Credit Facilities, any Loan, any Letter of Credit or any other transaction
in connection with the provisions of this Agreement, except to the extent any
such errors, mistakes and/or discrepancies are the proximate result of gross
negligence or willful misconduct by the Administrative Agent or any Lender.
Without implying any limitation on the joint and several nature of the
Obligations, the Lenders agree that, notwithstanding any other provision of this
Agreement, the Borrowers may create reasonable inter-company indebtedness
between or among the Borrowers with respect to the allocation of the benefits
and proceeds of the advances and Credit Facilities under this Agreement. The
Borrowers agree among themselves, and the Administrative Agent and the Lenders
consent to that agreement, that each Borrower shall have
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rights of contribution from all of the other Borrowers to the extent such
Borrower incurs Obligations in excess of the proceeds of the Loans received by,
or allocated to purposes for the direct benefit of, such Borrower. All such
indebtedness and rights shall be, and are hereby agreed by the Borrowers to be,
subordinate in priority and payment to the indefeasible repayment in full in
cash of the Obligations, and, unless the Administrative Agent agrees in writing
otherwise, shall not be exercised or repaid in whole or in part until all of the
Obligations have been indefeasibly paid in full in cash. The Borrowers agree
that all of such inter-company indebtedness and rights of contribution are part
of the Collateral and secure the Obligations. Each Borrower hereby waives all
rights of counterclaim, recoupment and offset between or among themselves
arising on account of that indebtedness and otherwise. Each Borrower shall not
evidence the inter-company indebtedness or rights of contribution by note or
other instrument, and shall not secure such indebtedness or rights of
contribution with any Lien or security. Notwithstanding anything contained in
this Agreement to the contrary, the amount covered by each Borrower under the
Obligations shall be limited to an aggregate amount (after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Borrower in respect of the Obligations) which, together with
other amounts owing by such Borrowers to the Administrative Agent and the
Lenders under the Obligations, is equal to the largest amount that would not be
subject to avoidance under the Bankruptcy Code or any applicable provisions of
any applicable, comparable state or other Laws.
2.6.2 Computation of Interest and Fees.
All applicable Fees and interest shall be calculated on the
basis of a year of 360 days for the actual number of days elapsed. Any change in
the interest rate on any of the Obligations resulting from a change in the Base
Rate shall become effective as of the opening of business on the day on which
such change in the Base Rate is announced.
2.6.3 Liens; Setoff.
The Borrowers hereby grant to the Administrative Agent and
to the Lenders a continuing Lien for all of the Obligations (including, without
limitation, the Agents' Obligations) upon any and all monies, securities, and
other property of the Borrowers and the proceeds thereof, now or hereafter held
or received by or in transit to, the Administrative Agent, any of the Lenders,
and/or any Affiliate of the Administrative Agent and/or any of the Lenders, from
or for the Borrowers, and also upon any and all deposit accounts (general or
special) and credits of the Borrowers, if any, with the Administrative Agent,
any of the Lenders or any Affiliate of the Administrative Agent or any of the
Lenders, at any time existing, excluding any deposit accounts held by the
Borrowers in their capacity as trustee for Persons who are not Borrowers or
Affiliates of the Borrowers. Without implying any limitation on any other rights
the Administrative Agent and/or the Lenders may have under the Financing
Documents or applicable Laws, during the continuance of an Event of Default, the
Administrative Agent is hereby authorized by the Borrowers at any time and from
time to time, without notice to the Borrowers, to set off, appropriate and apply
any or all items hereinabove referred to against all Obligations (including,
without limitation, the Agents' Obligations) then outstanding (whether or
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not then due), all in such order and manner as shall be determined by the
Administrative Agent in its sole and absolute discretion.
2.6.4 Requirements of Law.
In the event that any Lender shall have determined in good
faith that (a) the adoption of any Laws regarding capital adequacy, or (b) any
change therein or in the interpretation or application thereof or (c) compliance
by such Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any central bank or Governmental Authority, does or shall have the effect
of reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender, as a consequence of the obligations of the such Lender
hereunder to a level below that which such Lender or any corporation controlling
such Lender would have achieved but for such adoption, change or compliance
(taking into consideration the policies of such Lender and the corporation
controlling such Lender, with respect to capital adequacy) by an amount deemed
by such Lender to be material, then from time to time, after submission by such
Lender to the Borrowers of a written request therefor and a statement of the
basis for such determination, the Borrowers shall pay to such Lender such
additional amount or amounts in order to compensate for such reduction,
provided, however, that each Lender agrees to (i) use good faith efforts to
change its Appropriate Payment Office if such change would (A) eliminate the
necessity for such additional payments and (B) not have an adverse effect on
such Lender and (ii) treat the Borrowers in substantially the same manner as it
treats all similarly situated borrowers with respect to the requirement to
payment of such additional amounts.
2.6.5 Administrative Agency Fees.
The Borrowers shall pay to the Administrative Agent an
administrative agency fee (collectively, the "Administrative Agency Fees" and
individually an "Administrative Agency Fee"), which Administrative Agency Fees
shall be payable quarterly in advance on the Closing Date and on the first day
of each August, November, February, and May of each year commencing on the first
such date following the Closing Date, and continuing until the last such date
prior to which all Obligations arising out of, or under, the Credit Facilities
then outstanding have been paid in full. Each Administrative Agency Fee shall be
in the amount of $25,000 per quarter.
2.6.6 Origination Fee.
The Borrowers shall pay to the Administrative Agent for the
sole and exclusive benefit of the Administrative Agent on or before the Closing
Date an origination fee in the amount set forth in the Administrative Agent's
fee letter (the "Origination Fee"), which Origination Fee shall be fully earned
and nonrefundable upon payment and shall be a part of the Agents' Obligations.
2.6.7 Funds Transfer Services.
(a) Each Borrower acknowledges that the Administrative Agent
has made available to the Borrowers Wire Transfer Procedures a copy of which is
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attached to this Agreement as EXHIBIT C and which include a description of
security procedures regarding funds transfers executed by the Administrative
Agent or an Affiliate bank at the request of the Borrowers (the "Security
Procedures"). The Borrowers and the Administrative Agent agree that the Security
Procedures are commercially reasonable. Each Borrower further acknowledges that
the full scope of the Security Procedures which the Administrative Agent or such
Affiliate bank offers and strongly recommends for funds transfers is available
only if the Borrowers communicate directly with the Administrative Agent or such
Affiliate bank as applicable in accordance with said procedures. If a Borrower
attempts to communicate by any other method or otherwise not in accordance with
the Security Procedures, the Administrative Agent or such Affiliate bank, as
applicable, shall not be required to execute such instructions, but if the
Administrative Agent or such Affiliate bank, as applicable, does so, the
Borrowers will be deemed to have refused the Security Procedures that the
Administrative Agent or such Affiliate bank as applicable offers and strongly
recommends, and the Borrowers will be bound by any funds transfer, whether or
not authorized, which is issued in any Borrower's name and accepted by the
Administrative Agent or such Affiliate bank, as applicable, in good faith. The
Administrative Agent or such Affiliate bank, as applicable, may modify Wire
Transfer Procedures including, without limitation, the Security Procedures at
such time or times and in such manner as the Administrative Agent or such
Affiliate bank, as applicable, in its sole discretion, deems appropriate to meet
prevailing standards of good banking practice. By continuing to use the
Administrative Agent's or such Affiliate bank's, as applicable, wire transfer
services after receipt of any modification of the Wire Transfer procedures
including, without limitation, the Security Procedures, each Borrower agrees
that the Security Procedures, as modified, are likewise commercially reasonable.
Each Borrower further agrees to establish and maintain procedures to safeguard
the Security Procedures and any information related thereto. Neither the
Administrative Agent nor any Affiliate of the Administrative Agent is
responsible for detecting any error in payment order sent by any Borrower to the
Administrative Agent or any of the Lenders.
(b) The Administrative Agent or such Affiliate bank, as
applicable, will generally use the Fedwire funds transfer system for domestic
funds transfers, and the funds transfer system operated by the Society for
Worldwide International Financial Telecommunication (SWIFT) for international
funds transfers. International funds transfers may also be initiated through the
Clearing House InterBank Payment System (CHIPs) or international cable. However,
the Administrative Agent or such Affiliate bank, as applicable, may use any
means and routes that the Administrative Agent or such Affiliate bank, as
applicable, in its sole discretion, may consider suitable for the transmission
of funds. Each payment order, or cancellation thereof, carried out through a
funds transfer system or a clearinghouse will be governed by all applicable
funds transfer system rules and clearing house rules and clearing arrangements,
whether or not the Administrative Agent or such Affiliate bank, as applicable,
is a member of the system, clearinghouse or arrangement and each Borrower
acknowledges that the Administrative Agent's or such Affiliate bank's, as
applicable, right to reverse, adjust, stop payment or delay posting of an
executed payment order is subject to the laws, regulations, rules, circulars and
arrangements described herein.
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2.6.8 Guaranty.
(a) Each Domestic Borrower hereby unconditionally and
irrevocably, guarantees to the Agents and the Lenders:
(i) the due and punctual payment in full (and not
merely the collectibility) by the other Borrowers of the Obligations,
including unpaid and accrued interest thereon, in each case when due
and payable, all according to the terms of this Agreement, the Notes
and the other Financing Documents;
(ii) the due and punctual payment in full (and not
merely the collectibility) by the other Borrowers of all other sums and
charges which may at any time be due and payable in accordance with
this Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by the other
Borrowers of all of the other terms, covenants and conditions contained
in the Financing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) The obligations and liabilities of each Domestic Borrower
as a guarantor under this Section 2.6.8 shall be absolute and unconditional and
joint and several, irrespective of the genuineness, validity, priority,
regularity or enforceability of this Agreement, any of the Notes or any of the
Financing Documents or any other circumstance which might otherwise constitute a
legal or equitable discharge of a surety or guarantor. Each Domestic Borrower in
its capacity as a guarantor expressly agrees that the Administrative Agent and
the Lenders may, in their sole and absolute discretion, without notice to or
further assent of such Domestic Borrower and without in any way releasing,
affecting or in any way impairing the joint and several obligations and
liabilities of such Domestic Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under,
or grant any other indulgences under or with respect to any of the
Financing Documents;
(ii) modify, amend, change or terminate any
provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with respect
to the Credit Facilities, the Notes or any of the other Financing
Documents;
(iv) effect any release, subordination, compromise or
settlement in connection with this Agreement, any of the Notes or any
of the other Financing Documents;
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(v) agree to the substitution, exchange, release or
other disposition of the Collateral or any part thereof, or any other
collateral for the Loan or to the subordination of any lien or security
interest therein;
(vi) make advances for the purpose of performing any
term, provision or covenant contained in this Agreement, any of the
Notes or any of the other Financing Documents with respect to which the
Borrowers shall then be in default;
(vii) make future advances pursuant to the Financing
Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise
transfer the Commitments, the Obligations, the Notes, any of the other
Financing Documents or any interest therein, all as and to the extent
permitted by the provisions of this Agreement;
(ix) deal in all respects with the other Borrowers as if
this Section 2.6.8 were not in effect;
(x) effect any release, compromise or settlement
with any of the other Borrowers, whether in their capacity as a
Borrower or as a guarantor under this Section 2.6.8, or any other
guarantor; and
(xi) provide debtor-in-possession financing or allow
use of cash collateral in proceedings under the Bankruptcy Code or
other Insolvency Proceedings, it being expressly agreed by all
Borrowers that any such financing and/or use would be part of the
Obligations.
(c) The obligations and liabilities of each Domestic
Borrower, as guarantor under this Section 2.6.8, shall be primary, direct and
immediate, shall not be subject to any counterclaim, recoupment, set off,
reduction or defense based upon any claim that a Domestic Borrower may have
against any one or more of the other Borrowers, the Administrative Agent, any
one or more of the Lenders and/or any other guarantor and shall not be
conditional or contingent upon pursuit or enforcement by the Administrative
Agent or other Lenders of any remedies it may have against the Borrowers with
respect to this Agreement, the Notes or any of the other Financing Documents,
whether pursuant to the terms thereof or by operation of law. Without limiting
the generality of the foregoing, the Administrative Agent and the Lenders shall
not be required to make any demand upon any of the Borrowers, or to sell the
Collateral or otherwise pursue, enforce or exhaust its or their remedies against
the Borrowers or the Collateral either before, concurrently with or after
pursuing or enforcing its rights and remedies hereunder. Any one or more
successive or concurrent actions or proceedings may be brought against each
Domestic Borrower under this Section 2.6.8 in the same action, if any, brought
against any one or more of the Borrowers or in separate actions or proceedings,
as often
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as the Administrative Agent may deem expedient or advisable. Without
limiting the foregoing, it is specifically understood that any modification,
limitation or discharge of any of the liabilities or obligations of any one or
more of the Borrowers, any other guarantor or any obligor under any of the
Financing Documents, arising out of, or by virtue of, any bankruptcy,
arrangement, reorganization or similar proceeding for relief of debtors under
federal or state law initiated by or against any one or more of the Borrowers,
in their respective capacities as borrowers and guarantors under this Section
2.6.8 under any of the Financing Documents shall not modify, limit, lessen,
reduce, impair, discharge, or otherwise affect the liability of each Domestic
Borrower under this Section 2.6.8 in any manner whatsoever, and this Section
2.6.8 shall remain and continue in full force and effect. It is the intent and
purpose of this Section 2.6.8 that each Domestic Borrower shall and does hereby
waive all rights and benefits which might accrue to any other guarantor by
reason of any such proceeding, and the Borrowers agree that they shall be liable
for the full amount of the obligations and liabilities under this Section 2.6.8,
regardless of, and irrespective to, any modification, limitation or discharge of
the liability of any one or more of the Borrowers, (other than the discharge of
all Borrowers as a result of the indefeasible payment in full in cash of all
Obligations) any other guarantor or any obligor under any of the Financing
Documents, that may result from any such proceedings
(d) Each Domestic Borrower, as guarantor under this Section
2.6.8, hereby unconditionally, jointly and severally, irrevocably and expressly
waives:
(i) presentment and demand for payment of the
Obligations and protest of non-payment;
(ii) notice of acceptance of this Section 2.6.8 and
of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the
Notes or any of the other Financing Documents and notice of all
indulgences;
(iv) notice of any increase in the amount of any
portion of or all of the indebtedness guaranteed by this Section 2.6.8;
(v) demand for observance, performance or
enforcement of any of the terms or provisions of this Section 2.6.8,
the Notes or any of the other Financing Documents;
(vi) all errors and omissions in connection with the
Lender's administration of all indebtedness guaranteed by this Section
2.6.8, except errors and omissions resulting from acts of bad faith,
gross negligence or willful misconduct;
(vii) any right or claim of right to cause a
marshalling of the assets of any one or more of the other Borrowers;
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(viii) any act or omission of the Administrative Agent
or the Lenders which changes the scope of the risk as guarantor
hereunder; and all other notices and demands otherwise required by law
which the Domestic Borrower may lawfully waive.
Within ten (10) days following any request of the
Administrative Agent so to do, each Domestic Borrower will furnish the
Administrative Agent and the Lenders and such other persons as the
Administrative Agent may direct with a written certificate, duly acknowledged
stating in detail whether or not any credits, offsets or defenses exist with
respect to this Section 2.6.8.
Section 2.7 Settlement Among Lenders.
2.7.1 Capital Expenditure Line.
The Administrative Agent shall pay to each Lender on each
Interest Payment Date or date provided in the Capital Expenditure Line
Installment Payment Schedule, as the case may be, such Lender's Capital
Expenditure Line Pro Rata Share of all payments received by the Administrative
Agent in immediately available funds on account of the Capital Expenditure Line,
net of any amounts payable by such Lender to the Administrative Agent, by wire
transfer of same day funds; the amount payable to each Lender shall be based on
the principal amount of the Capital Expenditure Line owing to such Lender.
2.7.2 Revolving Loan.
It is agreed that each Lender's Net Outstandings are intended by
the Lenders to be equal at all times to such Lender's Revolving Credit Pro Rata
Share of the aggregate outstanding principal amount of the Revolving Loan
outstanding. Notwithstanding such agreement, the several and not joint
obligation of each Lender to fund the Revolving Loan made in accordance with the
terms of this Agreement ratably in accordance with such Lender's Revolving
Credit Pro Rata Share and each Lender's right to receive its ratable share of
principal payments on the Revolving Loan in accordance with its Revolving Credit
Pro Rata Share, the Lenders agree that in order to facilitate the administration
of this Agreement and the Financing Documents that settlement among them may
take place on a periodic basis in accordance with the provisions of this Section
2.7.
2.7.3 Settlement Procedures as to Revolving Loan.
(a) In General. To the extent and in the manner hereinafter
provided in this Section 2.7.3, settlement among the Lenders as to the Revolving
Loan may occur periodically on Settlement Dates determined from time to time by
the Administrative Agent, which may occur before or after the occurrence or
during the continuance of a Default or Event of Default and whether or not all
of the conditions set forth in Section 5.4 (Conditions to All Extensions of
Credit) have been met. On each Settlement Date payments shall be made by or to
NationsBank and the other Lenders in the manner provided in this Section 2.7.3
in accordance with the Settlement Report delivered by the Administrative Agent
pursuant to the provisions of
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this Section 2.7.3 in respect of such Settlement Date so that as of each
Settlement Date, and after giving effect to the transactions to take place on
such Settlement Date, each Lender's Net Outstandings shall equal such Lender's
Revolving Credit Pro Rata Share of the Revolving Loan outstanding.
(b) Selection of Settlement Dates. If the Administrative
Agent elects, in its discretion, but subject to the consent of NationsBank, to
settle accounts among the Lenders with respect to principal amounts of Revolving
Loan less frequently than each Business Day, then the Administrative Agent shall
designate periodic Settlement Dates which may occur on any Business Day after
the Closing Date; provided, however, that the Administrative Agent shall
designate as a Settlement Date any Business Day which is an Interest Payment
Date; and provided further, that a Settlement Date shall occur at least once
during each seven-day period. The Administrative Agent shall designate a
Settlement Date by delivering to each Lender a Settlement Report not later than
12:00 noon (Baltimore City Time) on the proposed Settlement Date, which
Settlement Report shall be with respect to the period beginning on the next
preceding Settlement Date and ending on such designated Settlement Date.
(c) Non-Ratable Loans and Payments. Between Settlement Dates,
the Administrative Agent shall request and NationsBank may (but shall not be
obligated to) advance to the Borrowers out of NationsBank's own funds, the
entire principal amount of any advance under the Revolving Loan requested or
deemed requested pursuant to Section 2.1.2(f) (Procedure for Making Advances
Under the Revolving Loan) (any such advance under the Revolving Loan being
referred to as a "Non-Ratable Loan"). The making of each Non-Ratable Loan by
NationsBank shall be deemed to be a purchase by NationsBank of a 100%
participation in each other Lender's Revolving Credit Pro Rata Share of the
amount of such Non-Ratable Loan. All payments of principal, interest and any
other amount with respect to such Non-Ratable Loan shall be payable to and
received by the Administrative Agent for the account of NationsBank. Upon demand
by NationsBank, with notice to the Administrative Agent, each other Lender shall
pay to NationsBank, as the repurchase of such participation, an amount equal to
100% of such Lender's Revolving Credit Pro Rata Share of the principal amount of
such Non-Ratable Loan. Any payments received by the Administrative Agent between
Settlement Dates which in accordance with the terms of this Agreement are to be
applied to the reduction of the outstanding principal balance of Revolving Loan,
shall be paid over to and retained by NationsBank for such application, and such
payment to and retention by NationsBank shall be deemed, to the extent of each
other Lender's Revolving Credit Pro Rata Share of such payment, to be a purchase
by each such other Lender of a participation in the advance under the Revolving
Loan (including the repurchase of participations in Non-Ratable Loans) made by
NationsBank. Upon demand by another Lender, with notice thereof to the
Administrative Agent, NationsBank shall pay to the Administrative Agent, for the
account of such other Lender, as a repurchase of such participation, an amount
equal to such other Lender's Revolving Credit Pro Rata Share of any such amounts
(after application thereof to the repurchase of any participations of
NationsBank in such other Lender's Revolving Credit Pro Rata Share of any
Non-Ratable Loans) paid only to NationsBank by the Administrative Agent.
(d) Net Decrease in Outstandings. If on any Settlement Date
the increase, if any, in the dollar amount of any Lender's Net Outstandings
which is required to
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comply with the first sentence of Section 2.7.2 (Revolving Loan) is less than
such Lender's Revolving Credit Pro Rata Share of amounts received by the
Administrative Agent but paid only to NationsBank since the next preceding
Settlement Date, such Lender and the Administrative Agent, in their respective
records, shall apply such Lender's Revolving Credit Pro Rata Share of such
amounts to the increase in such Lender's Net Outstandings, and NationsBank shall
pay to the Administrative Agent, for the account of such Lender, the excess
allocable to such Lender.
(e) Net Increase in Outstandings. If on any Settlement Date
the increase, if any, in the dollar amount of any Lender's Net Outstandings
which is required to comply with the first sentence of Section 2.7.2 (Revolving
Loan) exceeds such Lender's Revolving Credit Pro Rata Share of amounts received
by the Administrative Agent but paid only to NationsBank since the next
preceding Settlement Date, such Lender and the Administrative Agent, in their
respective records, shall apply such Lender's Revolving Credit Pro Rata Share of
such amounts to the increase in such Lender's Net Outstandings, and such Lender
shall pay to the Administrative Agent, for the account of NationsBank, any
excess.
(f) No Change in Outstandings. If a Settlement Report
indicates that no advance under the Revolving Loan has been made during the
period since the next preceding Settlement Date, then such Lender's Revolving
Credit Pro Rata Share of any amounts received by the Administrative Agent but
paid only to NationsBank shall be paid by NationsBank to the Administrative
Agent, for the account of such Lender. If a Settlement Report indicates that the
increase in the dollar amount of a Lender's Net Outstandings which is required
to comply with the first sentence of Section 2.7.2 (Revolving Loan) is exactly
equal to such Lender's Revolving Credit Pro Rata Share of amounts received by
the Administrative Agent but paid only to NationsBank since the next preceding
Settlement Date, such Lender and the Administrative Agent, in their respective
records, shall apply such Lender's Revolving Credit Pro Rata Share of such
amounts to the increase in such Lender's Net Outstandings.
(g) Return of Payments. If any amounts received by
NationsBank in respect of the Obligations are later required to be returned or
repaid by NationsBank to the Borrowers or any other obligor or their respective
representatives or successors in interest, whether by court order, settlement or
otherwise, in excess of the NationsBank's Revolving Credit Pro Rata Share of all
such amounts required to be returned by all Lenders, each other Lender shall,
upon demand by NationsBank with notice to the Administrative Agent, pay to the
Administrative Agent for the account of NationsBank, an amount equal to the
excess of such Lender's Revolving Credit Pro Rata Share of all such amounts
required to be returned by all Lenders over the amount, if any, returned
directly by such Lender.
(h) Payments to Administrative Agent, Lenders.
(i) Payment by any Lender to the Administrative
Agent shall be made not later than 2:00 p.m. (Baltimore City Time) on
the Business Day such payment is due, provided that if such payment is
due on demand by another Lender, such demand is made on the paying
Lender not later than 10:00 a.m. (Baltimore City Time) on such
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Business Day. Payment by the Administrative Agent to any Lender shall
be made by wire transfer, promptly following the Administrative Agent's
receipt of funds for the account of such Lender and in the type of
funds received by the Administrative Agent, provided that if the
Administrative Agent receives such funds at or prior to 12:00 p.m. noon
(Baltimore City Time), the Administrative Agent shall pay such funds to
such Lender by 2:00 p.m. (Baltimore City Time) on such Business Day. If
a demand for payment is made after the applicable time set forth above,
the payment due shall be made by 2:00 p.m. (Baltimore City Time) on the
first Business Day following the date of such demand.
(ii) If a Lender shall, at any time, fail to make any
payment to the Administrative Agent required hereunder, the
Administrative Agent may, but shall not be required to, retain payments
that would otherwise be made to such Lender hereunder and apply such
payments to such Lender's defaulted obligations hereunder, at such
time, and in such order, as the Administrative Agent may elect in its
sole discretion.
(iii) With respect to the payment of any funds under
this Section 2.7.3, whether from the Administrative Agent to a Lender
or from a Lender to the Administrative Agent, the party failing to make
full payment when due pursuant to the terms hereof shall, upon demand
by the other party, pay such amount together with interest on such
amount at the Federal Funds Rate.
2.7.4 Settlement of Other Obligations.
All other amounts received by the Administrative Agent on
account of, or applied by the Administrative Agent to the payment of, any
Obligation owed to the Lenders (including, without limitation, Fees payable to
the Lenders and proceeds from the sale of, or other realization upon, all or any
part of the Collateral following an Event of Default) that are received by the
Administrative Agent not later than 11:00 a.m. (Baltimore City Time) on a
Business Day will be paid by the Administrative Agent to each Lender on the same
Business Day, and any such amounts that are received by the Administrative Agent
after 11:00 a.m. (Baltimore City Time) will be paid by the Administrative Agent
to each Lender on the following Business Day. Unless otherwise stated herein,
the Administrative Agent shall distribute Fees payable to the Lenders ratably to
the Lenders based on each Lender's Revolving Credit Pro Rata Share and shall
distribute proceeds from the sale of, or other realization upon, all or any part
of the Collateral following an Event of Default ratably to the Lenders based on
the amount of the Obligations then owing to each Lender.
2.7.5 Presumption of Payment.
Unless the Administrative Agent shall have received notice from
a Lender prior to 12:00 p.m. noon (Baltimore City Time) on the date of the
requested date for the making
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of advances under the Revolving Loan that such Lender will not make available to
the Administrative Agent such Lender's Revolving Credit Pro Rata Share of the
advances to be made on such date, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent on such date
in accordance with this Section 2.7, and the Administrative Agent, in its sole
discretion may, in reliance upon such assumption, make available to the
Borrowers on such date a corresponding amount on behalf of such Lender.
If and to the extent such Lender shall not have so made
available to the Administrative Agent its Revolving Credit Pro Rata Share of the
advances under the Revolving Loan made on such date, and the Administrative
Agent shall have so made available to the Borrowers a corresponding amount on
behalf of such Lender, such Lender shall, on demand, pay to the Administrative
Agent such corresponding amount, together with interest thereon, at the Federal
Funds Rate, for each day from the date such corresponding amount shall have been
so available by the Administrative Agent to the Borrowers until the date such
amount shall have been repaid to the Administrative Agent. Such Lender shall not
be entitled to payment of any interest which accrues on the amount made
available by the Administrative Agent to the Borrowers for the account of such
Lender until such time as such Lender reimburses the Administrative Agent for
such amount, together with interest thereon, as provided in this Section 2.7.5.
A certificate of the Administrative Agent submitted to any Lender
with respect to any amounts owing to the Administrative Agent by such Lender
under this Section 2.7 shall be conclusive and binding on such Lender, absent
manifest error. If such Lender does not pay such amounts to the Administrative
Agent promptly upon the Administrative Agent's demand, the Administrative Agent
shall promptly notify the Borrowers of such Lender's failure to make payment,
and the Borrowers shall immediately repay such amounts to the Administrative
Agent, together with accrued interest thereon at the applicable rate on the
Revolving Loan, all without prejudice to the rights and remedies of the
Administrative Agent against any defaulting Lender. Any and all amounts due and
payable to the Administrative Agent by the Borrowers under this Section 2.7
constitute and shall be part of the Agents' Obligations.
Unless the Administrative Agent shall have received notice from
the Borrowers prior to the date on which any payment is due to the
Administrative Agent that the Borrowers will not make such payment in full, the
Administrative Agent may assume that the Borrowers have made such payment in
full to the Administrative Agent on such date and the Administrative Agent in
its sole discretion may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Borrowers shall not have so made such
payment in full to the Administrative Agent and the Administrative Agent shall
have distributed to any Lender all or any portion of such amount, such Lender
shall repay to the Administrative Agent on demand the amount so distributed to
such Lender, together with interest thereon at the Federal Funds Rate, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent.
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Section 2.8 Assessments; Withholding.
2.8.1 Payment of Assessments.
(a) Any and all payments by the Borrowers hereunder or under
any Note or other document evidencing any obligations shall be made free and
clear of and without reduction for any and all taxes, levies, imposts,
deductions, charges, withholdings, and all stamp or documentary taxes, excise
taxes, ad valorem taxes and other taxes imposed on the value of the Collateral,
charges or levies which arise from the execution, delivery or registration, or
from payment or performance under, or otherwise with respect to, any of the
Financing Documents or the Revolving Credit Commitments and all other
liabilities with respect thereto excluding, in the case of each Lender and the
Administrative Agent, taxes imposed on its income, capital, profits or gains and
franchise taxes imposed on it by (i) the United States, except certain
withholding taxes contemplated pursuant to Section 2.8.4(b)(iii), (ii) the
Governmental Authority of the jurisdiction in which such Applicable Lending
Office is located or any political subdivision thereof, (iii) the Governmental
Authority in which such Person is organized, managed and controlled or any
political subdivision thereof or (iv) any political subdivision of the United
States, unless such taxes are imposed solely as a result of such Lender's
performance of any of the Financing Documents in such political subdivision and
such Lender would not otherwise be subject to tax by such political subdivision
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Assessments").
(b) If a Borrower shall be required by law to withhold or
deduct any Assessments from or in respect of any sum payable hereunder or under
any such Note or document to any Lender or the Administrative Agent, (i) the sum
payable to such Lender or the Administrative Agent shall be increased as may be
necessary so that after making all required withholding or deductions (including
withholding or deductions applicable to additional sums payable under this
Section 2.8) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
withholding or deductions been made, (ii) such Borrower shall make such
withholding or deductions, and (iii) such Borrower shall pay the full amount
withheld or deducted to the relevant taxation authority or other authority in
accordance with applicable law.
2.8.2 Indemnification.
The Borrowers jointly and severally agree to indemnify each Lender
and the Administrative Agent against, and reimburse each on demand for, the full
amount of all Assessments (including, without limitation, any Assessments
imposed by any Governmental Authority on amounts payable under this Section 2.8
and any additional income or franchise taxes resulting therefrom) incurred or
paid by such Lender or the Administrative Agent (as the case may be) or any of
their respective Affiliates and any liability (including penalties, interest,
and out-of-pocket expenses paid to third parties) arising therefrom or with
respect thereto, whether or not such Assessments were lawfully payable (other
than any liability that results from the gross negligence or willful misconduct
of the Lenders and the Administrative Agent, whether or not such Assessments
were correctly or legally asserted by the relevant taxing authority or other
governmental authority). A certificate as to any additional amount payable to
any Person
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under this Section 2.8 submitted by it to the Borrower shall, absent manifest
error, be final, conclusive and binding upon all parties hereto. Each Lender and
the Administrative Agent agrees (ii) within a reasonable time after receiving a
written request from the Parent, to provide the Parent and the Administrative
Agent with such certificates as are reasonably required, (ii) to take such other
actions as are reasonably necessary to claim such exemptions as such Lender, the
Administrative Agent or such Affiliate may be entitled to claim in respect of
all or a portion of any Assessments which are otherwise required to be paid or
deducted or withheld pursuant to this Section 2.8 in respect of any payments
under this Agreement or under the Notes, (iii) to take such actions, including
changing of the Appropriate Payment Office, to avoid the necessity of paying
such Assessments, provided such change would not have an adverse effect on the
business of the applicable Lender and (iv) treat the Borrowers in the same
manner as it treats all similarly situated borrowers with respect to the
requirement to pay such Assessments. If any Lender or the Administrative Agent
receives a refund in respect of any Assessments for which such Lender or the
Administrative Agent has received payment from a Borrower hereunder, it shall
promptly apply such refund (including any interest received by such Lender or
the Administrative Agent from the taxing authority with respect to the refund
with respect to such Assessments) to the obligations of such Borrower, net of
all out-of-pocket expenses of such Lender or the Administrative Agent; provided
that such Borrower, upon the request of such Lender or the Administrative Agent,
agrees to reimburse such refund (plus penalties, interest or other charges) to
such Lender or the Administrative Agent in the event such Lender or the
Administrative Agent is required to repay such refund.
2.8.3 Receipts.
Within thirty (30) days after the date of any payment of
Assessments pursuant to this Section 2.8 by any Borrower or any of the
Borrowers' Subsidiaries, the Parent will furnish to the Administrative Agent at
its request, at its address referred to in Section 9.1, a copy of a receipt, if
any, or other documentation reasonably satisfactory to the Administrative Agent,
evidencing payment thereof. The Borrowers shall furnish to the Administrative
Agent, within thirty (30) days after the request of the Administrative Agent
from time to time, a certificate of a Responsible Officer stating that all
Assessments of which they are aware are due have been paid and that no
additional Assessments of which it is aware are due.
2.8.4 Foreign Bank Certifications.
(a) Each Lender that is not created or organized under the
laws of the United States or a political subdivision thereof has delivered to
the Borrowers and the Administrative Agent on the date on which such Lender
became a Lender or shall deliver to the Borrowers on the date such Lender
becomes a Lender, if such date is after the Closing Date, a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender to
the effect that such Lender is eligible to receive all payments hereunder and
under the Notes without deduction or withholding of United States federal income
tax (i) under the provisions of an applicable tax treaty concluded by the United
States (in which case the certificate shall be accompanied by two duly completed
copies of IRS Form 1001 (or any successor or substitute form or forms)) or (ii)
under Section 1441(c)(1) as modified for purposes of Section 1442(a) of the
Internal Revenue Code (in which case the certificate shall be accompanied by two
duly
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completed copies of IRS Form 4224 (or any successor or substitute form or
forms)). If a Lender is unable to deliver the certificate and forms described
in, and on the dates required by, the preceding sentence, then the applicable
Borrower shall withhold the applicable tax and shall have no indemnification
obligation with respect to such withholding tax.
(b) Each Lender further agrees to promptly deliver to the
Borrowers and the Administrative Agent from time to time, a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender
before or promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Borrowers and the
Administrative Agent pursuant to this Section 2.8.4 (including, but not limited
to, a change in such Lender's lending office). Each certificate required to be
delivered pursuant to this Section 2.8.4 shall certify as to one of the
following:
(i) that such Lender can continue to receive
payments hereunder and under the Notes without deduction or withholding
of United States federal income tax;
(ii) that such Lender cannot continue to receive
payments hereunder and under the Notes without deduction or withholding
of United States federal income tax as specified therein but does not
require additional payments pursuant to Section 2.8.1 because it is
entitled to recover the full amount of any such deduction or
withholding from a source other than the Borrowers;
(iii) that such Lender is no longer capable of
receiving payments hereunder and under the Notes without deduction or
withholding of United States federal income tax as specified therein by
reason of a change in law (including the Internal Revenue Code or
applicable tax treaty) after the later of the Closing Date or the date
on which such Lender became a Lender and that it is not capable of
recovering the full amount of the same from a source other than the
Borrowers; or
(iv) that such Lender is no longer capable of
receiving payments hereunder without deduction or withholding of United
States federal income tax as specified therein other than by reason of
a change in law (including the Internal Revenue Code or applicable tax
treaty) after the later of the Closing Date or the date on which such
Lender became a Lender.
(c) Each Lender agrees to deliver to the Borrowers and the
Administrative Agent further duly completed copies of the above-mentioned IRS
forms on or before the earlier of (i) the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to
obtaining an exemption from withholding from United States federal income tax
and (ii) fifteen (15) days after the occurrence of any event requiring a change
in the most recent form previously delivered by such Lender to the Borrowers
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and the Administrative Agent, unless any change in treaty, law, regulation or
official interpretation thereof which would render such form inapplicable or
which would prevent the Lender from duly completing and delivering such form has
occurred prior to the date on which any such delivery would otherwise be
required and the Lender or promptly advises the Borrowers that it is not capable
of receiving payments hereunder or under the Notes without any deduction or
withholding of United States federal income tax.
ARTICLE III
THE COLLATERAL
Section 3.1 Debt and Obligations Secured.
All property and Liens assigned, pledged or otherwise granted under or
in connection with this Agreement (including, without limitation, those under
Section 3.2 (Grant of Liens)) or any of the Financing Documents shall secure (a)
the payment of all of the Obligations, including, without limitation,
Obligations with respect to any and all Outstanding Letter of Credit Obligations
and any and all Agents' Obligations, and (b) the performance, compliance with
and observance by the Borrowers of the provisions of this Agreement and all of
the other Financing Documents or otherwise under the Obligations; provided,
however, that notwithstanding the foregoing, the Capital Expenditure Line
Equipment shall secure only the Obligations (including, without limitation,
interest and Enforcement Costs) with respect to the amount advanced under the
Capital Expenditure Line, the proceeds of which were utilized to purchase the
applicable items of Capital Expenditure Line Equipment. The security interest
and Lien of each Lender in such property shall rank equally in priority with the
interest of each other Lender, but the security interest and Lien of the
Administrative Agent with respect to the Agents' Obligations shall be superior
and paramount to the security interest and Lien of the Lenders.
Section 3.2 Grant of Liens.
Each of the Domestic Borrowers hereby assigns, pledges and grants to
the Administrative Agent, for the ratable benefit of the Lenders and for the
benefit of the Administrative Agent and the other Agents with respect to the
Agents' Obligations, and agrees that the Administrative Agent, the other Agents
and the Lenders shall have a perfected and continuing security interest in, and
Lien on, all of the Domestic Borrowers' Accounts, Inventory, Capital Expenditure
Line Equipment, and General Intangibles, whether now owned or existing or
hereafter acquired or arising, all returned, rejected or repossessed goods, the
sale or lease of which shall have given or shall give rise to an Account or
chattel paper, all insurance policies relating to the foregoing, all books and
records in whatever media (paper, electronic or otherwise) recorded or stored,
with respect to the foregoing and all equipment and general intangibles
necessary or beneficial to retain, access and/or process the information
contained in those books and records, and all cash and non-cash proceeds and
products of the foregoing. Each of the Domestic Borrowers further agrees that
the Administrative Agent, for the ratable benefit of the Lenders and for the
benefit of the Administrative Agent and the other Agents with respect to the
Agents' Obligations, shall have in respect thereof all of the rights and
remedies of a secured party under the Uniform Commercial Code as well as those
provided in this Agreement, under each of the other Financing Documents and
under applicable Laws.
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Section 3.3 Collateral Disclosure List.
On or prior to the Closing Date, the Domestic Borrowers shall deliver
to the Administrative Agent a list (the "Collateral Disclosure List") which
shall contain such information with respect to each Borrower's business and real
and personal property as the Administrative Agent may require and shall be
certified by a Responsible Officer of each of the Domestic Borrowers, all in the
form provided to the Domestic Borrowers by the Administrative Agent. Promptly
after demand by the Administrative Agent, but no more frequently than on a
semi-annual basis, unless and until an event of Default shall have occurred and
be continuing, in which case the foregoing limitation shall not apply, the
Domestic Borrowers, as appropriate, shall furnish to the Administrative Agent an
update of the information contained in the Collateral Disclosure List at any
time and from time to time as may be requested by the Administrative Agent.
Section 3.4 Additional Collateral.
Following an Event of Default and during the continuation thereof, the
Administrative Agent, in its sole and absolute discretion exercised from time to
time, may require that the Borrowers further secure the Obligations, for the
ratable benefit of the Lenders and for the benefit of the Administrative Agent
with respect to the Agents' Obligations, by a first priority (subject only to
Permitted Liens), perfected Lien, in form and substance satisfactory to the
Administrative Agent and its counsel, on all or any part (as the Administrative
Agent , in its sole and absolute discretion exercised from time to time may
require) of the real and personal property and other assets of the Borrowers
which are not part of the Collateral described in Section 3.2 and on which a
Permitted Lien may arise solely by operation of and in conformance with clause
(e) (relating to Liens securing the Indentures) of the definition of "Permitted
Lien." Without implying any limitation on the Borrowers' obligations under
Section 6.1.24, but subject to the provisions of the immediately preceding
sentence, the Administrative Agent may obtain and/or require the Borrowers to
obtain with respect to such real and personal property and other assets,
opinions of counsel, corporate resolutions, record searches, title insurance,
assignments, waivers, certificates and other documents, certificates,
instruments and information as the Administrative Agent may require, all in form
and substance satisfactory to the Administrative Agent and its counsel, in the
exercise of their sole and absolute discretion.
Section 3.5 Record Searches.
As of the Closing Date and thereafter at the time any Financing
Document is executed and delivered by the Domestic Borrowers pursuant to this
Section, the Administrative Agent shall have received, in form and substance
reasonably satisfactory to the Administrative Agent, such Lien or record
searches with respect to all of the Domestic Borrowers and/or any other Person,
as appropriate, and the property covered by such Financing Document showing that
the Lien of such Financing Document will be a perfected first priority Lien on
the property covered by such Financing Document subject only to Permitted Liens
or to such other matters as the Administrative Agent may approve.
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Section 3.6 Costs.
The Borrowers agree to pay, as part of the Enforcement Costs and to the
fullest extent permitted by applicable Laws, on demand all reasonable costs,
fees and expenses incurred by the Administrative Agent and/or any of the Lenders
in connection with the taking, perfection, preservation, protection and/or
release of a Lien on the Collateral, including, without limitation:
(a) customary fees and expenses incurred by the
Administrative Agent and/or any of the Lenders in preparing, reviewing,
negotiating and finalizing the Financing Documents from time to time
(including, without limitation, reasonable attorneys' fees incurred in
connection with preparing, reviewing, negotiating, and finalizing any
of the Financing Documents, including, any amendments and supplements
thereto);
(b) all filing and/or recording taxes or fees;
(c) all costs of Lien and record searches;
(d) reasonable attorneys' fees in connection with all
legal opinions required;
(e) appraisal costs; and
(f) all related costs, fees and expenses.
Section 3.7 Release.
Upon the indefeasible repayment in full in cash of the Obligations and
performance of all Obligations of the Borrowers and all obligations and
liabilities of each other Person, other than the Administrative Agent and the
Lenders, under this Agreement and all other Financing Documents, the termination
and/or expiration of all of the Commitments, all Letters of Credit and all
Outstanding Letter of Credit Obligations, upon the Borrowers' request and at the
Borrowers' sole cost and expense, the Administrative Agent shall release and/or
terminate any Financing Document but only if and provided that there is no
commitment or obligation (whether or not conditional) of the Administrative
Agent and/or any of the Lenders to re-advance amounts which would be secured
thereby and/or no commitment or obligation of the Administrative Agent to issue
any Letter of Credit or return or restore any payment of any Current Letter of
Credit Obligations.
Section 3.8 Inconsistent Provisions.
In the event that the provisions of any Financing Document directly
conflict with any provision of this Agreement, the provisions of this Agreement
govern.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties.
The Borrowers, for themselves and for each other, represent and warrant
to the Administrative Agent and the Lenders, as follows:
4.1.1 Subsidiaries.
The Borrowers have the Subsidiaries listed on the Collateral
Disclosure List attached hereto and made a part hereof and no others. Each of
the Subsidiaries is a Wholly Owned Subsidiary except as shown on the Collateral
Disclosure List, which correctly indicates the nature and amount of each
Borrower's ownership interests therein.
4.1.2 Good Standing.
Each Borrower and its Subsidiaries (a) is a corporation duly
organized, existing and in good standing under the laws of the jurisdiction of
its incorporation, (b) has the corporate power to own its property and to carry
on its business as now being conducted, and (c) is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
properties owned by it therein or in which the transaction of its business makes
such qualification necessary.
4.1.3 Power and Authority.
Each Borrower has full corporate power and authority to
execute and deliver this Agreement the Purchase Agreements, and the other
Financing Documents to which it is a party, to make the borrowings and request
Letters of Credit under this Agreement and to incur and perform the Obligations
whether under this Agreement, the other Financing Documents or otherwise, all of
which have been duly authorized by all proper and necessary corporate action. No
consent or approval of shareholders or any creditors of any Borrower, and no
consent, approval, filing or registration with or notice to any Governmental
Authority on the part of any Borrower which has not been obtained or taken, is
required as a condition to the execution, delivery, validity or enforceability
of this Agreement, the Purchase Agreements, or any of the other Financing
Documents and the performance by any Borrower of the Obligations.
4.1.4 Binding Agreements.
This Agreement and the other Financing Documents executed and
delivered by the Borrowers have been properly executed and delivered and
constitute the valid and legally binding obligations of the Borrowers and are
fully enforceable against each of the Borrowers in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general applications affecting the rights and remedies of
creditors and secured parties, and general principles of equity regardless of
whether applied in a proceeding in equity or at law.
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4.1.5 No Conflicts.
Neither the execution, delivery and performance of the terms of
this Agreement or of any of the other Financing Documents executed and delivered
by any Borrower nor the consummation of the transactions contemplated by this
Agreement will conflict with, violate or be prevented by (a) any Borrower's
charter or bylaws, (b) any existing mortgage, indenture, contract or agreement
binding on any Borrower or affecting its property, except to the extent any such
conflict or violation would not reasonably be expected to have a Material
Adverse Effect, or (c) any Laws applicable to any Borrower.
4.1.6 No Defaults, Violations.
(a) No Default or Event of Default has occurred and is
continuing.
(b) None of the Borrowers nor any of their respective
Subsidiaries is in default under or with respect to any obligation
under any existing mortgage, indenture, contract or agreement binding
on it or affecting its property in any respect, which default
reasonably would be expected to have a Material Adverse Effect.
4.1.7 Compliance with Laws.
None of the Borrowers nor any of their respective Subsidiaries
is in violation of any applicable Laws (including, without limitation, any Laws
relating to employment practices, to environmental, occupational and health
standards and controls) or order, writ, injunction, decree or demand of any
court, arbitrator, or any Governmental Authority affecting any Borrower or any
of its properties, the violation of which, considered in the aggregate,
reasonably would be expected to have a Material Adverse Effect.
4.1.8 Margin Stock.
None of the proceeds of the Loans will be used, directly or
indirectly, by any Borrower or any Subsidiary for the purpose of purchasing or
carrying, or for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry, any "margin security" within the
meaning of Regulation G (12 CFR Part 207), or "margin stock" within the meaning
of Regulation U (12 CFR Part 221), of the Board of Governors of the Federal
Reserve System or for any other purpose which reasonably would be expected to
make the transactions contemplated in this Agreement a "purpose credit" within
the meaning of said Regulation G or Regulation U, or cause this Agreement to
violate any other regulation of the Board of Governors of the Federal Reserve
System or the Securities Exchange Act of 1934 or the Small Business Investment
Act of 1958, as amended, or any rules or regulations promulgated under any of
such statutes.
4.1.9 Investment Company Act; Margin Securities.
None of the Borrowers nor any of their respective Subsidiaries
is an investment company within the meaning of the Investment Company Act of
1940, as amended,
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nor is it, directly or indirectly, controlled by or acting on
behalf of any Person which is an investment company within the meaning of said
Act. None of the Borrowers nor any of their respective Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying "margin security" within the
meaning of Regulation G (12 CFR Part 207), or "margin stock" within the meaning
of Regulation U (12 CFR Part 221), of the Board of Governors of the Federal
Reserve System.
4.1.10 Litigation.
Except as otherwise disclosed on Schedule 4.1.10 attached to and
made a part of this Agreement, there are no proceedings, actions or
investigations pending or, so far as any Borrower has notice in writing,
threatened before or by any court, arbitrator or any Governmental Authority
which, in any one case or in the aggregate, if determined adversely to the
interests of any Borrower or any Subsidiary, reasonably would be expected to
have a Material Adverse Effect.
4.1.11 Financial Condition.
The consolidated financial statements of the Borrowers dated
December 31, 1997, are complete and correct and fairly present in all material
respects the financial position of each of the Borrowers and its Subsidiaries
and the results of their operations and transactions in their surplus accounts
as of the date and for the period referred to and have been prepared in
accordance with GAAP applied on a consistent basis throughout the period
involved. There are no liabilities, direct or indirect, fixed or contingent, of
any Borrower or any Subsidiary as of the date of such financial statements which
are not reflected therein or in the notes thereto. There has been no material
adverse change in the financial condition or operations of any Borrower or any
Subsidiary since the date of such financial statements and to the Borrowers'
knowledge no such material adverse change is pending or threatened. None of the
Borrowers nor any Subsidiary has guaranteed the obligations of, or made any
investment in or advances to, any Person, except as disclosed in such financial
statements.
4.1.12 Full Disclosure.
The financial statements referred to in Section 4.1.11 (Financial
Condition) of this Agreement, the Financing Documents (including, without
limitation, this Agreement), and the statements, reports or certificates
furnished by any Borrower in connection with the Financing Documents (a) do not
contain any untrue statement of a material fact and (b) when taken in their
entirety, do not omit any material fact necessary to make the statements
contained therein not misleading. There is no fact known to any Borrower which
such Borrower has not disclosed to the Administrative Agent and the Lenders in
writing prior to the date materially and adversely affects or in the future
would reasonably be expected to have a Material Adverse Effect.
4.1.13 Indebtedness for Borrowed Money.
Except for the Obligations and except as set forth in Schedule
4.1.13 attached to and made a part of this Agreement, the Borrowers have no
Indebtedness for
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Borrowed Money. The Administrative Agent has received photocopies of all
promissory notes evidencing any Indebtedness for Borrowed Money set forth in
Schedule 4.1.13, together with any and all subordination agreements, and other
material agreements, documents, or instruments securing, evidencing, guarantying
or otherwise executed and delivered in connection therewith.
4.1.14 Subordinated Debt.
None of the Subordinated Debt Loan Documents has been amended,
supplemented, restated or otherwise modified except as otherwise disclosed to
the Administrative Agent in writing on or before the effective date of any such
amendment, supplement, restatement or other modification. In addition, there
does not exist any default or any event which upon notice or lapse of time or
both would constitute a default under the terms of any of the Subordinated Debt
Loan Documents.
4.1.15 Taxes.
Except for any extensions which have been filed and are in effect
in accordance with applicable law, each of the Borrowers and its Subsidiaries
has filed all returns, reports and forms for Taxes which, to the knowledge of
the Borrowers, are required to be filed, and has paid all Taxes as shown on such
returns or on any assessment received by it, to the extent that such Taxes have
become due, unless and to the extent only that such Taxes, assessments and
governmental charges are currently contested in good faith and by appropriate
proceedings by a Borrower, such Taxes are not the subject of any Liens other
than Permitted Liens, and adequate reserves therefor have been established as
required under GAAP. All tax liabilities of the Borrowers were as of the date of
audited financial statements referred to in Section 4.1.11 (Financial
Condition), and are now, adequately provided for on the books of the Borrowers
and its Subsidiaries, as appropriate. No tax liability has been asserted by the
Internal Revenue Service or any state or local authority against any Borrower
for Taxes in excess of those already paid.
4.1.16 ERISA.
With respect to any Plan that is maintained or contributed to by
the Borrower and/or by any Commonly Controlled Entity or as to which any of the
Borrowers retains material liability: (a) no "accumulated funding deficiency" as
defined in Code Section 412 or ERISA Section 302 has occurred, whether or not
that accumulated funding deficiency has been waived; (b) no Reportable Event has
occurred other than events for which reporting has been waived or that are
unlikely to result in material liability for any of the Borrowers; (c) no
termination of any plan subject to Title IV of ERISA has occurred; (d) neither
the Borrower nor any Commonly Controlled Entity has incurred a "complete
withdrawal" within the meaning of ERISA Section 4203 from any Multi-employer
Plan that is reasonably likely to result in material liability for one or more
of the Borrowers; (e) neither the Borrower nor any Commonly Controlled Entity
has incurred a "partial withdrawal" within the meaning of ERISA Section 4205
with respect to any Multi-employer Plan that is likely to result in material
liability for one or more of the Borrowers; (f) no Multi-employer Plan to which
the Borrower or any Commonly Controlled Entity has an obligation to contribute
is to the knowledge of the Borrowers, in "reorganization" within the
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meaning of ERISA Section 4241 nor has notice been received by the Borrower or
any Commonly Controlled Entity that such a Multi-employer Plan will be placed in
"reorganization".
4.1.17 Title to Properties.
The Borrowers have good and marketable title to all of their
respective properties, including, without limitation, the Collateral and the
properties and assets reflected in the balance sheets described in Section
4.1.11 (Financial Condition). The Borrowers have legal and enforceable rights to
use freely such property and assets subject to no contest with respect to any
material portion of such property of which any Borrower has knowledge. All of
such properties, including, without limitation, the Collateral which were
purchased, were purchased for fair consideration and reasonably equivalent value
in the ordinary course of business of both the seller and the Borrowers and not,
by way of example only, as part of a bulk sale.
4.1.18 Patents, Trademarks, Etc.
Each of the Borrowers and its Subsidiaries owns, possesses, or
has the right to use all necessary patents, licenses, trademarks, copyrights,
permits and franchises to own its properties and to conduct its business as now
conducted, without known conflict with the rights of any other Person. Any and
all obligations to pay royalties or other charges with respect to such
properties and assets are properly reflected on the financial statements
described in Section 4.1.11 (Financial Condition).
4.1.19 Employee Relations.
Except as disclosed on Schedule 4.1.19 attached hereto and made a
part hereof, (a) no Borrower nor any Subsidiary thereof nor any of the
Borrower's or Subsidiary's employees is subject to any collective bargaining
agreement, (b) no petition for certification or union election is pending with
respect to the employees of any Borrower or any Subsidiary and no union or
collective bargaining unit currently is seeking such certification or
recognition with respect to the employees of a Borrower, (c) there are no
strikes, slowdowns, work stoppages or controversies pending or, to the best
knowledge of the Borrowers after due inquiry, threatened between any Borrower
and its employees, and (d) no Borrower nor any Subsidiaries is subject to an
employment contract, severance agreement, commission contract, consulting
agreement or bonus agreement. Hours worked and payments made to the employees of
any one or more of the Borrowers have not been in violation of the Fair Labor
Standards Act or any other applicable law dealing with such matters. All
payments due from any one or more of the Borrowers or for which any claim may be
made against a Borrower, on account of wages and employee and retiree health and
welfare insurance and other benefits have been paid or accrued as a liability on
its books. The consummation of the transactions contemplated by the Financing
Agreement or any of the other Financing Documents will not give rise to a right
of termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which any Borrower is a party or by which it
is bound.
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4.1.20 Presence of Hazardous Materials or Hazardous Materials
Contamination.
To the best of each Borrower's knowledge, (a) no Hazardous
Materials are located on any real property owned, controlled or operated by any
Borrower or for which any Borrower is, or is claimed to be, responsible, except
for reasonable quantities of necessary supplies for use by a Borrower in the
ordinary course of its current line of business and stored, used and disposed of
in accordance with applicable Laws; and (b) no property owned, controlled or
operated by any Borrower or for which any Borrower has, or is claimed to have,
responsibility has ever been used as a manufacturing, storage, or dump site for
Hazardous Materials nor is affected by Hazardous Materials Contamination at any
other property.
4.1.21 Perfection and Priority of Collateral.
The Administrative Agent and the Lenders have, or upon execution
and recording of this Agreement and the Security Documents will have, and
provided continuous possession is maintained for that portion of the Collateral
for which possession is required to obtain and maintain perfection, will
continue to have as security for the Obligations, a valid and perfected Lien on
and security interest in all Collateral, free of all other Liens, claims and
rights of third parties whatsoever except Permitted Liens, including, without
limitation, those described on Schedule 4.1.21.
4.1.22 Places of Business and Location of Collateral.
The information contained in the Collateral Disclosure List is
complete and correct. The Collateral Disclosure List completely and accurately
identifies the address of (a) the chief executive office of each Borrower, (b)
any and each other place of business of each Borrower, (c) the location of all
books and records pertaining to the Collateral, and (d) each location, other
than the foregoing, where any of the Collateral is located. The proper and only
places to file financing statements with respect to the Collateral within the
meaning of the Uniform Commercial Code are the filing offices for those
jurisdictions in which any one or more of the Borrowers maintains a place of
business as identified on the Collateral Disclosure List.
4.1.23 Business Names and Addresses.
In the twelve (12) years preceding the date hereof, no Borrower
has changed its name, identity or corporate structure, has conducted business
under any name other than its current name, or has conducted its business in any
jurisdiction other than those disclosed on the Collateral Disclosure List.
4.1.24 Capital Expenditure Line Equipment.
All Capital Expenditure Line Equipment is personalty and is not
and will not be affixed to real estate in such manner as to become a fixture or
part of such real estate. No equipment is held by any Borrower on a sale on
approval basis.
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4.1.25 Inventory.
The Inventory of the Borrowers is (a) of good and merchantable
quality, free from defects of which the Borrowers have knowledge, (b) not stored
with a bailee, warehouseman, carrier, or similar party, (c) not on consignment,
sale on approval, or sale or return, and (d) located at the places of business
set forth on the Collateral Disclosure List. No goods offered for sale by any
Borrower are consigned to or held on sale or return terms by that Borrower.
4.1.26 Accounts.
With respect to all Accounts and to the best of the Borrowers'
knowledge (a) they are genuine, and in all respects what they purport to be, and
are not evidenced by a judgment, an instrument, or chattel paper (unless such
judgment has been assigned and such instrument or chattel paper has been
endorsed and delivered to the Administrative Agent for the benefit of itself and
the Lenders); (b) they represent bona fide transactions completed in accordance
with the terms and provisions contained in the invoices, purchase orders and
other contracts relating thereto, and the underlying transaction therefor is in
accordance with all applicable Laws; (c) the amounts shown on the respective
Borrower's books and records, with respect thereto are actually and absolutely
owing to that Borrower and are not contingent or subject to reduction for any
reason other than regular discounts, credits or adjustments allowed by that
Borrower in the ordinary course of its business; (d) no payments have been or
shall be made thereon except payments turned over to the Administrative Agent by
the Borrowers; (e) all Account Debtors thereon have the capacity to contract;
and (f) the goods sold, leased or transferred or the services furnished giving
rise thereto are not subject to any Liens except the security interest granted
to the Administrative Agent and the Lenders by this Agreement and Permitted
Liens.
4.1.27 Assigned Local Currency Receivables.
The Administrative Agent has received true and correct
photocopies of the Purchase Agreements executed, delivered and/or furnished on
or before the Closing Date. The Purchase Agreements have not been modified,
changed, supplemented, canceled, amended or otherwise altered or affected,
except as otherwise disclosed to the Agent in writing on or before the Closing
Date. The transactions described in the Purchase Agreements have been effected,
closed and consummated pursuant to, and in accordance with, the terms and
conditions of the Purchase Agreements and with all applicable Laws. The Purchase
Agreements effect the transfer of the accounts covered by the Purchase
Agreements, which accounts meet each requirement for inclusion among Assigned
Local Currency Receivables. Each Account included in the calculation of the
Assigned Local Currency Receivables does and will at all times meet and comply
with all of the components of the definition of "Assigned Local Currency
Receivables."
4.1.28 Compliance with Eligibility Standards.
Each account and all inventory included in the calculation of the
Borrowing Base does and will at all times meet and comply with all of the
standards for Eligible Receivables and Eligible Inventory. With respect to those
accounts which the Administrative
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Agent has deemed Eligible Receivables (a) each account which originated as an
account of a Local Currency Borrower or which arose on account of goods or
services provided by a Local Currency Borrower and which the Administrative
Agent has deemed to be an Eligible Receivables, is an Assigned Local Currency
Receivable, (b) without implying any limitation on the effect of clause (a), to
the best of the Borrowers' knowledge, there are no facts, events or occurrences
which reasonably would be expected to impair the validity, collectibility or
enforceability thereof or tend to reduce the amount payable thereunder; and (c)
there are no proceedings or actions known to any Borrower which are threatened
or pending against any Account Debtor which reasonably would be expected to
result in any material adverse change in the Borrowing Base.
4.1.29 Year 2000 Compliance
The Borrowers have (i) initiated a review and assessment of all
areas within the Borrowers and each of their Subsidiaries' businesses and
operations (including those affected by suppliers and vendors) with respect to
which the "Year 2000 Problem" (that is, the risk that computer applications used
by the Borrowers or any of their Subsidiaries (or its suppliers and vendors) may
be unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999) reasonably would be
expected to have a Material Adverse Effect, (ii) developed a plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable. The Borrowers
reasonably believe that all computer applications (including those of its
suppliers and vendors) that are material to the Borrowers or any of their
Subsidiaries' businesses and operations will on a timely basis be able to
perform properly date-sensitive functions for all dates before and after January
1, 2000 (that is, be "Year 2000 compliant"), except to the extent that a failure
to do so would not reasonably be expected to have a Material Adverse Effect.
Section 4.2 Survival; Updates of Representations and Warranties.
All representations and warranties contained in or made under or
in connection with this Agreement and the other Financing Documents shall
survive the Closing Date, the making of any advance under the Loans and
extension of credit made hereunder, and the incurring of any other Obligations
and shall be deemed to have been made at the time of each request for, and again
at the time the making of, each advance under the Loans or the issuance of each
Letter of Credit, except that the representations and warranties which relate to
financial statements which are referred to in Section 4.1.11 (Financial
Condition), shall also be deemed to cover financial statements furnished from
time to time to the Administrative Agent and the Lenders pursuant to Section
6.1.1 (Financial Statements).
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ARTICLE V
CONDITIONS PRECEDENT
Section 5.1 Conditions to the Initial Advance and Initial Letter
of Credit.
The making of the initial advance under the Loans and the issuance of
the initial Letter of Credit is subject to the fulfillment on or before the
Closing Date of the following conditions precedent in a manner reasonably
satisfactory in form and substance to the Administrative Agent and its counsel:
5.1.1 Organizational Documents - Domestic Borrowers.
The Administrative Agent shall have received for each Domestic
Borrower:
(a) a certificate of good standing certified by the
Secretary of State, or other appropriate Governmental Authority, of the
state of incorporation of such Domestic Borrower;
(b) a certificate of qualification to do business for
such Domestic Borrower certified by the Secretary of State or other
Governmental Authority of each state in which such Domestic Borrower
conducts business;
(c) a certificate dated as of the Closing Date by the
Secretary or an Assistant Secretary of such Domestic Borrower covering:
(d) true and complete copies of that Domestic Borrower's
corporate charter, bylaws, and all amendments thereto;
(e) true and complete copies of the resolutions of its
Board of Directors authorizing (A) the execution, delivery and
performance of the Financing Documents to which it is a party, (B) the
borrowings hereunder, (C) the granting of the Liens contemplated by
this Agreement and the Financing Documents to which that Domestic
Borrower is a party;
(f) the incumbency, authority and signatures of the
officers of such Domestic Borrower authorized to sign this Agreement
and the other Financing Documents to which such Domestic Borrower is a
party; and
(g) the identity of such Domestic Borrower's current
directors, common stock holders and other equity holders, as well as
their respective percentage ownership interests.
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5.1.2 Opinion of Domestic Borrowers' Counsel.
The Administrative Agent shall have received the favorable
opinion of counsel (including the validity and binding transfer of the Assigned
Local Currency Receivables) for the Domestic Borrowers addressed to the
Administrative Agent and the Lenders in form satisfactory to the Administrative
Agent.
5.1.3 Opinion of Local Currency Borrowers' Counsel.
The Administrative Agent shall have received the favorable
opinion of Local Currency Borrowers' counsel with respect to the validity and
binding transfer of the Assigned Local Currency Receivables and other related
matters addressed to the Administrative Agent and the Lenders in form
satisfactory to the Administrative Agent.
5.1.4 Consents, Licenses, Approvals, Etc.
The Administrative Agent shall have received copies of all
consents, licenses and approvals, required in connection with the execution,
delivery, performance, validity and enforceability of the Financing Documents,
and such consents, licenses and approvals shall be in full force and effect.
5.1.5 Notes.
The Administrative Agent shall have received for delivery to each
of the Lenders the Revolving Credit Notes and the Capital Expenditure Line
Notes, each conforming to the requirements hereof and executed by a Responsible
Officer of each Borrower and attested by a duly authorized representative of
each Borrower.
5.1.6 Financing Documents and Collateral.
Each Borrower shall have executed and delivered the Financing
Documents to be executed by it, and shall have delivered original chattel paper,
instruments, Subsidiary Securities, and related Collateral and all opinions, and
other documents contemplated by ARTICLE III (The Collateral).
5.1.7 Additional Financial Matters.
The Parent shall have delivered to the Administrative Agent the
Borrowers' consolidated financial statements for the period ending February 28,
1998, together with such pros formas and projections as the Administrative Agent
may reasonably request.
5.1.8 Solvency Certificate.
The Administrative Agent shall have received a solvency
certificate from the appropriate Responsible Officer of each Borrower, in form
and substance satisfactory to the Administrative Agent.
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5.1.9 Other Financing Documents.
In addition to the Financing Documents to be delivered by the
Borrowers, the Administrative Agent shall have received the Financing Documents
duly executed and delivered by Persons other than the Borrowers.
5.1.10 Other Documents, Etc.
The Administrative Agent shall have received such other
certificates, opinions, documents and instruments confirmatory of or otherwise
relating to the transactions contemplated hereby as may have been reasonably
requested by the Administrative Agent.
5.1.11 Payment of Fees.
The Administrative Agent and the Lenders shall have received
payment of any Fees due on or before the Closing Date.
5.1.12 Collateral Disclosure List.
Each Borrower shall have delivered the Collateral Disclosure List
required under the provisions of Section 3.3 (Collateral Disclosure List) duly
executed by a Responsible Officer of each Borrower.
5.1.13 Recordings and Filings.
Each Borrower shall have: (a) executed and delivered all
Financing Documents (including, without limitation, UCC-1 and UCC-3 statements)
required to be filed, registered or recorded in order to create, in favor of the
Administrative Agent and the Lenders, a perfected Lien in the Collateral
(subject only to the Permitted Liens) in form and in sufficient number for
filing, registration, and recording in each office in each jurisdiction in which
such filings, registrations and recordations are required, and (b) delivered
such evidence as the Administrative Agent may deem satisfactory that all
necessary filing fees and all recording and other similar fees, and all Taxes
and other expenses related to such filings, registrations and recordings will be
or have been paid in full.
5.1.14 Insurance Certificate.
The Administrative Agent shall have received an insurance
certificate in accordance with the provisions of Section 6.1.8 (Insurance) and
Section 6.1.20 (Insurance With Respect to Capital Expenditure Line Equipment and
Inventory).
5.1.15 Landlord's Waivers.
The Administrative Agent shall have received a landlord's waiver
from each landlord of each and every business premise leased by each Borrower
and on which any of the Collateral is or may hereafter be located, which
landlords' waivers must be reasonably acceptable to the Administrative Agent and
its counsel in their sole and absolute discretion.
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5.1.16 Bailee Acknowledgements.
The Administrative Agent shall have received an agreement
acknowledging the Liens of the Administrative Agent and the Lender from each
bailee, warehouseman, consignee or similar third party which has possession of
any of the Collateral, which agreements must be reasonably acceptable to the
Administrative Agent and its counsel in their sole and absolute discretion.
5.1.17 Field Examination.
The Administrative Agent shall have completed a field examination
of each Borrower's business, operations and income, the results of which field
examination shall be in all respects acceptable to the Administrative Agent in
its sole and absolute discretion and shall include reference discussions with
key customers and vendors.
5.1.18 Stock Certificates and Stock Powers.
The Administrative Agent shall have received all of the original
stock certificates of the Domestic Borrowers and the Local Currency Borrowers
(except those certificates which are in the possession of a prior secured party,
which after the application of the proceeds of the initial advance under this
Agreement shall no longer have a Lien) and fully executed irrevocable stock
powers from the holders of all such stock certificates.
5.1.19 Collateral Account Acknowledgments.
The Administrative Agent shall have received the agreement of the
depository banks required by Section 2.1.8(a) with respect to the Collateral
Account.
Section 5.2 Conditions to Advances and Letters of Credit for
Local Currency Borrowers.
The making of the initial advance under the Loans, and the issuance of
the initial Letter of Credit, , to or for the benefit of a Local Currency
Borrower is subject to the fulfillment of the following conditions precedent in
a manner satisfactory in form and substance to the Administrative Agent and its
counsel:
5.2.1 Organizational Documents - Local Currency Borrowers.
The Administrative Agent shall have received for each Local
Currency Borrower:
(a) a certificate of good standing certified by the
appropriate Governmental Authority of the jurisdiction of incorporation
of such Local Currency Borrower;
(b) a certificate of qualification to do business for
such Local Currency Borrower certified by the appropriate
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Governmental Authority of each jurisdiction in which such Local
Currency Borrower conducts business;
(c) a certificate dated as of a date not earlier than
thirty (30) days prior to such initial advance or issuance, as
applicable, by the Secretary or an Assistant Secretary (or other
appropriate officer) of such Local Currency Borrower covering:
(d) true and complete copies of that Local Currency
Borrower's corporate charter, bylaws, and all amendments thereto;
(e) true and complete copies of the resolutions of its
Board of Directors authorizing (A) the execution, delivery and
performance of the Financing Documents to which it is a party and (B)
the borrowings hereunder;
(f) the incumbency, authority and signatures of the
officers of such Local Currency Borrower authorized to sign this
Agreement and the other Financing Documents to which such Local
Currency Borrower is a party;
(g) the identity of such Local Currency Borrower's
current directors, common stock holders and other equity holders, as
well as their respective percentage ownership interests; and
(h) a duly executed and delivered Additional Borrower
Joinder Supplement, allonges and such other Financing Documents as the
Administrative Agent may reasonably request.
5.2.2 Opinion of Local Currency Borrowers' Counsel.
The Administrative Agent shall have received the favorable
opinion of counsel for the Local Currency Borrowers addressed to the
Administrative Agent and the Lenders in form reasonably satisfactory to the
Administrative Agent.
5.2.3 Consents, Licenses, Approvals, Etc.
The Administrative Agent shall have received copies of all
consents, licenses and approvals, required in connection with the execution,
delivery, performance, validity and enforceability of the Financing Documents,
and such consents, licenses and approvals shall be in full force and effect.
Section 5.3 Conditions to Multi-Currency Loans and Multi-Currency
Letters of Credit.
The making of the initial advance under the Multi-Currency Revolving
Loan, and the issuance of the initial Multi-Currency Letter of Credit, are
subject to the appointment by the Administrative Agent of a Multi-Currency
Agent, the acceptance of that appointment by the
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Multi-Currency Agent and the Borrowers, the designation of Multi-Currency
Lenders, the acceptance of that designation by the Multi-Currency Lenders and
the Borrowers, and the establishment of foreign availability amounts,
multi-currency revolving loan sublimits, foreign currency sublimits, and foreign
exchange reserves, all in a manner satisfactory in form and substance to the
Multi-Currency Agent, the Multi-Currency Lenders, the Administrative Agent, the
Borrowers and their respective counsel.
Section 5.4 Conditions to all Extensions of Credit.
The making of all advances under the Loans and the issuance of all
Letters of Credit is subject to the fulfillment of the following conditions
precedent in a manner reasonably satisfactory in form and substance to the
Administrative Agent and its counsel:
5.4.1 Compliance.
Each Borrower shall have complied and shall then be in compliance
with all terms, covenants, conditions and provisions of this Agreement and the
other Financing Documents.
5.4.2 Borrowing Base.
The Borrowers shall have furnished all Borrowing Base Reports
required by Section 2.1.4 (Borrowing Base Report), there shall exist no
Borrowing Base Deficiency, and as evidence thereof, the Borrowers shall have
furnished to the Administrative Agent such reports, schedules, certificates,
records and other papers as may be requested by the Administrative Agent, and
the Borrowers shall be in compliance with the provisions this Agreement both
immediately before and immediately after the making of the advance requested.
5.4.3 Default.
There shall exist no Event of Default or Default hereunder.
5.4.4 Representations and Warranties.
The representations and warranties of each of the Borrowers
contained among the provisions of this Agreement shall be true and with the same
effect as though such representations and warranties had been made at the time
of the making of, and of the request for, each advance under the Loans or the
issuance of each Letter of Credit, except that the representations and
warranties which relate to financial statements which are referred to in Section
4.1.11 (Financial Condition), shall also be deemed to cover financial statements
furnished from time to time to the Administrative Agent pursuant to Section
6.1.1 (Financial Statements).
5.4.5 Adverse Change.
No material adverse change shall have occurred in the condition
(financial or otherwise), operations or business of any Borrower that would, in
the good faith judgment of
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the Administrative Agent, materially impair the ability of that Borrower to
pay or perform any of the Obligations.
5.4.6 Legal Matters.
All legal documents incident to each advance under the Loans and
each of the Letters of Credit shall be reasonably satisfactory to counsel for
the Administrative Agent.
ARTICLE VI
COVENANTS OF THE BORROWERS
Section 6.1 Affirmative Covenants.
So long as any of the Obligations (or any the Commitments therefor) or
Letters of Credit shall be outstanding hereunder, the Borrowers agree jointly
and severally with the Administrative Agent and the Lenders as follows:
6.1.1 Financial Statements.
The Borrowers shall furnish to the Administrative Agent and the
Lenders:
(a) Annual Statements and Certificates. The Borrowers shall
furnish to the Administrative Agent and the Lenders as soon as available, but in
no event more than one hundred (120) days after the close of the Borrowers'
fiscal years, (i) a copy of the annual financial statement in reasonable detail
satisfactory to the Administrative Agent relating to the Borrowers and their
Subsidiaries, prepared in accordance with GAAP and examined and certified by
independent certified public accountants reasonably satisfactory to the
Administrative Agent, which financial statement shall include a consolidated and
consolidating balance sheet of the Borrowers and their Subsidiaries as of the
end of such fiscal year and consolidated and consolidating statements of income
and of cash flows and a consolidated statement of changes in shareholders equity
of the Borrowers and their Subsidiaries for such fiscal year, and (ii) a
Compliance Certificate, in substantially the form attached to this Agreement as
EXHIBIT D, containing a detailed computation of each financial covenant in this
Agreement which is applicable for the period reported, a certification that no
change has occurred to the information contained in the Collateral Disclosure
List (except as set forth on any schedule attached to the certification), and a
cash flow projection report, each prepared by a Responsible Officer of the
Borrowers in a format reasonably acceptable to the Administrative Agent; and
shall also furnish to the Administrative Agent with a sufficient number of
copies for all of the Lenders promptly after receipt, each management letter in
the form prepared by the Borrowers' independent certified public accountants.
(b) Annual Opinion of Accountant. The Borrowers shall furnish
to the Administrative Agent and the Lenders as soon as available, but in no
event more than one hundred (120) days after the close of the Borrowers' fiscal
years, a letter or opinion of the accountant who examined and certified the
annual financial statement relating to the Borrowers and their Subsidiaries (i)
stating whether anything in such accountant's examination has revealed the
occurrence of a Default or an Event of Default hereunder insofar as they relate
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to accounting matters, and, if so, stating the facts with respect thereto and
(ii) acknowledging that the Administrative Agent and the Lenders will rely on
the statement and that the Borrowers know of the intended reliance by the
Administrative Agent and the Lenders.
(c) Quarterly Statements and Certificates. The Borrowers
shall furnish to the Administrative Agent, with a sufficient number of copies
for all of the Lenders as soon as available, but in no event more than sixty
(60) days after the end of each fiscal quarter of the Borrowers, consolidated
balance sheets of the Borrowers and their Subsidiaries as of the close of such
period, consolidated and consolidating income statements and statements of cash
flows and a consolidated statement of changes in shareholders equity statements
for such period, and a Compliance Certificate, in substantially the form
attached to this Agreement as EXHIBIT D, containing a detailed computation of
each financial covenant in this Agreement which is applicable for the period
reported, and a certification that no change has occurred to the information
contained in the Collateral Disclosure List (except as set forth on any schedule
attached to the certification), each prepared by a Responsible Officer of or on
behalf of each Borrower in a format reasonably acceptable to the Administrative
Agent, and certified by a Responsible Officer of the Borrowers and accompanied
by a certificate of that officer stating whether any event has occurred which
constitutes a Default or an Event of Default hereunder, and, if so, stating the
facts with respect thereto.
(d) Monthly Statements and Certificates. The Borrowers shall
furnish to the Administrative Agent, with a sufficient number of copies for all
of the Lenders as soon as available, but in no event more than sixty (60) days
after the end of each January and February and in no event more than thirty (30)
days after the end of each other month, management prepared consolidated and
consolidating balance sheets of the Borrowers and their Subsidiaries as of the
close of such period, consolidated and consolidating income statements,
consolidated cash flows and changes in shareholders equity statements for such
period, and a certification that no change has occurred to the information
contained in the Collateral Disclosure List (except as set forth on any schedule
attached to the certification), and the exact Dollar allocation of the amount
borrowed as between each of the Borrowers (the "Intercompany Allocation", which
Intercompany Allocation shall include any Loan proceeds loaned or otherwise
advanced by any Borrower to any other Borrower) under the Revolving Credit
Facility, each prepared by a Responsible Officer of or on behalf of each
Borrower in a format reasonably acceptable to the Lender and certified by a
Responsible Officer of the Borrowers and accompanied by a certificate of that
officer stating whether any event has occurred which constitutes a Default or an
Event of Default hereunder, and, if so, stating the facts with respect thereto.
(e) Monthly reports. The Borrowers shall furnish to the
Administrative Agent, with a sufficient number of copies for all of the Lenders
within (x) thirty (30) days after the end of January and (y) fifteen (15) days
after the end of each fiscal month, a report containing the following
information:
(i) a detailed aging schedule of all Receivables by
Account Debtor and, in the case of Assigned Local Currency Receivables,
by Local Currency Borrower, in such detail, and
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accompanied by such supporting information, as the Administrative Agent
may from time to time reasonably request;
(ii) a detailed aging of all accounts payable by
supplier, in such detail, and accompanied by such supporting
information, as the Administrative Agent may from time to time
reasonably request;
(iii) a listing of all Inventory by component,
category and location, and reconciliations of general ledger inventory
accounts to the perpetual inventory records, all in such detail, and as
accompanied by such supporting information as the Administrative Agent
may from time to time reasonably request; and
(iv) such other information as the Administrative
Agent may reasonably request.
(f) Annual Budget and Projections. The Borrowers shall
furnish to the Administrative Agent, with a sufficient number of copies for each
Lender as soon as available, but in no event later than the 10th day before the
end of each fiscal year:
(i) a consolidated and consolidating budget and
pro forma financial statements on a quarter-to-quarter basis for the
following fiscal year, and
(ii) five (5) year projections.
(g) Additional Reports and Information. The Borrowers shall
furnish to the Administrative Agent and the Lenders promptly, such additional
information, reports or statements as the Administrative Agent and/or any of the
Lenders may from time to time reasonably request.
6.1.2 Reports to SEC and to Stockholders.
The Borrowers will furnish to the Administrative Agent and the
Lenders, promptly upon the filing or making thereof, at least one (l) copy of
all financial statements, reports, notices and proxy statements sent by any
Borrower to its stockholders, and of all regular and other reports filed by any
Borrower with any securities exchange or with the Securities and Exchange
Commission.
6.1.3 Recordkeeping, Rights of Inspection, Field Examination, Etc.
(a) Each of the Borrowers shall, and shall cause each of its
Subsidiaries to, maintain (i) a standard system of accounting in accordance with
GAAP, and (ii) proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
properties, business and activities.
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(b) Each of the Borrowers shall, and shall cause each of its
Subsidiaries to, permit authorized representatives of the Administrative Agent
to visit and inspect the properties of the Borrowers and its Subsidiaries, to
review, audit, check and inspect the Collateral, with notice given during normal
business hours, which inspection shall be conducted during normal business hours
and at other reasonable times, if no Event of Default has occurred and with or
without notice and at any time if an Event of Default has occurred and is
continuing. During such inspection, such representatives also shall be entitled
to make abstracts and photocopies of the books and records of each Borrower, and
to discuss the affairs, finances and accounts of the Borrowers and their
Subsidiaries, with the officers, directors, employees and other representatives
of the Borrowers and their Subsidiaries and their respective accountants. Unless
an Event of Default shall have occurred and be continuing, no such inspection
shall disrupt the normal business operations of any Borrower. All information
obtained during any such inspection shall be subject to the provisions of
Section 9.20.
(c) Each of the Borrowers hereby irrevocably authorizes and
directs all accountants and auditors employed by any of the Borrowers and/or any
of their Subsidiaries at any time prior to the repayment in full of the
Obligations to exhibit and deliver to the Administrative Agent and the Lenders
copies of any and all of the financial statements, trial balances, management
letters, or other accounting records of any nature of any or all of the
Borrowers and/or any or all of their respective Subsidiaries in the accountant's
or auditor's possession, and to disclose to the Administrative Agent and any of
the Lenders any information they may have concerning the financial status and
business operations of any or all of the Borrowers and/or any or all of their
respective Subsidiaries. Further, each of the Borrowers hereby authorizes all
Governmental Authorities to furnish to the Administrative Agent and the Lenders
copies of reports or examinations relating to any and all of the Borrowers
and/or any or all Subsidiaries, whether made by the Borrowers or otherwise.
(d) Any and all costs and expenses incurred by, or on behalf
of, the Administrative Agent in connection with the conduct of any of the
foregoing shall be part of the Enforcement Costs and shall be payable to the
Administrative Agent upon demand. The Borrowers acknowledge and agree that such
expenses may include, but shall not be limited to, any and all out-of-pocket
costs and expenses of the Administrative Agent's employees and agents in, and
when, travelling to any of the Borrowers' facilities. Notwithstanding the
foregoing, provided no Event of Default shall have occurred and the continuing,
Borrowers shall not be required to pay for more than four (4) inspections each
year.
6.1.4 Corporate Existence.
Except as permitted by Section 6.2.1, each of the Borrowers shall
maintain, and cause each of its Subsidiaries to maintain, its corporate
existence in good standing in the jurisdiction in which it is incorporated and
in each other jurisdiction where it is required to register or qualify to do
business if the failure to do so in such other jurisdiction reasonably would be
expected to have a Material Adverse Effect.
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6.1.5 Compliance with Laws.
Each of the Borrowers shall comply, and cause each of its
Subsidiaries to comply, with all applicable Laws and observe the valid
requirements of Governmental Authorities, the noncompliance with or the
nonobservance of which reasonably would be expected to have a Material Adverse
Effect.
6.1.6 Preservation of Properties.
Each of the Borrowers will, and will cause each of its
Subsidiaries to, at all times (a) maintain, preserve, protect and keep its
properties, whether owned or leased, in good operating condition, working order
and repair (ordinary wear and tear excepted), and from time to time will make
all proper repairs, maintenance, replacements, additions and improvements
thereto needed to maintain such properties in good operating condition, working
order and repair, unless such property becomes obsolete or is no longer useful
in the operation of the business of the applicable Borrower and (b) do or cause
to be done all things necessary to preserve and to keep in full force and effect
its material franchises, leases of real and personal property, trade names,
patents, trademarks and permits which are necessary for the orderly continuance
of its business.
6.1.7 Line of Business.
Each of the Borrowers will continue to engage substantially only
in the business of the design and manufacture of high precision fuel system
products for the global automotive and outdoor power equipment markets.
6.1.8 Insurance.
Each of the Borrowers will, and will cause each of its
Subsidiaries to, at all times maintain with "A" or better rated insurance
companies such insurance as is required by applicable Laws and such other
insurance, in such amounts, of such types and against such risks, hazards,
liabilities, casualties and contingencies as are usually insured against in the
same geographic areas by business entities engaged in the same or similar
business. Without limiting the generality of the foregoing, each of the
Borrowers will, and will cause each of its Subsidiaries to, keep adequately
insured all of its property against loss or damage resulting from fire or other
risks insured against by extended coverage and maintain public liability
insurance against claims for personal injury, death or property damage occurring
upon, in or about any properties occupied or controlled by it, or arising in any
manner out of the businesses carried on by it. Each of the Borrowers shall
deliver to the Administrative Agent on the Closing Date (and thereafter on each
date there is a material change in the insurance coverage) a certificate of a
Responsible Officer of the Borrowers containing a detailed list of the insurance
then in effect and stating the names of the insurance companies, the types, the
amounts and rates of the insurance, dates of the expiration thereof and the
properties and risks covered thereby.
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6.1.9 Taxes.
Except to the extent that the validity or amount thereof is being
contested in good faith and by appropriate proceedings, each of the Borrowers
will, and will cause each of its Subsidiaries, to pay and discharge all Taxes
prior to the date when any interest or penalty would accrue for the nonpayment
thereof. Each of the Borrowers shall furnish to the Administrative Agent at such
times as the Administrative Agent may require proof reasonably satisfactory to
the Administrative Agent of the making of payments or deposits required by
applicable Laws including, without limitation, payments or deposits with respect
to amounts withheld by any of the Borrowers from wages and salaries of employees
and amounts contributed by any of the Borrowers on account of federal and other
income or wage taxes and amounts due under the Federal Insurance Contributions
Act, as amended.
6.1.10 ERISA.
Each of the Domestic Borrowers will, and will cause each of its
Commonly Controlled Entities to, comply with the funding requirements of ERISA
with respect to Plans for its respective employees. No Domestic Borrower will
permit with respect to any Plan (a) any prohibited transaction or transactions
under ERISA or the Internal Revenue Code, which results, or reasonably would be
expected to result, in any material liability of the Domestic Borrower, or (b)
any Reportable Event if, upon termination of the plan or plans with respect to
which one or more such Reportable Events shall have occurred, there is or would
be any material liability of the Domestic Borrower to the PBGC. Upon the request
of the Administrative Agent, the Domestic Borrowers will deliver to the
Administrative Agent a copy of the most recent actuarial report, financial
statements and annual report completed with respect to any Plan.
6.1.11 Notification of Events of Default and Adverse Developments.
Each of the Borrowers shall promptly notify the Administrative
Agent upon obtaining knowledge of the occurrence of:
(a) any Event of Default;
(b) any Default;
(c) any litigation instituted or threatened against any of
the Borrowers or any of their Subsidiaries and of the entry of any
judgment or Lien (other than any Permitted Liens) against any of the
assets or properties of any of the Borrowers or any Subsidiary where
the claims against any Borrower or any Subsidiary exceed One Million
Dollars ($1,000,000) and are not covered by insurance;
(d) any event, development or circumstance whereby the
financial statements furnished hereunder fail in any material respect
to present fairly, in all material respects and in accordance with
GAAP, the financial condition and operational results of any of the
Borrowers or any of their respective Subsidiaries;
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(e) any judicial, administrative or arbitral proceeding
pending against any of the Borrowers or any of their respective
Subsidiaries and any judicial or administrative proceeding known by any
of the Borrowers to be threatened against any Borrower or any
Subsidiary which, if adversely decided, reasonably would be expected to
have a Material Adverse Effect;
(f) the receipt by any of the Borrowers or any Subsidiary
of any notice, claim or demand from any Governmental Authority which
alleges that any of the Borrowers or any Subsidiary is in violation of
any of the terms of, or has failed to comply with any applicable Laws
regulating its operation and business, including, but not limited to,
the Occupational Safety and Health Act and the Environmental Protection
Act, which violation or failure reasonably would be expected to have a
Material Adverse Effect; and
(g) any other development in the business or affairs of any
of the Borrowers or any of their respective Subsidiaries which
reasonably would be expected to have a Material Adverse Effect;
in each case describing in detail reasonably satisfactory to the
Administrative Agent the nature thereof and the action the Borrowers propose to
take with respect thereto.
6.1.12 Hazardous Materials; Contamination.
Each of the Borrowers agrees to:
(a) give notice to the Administrative Agent immediately
upon acquiring knowledge of the presence of any Hazardous Materials or
any Hazardous Materials Contamination on any property owned, operated
or controlled by any Borrower or for which any Borrower is, or is
claimed to be, responsible (provided that such notice shall not be
required for Hazardous Materials placed or stored on such property in
accordance with applicable Laws in the ordinary course (including,
without limitation, quantity) of a Borrower's line of business
expressly described in this Agreement), with a full description
thereof;
(b) promptly comply with any Laws requiring the removal,
treatment or disposal of Hazardous Materials or Hazardous Materials
Contamination and provide the Administrative Agent with satisfactory
evidence of such compliance;
(c) provide the Administrative Agent, within thirty (30)
days after a demand by the Administrative Agent, with a bond, letter of
credit or similar financial assurance evidencing to the Administrative
Agent's satisfaction that the necessary funds are available to pay the
cost
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of removing, treating, and disposing of such Hazardous Materials or
Hazardous Materials Contamination and discharging any Lien which has
been established as a result thereof on any property owned, operated or
controlled by any Borrower or for which any Borrower is, or is claimed
to be, responsible; and
(d) as part of the Obligations, defend, indemnify and hold
harmless the Administrative Agent, each of the Lenders and each of
their respective agents, employees, trustees, successors and assigns
from any and all claims which may now or in the future (whether before
or after the termination of this Agreement) be asserted as a result of
the presence of any Hazardous Materials or any Hazardous Materials
Contamination on any property owned, operated or controlled by any
Borrower for which any Borrower is, or is claimed to be, responsible.
Each Borrower acknowledges and agrees that this indemnification shall
survive the termination of this Agreement and the Commitments and the
payment and performance of all of the other Obligations.
6.1.13 Disclosure of Significant Transactions.
Each of the Borrowers shall deliver to the Administrative Agent a
written notice describing in detail each transaction by it involving the
purchase, sale, lease, or other acquisition or loss or casualty to or
disposition of an interest in Fixed or Capital Assets which exceeds One Million
Dollars ($1,000,000), said notices to be delivered to the Administrative Agent
within thirty (30) days of the occurrence of each such transaction.
6.1.14 Financial Covenants.
(a) Fixed Charge Coverage Ratio. The Borrowers will
maintain, on a consolidated basis and tested as of the last day of each of the
Borrowers' fiscal quarters (i) during fiscal year 1998 only, for the period
commencing January 1, 1998 and ending on the last day of the applicable quarter,
and (ii) after fiscal year 1998, for the four (4) quarter period ending on the
last day of the applicable quarter, a EBITDA to Fixed Charges Ratio (i) of not
less than 0.75 to 1.0 if the average Unused Availability during such quarter is
$25,000,000 or more or (ii) of not less than 1.0 to 1.0 if the average Unused
Availability during such quarter is less than $25,000,000.
(b) Funded Debt to EBITDA Ratio. The Borrowers will
maintain, on a consolidated basis and tested as of the last day of each of the
Borrowers' fiscal quarters for which the average Unused Availability during such
quarter is more than $25,000,000, for the four (4) quarter period ending on that
date, a ratio of Funded Debt to EBITDA of not more than 2.5 to 1.0.
(c) Capital Expenditures. The Borrowers and their
Subsidiaries will not permit Capital Expenditures to exceed in any fiscal year
the following:
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<TABLE>
<CAPTION>
Fiscal Year Limit
----------- -----
<S> <C> <C>
1998 $55,000,000
Thereafter per annum $40,000,000
</TABLE>
Notwithstanding the foregoing, up to 25% of the unused portion of
the limit set forth above with respect to any fiscal year may be carried forward
and utilized in the immediately succeeding year.
6.1.15 Collection of Receivables.
Until such time that the Administrative Agent shall notify the
Borrowers of the revocation of such privilege, the Borrowers and their
Subsidiaries shall at their own expense have the privilege for the account of,
and in trust for, the Administrative Agent and the Lenders of collecting their
Receivables and receiving in respect thereto all Items of Payment and shall
otherwise completely service all of the Receivables including (a) the billing,
posting and maintaining of complete records applicable thereto, (b) the taking
of such action with respect to the Receivables as the Administrative Agent may
request or in the absence of such request, as each of the Borrowers and each of
the Subsidiaries may deem advisable; and (c) the granting, in the ordinary
course of business, to any Account Debtor, any rebate, refund or adjustment to
which the Account Debtor may be lawfully entitled, and may accept, in connection
therewith, the return of goods, the sale or lease of which shall have given rise
to a Receivable and may take such other actions relating to the settling of any
Account Debtor's claim as may be commercially reasonable. The Administrative
Agent may, at its option, at any time or from time to time after and during the
continuance of an Event of Default hereunder, revoke the collection privilege
given in this Agreement to any one or more of the Borrowers and each of the
Subsidiaries by either giving notice of its assignment of, and Lien on the
Collateral to the Account Debtors or giving notice of such revocation to the
Borrowers. The Administrative Agent shall not have any duty to, and the
Borrowers hereby release the Administrative Agent and the Lenders from all
claims of loss or damage caused by the delay or failure to collect or enforce
any of the Receivables or to preserve any rights against any other party with an
interest in the Collateral. The Administrative Agent shall be entitled at any
time and from time to time to confirm and verify Receivables with the Account
Debtors thereunder; provided, however, that absent an Event of Default, the
Administrative Agent shall effect such verification by a means which does not
identify the Administrative Agent by name.
6.1.16 Assignments of Receivables.
Each Borrower will promptly, upon request, execute and deliver to
the Administrative Agent written assignments, in form and content acceptable to
the Administrative Agent, of specific Receivables or groups of Receivables;
provided, however, the Lien and/or security interest granted to the
Administrative Agent, for the ratable benefit of the Lenders and for the benefit
of the Administrative Agent with respect to the Agents' Obligations, under this
Agreement shall not be limited in any way to or by the inclusion or exclusion of
Receivables within such assignments. Receivables so assigned shall secure
payment of the Obligations and are not sold to the Administrative Agent and/or
the Lenders whether or not any assignment thereof, which is separate from this
Agreement, is in form absolute. The Borrowers agree that neither any assignment
to the Lender nor any other provision contained in this Agreement or any
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of the other Financing Documents shall impose on the Administrative Agent or the
Lenders any obligation or liability of any of the Borrowers with respect to that
which is assigned and the Borrowers hereby agree jointly and severally to
indemnify the Administrative Agent and the Lenders and hold the Administrative
Agent and the Lenders harmless from any and all claims, actions, suits, losses,
damages, costs, expenses, fees, obligations and liabilities which may be
incurred by or imposed upon the Administrative Agent and/or any of the Lenders
by virtue of the assignment of and Lien on any Borrower's rights, title and
interest in, to, and under the Collateral, except for any such claims, actions,
suits, losses, damages, costs, expenses, fees, obligations or liabilities which
are the proximate result of the gross negligence or willful misconduct of the
Administrative Agent or any Lender.
6.1.17 Government Accounts.
The Borrowers will immediately notify the Administrative Agent if
any of the Receivables arise out of contracts with the United States or with any
other Governmental Authority, and, as appropriate, execute any instruments and
take any steps required by the Administrative Agent in order that all moneys due
and to become due under such contracts shall be assigned to the Administrative
Agent, for the ratable benefit of the Lenders and for the benefit of the
Administrative Agent with respect to the Agents' Obligations, and notice thereof
given to the Governmental Authority under the Federal Assignment of Claims Act
or any other applicable Laws.
6.1.18 Notice of Returned Goods, etc.
The Borrowers will promptly notify, and will cause the
Subsidiaries to promptly notify, the Administrative Agent of the return,
rejection or repossession of any goods sold or delivered in respect of any
Receivables, and of any claims made in regard thereto to the extent that the
aggregate purchase price of any such goods in any given calendar month exceeds
in the aggregate One Million Dollars ($1,000,000) for such month.
6.1.19 Inventory.
With respect to the Inventory, the Borrowers and their
Subsidiaries will: (a) as soon as possible upon demand by the Administrative
Agent from time to time, prepare and deliver to the Administrative Agent
designations of Inventory specifying the Borrowers' and Subsidiaries' cost of
Inventory, the retail price thereof, and such other matters and information
relating to the Inventory as the Administrative Agent may reasonably request;
provided; however, that unless an Event of Default shall have occurred and be
continuing such request shall not be made any more than one (1) time each
quarter; (b) keep correct and accurate records itemizing and describing the
kind, type, quality and quantity of Inventory, the Borrowers' and Subsidiaries'
cost therefor and the selling price thereof, all of which, subject to the
provisions of Section 6.1.3 above, records shall be available to the officers,
employees or agents of the Administrative Agent for inspection and copying
thereof; (c) not store any Inventory with a bailee, warehouseman or similar
Person without the Administrative Agent's prior written consent, which consent
may be conditioned on, among other things, delivery by the bailee, warehouseman
or similar Person to the Administrative Agent of warehouse receipts, in form
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acceptable to the Administrative Agent, in the name of the Administrative Agent
evidencing the storage of Inventory and the interests of the Administrative
Agent and the Lenders therein; and (d) permit the Administrative Agent and its
agents or representatives to inspect and examine the Inventory and to check and
test the same as to quality, quantity, value and condition at any time or times
hereafter during the Borrowers' and Subsidiaries' usual business hours or at
other reasonable times. Any such inspection described in this clause (d) shall
be subject to the provisions of Sections 6.1.3(a) and (c). The Borrowers shall
be permitted to sell their Inventory in the ordinary course of business until
the occurrence and during the continuation of an Event of Default.
6.1.20 Insurance With Respect to Capital Expenditure Line
Equipment and Inventory.
The Borrowers will (a) maintain and cause each of their
Subsidiaries to maintain hazard insurance with fire and extended coverage and
naming the Administrative Agent as an additional insured with loss payable to
the Administrative Agent as its respective interest may appear on the Capital
Expenditure Line Equipment and Inventory in an amount at least equal to the
lesser amount of the outstanding principal amount of the Obligations or the fair
market value of the Capital Expenditure Line Equipment and Inventory (but in any
event sufficient to avoid any co-insurance obligations) and with a specific
endorsement to each such insurance policy pursuant to which the insurer agrees
to give the Administrative Agent at least thirty (30) days written notice before
any alteration or cancellation of such insurance policy and that no act or
default of any of the Borrowers shall affect the right of the Administrative
Agent to recover under such policy in the event of loss or damage; and (b) file,
and cause each of their Subsidiaries to file, with the Administrative Agent,
upon its request, a detailed list of the insurance then in effect and stating
the names of the insurance companies, the amounts and rates of the insurance,
dates of the expiration thereof and the properties and risks covered thereby;
provided, however, that unless an Event of Default shall have occurred and be
continuing such request shall not be made any more than one (1) time each
quarter.
6.1.21 Maintenance of the Collateral.
The Borrowers will maintain the Collateral in good working order,
saving and excepting ordinary wear and tear and loss of maintenance due to
obsolescence or the items of Collateral no longer being necessary to the
operation of the business of the Borrowers, and will not permit anything to be
done to the Collateral which reasonably would be expected to materially impair
the value thereof. The Administrative Agent, or an agent designated by the
Administrative Agent, shall be permitted to enter the premises of each of the
Borrowers and their Subsidiaries and examine, audit and inspect the Collateral
at any reasonable time and from time to time in accordance with the provisions
of Sections 6.1.3(a) and (c). The Administrative Agent agrees to act in a
commercially reasonable manner when inspecting the premises of the Borrowers and
their Subsidiaries and when examining, auditing and/or inspecting the
Collateral. The Administrative Agent shall not have any duty to, and the
Borrowers hereby release the Administrative Agent and the Lenders from all
claims of loss or damage caused by the delay or failure to collect or enforce
any of the Receivables or to preserve any rights against any other
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party with an interest in the Collateral which occurs at any time during the
continuation of an Event of Default.
6.1.22 Assigned Local Currency Receivables.
Each Local Currency Borrower shall assign its Accounts as Assigned
Local Currency Receivables promptly after such Accounts are created and the
Borrowers shall thereafter maintain the Assigned Local Currency Receivables in
compliance with each component of the definition of that term.
6.1.23 Capital Expenditure Line Equipment.
The Borrowers shall (a) maintain all Capital Expenditure Line
Equipment as personalty, (b) not affix any Capital Expenditure Line Equipment to
any real estate in such manner as to become a fixture or part of such real
estate, and (c) shall hold no Capital Expenditure Line Equipment on a sale on
approval basis. The Borrowers hereby declare their intent that, notwithstanding
the means of attachment, no goods of the Borrowers hereafter attached to any
realty shall be deemed a fixture, which declaration shall be irrevocable,
without the Administrative Agent's consent, until all of the Obligations have
been paid in full and all of the Commitments have been terminated or have
expired. All legal documents incident to each advance under the Loans and each
of the Letters of Credit shall be reasonably satisfactory to counsel for the
Administrative Agent.
6.1.24 Defense of Title and Further Assurances.
At their expense, the Borrowers will defend the title to the
Collateral (and any part thereof), and will promptly execute, acknowledge and
deliver any financing statement, renewal, affidavit, deed, assignment,
continuation statement, security agreement, certificate or other document which
the Administrative Agent in good faith may require in order to perfect,
preserve, maintain, continue, protect and/or extend the Lien or security
interest granted to the Administrative Agent, for the ratable benefit of the
Lenders and for the benefit of the Administrative Agent with respect to the
Agents' Obligations, under this Agreement, under any of the other Financing
Documents and the first priority of that Lien, subject only to the Permitted
Liens. The Borrowers will from time to time do whatever the Administrative Agent
reasonably may require by way of obtaining, executing, delivering, and/or filing
financing statements, landlords' or mortgagees' waivers, notices of assignment
and other notices and amendments and renewals thereof and the Borrowers will
take any and all steps and observe such formalities as the Administrative Agent
reasonably may require, in order to create and maintain a valid Lien upon,
pledge of, or paramount security interest in, the Collateral, subject to the
Permitted Liens. The Borrowers shall pay to the Administrative Agent on demand
all taxes, costs and expenses incurred by the Administrative Agent in connection
with the preparation, execution, recording and filing of any such document or
instrument. To the extent that the proceeds of any of the Accounts or
Receivables of the Borrowers are expected to become subject to the control of,
or in the possession of, a party other than the Borrowers or the Administrative
Agent, the Borrowers shall cause all such parties to execute and deliver on the
Closing Date security documents, financing statements or other documents as
requested by the Administrative Agent and as may be
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necessary to evidence and/or perfect the security interest of the Administrative
Agent, for the ratable benefit of the Lenders and for the benefit of the
Administrative Agent with respect to the Agents' Obligations, in those proceeds.
The Borrowers agree that a copy of a fully executed security agreement and/or
financing statement shall be sufficient to satisfy for all purposes the
requirements of a financing statement as set forth in Article 9 of the
applicable Uniform Commercial Code. Each Borrower hereby irrevocably appoints
the Administrative Agent as the Borrower's attorney-in-fact, with power of
substitution, in the name of the Administrative Agent or in the name of the
Borrower or otherwise, for the use and benefit of the Administrative Agent for
itself and the Lenders, but at the cost and expense of the Borrowers and without
notice to the Borrowers, to execute and deliver any and all of the instruments
and other documents and take any action which the Lender may require pursuant
the foregoing provisions of this Section 6.1.24; provided, however, that unless
the Lenders have a reasonable belief that any Lien securing the Obligations is
impaired or may be impaired by delay, no such filing shall be made unless the
Administrative Agent has requested the Borrowers to make such filing and the
Borrowers have failed to comply with such request within ten (10) Business Days
after such request has been delivered to the Borrowers.
6.1.25 Business Names; Locations.
Each Borrower will notify and cause each of the Subsidiaries to
notify the Administrative Agent not less than thirty (30) days prior to (a) any
change in the name under which the Borrower or the applicable Subsidiary
conducts its business, (b) any change of the location of the chief executive
office of the applicable Borrower or Subsidiary, and (c) the opening of any new
place of business or the closing of any existing place of business, and any
change in the location of the places where the Collateral, or any part thereof,
or the books and records, or any part thereof, are kept.
6.1.26 Subsequent Opinion of Counsel as to Recording Requirements.
In the event that any Borrower or any Subsidiary shall transfer
its principal place of business or the office where it keeps its records
pertaining to the Collateral, upon the Administrative Agent's request the
Borrowers will provide to the Administrative Agent a subsequent opinion of
counsel as to the filing, recording and other requirements with which the
Borrowers and their Subsidiaries have complied to maintain the Lien and security
interest in favor of the Administrative Agent, for the ratable benefit of the
Lenders and for the benefit of the Administrative Agent with respect to the
Agents' Obligations, in the Collateral.
6.1.27 Use of Premises and Equipment.
The Borrowers agree that until the Obligations are fully paid and
all of the Commitments and the Letters of Credit have been terminated or have
expired, the Administrative Agent (a) after and during the continuance of an
Event of Default, may use any of the Borrowers' owned or leased lifts, hoists,
trucks and other facilities or equipment for handling or removing the
Collateral; and (b) shall have, and is hereby granted, a right of ingress and
egress to the places where the Collateral is located, and may proceed over and
through any of the Borrowers' owned or leased property, subject, however, to the
provisions of Section 6.1.3.
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6.1.28 Protection of Collateral.
The Borrowers agree that the Administrative Agent may at any time
during the continuation of an Event of Default take such steps as the
Administrative Agent deems reasonably necessary to protect the interest of the
Administrative Agent and the Lenders in, and to preserve the Collateral,
including, the hiring of such security guards or the placing of other security
protection measures as the Administrative Agent deems appropriate, may employ
and maintain at any of the Borrowers' premises a custodian who shall have full
authority to do all acts necessary to protect the interests of the
Administrative Agent and the Lenders in the Collateral and may lease warehouse
facilities to which the Administrative Agent may move all or any part of the
Collateral to the extent commercially reasonable. The Borrowers agree to
cooperate fully with the Administrative Agent's efforts to preserve the
Collateral and will take such actions to preserve the Collateral as the
Administrative Agent may reasonably direct. All of the Administrative Agent's
expenses of preserving the Collateral, including any reasonable expenses
relating to the compensation and bonding of a custodian, shall be part of the
Enforcement Costs.
Section 6.2 Negative Covenants.
So long as any of the Obligations or the Commitments or Letters of
Credit therefor shall be outstanding hereunder, the Borrowers agree with the
Administrative Agent and the Lenders that without the prior written consent of
the Administrative Agent:
6.2.1 Mergers, Acquisition or Sale of Assets.
None of the Borrowers will enter into any merger or consolidation
or amalgamation, windup or dissolve themselves (or suffer any liquidation or
dissolution) or acquire all or substantially all the assets of any Person, or
sell, lease or otherwise dispose of any of its assets (except Inventory disposed
of in the ordinary course of business prior to an Event of Default); provided,
however, that any Borrower may merge or consolidate with or sell, lease or
dispose of any of its assets to any other Borrower. Any consent of the
Administrative Agent to the disposition of any assets may be conditioned on a
specified use of the proceeds of disposition.
6.2.2 Subsidiaries.
None of the Borrowers will create or acquire any Subsidiaries
other than the Subsidiaries identified on the Collateral Disclosure List.
6.2.3 Purchase or Redemption of Securities, Dividend Restrictions.
Except as permitted pursuant to the terms of the Senior Notes and
then only if no Event of Default or failure to maintain the availability
required by the Section 2.1.12(b) shall then exist or result therefrom, none of
the Borrowers will purchase, redeem or otherwise acquire any shares of its
capital stock or warrants now or hereafter outstanding, declare or pay any
dividends thereon (other than stock dividends), apply any of its property or
assets to the purchase, redemption or other retirement of, set apart any sum for
the payment of
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any dividends on, or for the purchase, redemption, or other retirement of, make
any distribution by reduction of capital or otherwise in respect of, any shares
of any class of capital stock of any Borrower, or any warrants, permit any
Subsidiary to purchase or acquire any shares of any class of capital stock of,
or warrants issued by, any Borrower, make any distribution to stockholders or
set aside any funds for any such purpose, and not prepay, purchase or redeem any
Indebtedness for Borrowed Money other than the Obligations.
6.2.4 Indebtedness for Borrowed Money.
None of the Borrowers will create, incur, assume or suffer to
exist any Indebtedness for Borrowed Money or permit any Subsidiary to do so,
except:
(a) the Obligations;
(b) current accounts payable arising in the ordinary course;
(c) the Senior Notes and the guarantees executed in
connection therewith;
(d) Indebtedness for Borrowed Money secured by Permitted
Liens;
(e) Subordinated Indebtedness;
(f) Indebtedness for Borrowed Money of the Borrowers
existing on the date hereof and reflected on the financial
statements furnished pursuant to Section 4.1.11 (Financial
Condition);
(g) Guarantees by any Borrower of Indebtedness for Borrowed
Money otherwise permitted hereunder of any other Borrower;
(h) Refinancing of any of the amounts listed in clauses (c)
and (d) above and in this clause (h), provided the amount as
refinanced does not exceed the original principal amount (or
commitment with respect thereto) of the Indebtedness for Borrowed
Money so refinanced and on terms not materially less favorable to
the applicable Borrowers and do not result in a Default or Event
of Default;
(i) Indebtedness for Borrowed Money represented by
Capitalized Leases otherwise permitted by this Agreement and
(j) other Indebtedness for Borrowed Money in an amount not
to exceed in the aggregate for the Parent and its Subsidiaries at
any time outstanding, the sum of Five Million Dollars ($5,000,000)
(or the equivalent thereof in any other currency, as applicable),
which Indebtedness for Borrowed Money shall not be secured.
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6.2.5 Investments, Loans and Other Transactions.
Except as otherwise provided in this Agreement, none of the
Borrowers will, and will permit any of its Subsidiaries to, (a) make, assume,
acquire or continue to hold any investment in any real property (unless used in
connection with their business and treated as a Fixed or Capital Asset of any
Borrower or any Subsidiary) or any Person, whether by stock purchase, capital
contribution, acquisition of indebtedness of such Person or otherwise
(including, without limitation, investments in any joint venture or
partnership), (b) guaranty or otherwise become contingently liable for the
Liabilities or obligations of any Person, or (c) make any loans or advances, or
otherwise extend credit to any Person, except:
(i) any advance to an officer or employee of any
Borrower or any Subsidiary for travel or other business expenses in the
ordinary course of business, provided that the aggregate amount of all
such advances by all of the Borrowers and their Subsidiaries (taken as
a whole) outstanding at any time shall not exceed One Million Dollars
($1,000,000);
(ii) the endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of
business;
(iii) any investment in Cash Equivalents, which are
pledged to the Administrative Agent, for the ratable benefit of the
Lenders and for the benefit of the Administrative Agent with respect to
the Agents' Obligations, as collateral and security for the
Obligations;
(iv) trade credit extended to customers in the
ordinary course of business;
(v) guarantees permitted pursuant to Section 6.2.4;
(vi) investments, loans, advances and guaranties
not to exceed $10,000,000 in the aggregate with respect to the VITEC
venture for the production of fuel storage and delivery systems for
General Motors Corporation and Chrysler Corporation; and
(vii) after January 1, 1999, other investments,
loans, advances and guaranties not to exceed $5,000,000 in the
aggregate for any fiscal year.
6.2.6 Stock of Subsidiaries.
None of the Borrowers will sell or otherwise dispose of any shares
of capital stock of any Subsidiary (except in connection with a merger or
consolidation of a Wholly Owned Subsidiary into any of the Borrowers or another
Wholly Owned Subsidiary of any of the
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Borrowers or with the dissolution of any Subsidiary) or permit any Subsidiary to
issue any additional shares of its capital stock except pro rata to its
stockholders.
6.2.7 Subordinated Indebtedness.
None of the Borrowers will, and will permit any Subsidiary to
make:
(a) any payment of principal of, or interest on, any of
the Subordinated Indebtedness, including, without limitation, the
Subordinated Debt, if a Default or Event of Default then exists
hereunder or would result from such payment;
(b) any payment of the principal or interest due on the
Subordinated Indebtedness as a result of acceleration thereunder or a
mandatory prepayment thereunder;
(c) any amendment or modification of or supplement to
the documents evidencing or securing the Subordinated Indebtedness; and
(d) payment of principal or interest on the Subordinated
Indebtedness other than when due (without giving effect to any
acceleration of maturity or mandatory prepayment).
6.2.8 Liens.
Each Borrower agrees that it (a) will not create, incur, assume or
suffer to exist any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, or permit any Subsidiary so to do, except for Liens
securing the Obligations and Permitted Liens, (b) will not agree to, assume or
suffer to exist any provision in any instrument or other document for confession
of judgment, cognovit or other similar right or remedy, (c) except as required
by law for real estate and other property taxes and for mechanic's and similar
liens, will not allow or suffer to exist any Permitted Liens to be superior to
Liens securing the Obligations, (d) will not enter into any contracts for the
consignment of goods, will not execute or suffer the filing of any financing
statements or the posting of any signs giving notice of consignments, and will
not, as a material part of its business, engage in the sale of goods belonging
to others, and (e) will not allow or suffer to exist the failure of any Lien
described in the Security Documents to attach to, and/or remain at all times
perfected on, any of the property described in the Security Documents.
6.2.9 Transactions with Affiliates.
None of the Borrowers nor any of their Subsidiaries will enter
into or participate in any transaction with any Affiliate unless the same is on
fair and reasonable terms consistent with past practice, or, except in the
ordinary course of business, with the officers, directors, employees and other
representatives of any Borrower and/or any Subsidiary.
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6.2.10 Other Businesses.
None of the Borrowers nor any of their Subsidiaries will engage
directly or indirectly in any business other than its current line of business
described elsewhere in this Agreement.
6.2.11 ERISA Compliance.
None of the Domestic Borrowers nor any Commonly Controlled Entity
shall: (a) engage in or permit any "prohibited transaction" (as defined in
ERISA); (b) cause any "accumulated funding deficiency" as defined in ERISA
and/or the Internal Revenue Code; (c) terminate any pension plan in a manner
which reasonably would be expected to result in the imposition of a lien on the
property of any Domestic Borrower pursuant to ERISA; (d) terminate or consent to
the termination of any Multi-employer Plan; or (e) incur a complete or partial
withdrawal with respect to any Multi-employer Plan.
6.2.12 Prohibition on Hazardous Materials.
None of the Borrowers shall place, manufacture or store or permit
to be placed, manufactured or stored any Hazardous Materials on any property
owned, operated or controlled by any Borrower or for which any Borrower is
responsible other than Hazardous Materials placed or stored on such property in
accordance with applicable Laws in the ordinary course of a Borrower's business
expressly described in this Agreement.
6.2.13 Method of Accounting; Fiscal Year.
Each Borrower agrees that:
(a) it shall not change the method of accounting
employed in the preparation of any financial statements furnished to
the Administrative Agent under the provisions of Section 6.1.1
(Financial Statements), unless required to conform to GAAP and on the
condition that the Borrowers' accountants shall furnish such
information as the Administrative Agent reasonably may request to
reconcile the changes with the Borrowers' prior financial statements;
and
(b) it will not change its fiscal year from a year
ending on December 31.
6.2.14 Compensation.
None of the Borrowers nor any Subsidiary will pay any bonuses,
fees, compensation, commissions, salaries, drawing accounts, or other payments
(cash and non-cash), whether direct or indirect, to any stockholders of any
Borrower or any Subsidiary, or any Affiliate of any Borrower or any Subsidiary,
other than reasonable compensation for actual services rendered by stockholders
in their capacity as officers or employees.
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6.2.15 Transfer of Collateral.
Except to the extent permitted by and in compliance with the
provisions of this Agreement, none of the Borrowers nor any of their
Subsidiaries will transfer, or permit the transfer, to another location of any
of the Collateral or the books and records related to any of the Collateral.
6.2.16 Sale and Leaseback.
Except for transactions disclosed on Schedule 6.2.16, none of the
Borrowers nor any of the Subsidiaries will directly or indirectly enter into any
arrangement to sell or transfer all or any substantial part of its fixed assets
and thereupon or within one year thereafter rent or lease the assets so sold or
transferred.
6.2.17 Disposition of Collateral.
None of the Borrowers will sell, discount, allow credits or
allowances, transfer, assign, extend the time for payment on, convey, lease,
assign, transfer or otherwise dispose of the Collateral, except, prior to an
Event of Default, dispositions expressly permitted elsewhere in this Agreement,
the sale of Inventory in the ordinary course of business, and the sale of
unnecessary or obsolete equipment, but, in the case of Capital Expenditure Line
Equipment, only if the proceeds of the sale of such Capital Expenditure Line
Equipment are (a) used to purchase similar Capital Expenditure Line Equipment to
replace the unnecessary or obsolete Capital Expenditure Line Equipment or (b)
immediately turned over to the Administrative Agent for application to the
Obligations in accordance with the provisions of this Agreement.
ARTICLE VII
DEFAULT AND RIGHTS AND REMEDIES
Section 7.1 Events of Default.
The occurrence of any one or more of the following events shall
constitute an "Event of Default" under the provisions of this Agreement:
7.1.1 Failure to Pay.
The failure of the Borrowers to pay any of the Obligations as and
when due and payable in accordance with the provisions of this Agreement, the
Notes and/or any of the other Financing Documents and (except in the case of
payment of principal and/or interest) such failure shall have continued for a
period of five (5) days, there being no grace period with respect to a payment
at maturity.
7.1.2 Breach of Representations and Warranties.
Any representation or warranty made in this Agreement or in any
report, statement, schedule, certificate, opinion (including any opinion of
counsel for the Borrowers),
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financial statement or other document furnished in connection with this
Agreement, any of the other Financing Documents, or the Obligations, shall prove
to have been false or misleading when made (or, if applicable, when reaffirmed)
in any material respect.
7.1.3 Failure to Comply with Covenants.
The failure of the Borrowers to perform, observe or comply with
any covenant, condition or agreement contained in this Agreement. and, (i) only
with respect to a failure under Section 6.1.1 (Financial Statement), such
failure continues uncured for a period of five (5) days, or (ii) only with
respect to a failure under Sections 6.1.3(b) (Bookkeeping), 6.1.4 (Corporate
Existence), 6.1.6 (Preservation of Properties), or 6.1.9 (Taxes) which does not
relate to Taxes due or claimed to be due in excess of $250,000 in the aggregate,
if the Borrowers after discovering such failure, fail to diligently and
continuously pursue the cure of such failure or such failure continues uncured
thirty (30) days after discovery.
7.1.4 Default Under Other Financing Documents or Obligations.
A default shall occur under any of the other Financing Documents
or under any other Obligations, and such default is not cured within any
applicable grace period provided therein.
7.1.5 Receiver; Bankruptcy.
Any Borrower or any Subsidiary shall (a) apply for or consent to
the appointment of a receiver, trustee or liquidator of itself or any of its
property, (b) admit in writing its inability to pay its debts as they mature,
(c) make a general assignment for the benefit of creditors, (d) be adjudicated a
bankrupt or insolvent, (e) file a voluntary petition in bankruptcy or a petition
or an answer seeking or consenting to reorganization or an arrangement with
creditors or to take advantage of any bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution or liquidation law or statute, or an answer
admitting the material allegations of a petition filed against it in any
proceeding under any such law, or take corporate action for the purposes of
effecting any of the foregoing, or (f) by any act indicate its consent to,
approval of or acquiescence in any such proceeding or the appointment of any
receiver of or trustee for any of its property, or suffer any such receivership,
trusteeship or proceeding to continue undischarged for a period of sixty (60)
days, or (g) by any act indicate its consent to, approval of or acquiescence in
any order, judgment or decree by any court of competent jurisdiction or any
Governmental Authority enjoining or otherwise prohibiting the operation of a
material portion of any Borrower's or any Subsidiary's business or the use or
disposition of a material portion of any Borrower's or any Subsidiary's assets;
provided, however, that with respect to a Subsidiary which is not a Borrower,
the foregoing shall not be an Event of Default unless a Material Adverse Effect
results.
7.1.6 Involuntary Bankruptcy, etc.
(a) An order for relief shall be entered in any involuntary
case brought against any Borrower or any Subsidiary under the Bankruptcy Code or
any order or filing with a similar effect shall arise under any other Insolvency
Proceedings, or (b) any such
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case shall be commenced against any Borrower or any Subsidiary and shall not be
dismissed within sixty (60) days after the filing of the petition, or (c) an
order, judgment or decree under any other Law is entered by any court of
competent jurisdiction or by any other Governmental Authority on the application
of a Governmental Authority or of a Person other than any Borrower or any
Subsidiary (i) adjudicating any Borrower, or any Subsidiary bankrupt or
insolvent, or (ii) appointing a receiver, trustee or liquidator of any Borrower
or of any Subsidiary, or of a material portion of any Borrower's or any
Subsidiary's assets, or (iii) enjoining, prohibiting or otherwise limiting the
operation of a material portion of any Borrower's or any Subsidiary's business
or the use or disposition of a material portion of any Borrower's or any
Subsidiary's assets, and such order, judgment or decree continues unstayed and
in effect for a period of sixty (60) days from the date entered; provided,
however, that with respect to a Subsidiary which is not a Borrower, the
foregoing shall not be an Event of Default unless a Material Adverse Effect
results.
7.1.7 Judgment.
Unless adequately insured in the opinion of the Administrative
Agent, the entry of a final judgment for the payment of money involving more
than $5,000,000 against any Borrower or any Subsidiary, and the failure by such
Borrower or such Subsidiary to discharge the same, or cause it to be discharged,
within thirty (30) days from the date of the order, decree or process under
which or pursuant to which such judgment was entered, or to secure a stay of
execution pending appeal of such judgment.
7.1.8 Execution; Attachment.
Any execution or attachment shall be levied against the
Collateral, or any part thereof, and such execution or attachment shall not be
set aside, discharged or stayed within thirty (30) days after the same shall
have been levied.
7.1.9 Default Under Other Borrowings.
Default shall be made with respect to any Indebtedness in excess
of $5,000,000 of any of the Borrowers (other than the Loans) if the effect of
such default is to accelerate the maturity of such Indebtedness or to permit the
holder or obligee thereof or other party thereto to cause such Indebtedness to
become due prior to its stated maturity.
7.1.10 Challenge to Agreements.
Any Borrower shall challenge the validity and binding effect of
any provision of any of the Financing Documents or shall state its intention to
make such a challenge of any of the Financing Documents or any of the Financing
Documents shall for any reason (except to the extent permitted by its express
terms) cease to be effective or to create a valid and perfected first priority
Lien (except for Permitted Liens) on, or security interest in, any of the
Collateral purported to be covered thereby.
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7.1.11 Material Adverse Change.
The Administrative Agent, in its sole discretion, determines in
good faith that a material adverse change has occurred in the financial
condition of any of the Borrowers.
7.1.12 Liquidation, Termination, Dissolution, Change in Control
etc.
Any Borrower shall liquidate, dissolve or terminate its existence
or any change occurs in the control of any Borrower without the prior written
consent of the Administrative Agent or unless the same is otherwise permitted by
this Agreement.
7.1.13 Change in Control.
A "Change in Control" shall occur under the Senior Note
Indentures, as the case may be, or the Parent has issued any "Change of Control
Notice" or "Control Change" Notice thereunder.
Section 7.2 Remedies.
Upon the occurrence and during the continuation of any Event of
Default, the Administrative Agent may, in the exercise of its sole and absolute
discretion from time to time, and shall, at the direction of the Requisite
Lenders, at any time thereafter exercise any one or more of the following
rights, powers or remedies.
7.2.1 Acceleration.
The Administrative Agent may declare any or all of the Obligations
to be immediately due and payable, notwithstanding anything contained in this
Agreement or in any of the other Financing Documents to the contrary, without
presentment, demand, protest, notice of protest or of dishonor, or other notice
of any kind, all of which the Borrowers hereby waive.
7.2.2 Further Advances.
The Administrative Agent may from time to time without notice to
the Borrowers suspend, terminate or limit any further advances, loans or other
extensions of credit under the Commitment, under this Agreement and/or under any
of the other Financing Documents. Further, upon the occurrence and during the
continuation of an Event of Default or Default specified in Sections 7.1.5
(Receiver; Bankruptcy) or 7.1.6 (Involuntary Bankruptcy, etc.), the Revolving
Credit Commitments, the Letter of Credit Commitments and any agreement in any of
the Financing Documents to provide additional credit and/or to issue Letters of
Credit shall immediately and automatically terminate and the unpaid principal
amount of the Notes (with accrued interest thereon) and all other Obligations
then outstanding, shall immediately become due and payable without further
action of any kind and without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived by the Borrowers.
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7.2.3 Uniform Commercial Code.
The Administrative Agent shall have all of the rights and remedies
of a secured party under the applicable Uniform Commercial Code and other
applicable Laws. Upon demand by the Administrative Agent, the Borrowers shall
assemble the Collateral and make it available to the Administrative Agent, at a
place reasonably designated in the United States or reasonably designated
elsewhere by the Administrative Agent. The Administrative Agent or its agents
may without notice from time to time enter upon any Borrower's premises to take
possession of the Collateral, to remove it, to render it unusable, to process it
or otherwise prepare it for sale, or to sell or otherwise dispose of it.
Any written notice of the sale, disposition or other intended
action by the Administrative Agent with respect to the Collateral which is sent
by regular mail, postage prepaid, to the Borrowers at the address set forth in
Section 9.1 (Notices), or such other address of the Borrowers which may from
time to time be shown on the Administrative Agent's records, at least ten (10)
days prior to such sale, disposition or other action, shall constitute
commercially reasonable notice to the Borrowers. The Administrative Agent may
alternatively or additionally give such notice in any other commercially
reasonable manner. Nothing in this Agreement shall require the Administrative
Agent to give any notice not required by applicable Laws.
If any consent, approval, or authorization of any state, municipal
or other Governmental Authority or of any other Person or of any Person having
any interest therein, should be necessary to effectuate any sale or other
disposition of the Collateral, the Borrowers agree to execute all such
applications and other instruments, and to take all other action, as reasonably
may be required in connection with securing any such consent, approval or
authorization.
The Borrowers recognize that the Administrative Agent may be
unable to effect a public sale of all or a part of the Collateral consisting of
Subsidiary Securities by reason of certain prohibitions contained in the
Securities Act of 1933, as amended, and other applicable Federal and state Laws.
The Administrative Agent may, therefore, in its discretion, take such steps as
it may deem appropriate to comply with such Laws and may, for example, at any
sale of the Collateral consisting of securities restrict the prospective bidders
or purchasers as to their number, nature of business and investment intention,
including, without limitation, a requirement that the Persons making such
purchases represent and agree to the satisfaction of the Administrative Agent
that they are purchasing such securities for their account, for investment, and
not with a view to the distribution or resale of any thereof. The Borrowers
covenant and agree to do or cause to be done promptly all such acts and things
as the Administrative Agent reasonably may request from time to time and as may
be necessary to offer and/or sell the securities or any part thereof in a manner
which is valid and binding and in conformance with all applicable Laws. Upon any
such sale or disposition, the Administrative Agent shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral consisting
of securities so sold.
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7.2.4 Specific Rights With Regard to Collateral.
In addition to all other rights and remedies provided hereunder or
as shall exist at law or in equity from time to time, the Administrative Agent
may (but shall be under no obligation to), without notice to any of the
Borrowers, and each Borrower hereby irrevocably appoints the Administrative
Agent as its attorney-in-fact, with power of substitution, in the name of the
Administrative Agent and/or any or all of the Lenders and/or in the name of any
or all of the Borrowers or otherwise, for the use and benefit of the
Administrative Agent and the Lenders, but at the cost and expense of the
Borrowers and without notice to the Borrowers:
(a) request any Account Debtor obligated on any of the
Accounts to make payments thereon directly to the Administrative Agent,
with the Administrative Agent taking control of the cash and non-cash
proceeds thereof;
(b) compromise, extend or renew any of the Collateral or
deal with the same as it may deem advisable;
(c) make exchanges, substitutions or surrenders of all
or any part of the Collateral;
(d) copy, transcribe, or remove from any place of
business of any Borrower all books, records, ledger sheets,
correspondence, invoices and documents, relating to or evidencing any
of the Collateral or without cost or expense to the Administrative
Agent or the Lenders, make such use of any Borrower's place(s) of
business as may be reasonably necessary to administer, control and
collect the Collateral;
(e) repair, alter or supply goods if necessary to
fulfill in whole or in part the purchase order of any Account Debtor;
(f) demand, collect, receipt for and give renewals,
extensions, discharges and releases of any of the Collateral;
(g) institute and prosecute legal and equitable
proceedings to enforce collection of, or realize upon, any of the
Collateral;
(h) settle, renew, extend, compromise, compound,
exchange or adjust claims in respect of any of the Collateral or any
legal proceedings brought in respect thereof;
(i) endorse or sign the name of any Borrower upon any
items of payment, certificates of title, instruments, securities, stock
powers, documents, documents of title, financing statements,
assignments, notices or other writing relating to or part of the
Collateral and on any proof of claim in bankruptcy against an Account
Debtor;
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(j) notify the Post Office authorities to change the
address for the delivery of mail to the Borrowers to such address or
Post Office Box as the Administrative Agent may designate and receive
and open all mail addressed to any of the Borrowers provided; however,
that the Borrowers shall have immediate access to the mail which does
not pertain to the Collateral; and
(k) take any other action necessary or beneficial to
realize upon or dispose of the Collateral or to carry out the terms of
this Agreement.
7.2.5 Application of Proceeds.
Any proceeds of sale or other disposition of the Collateral will
be applied by the Administrative Agent to the payment first of any and all
Agents' Obligations, then to any and all Enforcement Costs, and thereafter (i)
proceeds from Receivables and Inventory shall be applied first to the
Obligations with respect to the Revolving Credit Facility, second to the
Obligations with respect to the Capital Expenditure Line, then to any other
Obligations, (ii) proceeds from the Capital Expenditure Line Equipment which is
the subject of advances under the Capital Expenditure Line, first to the
Obligations with respect to the Capital Expenditure Line, second to the
Obligations with respect to the Revolving Credit Facility, and then to any other
Obligations, and (iii) proceeds from other Collateral shall be applied first to
the Obligations with respect to the Revolving Credit Facility, second to the
Obligations with respect to the Capital Expenditure Line, and then to any other
Obligations. If the sale or other disposition (by foreclosure, liquidation or
otherwise) of the Collateral fails to fully satisfy the Obligations, the
Domestic Borrowers shall remain liable to the Administrative Agent and the
Lenders for any deficiency.
7.2.6 Performance by Administrative Agent.
If the Borrowers shall fail to pay the Obligations or otherwise
fail to perform, observe or comply with any of the conditions, covenants, terms,
stipulations or agreements contained in this Agreement or any of the other
Financing Documents, the Administrative Agent without notice to or demand upon
the Borrowers and without waiving or releasing any of the Obligations or any
Event of Default, may (but shall be under no obligation to) at any time
thereafter make such payment or perform such act for the account and at the
expense of the Borrowers, and may enter upon the premises of the Borrowers for
that purpose and take all such action thereon as the Administrative Agent may
consider necessary or appropriate for such purpose and each of the Borrowers
hereby irrevocably appoints the Administrative Agent as its attorney-in-fact to
do so, with power of substitution, in the name of the Administrative Agent, in
the name of any or all of the Lenders, or in the name of any or all of the
Borrowers or otherwise, for the use and benefit of the Administrative Agent, but
at the cost and expense of the Borrowers and without notice to the Borrowers.
All sums so paid or advanced by the Administrative Agent together with interest
thereon from the date of payment, advance or incurring until paid in full at the
Post-Default Rate and all costs and expenses, shall
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be deemed part of the Enforcement Costs, shall be paid by the Borrowers to the
Administrative Agent on demand, and shall constitute and become a part of the
Agents' Obligations.
7.2.7 Other Remedies.
The Administrative Agent may from time to time proceed to protect
or enforce the rights of the Administrative Agent and/or any of the Lenders by
an action or actions at law or in equity or by any other appropriate proceeding,
whether for the specific performance of any of the covenants contained in this
Agreement or in any of the other Financing Documents, or for an injunction
against the violation of any of the terms of this Agreement or any of the other
Financing Documents, or in aid of the exercise or execution of any right, remedy
or power granted in this Agreement, the Financing Documents, and/or applicable
Laws. The Administrative Agent and each of the Lenders is authorized to offset
and apply to all or any part of the Obligations all moneys, credits and other
property of any nature whatsoever of any or all of the Borrowers now or at any
time hereafter in the possession of, in transit to or from, under the control or
custody of, or on deposit with, the Administrative Agent, any of the Lenders or
any Affiliate of the Administrative Agent or any of the Lenders.
ARTICLE VIII
THE AGENT
Section 8.1 Appointment.
Each Lender hereby designates and appoints NationsBank as its agent
under this Agreement and the Financing Documents, and each Lender hereby
irrevocably authorizes the Administrative Agent to take such action or to
refrain from taking such action on its behalf under the provisions of this
Agreement and the Financing Documents and to exercise such powers as are set
forth herein or therein, together with such other powers as are reasonably
incidental thereto. The Administrative Agent agrees to act as such on the
express conditions contained in this ARTICLE VIII. The provisions of this
ARTICLE VIII are solely for the benefit of the Administrative Agent and the
Lenders and neither the Borrowers nor any Person shall have any rights as a
third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement, the Administrative Agent shall act
solely as an administrative representative of the Lenders and does not assume
and shall not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for the Lenders, the Borrowers or any Person. The
Administrative Agent may perform any of its duties hereunder, or under the
Financing Documents, by or through its agents or employees.
Section 8.2 Nature of Duties.
8.2.1 In General
The Administrative Agent shall have no duties, obligations or
responsibilities except those expressly set forth in this Agreement or in the
Financing Documents. The duties of the Administrative Agent shall be mechanical
and administrative in nature. The Administrative Agent shall not have by reason
of this Agreement a fiduciary
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relationship in respect of any Lender. Each Lender shall make its own
independent investigation of the financial condition and affairs of the
Borrowers in connection with the extension of credit hereunder and shall make
its own appraisal of the creditworthiness of the Borrowers, and the
Administrative Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
Closing Date or at any time or times thereafter. If the Administrative Agent
seeks the consent or approval of any of the Lenders to the taking or refraining
from taking of any action hereunder, then the Administrative Agent shall send
notice thereof to each Lender. The Administrative Agent shall promptly notify
each Lender any time that the applicable percentage of Lenders has instructed
the Administrative Agent to act or refrain from acting pursuant hereto.
8.2.2 Express Authorization
The Administrative Agent is hereby expressly and irrevocably
authorized by each of the Lenders, as agent on behalf of itself and the other
Lenders:
(a) to receive on behalf of each of the Lenders any
payment or collection on account of the Obligations and to distribute
to each Lender its Pro Rata Share of all such payments and collections
so received as provided in this Agreement;
(b) to receive all documents and items to be furnished
to the Lenders under the Financing Documents (nothing contained herein
shall relieve the Borrowers of any obligation to deliver any item
directly to the Lenders to the extent expressly required by the
provisions of this Agreement);
(c) to act or refrain from acting in this Agreement and
in the other Financing Documents with respect to those matters so
designated for the Administrative Agent;
(d) to act as nominee for and on behalf of the Lenders
in and under this Agreement and the other Financing Documents;
(e) to arrange for the means whereby the funds of the
Lenders are to be made available to the Borrowers;
(f) to distribute promptly to the Lenders, if required
by the terms of this Agreement, all written information, requests,
notices, Loan Notices, payments, Prepayments, documents and other items
received from the Borrowers or other Person;
(g) to amend, modify, or waive any provisions of this
Agreement or the other Financing Documents on behalf of the Lenders
subject to the requirement that certain of the Lenders' consent be
obtained in certain instances as provided in 9.2.2 (Circumstances Where
Consent of all of the Lenders is Required);
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(h) to deliver to the Borrowers and other Persons, all
requests, demands, approvals, notices, and consents received from any
of the Lenders;
(i) to exercise on behalf of each Lender all rights and
remedies of the Lenders upon the occurrence and during the continuation
of any Event of Default and/or Default specified in this Agreement
and/or in any of the other Financing Documents or applicable Laws;
(j) to execute any of the Security Documents and any
other documents on behalf of the Lenders as the secured party for the
benefit of the Administrative Agent and the Lenders; and
(k) to take such other actions as may be requested by
the Requisite Lenders.
Section 8.3 Rights, Exculpation, Etc.
Neither the Administrative Agent nor any of its officers, directors,
employees or agents shall be liable to any Lender for any action taken or
omitted by them hereunder or under any of the Financing Documents, or in
connection herewith or therewith, except that the Administrative Agent shall be
obligated on the terms set forth herein for performance of its express
obligations hereunder, and except that the Administrative Agent shall be liable
with respect to its own gross negligence or willful misconduct. The
Administrative Agent shall not be liable for any apportionment or distribution
of payments made by it in good faith and if any such apportionment or
distribution is subsequently determined to have been made in error the sole
recourse of any Lender to whom payment was due but not made, shall be to recover
from other the Lenders any payment in excess of the amount to which they are
determined to be entitled (and such other Lenders hereby agree to return to such
Lender any such erroneous payments received by them). The Administrative Agent
shall not be responsible to any Lender for any recitals, statements,
representations or warranties herein or for the execution, effectiveness,
genuineness, validity, enforceability, collectible, or sufficiency of this
Agreement or any of the Financing Documents or the transactions contemplated
thereby, or for the financial condition of any Person. The Administrative Agent
shall not be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any of the Financing Documents or the financial condition of any Person, or the
existence or possible existence of any Default or Event of Default. The
Administrative Agent may at any time request instructions from the Lenders with
respect to any actions or approvals which by the terms of this Agreement or of
any of the Financing Documents the Administrative Agent is permitted or required
to take or to grant, and the Administrative Agent shall be absolutely entitled
to refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Financing Documents until it shall
have received such instructions from the applicable percentage of the Lenders.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting under this Agreement or any of the other
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Financing Documents in accordance with the instructions of the applicable
percentage of the Lenders and notwithstanding the instructions of the Lenders,
the Administrative Agent shall have no obligation to take any action if it, in
good faith believes that such action exposes the Administrative Agent to any
liability.
Section 8.4 Reliance.
The Administrative Agent shall be entitled to rely upon any written
notices, statements, certificates, orders or other documents or any telephone
message or other communication (including any writing, telex, telecopy or
telegram) believed by it in good faith to be genuine and correct and to have
been signed, sent or made by the proper Person, and with respect to all matters
pertaining to this Agreement or any of the Financing Documents and its duties
hereunder or thereunder, upon advice of counsel selected by it. The
Administrative Agent may deem and treat the original Lenders as the owners of
the respective Notes for all purposes until receipt by the Administrative Agent
of a written notice of assignment, negotiation or transfer of any interest
therein by the Lenders in accordance with the terms of this Agreement. Any
interest, authority or consent of any holder of any of the Notes shall be
conclusive and binding on any subsequent holder, transferee, or assignee of such
Notes. The Administrative Agent shall be entitled to rely upon the advice of
legal counsel, independent accountants, and other experts selected by the
Administrative Agent in its sole discretion.
Section 8.5 Indemnification.
Each Lender, severally, agrees to reimburse and indemnify the
Administrative Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, advances
or disbursements including, without limitation, Enforcement Costs, of any kind
or nature whatsoever which may be imposed on, incurred by, or asserted against
the Administrative Agent in any way relating to or arising out of this Agreement
or any of the Financing Documents or any action taken or omitted by the
Administrative Agent under this Agreement for any of the Financing Documents, in
proportion to each Lender's Pro Rata Share, all of the foregoing as they may
arise, be asserted or be imposed from time to time; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, advances or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct. The obligations of the Lenders under this Section 8.5 shall
survive the payment in full of the Obligations and the termination of this
Agreement.
Section 8.6 NationsBank Individually.
With respect to its Commitments and the Loans made by it, and the Notes
issued to it, NationsBank shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender. The terms "the Lenders" or
"Requisite Lenders" or any similar terms shall, unless the context clearly
otherwise indicates, include NationsBank in its individual capacity as a Lender
or one of the Requisite Lenders. NationsBank and its Affiliates may lend money
to, accept deposits from and generally engage in any kind of banking, trust or
other business with the Borrowers, any Affiliate
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of any Borrower, or any other Person or any of their officers, directors and
employees as if NationsBank were not acting as the Administrative Agent pursuant
hereto and the Administrative Agent may accept fees and other consideration from
the Borrowers, any Affiliate of the Borrowers or any of their officers,
directors and employees (in addition to the Agency Fees or other arrangements
fees heretofore agreed to between the Borrowers and the Administrative Agent)
for services in connection with this Agreement or otherwise without having to
account for or share the same with the Lenders.
Section 8.7 Successor Administrative Agent.
8.7.1 Resignation.
The Administrative Agent may resign from the performance of all
its functions and duties hereunder at any time by giving at least thirty (30)
Business Days' prior written notice to the Borrowers and the Lenders. Such
resignation shall take effect upon the acceptance by a successor Administrative
Agent of appointment pursuant to Section 8.7.2 (Appointment of Successor) or as
otherwise provided below.
8.7.2 Appointment of Successor.
Upon any such notice of resignation pursuant to Section 8.7.1
(Resignation), the Requisite Lenders shall appoint a successor to the
Administrative Agent, provided that if no Event of Default then shall exist,
such successor shall be subject to the consent of the Borrowers, which consent
shall not be unreasonably withheld or delayed. If a successor to the
Administrative Agent shall not have been so appointed within said thirty (30)
Business Day period, the Administrative Agent retiring, upon notice to the
Borrowers, shall then appoint a successor Administrative Agent who shall serve
as the Administrative Agent until such time, as the Requisite Lenders with the
consent of the Borrowers, provided no Event of Default than shall exist, appoint
a successor the Administrative Agent as provided above.
8.7.3 Successor Agents.
(a) Any Agent may resign from the performance of all its functions
and duties hereunder and/or under the other Financing Documents at any time by
giving 20 Business Days' prior written notice to the Borrowers and the Lenders.
Such resignation shall take effect upon the appointment of a successor Agent
pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by any Agent, the
Requisite Lenders shall appoint a successor Agent hereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrowers.
(c) If a successor Agent shall not have been so appointed within
such 20 Business Day period, such retiring Agent, with the consent of the
Borrowers, which consent shall not be unreasonably withheld, shall then appoint
a successor Agent who shall serve as Agent hereunder until such time, if any, as
the Requisite Lenders appoint a successor Agent as provided in clause (b) above.
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(d) If no successor Agent has been appointed pursuant to
clause (b) or (c) above by the 25th Business Day after the date such notice of
resignation was given by the retiring Agent, the retiring Agent's resignation
shall become effective and the Requisite Lenders shall thereafter perform all
the duties of the retiring Agent hereunder and/or under any other Financing
Document until such time, if any, as the Requisite Lenders appoint a successor
Agent as provided in clause (b) above.
(e) After the resignation of any Agent hereunder, the
provisions of this ARTICLE VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this Agreement.
Upon the acceptance of any appointment as the Administrative Agent
under the Financing Documents by a successor Administrative Agent, such
successor to the Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the Administrative
Agent retiring, and the Administrative Agent retiring shall be discharged from
its duties and obligations under the Financing Documents. After any
Administrative Agent's resignation as the Administrative Agent under the
Financing Documents, the provisions of this ARTICLE VIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under the Financing Documents.
Section 8.8 Collateral Matters.
8.8.1 Release of Collateral, Guaranties.
The Lenders hereby irrevocably authorize the Administrative Agent,
at its option and in its discretion, to release any Lien granted to or held by
the Administrative Agent upon any property covered by this Agreement or the
Financing Documents:
(a) upon termination of the Commitments and payment
and satisfaction of all Obligations;
(b) constituting property being sold or disposed of
if the Borrowers certify to the Administrative Agent that the sale
or disposition is made in compliance with the provisions of this
Agreement (and the Administrative Agent may rely in good faith
conclusively on any such certificate, without further inquiry);
(c) constituting property leased to the Borrowers
under a lease which has expired or been terminated in a
transaction permitted under this Agreement or is about to expire
and which has not been, and is not intended by the Borrowers to
be, renewed or extended; or
(d) constituting property covered by Permitted
Liens with lien priority superior to those Liens in favor or for
the benefit of the Lenders.
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In addition during any fiscal year of the Borrowers (x) the
Administrative Agent may release Collateral having a book value of not more than
5% of the book value of all Collateral, (y) the Administrative Agent, with the
consent of Requisite Lenders, may release Collateral having a book value of not
more than 10% of the book value of all Collateral and (z) the Administrative
Agent, with the consent of the Lenders having 90% of (i) the Commitments and
(ii) Loans, may release all the Collateral.
In addition, the Administrative Agent may release any Borrower
from its Guarantee, if such Borrower no longer is to be a Borrower hereunder
pursuant to the provisions of Section 6.2.1 hereof.
8.8.2 Confirmation of Authority, Execution of Releases.
Without in any manner limiting the Administrative Agent's
authority to act without any specific or further authorization or consent by the
Lenders as set forth in Section 8.8.1 (Release of Collateral; Guarantees), each
Lender agrees to confirm in writing, upon request by the Borrowers, the
authority to release any property or guarantees covered by this Agreement or the
Financing Documents conferred upon the Administrative Agent under Section 8.8.1
(Release of Collateral; Guarantees). So long as no Event of Default is then
continuing, upon receipt by the Administrative Agent of confirmation from the
requisite percentage of the Lenders, of its authority to release any particular
item or types of property or guarantees covered by this Agreement or the
Financing Documents, and upon at least five (5) Business Days prior written
request by the Borrowers, the Administrative Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens or guarantees granted to the
Administrative Agent for the benefit of the Lenders herein or pursuant hereto
upon such Collateral; provided, however, that (a) the Administrative Agent shall
not be required to execute any such document on terms which, in the
Administrative Agent's opinion, would expose the Administrative Agent to
liability or create any obligation or entail any consequence other than the
release of such Liens or guarantees without recourse or warranty, and (b) such
release shall not in any manner discharge, affect or impair the Obligations or
any Liens upon (or obligations of any Person in respect of), all interests
retained by any Person, including, without limitation, the proceeds of any sale,
all of which shall continue to constitute part of the property covered by this
Agreement or the Financing Documents.
8.8.3 Absence of Duty.
The Administrative Agent shall have no obligation whatsoever to
any Lender, the Borrowers or any other Person to assure that the property
covered by this Agreement or the Financing Documents exists or is owned by the
Borrowers or is cared for, protected or insured or has been encumbered or that
the Liens granted to the Administrative Agent on behalf of the Lenders herein or
pursuant hereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to the Administrative Agent in this
Section 8.8.3 or in any of the Financing Documents, it being understood and
agreed that in respect of the property covered by this Agreement or the
Financing Documents or any act,
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omission or event related thereto, the Administrative Agent may act in any
manner it may deem appropriate, in its discretion, given the Administrative
Agent's own interest in property covered by this Agreement or the Financing
Documents as one of the Lenders and that the Administrative Agent shall have no
duty or liability whatsoever to any of the other the Lenders.
Section 8.9 Agency for Perfection.
Each Lender hereby appoints the Administrative Agent and each other
Lender as agent for the purpose of perfecting the Lenders' Liens in Collateral
which, in accordance with Article 9 of the Uniform Commercial Code in any
applicable jurisdiction or otherwise, can be perfected only by possession.
Should any Lender (other than the Administrative Agent) obtain possession of any
such Collateral, such Lender shall notify the Administrative Agent thereof, and,
promptly upon the Administrative Agent's request therefor, shall deliver such
Collateral to the Administrative Agent or in accordance with the Administrative
Agent's instructions.
Section 8.10 Exercise of Remedies.
Each Lender agrees that it will not have any right individually to
enforce or seek to enforce this Agreement or any Financing Document or to
realize upon any collateral security for the Obligations, it being understood
and agreed that such rights and remedies may be exercised only by the
Administrative Agent.
Section 8.11 Consents.
(a) In the event the Administrative Agent requests
the consent of a Lender and does not receive a written denial thereof, or a
written notice from a Lender that due course consideration of the request
requires additional time, in each case, within ten (10) Business Days after such
Lender's receipt of such request, then such Lender will be deemed to have given
such consent.
(b) In the event the Administrative Agent requests
the consent of a Lender and such consent is denied, then NationsBank may, at its
option, require such Lender to assign its interest in the Loans and the other
Obligations to NationsBank for a price equal to the then outstanding principal
amount thereof plus accrued and unpaid interest, fees and costs and expenses due
such Lender under the Financing Documents, which principal, interest, fees and
costs and expenses will be paid on the date of such assignment. In the event
that NationsBank elects to require any Lender to assign its interest to
NationsBank, NationsBank will so notify such Lender in writing within thirty
(30) days following such Lender's denial, and such Lender will assign its
interest to NationsBank no later than five (5) days following receipt of such
notice.
Section 8.12 Dissemination of Information.
The Administrative Agent will provide the Lenders with any information
received by the Administrative Agent from the Borrowers which is required to be
provided to the Administrative Agent or to the Lenders hereunder; provided,
however, that the Administrative Agent shall not
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be liable to any one or more the Lenders for any failure to do so, except to the
extent that such failure is attributable to the Administrative Agent's gross
negligence or willful misconduct.
Section 8.13 Discretionary Advances.
The Administrative Agent may, in its sole discretion, make, for the
account of the Lenders on a pro rata basis, advances under the Revolving Loan of
up to 10% in excess of the Borrowing Base (but not in excess of the limitation
set forth in aggregate Revolving Credit Commitments) for a period of not more
than 30 consecutive days.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices.
All notices, requests and demands to or upon the parties to this
Agreement shall be in writing and shall be deemed to have been given or made
when delivered by hand on a Business Day, or two (2) days after the date when
deposited in the mail, postage prepaid by registered or certified mail, return
receipt requested, or when sent by overnight courier, on the Business Day next
following the day on which the notice is delivered to such overnight courier,
addressed as follows:
Borrowers: c/o Walbro Corporation
1227 Center Road
Auburn Hills, Michigan 48326
Attn: Chief Financial Officer
with a copy to: Susan Schneider, Esquire
Katten Muchen & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Administrative Agent: NationsBank, N.A.
100 South Charles Street
Baltimore, Maryland 21201
Attention: David B. Thayer,
Senior Vice President
with a copy to: Frederick W. Runge, Jr., Esquire
Miles & Stockbridge
10 Light Street
Baltimore, Maryland 21202
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Lenders: NationsBank, N.A.
100 South Charles Street
Baltimore, Maryland 21201
Attention: David B. Thayer,
Senior Vice President
and at the addresses stated after their names
on the signature pages of this Agreement
By written notice, each party to this Agreement may change the address to which
notice is given to that party, provided that such changed notice shall include a
street address to which notices may be delivered by overnight courier in the
ordinary course on any Business Day.
Without implying any limitation of the foregoing paragraph, and with
respect only to those provisions which expressly allow the giving of notice by
telecopy, such telecopy notices shall be given to the Administrative Agent at
410.576.2958, Attention: David B. Thayer, or as the Administrative Agent may
otherwise provide by notice to the applicable party or to the Parent at
517.872.2301, Attention: Michael A.
Shope, Chief Financial Officer.
Section 9.2 Amendments; Waivers.
9.2.1 In General.
This Agreement and the other Financing Documents may not be
amended, modified, or changed in any respect except by an agreement in writing
signed by the Administrative Agent, the Requisite Lenders and the Borrowers,
and, to the extent provided in Section 9.2.2 (Circumstances Where Consent of all
of the Lenders is Required), by an agreement in writing signed by the
Administrative Agent, all of the Lenders and the Borrowers. No waiver of any
provision of this Agreement or of any of the other Financing Documents, nor
consent to any departure by the Borrowers therefrom, shall in any event be
effective unless the same shall be in writing signed by the Requisite Lenders.
No course of dealing between the Borrowers and the Administrative Agent and/or
any of the Lenders and no act or failure to act from time to time on the part of
the Administrative Agent and/or any of the Lenders shall constitute a waiver,
amendment or modification of any provision of this Agreement or any of the other
Financing Documents or any right or remedy under this Agreement, under any of
the other Financing Documents or under applicable Laws. Without implying any
limitation on the foregoing, and subject to the provisions of Section 9.2.2
(Circumstances Where Consent of all of the Lenders is Required):
(a) Any waiver or consent shall be effective only
in the specific instance, for the terms and purpose for which given, subject to
such conditions as the Administrative Agent and Lenders may specify in any such
instrument.
(b) No waiver of any Default or Event of Default
shall extend to any subsequent or other Default or Event of Default, or impair
any right consequent thereto.
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(c) No notice to or demand on the Borrowers in any
case shall entitle the Borrowers to any other or further notice or demand in the
same, similar or other circumstance.
(d) No failure or delay by the Lenders to insist
upon the strict performance of any term, condition, covenant or agreement of
this Agreement or of any of the other Financing Documents, or to exercise any
right, power or remedy consequent upon a breach thereof, shall constitute a
waiver, amendment or modification of any such term, condition, covenant or
agreement or of any such breach or preclude the Lenders from exercising any such
right, power or remedy at any time or times.
(e) By accepting payment after the due date of any
amount payable under this Agreement or under any of the other Financing
Documents, the Lenders shall not be deemed to waive the right either to require
prompt payment when due of all other amounts payable under this Agreement or
under any of the other Financing Documents, or to declare a default for failure
to effect such prompt payment of any such other amount.
9.2.2 Circumstances Where Consent of all of the Lenders is
Required.
Notwithstanding anything to the contrary contained herein, no
amendment, modification, change or waiver shall be effective without the consent
of all of the Lenders to:
(a) extend the maturity of the principal of, or
interest on, any Note or of any of the other Obligations;
(b) reduce the principal amount of any Note or of
any of the other Obligations, the rate of interest thereon or the
Fees due to the Lenders, except as expressly permitted therein;
(c) change the aggregate Commitments;
(d) change the date of payment of principal of, or
interest on, any Note or of any of the other Obligations;
(e) change the method of calculation utilized in
connection with the computation of interest and Fees;
(f) change the manner of pro rata application by
the Administrative Agent of payments made by the Borrowers, or any
other payments required hereunder or under the other Financing
Documents;
(g) modify this Section, Section 8.8.1 (Release of
Collateral, Guarantees), Section 8.12 (Dissemination of
Information), or the definition of "Requisite Lenders;" or
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(h) change the definition of "Borrowing Base".
Additionally, no change may be made to the amount of a
Lender's Commitment or to the Lender's percentage of all Commitments without
the prior written consent of that Lender.
Section 9.3 Cumulative Remedies.
The rights, powers and remedies provided in this Agreement and in the
other Financing Documents are cumulative, may be exercised concurrently or
separately, may be exercised from time to time and in such order as the
Administrative Agent shall determine, subject to the provisions of this
Agreement, and are in addition to, and not exclusive of, rights, powers and
remedies provided by existing or future applicable Laws. In order to entitle the
Administrative Agent to exercise any remedy reserved to it in this Agreement, it
shall not be necessary to give any notice, other than such notice as may be
expressly required in this Agreement. Without limiting the generality of the
foregoing and subject to the terms of this Agreement, the Administrative Agent
may:
(a) proceed against any one or more of the
Borrowers with or without proceeding against any other Person who
may be liable (by endorsement, guaranty, indemnity or otherwise)
for all or any part of the Obligations;
(b) proceed against any one or more of the
Borrowers with or without proceeding under any of the other
Financing Documents or against any Collateral or other collateral
and security for all or any part of the Obligations;
(c) without reducing or impairing the obligation of
the Borrowers and without notice, release or compromise with any
guarantor or other Person liable for all or any part of the
Obligations under the Financing Documents or otherwise;
(d) without reducing or impairing the obligations
of the Borrowers and without notice thereof:
(i) fail to perfect the Lien in any or all
Collateral or to release any or all the Collateral or to
accept substitute Collateral;
(ii) approve the making of advances under the
Revolving Loan under this Agreement;
(iii) waive any provision of this Agreement or
the other Financing Documents;
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(iv) exercise or fail to exercise rights of
set-off or other rights; or
(v) accept partial payments or extend from
time to time the maturity of all or any part of the
Obligations.
Section 9.4 Severability.
In case one or more provisions, or part thereof, contained in this
Agreement or in the other Financing Documents shall be invalid, illegal or
unenforceable in any respect under any Law, then without need for any further
agreement, notice or action:
(a) the validity, legality and enforceability of
the remaining provisions shall remain effective and binding on the
parties thereto and shall not be affected or impaired thereby;
(b) the obligation to be fulfilled shall be reduced
to the limit of such validity;
(c) if such provision or part thereof pertains to
repayment of the Obligations, then, at the sole and absolute
discretion of the Administrative Agent, all of the Obligations of
the Borrowers to the Administrative Agent and the Lenders shall
become immediately due and payable; and
(d) if the affected provision or part thereof does
not pertain to repayment of the Obligations, but operates or would
prospectively operate to invalidate this Agreement in whole or in
part, then such provision or part thereof only shall be void, and
the remainder of this Agreement shall remain operative and in full
force and effect.
Section 9.5 Assignments by Lenders.
Any Lender may, with the prior written consent of the Administrative
Agent and, provided no Event of Default then exists, the Borrowers (which
consent shall not be unreasonably withheld), assign to any Person (each an
"Assignee" and collectively, the "Assignees") all or a portion of such Lender's
Commitments; provided that, after giving effect to such assignment, such Lender
must continue to hold a Pro Rata Share of the Commitments at least equal to Ten
Million Dollars ($10,000,000). Any Lender that elects to make such an assignment
shall pay to the Administrative Agent, for the exclusive benefit of the
Administrative Agent, an administrative fee for processing each such assignment
in the amount of Three Thousand Five Hundred Dollars ($3,500.00). Such Lender
and its Assignee shall notify the Administrative Agent and the Borrowers in
writing of the date on which the assignment is to be effective (the "Adjustment
Date"). On or before the Adjustment Date, the assigning Lender, the
Administrative Agent, the Borrowers and the respective Assignee shall execute
and deliver a
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written assignment agreement in a form acceptable to the Administrative Agent,
which shall constitute an amendment to this Agreement to the extent necessary to
reflect such assignment. Upon the request of any assigning Lender following an
assignment made in accordance with this Section 9.5, the Borrowers shall issue
new Notes to the assigning Lender and its Assignee reflecting such assignment,
in exchange for the existing Notes held by the assigning Lender.
In addition, notwithstanding the foregoing, any Lender may at any time
pledge all or any portion of such Lender's rights under this Agreement, any of
the Commitments or any of the Obligations to a Federal Reserve Bank.
Section 9.6 Participations by Lenders.
Any Lender may at any time sell to one or more financial institutions
participating interests in any of such Lender's Obligations or Commitments;
provided, however, that (a) no such participation shall relieve such Lender from
its obligations under this Agreement or under any of the other Financing
Documents to which it is a party, (b) such Lender shall remain solely
responsible for the performance of its obligations under this Agreement and
under all of the other Financing Documents to which it is a party, and (c) the
Borrowers, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Financing Documents.
Section 9.7 Disclosure of Information by Lenders.
In connection with any sale, transfer, assignment or participation by
any Lender in accordance with Section 9.5 (Assignments by Lenders )or Section
9.6 (Participations by Lenders), each Lender shall have the right to disclose to
any actual or potential purchaser, assignee, transferee or participant all
financial records, information, reports, financial statements and documents
obtained in connection with this Agreement and/or any of the other Financing
Documents or otherwise, provided, however, that such proposed assignee or
participant agrees to be subject to the provisions of Section 9.20 hereof.
Section 9.8 Successors and Assigns.
This Agreement and all other Financing Documents shall be binding upon
and inure to the benefit of the Borrowers, the Administrative Agent, any other
Agents, and the Lenders and their respective heirs, personal representatives,
successors and assigns, except that the Borrowers shall not have the right to
assign their rights hereunder or any interest herein without the prior written
consent of the Administrative Agent and the Requisite Lenders, which consent
shall not unreasonably be withheld or delayed.
Section 9.9 Continuing Agreements.
All covenants, agreements, representations and warranties made by the
Borrowers in this Agreement, in any of the other Financing Documents, and in any
certificate delivered pursuant hereto or thereto shall survive the making by the
Lenders of the Loans, the issuance of Letters of Credit by the Appropriate
Letter of Credit Issuer, and the execution and delivery of the Notes,
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shall be binding upon the Borrowers regardless of how long before or after the
date hereof any of the Obligations were or are incurred, and shall continue in
full force and effect so long as any of the Obligations are outstanding and
unpaid. From time to time upon the Administrative Agent's request, and as a
condition of the release of any one or more of the Security Documents, the
Borrowers and other Persons obligated with respect to the Obligations shall
provide the Administrative Agent with such acknowledgments and agreements as the
Administrative Agent may require to the effect that there exists no defenses,
rights of setoff or recoupment, claims, counterclaims, actions or causes of
action of any kind or nature whatsoever against the Administrative Agent, any or
all of the Lenders, and/or any of its or their agents and others, or to the
extent there are, the same are waived and released.
Section 9.10 Enforcement Costs.
The Borrowers agree to pay to the Administrative Agent on demand all
Enforcement Costs, together with interest thereon from the date incurred or
advanced until paid in full at a per annum rate of interest equal at all times
to the (a) Base Rate, provided, no Event of Default then shall exist or (b) if
an Event of Default then shall exist, at the Post-Default Rate. Enforcement
Costs shall be immediately due and payable at the time advanced or incurred,
whichever is earlier. Without implying any limitation on the foregoing, the
Borrowers agree, as part of the Enforcement Costs, to pay upon demand any and
all stamp and other Taxes and fees payable or determined to be payable in
connection with the execution and delivery of this Agreement and the other
Financing Documents and to save the Administrative Agent and the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay by Borrowers in paying or omission by Borrowers to pay any Taxes
or fees referred to in this Section. The provisions of this Section shall
survive the execution and delivery of this Agreement, the repayment of the other
Obligations and shall survive the termination of this Agreement. Without
limiting the foregoing, the Administrative Agent shall at the request of the
Parent provide to the Parent a written description of the Enforcement Costs.
Section 9.11 Applicable Law; Jurisdiction.
9.11.1 Applicable Law.
Borrowers acknowledge and agree that the Financing Documents,
including, this Agreement, shall be governed by the Laws of the State, as if
each of the Financing Documents and this Agreement had each been executed,
delivered, administered and performed solely within the State even though for
the convenience and at the request of the Borrowers, one or more of the
Financing Documents may be executed elsewhere. The Administrative Agent and the
Lenders acknowledge, however, that remedies under certain of the Financing
Documents which relate to property outside the State may be subject to the laws
of the state in which the property is located.
9.11.2 Submission to Jurisdiction.
The Borrowers irrevocably submit to the jurisdiction of any state
or federal court sitting in the State over any suit, action or proceeding
arising out of or relating to
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this Agreement or any of the other Financing Documents. Each of the Borrowers
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding brought in any such court and any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. Final judgment in any such suit, action or proceeding brought in any such
court shall be conclusive and binding upon the Borrowers and may be enforced in
any court in which the Borrowers are subject to jurisdiction, by a suit upon
such judgment, provided that service of process is effected upon the Borrowers
in one of the manners specified in this Section or as otherwise permitted by
applicable Laws.
9.11.3 Appointment of Administrative Agent for Service of Process.
The Borrowers hereby irrevocably designate and appoint The
Corporation Trust, Incorporated, 32 South Street, Baltimore, Maryland 21202, as
the Borrowers' authorized agent to receive on the Borrowers' behalf service of
any and all process that may be served in any suit, action or proceeding of the
nature referred to in this Section in any state or federal court sitting in the
State. If such agent shall cease so to act, the Borrowers shall irrevocably
designate and appoint without delay another such agent in the State satisfactory
to the Administrative Agent and shall promptly deliver to the Administrative
Agent evidence in writing of such other agent's acceptance of such appointment
and its agreement that such appointment shall be irrevocable.
9.11.4 Service of Process.
Each of the Borrowers hereby consents to process being served in
any suit, action or proceeding of the nature referred to in this Section by (a)
the mailing of a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to such Borrower at such Borrower's address designated
in or pursuant to Section 9.1 (Notices), and (b) serving a copy thereof upon the
agent, if any, designated and appointed by such Borrower as such Borrower's
agent for service of process by or pursuant to this Section. The Borrowers
irrevocably agree that such service (y) shall be deemed in every respect
effective service of process upon the Borrowers in any such suit, action or
proceeding, and (z) shall, to the fullest extent permitted by law, be taken and
held to be valid personal service upon the Borrowers. Nothing in this Section
shall affect the right of the Administrative Agent to serve process in any
manner otherwise permitted by law or limit the right of the Administrative Agent
otherwise to bring proceedings against the Borrowers in the courts of any
jurisdiction or jurisdictions.
Section 9.12 Duplicate Originals and Counterparts.
This Agreement may be executed in any number of duplicate originals or
counterparts, each of such duplicate originals or counterparts shall be deemed
to be an original and all taken together shall constitute but one and the same
instrument.
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Section 9.13 Headings.
The headings in this Agreement are included herein for convenience
only, shall not constitute a part of this Agreement for any other purpose, and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
Section 9.14 No Agency.
Nothing herein contained shall be construed to constitute the Borrowers
as the agent of the Administrative Agent or any of the Lenders for any purpose
whatsoever or to permit the Borrowers to pledge any of the credit of the
Administrative Agent or any of the Lenders. Neither any of the Agents nor any of
the Lenders shall (i) be responsible or liable for any shortage, discrepancy,
damage, loss or destruction of any part of the Collateral wherever the same may
be located and regardless of the cause other than gross negligence or willful
misconduct with respect to Collateral in the possession of the Administrative
Agent or Lender thereof or (ii) by anything herein or in any of the Financing
Documents or otherwise, except as may arise by express, written agreement signed
by the Agents and the Lenders, assume any of the Borrowers' obligations under
any contract or agreement assigned to the Administrative Agent and/or the
Lenders, and neither the Administrative Agent nor any of the Lenders shall be
responsible in any way for the performance by the Borrowers of any of the terms
and conditions thereof.
Section 9.15 Date of Payment.
Should the principal of or interest on the Notes become due and payable
on a day other than a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day and in the case of principal, interest shall be
payable thereon at the rate per annum specified in the Notes during such
extension.
Section 9.16 Entire Agreement.
This Agreement is intended by the Administrative Agent, the Lenders and
the Borrowers to be a complete, exclusive and final expression of the agreements
contained herein. Neither the Administrative Agent, the Lenders nor the
Borrowers shall hereafter have any rights under any prior agreements pertaining
to the matters addressed by this Agreement but shall look solely to this
Agreement for definition and determination of all of their respective rights,
liabilities and responsibilities under this Agreement.
Section 9.17 Waiver of Trial by Jury.
THE BORROWERS, THE AGENT AND THE LENDERS HEREBY JOINTLY AND SEVERALLY
WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE BORROWER AND THE
AGENT AND/OR ANY OR ALL OF THE LENDERS MAY BE PARTIES, ARISING OUT OF OR IN ANY
WAY PERTAINING TO (A) THIS AGREEMENT, (B) ANY OF THE FINANCING DOCUMENTS, OR (C)
THE COLLATERAL. THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL
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CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS
AGAINST PARTIES WHO ARE NOT PARTIES TO THIS AGREEMENT.
This waiver is knowingly, willingly and voluntarily made by the
Borrowers, the Administrative Agent and the Lenders, and the Borrowers, the
Administrative Agent and the Lenders hereby represent that no representations of
fact or opinion have been made by any individual to induce this waiver of trial
by jury or to in any way modify or nullify its effect. The Borrowers, the
Administrative Agent and the Lenders further represent that they have been
represented in the signing of this Agreement and in the making of this waiver by
independent legal counsel, selected of their own free will, and that they have
had the opportunity to discuss this waiver with counsel.
Section 9.18 Liability of the Administrative Agent and the Lenders.
The Borrowers hereby agree that neither the Administrative Agent nor
any of the Lenders shall be chargeable for any negligence, mistake, act or
omission of any accountant, examiner, agency or attorney employed by the
Administrative Agent and/or any of the Lenders in making examinations,
investigations or collections, or otherwise in perfecting, maintaining,
protecting or realizing upon any lien or security interest or any other interest
in the Collateral or other security for the Obligations.
By inspecting the Collateral or any other properties of the Borrowers
or by accepting or approving anything required to be observed, performed or
fulfilled by the Borrowers or to be given to the Administrative Agent and/or any
of the Lenders pursuant to this Agreement or any of the other Financing
Documents, neither the Administrative Agent nor any of the Lenders shall be
deemed to have warranted or represented the condition, sufficiency, legality,
effectiveness or legal effect of the same, and such acceptance or approval shall
not constitute any warranty or representation with respect thereto by the
Administrative Agent and/or the Lenders.
Section 9.19 Indemnification.
The Borrowers agrees to indemnify and hold harmless, the Administrative
Agent, the Lenders, the respective parent and Affiliates of the Administrative
Agent and the Lenders and the respective parent's and Affiliates' officers,
directors, shareholders, employees and agents (each an collectively, the
"Indemnified Parties"), from and against any and all claims, liabilities,
losses, damages, costs and expenses (whether or not such Indemnified Party is a
party to any litigation), including without limitation, reasonable attorney's
fees and costs and costs of investigation, document production, attendance at
depositions or other discovery, incurred by any Indemnified Party with respect
to, arising out of or as a consequence of (a) this Agreement or any of the other
Financing Documents, including without limitation, any failure of the Borrowers
to pay when due (at maturity, by acceleration or otherwise) any principal,
interest, fee or any other amount due under this Agreement or the other Loan
documents, or any other Event of Default; (b) the use by the Borrowers of any
proceeds advanced hereunder; (c) the transactions contemplated hereunder; or (d)
any claim, demand, action or cause of action being asserted against (i) the
Borrowers or any of their Affiliates by any other Person, or (ii) any
Indemnified Party by the Borrowers in connection with the transactions
contemplated hereunder.
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Notwithstanding anything herein or elsewhere to the contrary, the Borrowers
shall not be obligated to indemnify or hold harmless any Indemnified Party from
any liability, loss or damage resulting from the gross negligence, willful
misconduct or unlawful actions of such Indemnified Party. Any amount payable to
the Administrative Agent and/or the Lenders under this Section will bear
interest at the (i) Base Rate, provided no Event of Default then shall exist or
(ii) if an Event of Default then shall exist, at the Post-Default Rate from the
due date until paid.
Section 9.20 Confidentiality.
Each Lender agrees that it will use reasonable efforts to keep
confidential any non-public information from time to time supplied to it under
any Financing Document; provided, however, that nothing herein shall prevent the
disclosure of any such information to (a) the extent the Lender believes such
disclosure is required by applicable Laws, (b) the Lender's counsel,
accountants, and other representatives, (c) bank examiners, regulators, auditors
or comparable Persons (whether in the United States or elsewhere), (d) any
Affiliate or successor of a Lender, (e) each Agent, other Lender and other
Person to whom such other Lender may make a disclosure without violating this
Section 9.20, (f) any assignee, transferee or participant, or any potential
assignee, transferee or participant, of all or any portion of any Lender's
rights under this Agreement who is notified of the confidential nature of the
information and who agrees, orally or otherwise, to be bound by the provisions
of this Section 9.20, or (g) any other Person in connection with any litigation
to which any one or more of the Lenders is a party; and, provided further, that
no Lender shall have obligations under this Section 9.20 to the extent any such
information becomes available on a non-confidential basis from a source other
than a Borrower or that information becomes publicly available other than by
breach of this Section 9.20.
IN WITNESS WHEREOF, each of the parties hereto have executed and
delivered this Agreement under their respective seals as of the day and year
first written above.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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WITNESS: NATIONSBANK, N.A., in its capacity as Lender
_________________________ By:____________________________(Seal)
David B. Thayer
Senior Vice President
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------
NATIONSBANK, N.A.
--------------------------------------------------------------------------------------
<S> <C> <C>
Credit Facility Committed Amount Pro Rata Share
----------------------------------- --------------------------- ----------------------
Revolving Credit Facility $125,000,000 100%
----------------------------------- --------------------------- ----------------------
Capital Expenditure Line $25,000,000 100%
---------------------------------- --------------------------- ----------------------
</TABLE>
Address:
NationsBank, N.A.
NationsBank Business Credit
100 South Charles Street
Mail Stop MD4-325-04-14
Baltimore, Maryland 21201
Attention: David B. Thayer
WITNESS: NATIONSBANK, N.A.
in its capacity as Administrative Agent
_________________________ By:____________________________(Seal)
David B. Thayer
Senior Vice President
[SIGNATURES OF THE BORROWERS BEGIN ON THE FOLLOWING PAGE]
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WITNESS: WALBRO CORPORATION
WALBRO AUTOMOTIVE CORPORATION
WALBRO ENGINE MANAGEMENT
CORPORATION
WHITEHEAD ENGINEERED PRODUCTS, INC.
SHARON MANUFACTURING COMPANY
_____________________________ By:____________________________(Seal)
Michael A. Shope
Treasurer and Chief Financial Officer
for each of the foregoing
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LIST OF EXHIBITS
A. Additional Borrower Joinder Supplement
B-1. Revolving Credit Note
B-2 Capital Expenditure Note
B-3 Capital Expenditure Line Payment Schedule
C. Wire Transfer Procedures
D. Form of Compliance Certificate
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LIST OF SCHEDULES
-----------------
Schedule 1.1-A Domestic Borrowers
Schedule 1.1-B Local Currency Borrowers
Schedule 1.1-C Assignment of Purchase Agreements
Schedule 1.1-D Certain Off Site Inventory Locations
Schedule 4.1.10 Litigation
Schedule 4.1.13 Indebtedness for Borrowed Money
Schedule 4.1.19 Employee Relations
Schedule 4.1.21. Perfection and Priority of Collateral
Schedule 6.2.16 Sale and Leaseback Transactions
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EXHIBIT 4.16
AMENDMENT NO. 1 TO FINANCING AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO FINANCING AND SECURITY AGREEMENT (this "Amendment")
is made as of this day of December, 1998, by and between WALBRO
CORPORATION, a corporation organized under the laws of the State of Delaware
(the "Parent"), and each corporation identified on Schedule 1.1-A attached to
and made a part of the Financing and Security Agreement dated May 29, 1998 (the
"Original Financing Agreement"), and NATIONSBANK, N.A., a national banking
association, in its capacity as both collateral and administrative agent (the
"Administrative Agent"), and each of the Lenders under the Original Financing
Agreement (collectively, the "Lenders" and individually, a "Lender").
RECITALS
A. The Parent and the Domestic Borrowers (collectively, the "Borrowers")
have applied to the Lenders for credit facilities consisting of (i) a Revolving
Credit Facility in the maximum principal amount of $125,000,000 and (ii) a
Capital Expenditure Line Facility in the maximum principal amount of $25,000,000
(collectively, the "Credit Facilities") under the provisions of the Original
Financing Agreement, as amended, restated, supplemented or otherwise modified,
the "Financing Agreement". All capitalized terms used, but not specifically
defined herein, shall have the meaning given such terms in the Financing
Agreement.
B. The Borrowers have requested that the Administrative Agent and the
Lenders enter into this Amendment for the purpose of effecting certain
modifications to the terms and conditions under which the Credit Facilities are
made available by the Lenders to the Borrowers.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Borrowers,
the Administrative Agent and the Lenders agree as follows:
1. Definitions
(a) Section 1.1 of the Original Financing Agreement is hereby amended
to add the following defined terms:
"`Bonds' means the Town of Ossian, Indiana Variable Rate Demand
Economic Development Revenue Bonds
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(Walbro Automotive Corporation Project) Series 1993, issued by the Town of
Ossian, Indiana in the original aggregate principal amount of $9,000,000."
"`Bond Letter of Credit' means that certain irrevocable letter of
credit to be issued by the Administrative Agent in the initial stated amount
of $9,086,302, for the account of Walbro Automotive Corporation and for the
benefit of National City Bank of Indiana, as Trustee, and as security for
the Bonds as the same may be amended, restated, reissued, renewed,
supplemented, replaced or otherwise modified at any time and from time to
time."
"`Bond Letter of Credit Commitment' means the agreement of the
Administrative Agent relating to the issuance of the Bond Letter of Credit
and the repayment of the Bond Letter of Credit Obligations and the
agreements of the Lenders to purchase a participation interest in the Bond
Letter of Credit Obligations, all subject to and in accordance with the
provisions of this Agreement; and "Bond Letter of Credit Commitments" means
the collective reference to the Bond Letter of Credit Commitment of the
Administrative Agent and each of the Lenders."
"`Bond Letter of Credit Documents' means all instruments, agreements or
documents previously, simultaneously or hereafter executed and delivered by
any Borrower, any Guarantor or any other Person, singly or jointly with
another Person or Persons evidencing, securing, guarantying or in connection
with the Bonds or the Bond Letter of Credit, all as the same may be amended,
restated, supplemented, replaced or otherwise modified at any time and from
time to time."
"`Bond Letter of Credit Facility' means the facility established
pursuant to Section 2.9 (Bond Letter of Credit Facility)."
"`Bond Letter of Credit Fee' and "Bond Letter of Credit Fees" have the
meanings described in Section 2.9.2 (Bond Letter of Credit Fees)."
"`Bond Letter of Credit Fronting Fee' and "Bond Letter of Credit
Fronting Fees" have the meanings described in Section 2.9.2 (Bond Letter of
Credit Fees)."
"`Bond Letter of Credit Obligations' means the
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collective reference to all obligations of the Borrowers under and with
respect to the Bond Letter of Credit Documents."
"`Deed of Trust - Ossian' means that certain deed of trust or mortgage
dated as of December 1, 1993, between Walbro Automotive Corporation and
Harris Trust and Savings Bank and assigned to the Administrative Agent on or
about the date of this Amendment, as the same may from time to time be
amended, restated, supplemented or modified, which Deed of Trust - Ossian
grants the Administrative Agent for the benefit of the Lenders ratably and
for the benefit of the Agents, a first priority lien on that certain
property known generally as 1200 Baker Drive, Ossian, Indiana 46777, as
security for the Bond Letter of Credit Obligations."
"`Security Agreement - Ossian' means that certain security agreement
dated as of December 1, 1993, between Walbro Automotive Corporation and
Harris Trust and Savings Bank and assigned to the Administrative Agent on or
about the date of this Amendment, as the same may from time to time be
amended, restated, supplemented or modified, which Security Agreement -
Ossian grants to the Administrative Agent for the benefit of the Lenders
ratably and for the benefit of the Agents, a first priority lien on certain
personal property more particularly therein described, as security for the
Bond Letter of Credit Obligations."
(b) Section 1.1 of the Original Financing Agreement is hereby amended
to modify the following defined terms by deleting the original definitions
thereof and substituting the following definitions:
"`Financing Documents' means at any time collectively this Agreement,
the Notes, the Security Documents, the Letter of Credit Documents, Foreign
Exchange Protection Agreement, Interest Rate Protection Agreements, the Bond
Letter of Credit Documents and any other instrument, agreement or document
previously, simultaneously or hereafter executed and delivered by any
Borrower and/or any other Person, singly or jointly with another Person or
Persons, evidencing, securing, guarantying or in connection with this
Agreement, any Note, any of the Security Documents, any of the Facilities,
and/or any of the Obligations."
"`Obligations means all present and future indebtedness, duties,
obligations, and liabilities,
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whether now existing or contemplated or hereafter arising, of any one or
more of the Borrowers to the Lenders and/or Administrative Agent and/or the
other Agents under, arising pursuant to, in connection with and/or on
account of the provisions of this Agreement, each Note, each Security
Document, Foreign Exchange Protection Agreement, Interest Rate Protection
Agreement, Bond Letter of Credit Document and/or any of the other Financing
Documents, the Loans, and/or any of the Facilities including, without
limitation, the principal of, and interest on, each Note, late charges, the
Fees, Interest Rate Exposure, Foreign Exchange Exposure, Enforcement Costs,
and prepayment fees (if any), letter of credit fees or fees charged with
respect to any guaranty of any letter of credit; also means all other
present and future indebtedness, liabilities and obligations, whether now
existing or contemplated or hereafter arising, of any one or more of the
Borrowers to the Agents and to the Lenders or their Affiliates of any nature
whatsoever regardless of whether such debts, obligations and liabilities be
direct, indirect, primary, secondary, joint, several, joint and several,
fixed or contingent; and also means any and all renewals, extensions,
substitutions, amendments, restatements and rearrangements of any such
debts, obligations and liabilities."
"`Security Documents' means collectively any assignment, pledge
agreement, security agreement, mortgage, deed of trust, deed to secure debt,
financing statement and any similar instrument, document or agreement under
or pursuant to which a Lien is now or hereafter granted to, or for the
benefit of, the Administrative Agent and/or the Lenders on any real or
personal property of any Person to secure all or any portion of the
Obligations, all as the same may from time to time be amended, restated,
supplemented or otherwise modified, including, without limitation, this
Agreement, Stock Pledge Agreements, the Assignments of Patents, the
Assignments of Trademarks, the Assignments of Purchase Agreement, the Deed
of Trust - Ossian and the Security Agreement - Ossian.
"`Stock Pledge Agreements means collective reference to each pledge,
assignment and security agreement dated the date hereof from the Parent and
from Walbro Automotive Corporation to the Administrative Agent for the
benefit of the Lenders ratably and the Agents, as the same may from time to
time be amended, restated, supplemented or otherwise
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modified covering collectively 100% of the common stock of the Domestic
Borrowers (but not the Parent) and 65% of the common stock of the Local
Currency Borrowers, and the Pledge, Assignment and Security Agreement dated
on or about the date of this Amendment, from the Parent to the
Administrative Agent for the benefit of the Lenders ratably and the Agents,
as the same may from time to time be amended, restated, supplemented or
otherwise modified, covering 80% of the common stock of U.S. Coexcell, Inc."
2. Schedules. Schedule 1.1-C to the Original Financing Agreement is hereby
amended to add as item no. 7 the Collateral Assignment of Agreement by and
between Walbro Automotive S.A., a French Corporation, and Walbro Corporation.
3. Amendments to Section 2.1 (The Revolving Credit Facility). In order to
reflect the reduction of the Total Revolving Credit Committed Amount necessary
to permit the issuance of the Bond Letter of Credit without increasing the
aggregate Commitment. Section 2.1.1(a) of the Original Financing Agreement is
hereby deleted in its entirety and replaced with the following Section 2.1.1(a):
"2.1.1 Revolving Credit Facility.
(a) Subject to and upon the provisions of this Agreement, the
Lenders collectively, but severally, establish a revolving credit
facility in favor of the Borrowers. The amount of each Lender's
commitment to lend under the Revolving Loan is herein called such
Lender's "Revolving Credit Committed Amount" and is set forth below
each Lender's signature to this Agreement. The total of each Lender's
Revolving Credit Committed Amount equals One Hundred Fifteen Million
Nine Hundred Thirteen Thousand Six Hundred and Ninety Eight Dollars
($115,913,698) and is herein called the "Total Revolving Credit
Committed Amount." the proportionate share set forth below each
Lender's signature is herein called such Lender's "Revolving Credit Pro
Rata Share." Neither the Administrative Agent nor any of the Lenders
shall be responsible for the Revolving Credit Commitment of any other
Lender, nor will the failure of any Lender to perform its obligations
under its Revolving Credit Commitment in any way relieve any other
Lender from performing its obligations under its Revolving Credit
Commitment."
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4. Unused Availability Requirement. Section 2.1.12 of the Original
Financing Agreement is hereby amended to include the following additional clause
(d):
"(d) Notwithstanding anything to the contrary contained in this Section
2.1.12, the Unused Availability requirement shall be waived until the
earlier to occur of (i) the sale by the Parent of the common stock owned by
it in U.S. Coexcell, Inc., which stock represents 80% of the total issued
and outstanding common stock and which is pledged to the Administrative
Agent for the benefit of the Lenders ratably and the Agents, pursuant to a
Stock Pledge Agreement dated on or about the date of this Amendment, or (ii)
the first anniversary of this Amendment."
5. Bond Letter of Credit. Article II of the Original Financing Agreement
is hereby amended to add the following Section 2.9:
"Section 2.9 The Bond Letter of Credit Facility.
2.9.1 Bond Letter of Credit.
Subject to and upon the provisions of the Bond Letter of Credit
Documents, the Administrative Agent has agreed to issue the Bond Letter of
Credit upon satisfaction of all conditions precedent described in Section
5.3 of this Financing Agreement, which Bond Letter of Credit will have an
expiry date no later than the Business Day preceding the Revolving Credit
Termination Date (the "Bond Letter of Credit Commitment").
2.9.2 Bond Letter of Credit Fees.
The Borrowers shall pay to the Administrative Agent, for its own
account, an issuance fee of one-quarter of one percent (1/4%) per annum of
the stated amount of the Bond Letter of Credit, without regard for
provisions contained in the Bond Letter of Credit which may give rise to a
reduction in the stated amount thereof unless such reduction has actually
occurred (each a "Bond Letter of Credit Fronting Fee" and collectively, the
"Bond Letter of Credit Fronting Fees"). The Bond Letter of Credit Fronting
Fees shall be paid upon the issuance of the Bond Letter of Credit and upon
each anniversary thereof, if any. In addition, the Borrower shall pay to the
Administrative
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Agent all other reasonable and customary negotiation, processing, transfer
or other fees in accordance with the Administrative Agent's customary
practices for the issuance of standby letters of credit. All Bond Letter of
Credit Fronting Fees and all such other additional fees are included in and
are a part of the "Fees" payable by the Borrowers under the provisions of
this Agreement and are for the sole and exclusive benefit of the
Administrative Agent and are a part of the Agent's Obligations.
In addition and in connection with the Bond Letter of Credit, the
Borrowers shall pay to the Administrative Agent for the ratable (based upon
each Lender's Revolving Credit Pro Rata Share) benefit of the Lenders a fee
(each a "Bond Letter of Credit Fee" and collectively the "Bond Letter of
Credit Fees") in an amount equal to one hundred seventy-five (175) basis
points per annum (calculated monthly in arrears on the basis of actual
number of days elapsed in a year of 360 days) of the stated amount of the
Bond Letter of Credit on the first day of the month, without regard for
provisions contained in the Bond Letter of Credit which may give rise to a
reduction in the stated amount thereof unless such reduction has actually
occurred. The accrued and unpaid portion of each Bond Letter of Credit Fee
shall be paid in arrears on the first day of each month and upon the
expiration or termination date of the Bond Letter of Credit.
2.9.3 Terms of Bond Letters of Credit.
The Bond Letter of Credit shall (a) be issued pursuant to a
completed and executed Application and Agreement for Standby Letter of
Credit in substantially the form attached hereto as Exhibit A and made a
part hereof, and (b) shall be issued in substantially the form attached
hereto as Exhibit B and made a part hereof, and (c) expire on a date not
later than the Business Day preceding the Revolving Credit Termination Date.
The Bond Letter of Credit shall be issued for the sole purpose of providing
security for the payment of principal (whether at maturity, upon
acceleration or upon purchase or redemption) and interest on the Bonds. The
stated amount of the Bond Letter of Credit issued by the Administrative
Agent pursuant to the provisions of this Agreement, plus the amount of any
unpaid Bond Letter of Credit Fees and Bond Letter of Credit Fronting Fees
accrued or scheduled to accrue thereon,
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and less the aggregate amount of all drafts drawn under or purporting to
have been drawn under the Bond Letter of Credit that have been paid by the
Administrative Agent and for which the Administrative Agent has been
reimbursed by the Borrowers in full in accordance with Section 2.9.5
(Payments of Bond Letters of Credit) and the Bond Letter of Credit
Documents, and for which the Administrative Agent has no further obligation
or commitment to restore all or any portion of the amounts drawn and
reimbursed, is herein called the "Outstanding Bond Letter of Credit
Obligations".
2.9.4 Procedures for Bond Letter of Credit.
Following satisfaction of all conditions precedent described in
Section 5.3 of the Financing Agreement, the Borrowers shall give the
Administrative Agent written notice at least five (5) Business Days prior to
the date on which the Borrowers desire the Administrative Agent to issue the
Bond Letter of Credit. Such notice shall be accompanied by a completed and
executed Application and Agreement for Standby Letter of Credit in
substantially the form attached hereto as Exhibit A specifying, among other
things: (a) the name and address of the intended beneficiary of the Bond
Letter of Credit, (b) the requested stated amount of the Bond Letter of
Credit, (c) that the Bond Letter of Credit is to be irrevocable, (d) the
Business Day on which the Bond Letter of Credit is to be issued and the date
on which the Bond Letter of Credit is to expire, (e) the terms of payment of
any draft or drafts which may be drawn under the Bond Letter of Credit, and
(f) any other terms or provisions the Borrowers desire to be contained in
the Bond Letter of Credit. Such notice shall also be accompanied by such
other information, certificates, confirmations, and other items as the
Administrative Agent may reasonably require to assure that the Bond Letter
of Credit is to be issued in accordance with the provisions of this
Agreement and the Bond Letter of Credit Documents. In the event of any
conflict between the provisions of this Agreement and the provisions of the
Bond Letter of Credit Documents, the provisions of this Agreement shall
prevail and control unless otherwise expressly provided in the Bond Letter
of Credit Documents. Upon (i) receipt of such notice and (ii) payment of all
Bond Letter of Credit Fronting Fees and all other Fees payable in connection
with the issuance of such Bond Letter of Credit, the Administrative Agent
shall
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process such notice and Application and Agreement for Standby Letter of
Credit in accordance with its customary procedures and issue such Bond
Letter of Credit on the Business Day specified in such notice, subject to
compliance by all parties with the requirements of the Bond Letter of Credit
Documents pertaining to the replacement of credit enhancement for the bonds.
2.9.5 Payment of Bond Letter of Credit Obligations.
(a) Subject to the provisions of paragraph (b) below, the
Borrowers hereby promise to pay to the Administrative Agent, ON DEMAND and
in United States Dollars, the following which are herein collectively
referred to as the "Current Bond Letter of Credit Obligations":
(i) the amount which the Administrative
Agent has paid under each draft or draw on the Bond
Letter of Credit, whether such demand be in advance of
the Administrative Agent's payment or for reimbursement
for such payment;
(ii) any and all reasonable charges and
expenses which the Administrative Agent may pay or incur
relative to the Bond Letter of Credit and/or such draws
or drafts; and
(iii) interest on the amounts described
in (i) and (ii) not paid by the Borrowers as and when
due and payable under the provisions of (i) and (ii)
above from the day the same are due and payable until
paid in full at a rate per annum equal to the then
current highest rate of interest on the Revolving Loan.
(b) Notwithstanding the provisions of paragraph (a) above,
as long as no Event of Default has occurred and is continuing, any drawing
under the Bond Letter of Credit to purchase Bonds which were tendered for
purchase by the holders thereof and which were not remarketed in a timely
fashion (each referred to herein as a "Purchase Drawing"), shall constitute
an advance to the Borrowers under the Revolving Loan and shall not be
required to be reimbursed to the Administrative Agent ON DEMAND. The
Borrowers promise to pay to the Administrative Agent the amount of each
Revolving Loan
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advance resulting from a Purchase Drawing under the Bond Letter of Credit,
with Interest payable at the times and at the rate then applicable to other
Revolving Loan advances in accordance with the terms of the Financing
Agreement, on the earliest to occur of (i) the date on which the Bonds
purchased with the proceeds of a Purchase Drawing and held by Walbro
Automotive Corporation or by the trustee for the Bonds, or its agent, for
the account of Walbro Automotive Corporation, are redeemed or cancelled
pursuant to the Bond Letter of Credit Documents, (ii) the date on which the
Bonds purchased with the proceeds of a Purchase Drawing are remarketed
pursuant to the terms of the Bond Letter of Credit Documents, (iii) the date
on which the Bond Letter of Credit is replaced by a substitute letter of
credit pursuant to the terms of the Bond Letter of Credit Documents, (iv)
the date which is 180 calendar days following the date of such Purchase
Drawing, and (v) the Revolving Credit Termination Date.
In the event that any of the payments required by this
paragraph (b) are not made when due or an Event of Default occurs and is
continuing, all of the foregoing amounts shall be immediately due and
payable ON DEMAND.
(c) In addition, the Borrowers hereby promise to pay any and
all other Bond Letter of Credit Obligations as and when due and payable in
accordance with the provisions of this Agreement and the Bond Letter of
Credit Documents. The obligation of the Borrowers to pay Current Bond Letter
of Credit Obligations and all other Bond Letter of Credit Obligations shall
be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrowers or any other account party may have or have had against the
beneficiary of the Bond Letter of Credit, the Administrative Agent, any of
the Lenders, or any other Person, including, without limitation, any defense
based on the failure of any draft or draw to conform to the terms of the
Bond Letter of Credit, any draft or other document proving to be forged,
fraudulent or invalid, or the legality, validity, regularity or
enforceability of the Bond Letter of Credit, any draft or other documents
presented with any draft, this Agreement, any of the Bond Letter of Credit
Documents, or any of the other Financing Documents, all whether or not the
Administrative Agent or any of the Lenders had actual or constructive
knowledge of the
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same, and irrespective of any Collateral, security or guarantee therefor or
right of offset with respect thereto and irrespective of any other
circumstances whatsoever which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrowers for any Bond
Letter of Credit Obligations, in bankruptcy or otherwise; provided, however,
that the Borrowers shall not be obligated to reimburse the Administrative
Agent for any wrongful payment under the Bond Letter of Credit made as a
result of the Administrative Agent's willful misconduct or gross negligence.
The obligation of the Borrowers to pay the Bond Letter of Credit Obligations
shall not be conditioned or contingent upon the pursuit by the
Administrative Agent or any other Person at any time of any right or remedy
against any Person which may be or become liable in respect of all or any
part of such obligation or against any Collateral, security or guarantee
therefor or right of offset with respect thereto.
The Bond Letter of Credit Obligations shall continue to be
effective, or be reinstated, as the case may be, if at any time payment of
all or any portion of the Bond Letter of Credit Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any of
the Lenders upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Person, or upon or as a result of the appointment of a
receiver, intervenor, or conservator of, or trustee or similar officer for,
any Person, or any substantial part of such Person's property, all as though
such payments had not been made.
2.9.6 Security for Bond Letter of Credit Obligations.
Notwithstanding any other provision of this Agreement, the only
Collateral for the Bond Letter of Credit Obligations shall consist of the
property covered by the Deed of Trust - Ossian and the Security Agreement -
Ossian, and the property covered by the Deed of Trust - Ossian and the
Security Agreement - Ossian shall not constitute Collateral for any of the
other Obligations.
2.9.7 Change in Law; Increased Cost.
If any change in any law or regulation or in
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the interpretation thereof by any court or other Governmental Authority
charged with the administration thereof shall either (a) impose, modify or
deem applicable any reserve, special deposit or similar requirement against
the Bond Letter of Credit issued by the Administrative Agent, or (b) impose
on the Administrative Agent or any of the Lenders any other condition
regarding this Agreement, or the Bond Letter of Credit, and the result of
any event referred to in clauses (a) or (b) above shall be to increase the
cost to the Administrative Agent of issuing, maintaining or extending the
Bond Letter of Credit or the cost to any of the Lenders of funding any
obligation under or in connection with the Bond Letter of Credit (which
increase in cost shall be the result of the Administrative Agent's
reasonable allocation of the aggregate of such cost increases resulting from
such events), then, upon demand by the Administrative Agent, the Borrowers
shall immediately pay to the Administrative Agent from time to time as
specified by the Administrative Agent, additional amounts which shall be
sufficient to compensate the Administrative Agent and the Lenders for such
increased cost, together with interest on each such amount from the date
demanded until payment in full thereof at a rate per annum equal to the then
highest current rate of interest on the Revolving Loan. A certificate as to
such increased cost incurred by the Administrative Agent and/or any of the
Lenders, submitted by the Administrative Agent to the Borrowers, shall be
conclusive, absent manifest error. Notwithstanding the foregoing, each
Lender hereby agrees to (i) use good faith efforts to change its Appropriate
Payment Office, if such change (A) would eliminate the necessity for the
payment of such additional amounts and (B) not have an adverse effect on
such Lender and (ii) treat the Borrowers in substantially the same manner as
it treats all similarly situated borrowers with respect to the requirement
to pay such additional amounts.
2.9.8 General Letter of Credit Provisions.
The Borrowers hereby instruct the Administrative Agent to pay any
draft complying with the terms of the Bond Letter of Credit irrespective of
any instructions of the Borrowers to the contrary. The Borrowers assume all
risks of the acts and omissions of the beneficiary and other users of the
Bond Letter of Credit. The Administrative Agent, the Lenders and their
respective branches, Affiliates and/or
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correspondents shall not be responsible for and the Borrowers hereby
indemnify and hold the Administrative Agent, the Lenders and their
respective branches, Affiliates and/or correspondents harmless from and
against all liability, loss and expense (including reasonable attorney's
fees and costs) incurred by the Administrative Agent, the Lenders and/or
their respective branches, Affiliates and/or correspondents relative to
and/or as a consequence of (a) any failure by the Borrowers to perform the
agreements hereunder and under any Bond Letter of Credit Document, (b) any
Bond Letter of Credit Document, this Agreement, the Bond Letter of Credit
and any draft, draw and/or acceptance under or purported to be under the
Bond Letter of Credit, (c) any action taken or omitted by the Administrative
Agent, any of the Lenders and/or any of their respective branches,
Affiliates and/or correspondents at the request of the Borrowers, other than
acts of willful misconduct and gross negligence, (d) any failure or
inability to perform in accordance with the terms of the Bond Letter of
Credit by reason of any control or restriction rightfully or wrongfully
exercised by any defacto or dejure Governmental Authority, group or
individual asserting or exercising governmental or paramount powers, and/or
(e) any consequences arising from causes beyond the control of the
Administrative Agent, any of the Lenders and/or any of their respective
branches, Affiliates and/or correspondents.
Except for willful misconduct and gross negligence, the
Administrative Agent, the Lenders and their respective branches, Affiliates
and/or correspondents, shall not be liable or responsible in any respect for
any (a) error, omission, interruption or delay in transmission, dispatch or
delivery of any one or more messages or advices in connection with the Bond
Letter of Credit, whether transmitted by cable, telegraph, mail or otherwise
and despite any cipher or code which may be employed, and/or (b) action,
inaction or omission which may be taken or suffered by it or them in good
faith or through inadvertence in identifying or failing to identify any
beneficiary or otherwise in connection with the Bond Letter of Credit.
The Bond Letter of Credit may be amended, modified or revoked only
upon the receipt by the Administrative Agent from the Borrowers and the
beneficiary (including any transferee and/or assignee of the original
beneficiary), of a written consent and
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request therefor.
If any Laws, order of court and/or ruling or regulation of any
Governmental Authority of the United States (or any state thereof) and/or
any country other than the United States permits the beneficiary of the Bond
Letter of Credit to require the Administrative Agent, the Lenders and/or any
of their respective branches, Affiliates and/or correspondents to pay drafts
under or purporting to be under the Bond Letter of Credit after the
expiration date of the Bond Letter of Credit, the Borrowers shall reimburse
the Administrative Agent and the Lenders, as appropriate, for any such
payment pursuant to provisions of Section 2.9.5 (Payments of Bond Letters of
Credit).
Except as may otherwise be specifically provided in the Bond
Letter of Credit or a Bond Letter of Credit Document, the laws of the State
of Maryland and the Uniform Customs and Practice for Documentary Credits,
1995 Revision, International Chamber of Commerce Publication No. 500 shall
govern the Bond Letter of Credit. The Laws, rules, provisions and
regulations of the Uniform Customs and Practice for Documentary Credits are
hereby incorporated by reference. In the event of a conflict between the
Uniform Customs and Practice for Documentary Credits and the laws of the
State of Maryland, the Uniform Customs and Practice for Documentary Credits
shall prevail.
2.9.9 Participations in the Bond Letter of Credit.
Each Lender hereby irrevocably authorizes the Administrative Agent
to issue the Bond Letter of Credit in accordance with the provisions of this
Agreement. As of the date the Bond Letter of Credit is opened or issued by
the Administrative Agent pursuant to the provisions of this Agreement, each
Lender shall have an undivided participating interest in (a) the rights and
obligations of the Administrative Agent under the Bond Letter of Credit, and
(b) the Outstanding Bond Letter of Credit Obligations of the Borrowers in an
amount equal to each Lender's Revolving Credit Pro Rata Share of such
Outstanding Bond Letter of Credit Obligations.
2.9.10 Payments by the Lenders to the
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Administrative Agent.
If the Borrowers fail to pay to the Administrative Agent any
Current Bond Letter of Credit Obligations as and when due and payable, the
Administrative Agent shall promptly notify each of the Lenders and shall
demand payment from each of the Lenders such Lender's Revolving Credit Pro
Rata Share of such unpaid Current Bond Letter of Credit Obligations, as
appropriate. In addition, if any amount paid to the Administrative Agent on
account of any Current Bond Letter of Credit Obligations is rescinded or
required to be restored or turned over by the Administrative Agent upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or upon or as a result of the appointment of a receiver,
intervenor, trustee, conservator or similar officer for any Borrower, or is
otherwise not indefeasibly covered by an advance under the Revolving Loan,
the Administrative Agent shall promptly notify each of the Lenders and shall
demand payment from each of the Lenders of its Revolving Credit Pro Rata
Share of its portion of the Current Bond Letter of Credit Obligations to be
remitted to such Borrower.
Each of the Lenders irrevocably and unconditionally agrees to
honor any such demands for payment under this Section and promises to pay to
the Administrative Agent's account on the same Business Day as demanded the
amount of its Revolving Credit Pro Rata Share of the Current Bond Letter of
Credit Obligations in immediately available funds, without any setoff,
counterclaim or deduction of any kind. Any payment by a Lender hereunder
shall in no way release, discharge or lessen the obligation of the Borrowers
to pay Current Bond Letter of Credit Obligations to the Administrative Agent
in accordance with the provisions of this Agreement.
The obligation of each of the Lenders to remit the amount of its
Revolving Credit Pro Rata Share of Current Bond Letter of Credit Obligations
for the account of the Administrative Agent pursuant to this Section shall
be unconditional and irrevocable under any and all circumstances and may not
be terminated, suspended or delayed for any reason whatsoever, provided that
all payments of such amounts by each of the Lenders shall be without
prejudice to the rights of each of the Lenders with respect to the
Administrative
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Agent's alleged willful misconduct. Any claim any Lender may have against
the Administrative Agent as a result of the Administrative Agent's alleged
willful misconduct may be brought by such Lender in a separate action
against the Administrative Agent but may not be used as a defense to payment
under the provisions of this Section.
No failure of any Lender to remit the amount of its Revolving
Credit Pro Rata Share of Current Bond Letter of Credit Obligations to the
Administrative Agent pursuant to this Section shall affect the obligations
of the Administrative Agent under the Bond Letter of Credit, and if any
Lender does not remit to the Administrative Agent the amount of its
Revolving Credit Pro Rata Share of Current Bond Letter of Credit Obligations
on the same day as demanded, then without limiting such Lender's obligation
to transmit funds on the same Business Day as demanded, such Lender shall be
obligated to pay, on demand of the Administrative Agent and without setoff,
counterclaim or deduction of any kind whatsoever interest on the unpaid
amount at the Federal Funds Rate for each day from the date such amount
shall be due and payable to the Administrative Agent until the date such
amount shall have been paid in full to the Administrative Agent by such
Lender."
6. Representations and Warranties.
(a) The Borrowers hereby reaffirm each of the representations and
warranties made by them in Article IV of the Original Financing Agreement.
(b) Without limiting the generality of the foregoing, the Borrowers
hereby specifically make the representations contained in Section 4.1.27 with
respect to the Assigned Local Currency Receivables originated by Walbro
Automotive S.A. (France).
(c) The Borrowers hereby represent and warrant that the Bond Letter of
Credit Documents consist only of the following, all of which are dated as of
December 1, 1993, except as specifically indicated otherwise:
(i) Trust Indenture between the Town of Ossian, Indiana and Fort Wayne
National Bank, as Trustee for the holders of the Bonds;
(ii) The Bonds;
(iii) Loan Agreement between the Town of Ossian, Indiana
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and Walbro Automotive Corporation;
(iv) Promissory Note by Walbro Automotive Corporation to the Town of Ossian,
Indiana;
(v) Reimbursement Agreement between Harris Trust and Savings Bank and Walbro
Corporation and Walbro Automotive Corporation;
(vi) Security Agreement by Walbro Automotive Corporation in favor of Harris
Trust and Savings Bank;
(vii) Mortgage and Security Agreement with Assignment of Rents between
Walbro Automotive Corporation and Harris Trust and Savings Bank; and
(viii) Placement Agreement between Walbro Automotive Corporation and Harris
Trust and Savings Bank, as Placement Agent; and
(ix) Remarketing Agreement between Walbro Automotive Corporation and Paine
Webber Incorporated.
None of the above-listed Bond Letter of Credit Documents have been modified,
changed, supplemented, canceled, amended or otherwise altered, except as
otherwise disclosed to the Administrative Agent in writing prior to the date of
this Amendment. The Borrowers hereby confirm each of the representations and
warranties made by them in the Bond Letter of Credit Documents and further
represent and warrant that the Borrowers are in compliance with the terms
thereof, including (without limitation) all covenants and agreements relating to
the tax-exempt status of the interest payable on the Bonds. There are no
defaults or events of default outstanding under any of the Bond Letter of Credit
Documents except for any defaults which would be cured by the effectuation of
this Amendment.
7. Conditions Precedent.
(a) The effectiveness of this Amendment is subject to satisfaction of the
following conditions precedent:
(i) All conditions precedent set forth in Section 5.1 of the Original
Financing Agreement have been and remain satisfied.
(ii) The Pledge, Assignment and Security Agreement creating a Lien on
80% of the issued and outstanding capital stock in U.S. Coexcell, Inc. has been
executed and delivered
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<PAGE> 18
by the Parent.
(iii) Each of the items described in Section 5.2.1 and 5.2.2 of the
Original Financing Agreement has been delivered in respect of Walbro Automotive,
S.A. (France).
(iv) The Master Receivables Subrogation Agreement between Walbro
Automotive, S.A. (France) and Walbro Corporation, together with the Collateral
Assignment of Agreement relating thereto by Walbro Corporation in favor of the
Administrative Agent have been executed and delivered to the Administrative
Agent.
(v) The Administrative Agent shall have received payment of the
Amendment Fee (hereinafter defined).
(b) The issuance of the Bond Letter of Credit by the Administrative Agent
is subject to satisfaction of the following additional conditions precedent:
(i) All of the requirements of the Bond Letter of Credit Documents
relating to the substitution of letters of credit having been satisfied.
(ii) The Deed of Trust - Ossian and the Security Agreement - Ossian,
together with any and all UCC-1 Financing Statements relating to the subject
Collateral, have been assigned by Harris Trust and Savings Bank to the
Administrative Agent for the benefit of the Lenders ratably and the Agents, as
security for the Bond Letter of Credit Obligations.
(iii) The initial Bond Letter of Credit Fee and the initial Bond Letter
of Credit Fronting Fee shall have been paid in full.
8. Sale of U.S. Coexcell, Inc. Section 6.2.6 of the Original Financing
Agreement is hereby amended to permit the Parent to sell all but not part of its
shares of common stock in U.S. Coexcell, Inc., subject to the terms of the
Pledge Assignment and Security Agreement dated on or about the date of this
Amendment, whereupon the Unused Availability requirement will be reinstated. All
proceeds of the sale of stock in U.S. Coexcell, Inc., net of reasonable and
customary costs and expenses incurred in connection therewith, shall be applied
to reduce the outstanding Revolving Loan.
9. Amendment Fee. The Borrowers shall pay to the Administrative Agent for
benefit of the Lenders ratably
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<PAGE> 19
based on their respective Pro Rata Shares an amendment fee (the "Amendment Fee")
in the amount of Three Hundred Thousand Dollars ($300,000), which fee has been
fully earned and is non-refundable and shall be paid on the date of this
Amendment and as a condition precedent to the effectiveness hereof.
10. No Other Amendments. Except as specifically contemplated by the terms
of this Amendment, the Original Financing Agreement and all of the other
Financing Documents shall remain in full force and effect in accordance with
their respective terms.
11. Governing Law. This Amendment shall be construed in accordance with and
governed by the laws of the State.
12. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be considered an original for all purposes;
provided, however, that all such counterparts shall together constitute one and
the same instrument.
13. No Novation. The parties hereto covenant and agree that the execution
of this Amendment is not intended to and shall not cause or result in a novation
with respect to the Obligations or the Financing Documents and that the existing
Obligations, as evidenced by the Financing Documents are continuing, without
interruption, and have not been discharged by a new agreement.
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
executed, sealed and delivered by their duly authorized officers.
WALBRO CORPORATION
WALBRO AUTOMOTIVE COPRORATION
WALBRO ENGINE MANAGEMENT CORPORATION
WHITEHEAD ENGINEERED PRODUCTS, INC.
SHARON MANUFACTURING COMPANY
________________________ By:____________________(SEAL)
Michael A. Shope
Treasurer and Chief Financial Officer for each of
the foregoing
WITNESS: NATIONSBANK, N.A., in its
capacity as Lender
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<PAGE> 20
________________________ By:____________________(SEAL)
David B. Thayer
Senior Vice President
NATIONSBANK, N.A., in its capacity as
Administrative Agent
________________________ By:___________________(SEAL)
David B. Thayer
Senior Vice President
KEY CORPORATE CAPITAL INC.
________________________ By:___________________(SEAL)
Chris Clegg
Vice President
PNC BANK, N.A.
________________________ By:___________________(SEAL)
Janeann K. Fehrle
Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.
________________________ By:___________________(SEAL)
Mark Hanak
Credit Officer
BANK BOSTON, N.A.
________________________ By:___________________(SEAL)
Neal C. Hesler
Vice President
SANWA BUSINESS CREDIT CORPORATION
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________________________ By:___________________(SEAL)
L. David Brown
Account Executive
21
<PAGE> 1
EXHIBIT 10.2
WALBRO CORPORATION
EQUITY BASED LONG TERM INCENTIVE PLAN
(AS AMENDED AND RESTATED EFFECTIVE JUNE 20, 1994)
SECTION 1. Purposes; Definitions.
This Equity Based Long Term Incentive Plan was adopted by the Board of
Directors on February 6, 1991 and approved by the Shareholders on April 23,
1991. The Board of Directors of the Company has determined to amend and restate
the Plan, effective June 20, 1994 to permit certain awards in respect of
non-employee directors, and effective as of the date of the executive hereof, to
permit certain other modifications the Board of Directors deems appropriate,
subject to the approval of the Company's shareholders. The purpose of the Plan
as amended and restated is to enable officers, key employees and directors of
the Company and its Affiliates, its subsidiaries and affiliates to participate
in the Company's future and to enable the Company to attract and retain such
persons by offering them proprietary interests in the Company. The Plan also
provides a means through which the Company can attract and retain such key
persons of merit.
For purposes of the Plan, the following terms are defined as set forth
below:
(a) "Account" means the record of an interest in this Plan with respect
to a Director's Deferred Retainer represented by his or her:
(1) "Cash Account" which means an interest in this Plan
composed of Deferred Retainers posted with a cash value to the credit
of the Director, plus all income and gains credited to and minus all
losses charged to such account, and minus all distributions charged to
such account.
(2) "Stock Account" which means an interest in this Plan
composed of Deferred Retainers posted with shares of Common Stock to
the credit of the Director, plus all income and gains credited to and
minus all losses charged to such account, and minus all distributions
charged to such account.
The value of an Account at any time, other than on a Valuation Date, shall be
the Account accrued as of the immediately preceding Valuation Date increased by
the amount credited to the Account since the previous Valuation Date, and
reduced by the value of any distributions from the Account. On the Valuation
Date, the value shall be that as determined under the preceding sentence
increased by the value of any income and gains and decreased by the value of all
losses for that Valuation Date. Each Account represents an unfunded commitment
of the Company to pay in the future the amounts credited thereunder, subject to
all of the terms and conditions of this Plan. The Committee may establish more
than one Account with respect to a Director, and the Plan shall apply separately
with respect to each Account.
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(b) "Affiliate" means a corporation or other entity controlled by the
Company and designated by the Committee as such.
(c) "Award" means a Stock Appreciate Right, Stock Option, Deferred
Option, Restricted Stock or Deferred Stock.
(d) "Board" means the Board of Directors of the Company.
(e) "Cause" means an act or acts of dishonesty by the optionee
constituting a felony under applicable law and resulting or intending to result
directly or indirectly in gain to or personal enrichment of the optionee at the
Company's expense. Notwithstanding the foregoing, the optionee shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to him a copy of a resolution, duly adopted by the affirmative vote of
not less than a majority of the entire membership of the Board at a meeting of
the Board called and held for that purpose (after reasonable notice to him has
been given or has been made and an opportunity for him, together with his
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board the optionee was guilty of conduct set forth above in the first
sentence of this Section 2(e) and specifying the particulars thereof in detail.
(f) "Change in Control" and "Change in Control Price" have the meanings
set forth in Sections 15(b) and (c), respectively.
(g) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor thereto.
(h) "Commission" means the Securities and Exchange Commission or any
successor agency.
(i) "Committee" means the Committee referred to in Section 3.
(j) "Common Stock" means common stock, par value $0.50 per share, of
the Company.
(k) "Company" means Walbro Corporation, a Delaware corporation.
(l) "Conversion Election" means a non-binding election, on such form as
may be required by the Committee, by a Director to change the method of
measuring the investment return on all or some specified portion of the
Director's Cash Account.
(m) "Director's Grant Date" means (1) with respect to a person who was
a Director on such date, June 20, 1994, and (2) with respect to a Director who
was not a Director on June 20, 1994, the first business day of the initial term
for which the Director is elected; and (3) with respect to a Deferred Option,
the date the Retainer would have been paid in cash if not deferred pursuant to
an Election.
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(n) "Deferred Stock" means a award made pursuant to Section 8.
(o) "Deferral Election" or "Election" means an election by a Director
to (a) either receive all of his or her Retainer on a current basis or to reduce
his or her Retainer for a Retainer Year by an amount or percentage specified in
the Election; and (b) to select whether the Deferred Retainer for that Retainer
Year will be posted to the Cash Account, the Stock Account, converted to
Deferred Options or a combination of the foregoing. With respect to any period
or Election for which Rule 16b-3 as in effect on April 30, 1991 is in effect or
applies, the Election shall be a one-time, irrevocable Election and shall apply
to each and every Retainer during the period such Rule 16b-3 applies to the Plan
(or any later period if designated by the Committee), and with respect to any
period or Election for which Rule 16b-3 as promulgated in Securities and
Exchange Commission Release 34-28869 (including any amendment or successor
thereto) applies, the Deferral Election shall be effective only if received on a
Notice Date that is at least six months prior to the transaction to which the
Election relates and is irrevocable with respect to any Retainer Year that has
commenced.
(p) "Deferred Retainer" means the amount of the Retainer posted to the
Account from time to time based upon the Director's Deferral Election to defer
some or all of his or her Retainer.
(q) "Director" means each and any director who serves on the Board and
who is not an officer or employee of the Company or any of its Affiliates.
(r) "Deferred Option" means an Option granted to the Director pursuant
to a Deferral Election.
(s) "Disability" means a permanent and total disability as determined
under procedures established by the Committee for purposes of the Plan.
(t) "Disinterested Person" shall have the meaning set forth in Rule
16(b)-(3), or any successor definition adopted by the Commission and shall mean
a person who is also an "outside director" under Section 162(m) of the Code.
(u) "Early Retirement" means retirement from active employment with the
Company or an Affiliate on or after attainment of age 55.
(v) "Earnings Factor" means the product of (1) the prime interest rate
as of the first business day within the accounting period as established by the
Company's principal bank, or such other interest rate as may be designated from
time to time by the Committee and (2) a fraction, the numerator of which is the
number of full calendar months in the accounting period and the denominator of
which is 12. If the accounting period is other than one or more full calendar
months, the Committee shall appropriately modify the fraction calculated under
the preceding sentence.
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(w) "Effective Date" means the date specified by the Board at the time
the Plan is approved by the Board.
(x) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor thereto.
(y) "Fair Market Value" means, except as otherwise provided in this
Plan, the mean, as of any given date, between the highest and lowest reported
sales prices of the Common Stock on the New York Stock Exchange Composite Tape
or, if not listed on such exchange, any other national exchange on which the
Common Stock is listed or on NASDAQ. If there is no regular public trading
market for such stock, the Fair Market Value of the Common Stock shall be
determined by the Committee in good faith.
(z) "Investment Election" means an election, on such form as may be
required by the Committee, by the Director to direct the method of measuring the
investment return of his or her Cash Account.
(aa) "Investment Fund" means one or more of the investment alternatives
(other than Common Stock) which are available and designated by the Committee,
and which are used as a measurement of investment return on Cash Accounts.
(bb) "Notice Date" means the date established by the Committee as the
deadline for it to receive a Deferral Election or any other notification with
respect to an administrative matter in order to be effective under this Plan.
(cc) "Normal Retirement" means retirement from active employment with
the Company or an Affiliate at or after age sixty-five (65).
(dd) "Payment Date" means, with respect to an Account, the first day of
the month coincident with or next following the earlier of (1) the date of the
Director's Termination of Directorship and (2) the date of a Change in Control.
(ee) "Plan" means the Walbro Corporation Equity Based Long Term
Incentive Plan, as set forth herein and as hereinafter amended from time to
time.
(ff) "Restricted Stock" means an award under Section 9.
(gg) "Retainer" means the retainer provided to a Director for services
rendered as a Director, including attendance at meetings, but not the
reimbursement of expenses, in his or her capacity as a Director.
(hh) "Retainer Year" means the calendar year.
(ii) "Retirement" means Normal or Early Retirement.
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(jj) "Rule 16b-3" means Rule 16b-3, as promulgated by the Commission
under Section 16(b) of the Exchange Act, as amended from time to time.
(kk) "Settlement Date" means the date on which financial transactions
from a Trade Date are considered to be settled.
(ll) "Stock Appreciation Right" means a right granted under Section 8.
(mm) "Stock Option" or "Option" means an option granted under Section
6.
(nn) "Sweep Date" means the date established by the Committee as the
cutoff date and time for the Committee to receive notification with respect to a
financial transaction in order to be processed with respect to a Trade Date.
(oo) "Termination of Employment" means the termination of the
participant's employment with the Company or any Affiliate. A participant
employed by an Affiliate of the Company shall also be deemed to incur a
termination of employment if the Affiliate ceases to be an Affiliate and the
participant does not immediately thereafter become an employee of the Company or
another Affiliate.
(pp) "Termination of Directorship" means the occurrence of any act or
event that actually or effectively causes or results in the person's ceasing,
for whatever reason, to be a Director of the Company, including, without
limitation, death, Disability, removal, severance at the election of the
Director, retirement, failure to be elected or stand for election as a Director,
or severance as a result of the discontinuance, liquidation, sale or transfer by
the Company or its Affiliates of all businesses owned or operated by the Company
or its Affiliates.
(qq) "Trade Date" means the date as of which a financial transaction is
considered by this Plan to have occurred.
(rr) "Trust" means the Walbro Corporation 1994 Director's Stock
Incentive Trust.
(ss) "Valuation Date" means the dates established by the Committee.
In addition, certain other terms used herein have definitions given to
them in the first place on which they are used.
SECTION 2. Plan Awards.
To carry out the purpose of the Plan, the Company and its Subsidiaries
will from time to time enter into various arrangements with persons eligible to
participate in the Plan and confer various benefits upon them. If their terms
and conditions and the benefits conferred by them are not inconsistent with the
provisions of the Plan, such arrangements are authorized under the
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Awards. The authorized categories of benefits for which Awards may be granted,
which are more fully described elsewhere in this Plan, are Stock Options,
Deferred Options, Stock Appreciation Rights, Restricted Stock and any other
benefits granted under the Plan that are not among those listed above, but which
(a) by their terms will or might involve the issuance or sale of Common Stock,
(b) are measured, in whole or in part, by the value, appreciation, dividend
yield or other features attributable to a specified number of shares of Common
Stock, or (c) may result in a cash payment.
An Award may confer one such benefit or two or more of them in tandem
or in the alternative. Subject to the provisions of the Plan, any Award granted
pursuant to the Plan shall contain such additional terms and provisions as those
administering the Plan for the Company may consider appropriate. Among other
things, any such Award may, but need not, also provide for the satisfaction of
any applicable tax withholding obligation by the retention of shares to which
the grantee would otherwise be entitled or by the grantee's delivery of
previously owned shares or other property.
SECTION 3. Administration.
The Plan shall be administered by the Compensation Committee of the
Board or such other committee of the Board, composed of such number of
Disinterested Persons as is required for an application of Rule 16b-3, each of
whom shall be appointed by and serve at the pleasure of the Board. If at any
time no Committee shall be in office, the functions of the Committee specified
in the Plan shall be exercised by the members of the Board who are Disinterested
Persons.
The Committee shall have plenary authority to grant Awards to officers,
key employees and Directors of the Company and its Affiliates.
Among other things, the Committee shall have the authority, subject to
the terms of the Plan:
(a) to select the officers and key employees to whom Awards may from
time to time be granted;
(b) to determine whether and to what extent Stock Options, Deferred
Options, Stock Appreciation Rights, Restricted Stock and Deferred Stock or any
combination thereof are to be granted hereunder;
(c) to determine the number of shares of Common Stock to be covered by
each Award granted hereunder;
(d) to determine the terms and conditions of any Award granted
hereunder (including, but not limited to, the share price, any vesting
restriction or limitation and any vesting acceleration or forfeiture waiver
regarding any Award and the shares of Common Stock relating thereto, based on
such factors as the Committee shall determine);
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(e) to adjust the terms and conditions, at any time or from time to
time, of any Awards, including with respect to performance goals and
measurements applicable to performance-based awards pursuant to the terms of the
Plan;
(f) to determine under what circumstances an Award may be settled in
cash or Common Stock under the terms of the Plan;
(g) to determine to what extent and under what circumstances Common
Stock and other amounts payable with respect to an Award shall be deferred;
(h) to establish, maintain and adjust Accounts;
(i) to administer Deferral Elections, and to determine whether to
permit and administer Investment Elections and Conversion Elections;
(j) to establish and determine the Earnings Factor, if any;
(k) to establish and determine the Investment Funds, if any, to be
applied under the Plan;
(l) to direct and implement the payment of Accounts as of the Payment
Date; and
(m) to interpret and make final determination with respect to the
number of shares of common stock remaining available.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any Award issued under the Plan (and any agreement relating thereto)
and to otherwise supervise the administration of the Plan.
The Committee may act only by a majority of its members then in office,
except that the members thereof may authorize any one (1) or more of their
number or any officer of the Company to execute and deliver documents on behalf
of the Committee.
Any determination made by the Committee pursuant to the provisions of
the Plan with respect to any Award shall be made in its sole discretion at the
time of the grant of the Award or, unless in contravention of any express term
of the Plan, at any time thereafter. All decisions made by the Committee
pursuant to the provisions shall be final and binding on all persons, including
the Company and the Plan participants.
SECTION 4. Common Stock Subject to the Plan.
The total number of shares of Common Stock reserved and available for
distribution pursuant to Awards under the Plan shall be equal to ten percent
(10%) of the number of shares
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of Common Stock outstanding on the date the amendment and restatement of the
Plan is approved by the Stockholders of the Company. Such shares may consist, in
whole or in part, of authorized and unissued shares or treasury shares.
Subject to Section 8(b)(iv), if any shares of Stock that have been
optioned cease to be subject to a Stock Option, if any shares of Stock that are
subject to any Award are forfeited, if any Award otherwise terminates without a
payment being made to the participant in the form of Stock or if any shares of
Common Stock that were previously issued under the Plan are received in
connection with the exercise of an Award, such shares shall again be available
for distribution in connection with Awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, spin-off, stock dividend, stock split, extraordinary
distribution with respect to the Common Stock or other similar change in
corporate structure affecting the Common Stock, such substitution or adjustments
shall be made in the aggregate number of shares reserved for issuance under the
Plan, in the number and Option price of shares subject to outstanding Stock
Options and Stock Appreciation Rights, and in the number of shares subject to
other outstanding Awards granted under the Plan as may be determined to be
appropriate by the Board, in its sole discretion; provided, however, that the
number of shares subject to any Award shall always be a whole number. Such
adjusted Option price shall also be used to determine the amount payable by the
Company upon the exercise of any Stock Appreciation Right associated with any
Stock Option.
SECTION 5. Eligibility.
Officers and key employees of the Company and its Affiliates (but
excluding members of the Committee) who are responsible for or contribute to the
management, growth and profitability of the business of the Company and its
Affiliates are eligible to be granted Awards under the Plan. Each Director shall
be eligible to be granted Stock Options to purchase shares of Common Stock in
accordance with Section 7 and shall be eligible to make a Deferral Election as
provided in the Plan. The Committee may designate any person as not eligible to
participate in the Plan even if such person would be otherwise eligible to
participate in the Plan, and members of the Committee are not eligible to
participate to the extent inconsistent with such persons intended status as a
Disinterested Person.
SECTION 6. Stock Options.
(a) Administration. Stock Options may be granted either alone or in
addition to other Awards granted under the Plan. The Committee shall determine
the officers and key employees to whom, and the time or times at which grants of
Stock Options will be made, the number of shares of Common Stock with respect to
which Stock Options will be granted, the time or times within which such Stock
Options will be subject to forfeiture, and any other terms and conditions of the
Stock Options, in addition to those contained in Section 6(c). Any Stock Option
granted under the Plan shall be in such form as the Committee may from time to
time approve and the Committee shall have the authority to grant any optionee
Stock Options. However, no Stock Options within the meaning of Section 422 of
the Code may be granted under the Plan, and no
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Stock Option shall be granted under this Section 6 to a Director. During any
three-calendar-year period, Stock Options for no more than 150,000 shares of
Common Stock shall be granted to any person.
(b) Option Agreements. Stock Options shall be evidenced by Option
agreements, the terms and provisions of which need not be the same with respect
to each such Optionee. The grant of a Stock Option shall occur on the date the
Committee by resolution selects an individual as a participant in any grant of
Stock Options, determines the number of shares of Common Stock to be subject to
such Stock Option to be granted to such individual and specifies the terms and
provisions of the Option agreement. The Company shall notify a participant of
any grant of a Stock Option, and a written Option agreement or agreements shall
be duly executed and delivered by the Company to the participant. Such agreement
or agreements shall become effective upon execution by the participant.
(c) Terms and Conditions. Options granted under the Plan shall be
subject to the following terms and conditions and the relevant Option agreements
shall contain such additional terms and conditions as the Committee shall deem
desirable:
(i) Option Price. The Option price per share of Common Stock
purchasable under a Stock Option shall be set forth in the Option
agreement and shall be equal to the Fair Market Value of the Common
Stock subject to the Stock Option on the date of grant.
(ii) Option Term. The term of each Stock Option shall be fixed by
the Committee, but no Stock Option shall be exercisable more than the
ten (10) years and one (1) day after the date the Stock Option was
granted.
(iii) Exercisability. Subject to Section 6(c)(i) and 15(a)(i),
Stock Options shall be exercisable at such time or times and subject to
such terms and conditions as shall be determined by the Committee. If
the Committee provides that any Stock Option is exercisable only in
installments, the Committee may at any time waive such installment
exercise provisions, in whole or in part, based on such factors as the
Committee may determine.
In addition, the Committee may at any time accelerate the
exercisability of any Stock Option.
(d) Method of Exercise. Subject to the provisions of this Section 6,
Stock Options may be exercised, in whole or in part, at any time during the
option period by giving written notice of exercise to the Company specifying the
number of shares of Common Stock subject to the Stock Option to be purchased.
Such notice shall be accompanied by payment in full of the purchase
price by certified or bank check or such other instrument as the Company may
accept. If approved by the Committee, payment in full or in part may also be
made (i) by delivering Common Stock already owned by the optionee having a total
Fair Market Value on the date of such delivery equal to the Option
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price; (ii) by authorizing the Company to retain shares of Common Stock which
would otherwise be issuable upon exercise of the Option having a total Fair
Market Value as of the date of delivery equal to the Option price; (iii) by
delivery of cash or the extension of credit by a broker-dealer to whom the
optionee has submitted a notice of exercise (in accordance with Part 220,
Chapter II, Title 12 of the Code of Federal Regulations, so-called "cashless"
exercise); or (iv) any combination of the foregoing.
If payment of the option exercise price of a Non-Qualified Stock Option
is made in whole or in part in the form of Restricted Stock or Deferred Stock,
the number of shares of Stock to be received upon such exercise equal to the
number of shares of Restricted Stock or Deferred Stock used for payment of the
option exercise price shall be subject to the same forfeiture restrictions or
deferral limitations to which such Restricted Stock or Deferred Stock was
subject, unless otherwise determined by the Committee.
No shares of Common Stock shall be issued until full payment therefor
has been made. Subject to any forfeiture restrictions or deferral limitations
that may apply if a Stock Option is exercised using Restricted Stock or Deferred
Stock, an optionee shall have all of the rights of a stockholder of the Company
holding the class or series of Common Stock that is subject to such Stock Option
(including, if applicable, the right to vote the shares and the right to receive
dividends), when the optionee has given written notice of exercise, has paid in
full for such shares, has given, if requested, the representation described in
Section 18(a) and such shares have been recorded on the Company's official
stockholder records as having been issued or transferred. No adjustment shall be
made for cash dividends or other rights for which the record date is prior to
the date such shares are recorded on the Company's official stockholder records
as having been issued or transferred, except as provided in Section 4.
(e) Non-transferability of Options. Except as provided in an Option
agreement, no Stock Option shall be transferable by the optionee other than by
will or by the laws of descent and distribution, and all Stock Options shall be
exercisable, during the optionee's lifetime, only by the optionee or by the
guardian or legal representative of the optionee. Notwithstanding the foregoing,
if and to extent transferability is permitted and exempt under Rule 16b-3 and
except as otherwise provided in an Agreement, every Stock Option shall be freely
transferable. The terms "holder" and "optionee" include the guardian and legal
representative of the optionee named in the Option agreement and any person to
whom an Option is transferred.
(f) Effect of Termination of Employment on Option.
(i) By Reason of Death. If an optionee's employment terminates by
reason of death, any Stock Option held by such optionee may thereafter
be exercised, to the extent then exercisable or on such accelerated
basis as the Committee may determine, for a period of five (5) years
(or such other period as the Committee may specify in the relevant
Option agreement) from the date of such death or until the expiration
of the stated term of such Stock Option, whichever period is the
shorter.
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(ii) By Reason of Disability. If an optionee's employment
terminates by reason of Disability, any Stock Option held by such
optionee may thereafter be exercised by the optionee, to the extent
then exercisable or on such accelerated basis as the Committee may
determine, for a period of six (6) years (or such other period as the
Committee may specify in the relevant Option agreement) from the date
of such Disability or until the expiration of the stated term of such
Stock Option, whichever period is shorter; provided, however, that if
the optionee dies within such six (6) year period (or such shorter
period), an unexercised Stock Option held by such optionee shall,
notwithstanding the expiration of such six (6) year (or shorter)
period, continue to be exercisable to the extent to which it was
exercisable at the time of death for a period of twelve (12) months
from the date of such death or until the expiration of the stated terms
of such Stock Option, or whichever period is the shorter.
(iii) By Reason of Retirement. If an optionee's employment
terminates by reason of Retirement, any Stock Option held by such
optionee may thereafter be exercised by the optionee, to the extent it
was exercisable at the time of such Retirement or on such accelerated
basis as the Committee may determine, for a period of six (6) years (or
such shorter period as the Committee may specify in the relevant Option
agreement) from the date of such termination of employment or until the
expiration of the stated term of such Stock Option, whichever period is
the shorter; provided, however, that if the optionee dies within such
six (6) year (or such shorter) period any unexercised Stock Option held
by such optionee shall, notwithstanding the expiration of such six (6)
year (or such shorter) period, continue to exercisable to the extent to
which it was exercisable at the time of death for a period of twelve
(12) months from the date of such death or until the expiration of the
stated term of such Stock Option, whichever period is the shorter.
(iv) Other Termination. Unless otherwise determined by the
Committee and set forth in the relevant Option agreement, if an
optionee incurs a Termination of Employment for any reason other than
death, Disability or Retirement, any Stock Option held by such Optionee
shall thereupon terminate, except that such Stock Option, to the extent
then exercisable, may be exercised for the lesser of three (3) months
from the date of such Termination of Employment or the balance of such
Stock Option's term if such Termination of Employment of the optionee
is involuntary and without Cause. Notwithstanding the foregoing, if an
optionee incurs a Termination of Employment at or after a Change in
Control, other than by reason of death, Disability or Retirement, any
Stock Option held by such optionee shall be exercisable for the lesser
of (x) six (6) months and one (1) day from the date of such Termination
of Employment, and (y) the balance of such Stock Option's term.
(g) Cashing Out of Option; Settlement of Spread Value in Stock. On
receipt of written notice of exercise, the Committee may elect to cash out all
or part of the portion of any Stock Option to be exercised by paying the
optionee an amount in cash or Common Stock, equal to the excess of the Fair
Market Value of the Common Stock that is the subject of the Option over the
Option price times the number of shares of Common Stock subject to the Option on
the effective date of such cash out. Cash outs relating to Options held by
optionees who are actually or
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potentially subject to Section 16(b) of the Exchange Act shall comply with the
"window period" provisions of Rule 16b-3, to the extent applicable, and the
Committee may determine Fair Market Value based on the highest mean sales price
of the Common Stock on any exchange on which the Common Stock is listed (or
NASDAQ) on any day during such "window period" under the pricing rules set forth
in Section 8(b)(ii)(2).
(h) Change in Control. Notwithstanding any other provision of the Plan,
upon a Change in Control, in the case of Stock Options other than Stock Options
held by an officer or director of the Company (within the meaning of Section 16
of the Exchange Act) which were granted less than six (6) months prior to the
Change in Control (which will be governed by the proviso to this sentence)
during the sixty (60) day period from and after a Change in Control (the
"Exercise Period"), unless the Committee shall determine otherwise at the time
of grant, an optionee shall have the right, whether or not the Stock Option is
fully exercisable, in lieu of the payment of the exercise price of the shares of
Common Stock being purchased under the Stock Option and by giving notice to the
Company, to elect (within the Exercise Period) to surrender all or part of the
Stock Option to the Company and to receive cash, within thirty (30) days of such
notice, in an amount equal to the amount by which the Change in Control Price
per share of Common Stock on the date of such election shall exceed the exercise
price per share of the Common Stock under the Stock Option (the "Aggregate
Spread") multiplied by the number of shares of Common Stock granted under the
Stock Option as to which the right granted under this Section 6 shall have been
exercised; provided, however, that if the end of such sixty (60) day period from
and after a Change in Control is within six (6) months of the date of grant of a
Stock Option held by an optionee who is an officer or director of the Company
(within the meaning of Section 16(b) of the Exchange Act), such Stock Option
shall be cancelled in exchange for a cash payment to the optionee at the time of
optionee's termination of employment equal to the Aggregate Spread multiplied by
the number of shares of common Stock granted under said Stock Option, plus
interest on such amount at the prime rate as reported in the Wall Street
Journal, compounded annually and determined from time to time.
SECTION 7. Director Option Grants.
(a) Eligibility. Each Director shall be eligible to be granted Stock
Options or Deferred Options to purchase shares of Common Stock as provided in
this Section.
(b) Grant and Exercise. Each Director who is a Director on June 20,
1994 shall be granted a Stock Option on such date to purchase 10,000 shares of
Common Stock without further action by the Board of Directors or the Committee.
Each Director whose initial term as a member of the Board commences after June
20, 1994 shall be granted a Stock Option (other than a Deferred Option) on the
Director Grant Date to purchase 10,000 shares of Common Stock without further
action by the Board of Directors or the Committee. A Director shall be granted
Deferred Options if elected by the Director in a Deferral Election on the
Director Grant Date applicable to that Election. The number of Deferred Options
to be granted for any Retainer Year shall equal the quotient obtained by
dividing the amount of the Deferred Retainer by 75% of the Fair Market Value per
share of the Common Stock on the relevant date. If the number of shares of
Common Stock available to grant under the Plan on a scheduled date of grant is
insufficient to make all
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automatic grants required to be made pursuant to the Plan on such date, then
each eligible Director shall receive an Option to purchase a pro rata number of
the remaining shares of Common Stock available under the Plan; provided further,
however, that if such proration results in fractional shares of Common Stock,
then such Option shall be rounded down to the nearest number of whole shares of
Common Stock. The Option price of all Deferred Options shall be 25% of the Fair
Market Value per share on the Director's Grant Date.
(c) Terms and Conditions. Options shall be subject to such terms and
conditions as shall be determined by the Committee and unless otherwise provided
in an Agreement shall include the following:
(d) Option Period. The Option Period of each Option shall be ten (10)
years.
(e) Exercisability. Subject to Section 15(a), Options shall be
exercisable upon the earliest of the date of the Director's death or Disability
and the date that is the six-month anniversary of the Director's Grant Date. If
the Committee provides that any Option is exercisable only in installments, the
Committee may at any time waive such installment exercise provisions, in whole
or in part. In addition, the Committee may at any time accelerate the
exercisability of any Option. An Award, including any Options not yet exercised
and the value of the Account not yet distributed shall be forfeited if the
Director incurs a Termination of Directorship due to Cause.
(f) Method of Exercise. A Director desiring to exercise an Option, in
whole or in part, at any time during the Option period must give written notice
of exercise on a form provided by the Committee (if available) to the Company
specifying the number of shares of Common Stock subject to the Option to be
purchased. Such notice shall be accompanied by payment in full of the purchase
price by cash or check or such other form of payment as the Company may accept.
If approved by the Committee, payment in full or in part may also be made (i) by
delivering Common Stock already owned by the Director having a total Fair Market
Value on the date of such delivery equal to the Option price; (ii) by
authorizing the Company to retain shares of Common Stock which would otherwise
be issuable upon exercise of the Option having a total Fair Market Value on the
date of delivery equal to the Option price; (iii) by the delivery of cash or the
extension of credit by a broker-dealer to whom the Director has submitted a
notice of exercise (in accordance with Part 220, Chapter II, Title 12 of the
Code of Federal Regulations, so-called "cashless" exercise); or (iv) by any
combination of the foregoing. No shares of Common Stock shall be issued until
full payment therefor has been made.
(g) Non-transferability of Options. Except as provided in an Option
agreement, no Stock Option shall be transferable by the optionee other than by
will or by the laws of descent and distribution, and all Stock Options shall be
exercisable, during the optionee's lifetime, only by the optionee or by the
guardian or legal representative of the optionee. Notwithstanding the foregoing,
if and to extent transferability is permitted and exempt under Rule 16b-3 and
except as otherwise provided in an agreement, every Stock Option shall be freely
transferable. The terms "holder" and "optionee" include the guardian and legal
representative of the optionee named in the Option agreement and any person to
whom an Option is transferred.
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(h) Application of Other Sections. Section 6(g) and 6(h) shall apply to
Options granted to Director under this Section 7, to the extent permitted by
applicable law.
SECTION 8. Stock Appreciation Rights.
(a) Grant and Exercise. Stock Appreciation Rights may be granted in
conjunction with all or part of any Stock Option (other than a Stock Option
granted to a Director) granted under the Plan. Such rights may be granted either
at or after the time of grant of such Stock Option, but may not be granted to a
Director. A Stock Appreciation Right shall terminate and no longer be
exercisable upon the termination or exercise of the related Stock Option.
A Stock Appreciation Right may be exercised by an optionee in
accordance with Section 6(b) by surrendering the applicable portion of the
related Stock Option in accordance with procedures established by the Committee.
Upon such exercise and surrender, the optionee shall be entitled to receive an
amount determined in the manner prescribed in Section 8(b). Stock Options which
have been so surrendered shall no longer be exercisable to the extent the
related Stock Appreciation Rights have been exercised. During any
three-calendar-year period, Stock Appreciation Rights for no more than 150,000
Stock Appreciation Rights shall be granted to any person.
(b) Terms and Conditions. Stock Appreciation Rights shall be subject to
such terms and conditions as shall be determined by the Committee, including the
following:
(i) Stock Appreciation Rights shall be exercisable only at such
time or times and to the extent that the Stock Options to which they
relate are exercisable in accordance with the provisions of Section 6
and this Section 8; provided, however, that a Stock Appreciation Right
shall not be exercisable during the first six months of its term by an
optionee who is actually or potentially subject to Section 16(b) of the
Exchange Act, except that this limitation shall not apply in the event
of death or Disability of the optionee prior to the expiration of the
six month period.
(ii) Upon the exercise of a Stock Appreciation Right, an optionee
shall be entitled to receive an amount in cash, shares of Common Stock
or both equal in value to the excess of the Fair Market Value of one
share of Common Stock over the Option price per share specified in the
related Stock Option multiplied by the number of shares in respect of
which the Stock Appreciation Right shall have been exercised, with the
Committee having the right to determine the form of payment.
In the case of Stock Appreciation Rights relating to Stock Options held
by optionees who are actually or potentially subject to Section 16(b) of the
Exchange Act, the Committee:
(1) may require that such Stock Appreciation Rights be exercised only
in accordance with the applicable "window period" provisions of Rule 16b-3; and
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(2) may provide that the amount to be paid upon exercise of such Stock
Appreciation Rights during a rule 16b-3 "window period" shall be based on the
highest mean sales price of the Stock on the New York Stock Exchange on any day
during such "window period".
(iii) Stock Appreciation Rights shall be transferable only when
and to the extent that the underlying Stock Option would be
transferable under Section 6(e).
(iv) To the extent required by Rule 16b-3, upon the exercise of a
Stock Appreciation Right, the Stock Option or part thereof to which
such Stock Appreciation Right is related shall be deemed to have been
exercised for the purpose of the limitation set forth in Section 4 on
the number of shares of Stock to be issued under the Plan, but only to
the extent of the number of shares covered by the Stock Appreciation
Right at the time of exercise based on the value of the Stock
Appreciation Right at such time.
SECTION 9. Restricted Stock.
(a) Administration. Shares of Restricted Stock may be awarded either
alone or in addition to other awards granted under the Plan, but may not be
awarded to a Director. The Committee shall determine the officers and key
employees to whom and the time or times at which grants of Restricted Stock will
be awarded, the number of shares to be awarded to any participant, the time or
times within which such Awards may be subject to forfeiture and any other terms
and conditions of the Awards, in addition to those contained in Section 9(c).
The Committee may condition the grant of Restricted Stock upon the
attainment of specified performance goals of the participant or of the Company
or subsidiary, division or department of the Company for or within which the
participant is primarily employed or such other factors or criteria as the
Committee shall determine. The provisions of Restricted Stock Awards need not be
the same with respect to each recipient.
(b) Awards and Certificates. Each participant receiving an Award of
Restricted Stock shall be issued a certificate in respect of such shares of
Restricted Stock. Such certificate shall be registered in the name of such
participant and shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Award, substantially in the
following form:
"The transferability of this certificate and shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) of the Walbro Corporation Equity Based Long Term Incentive
Plan and a Restricted Stock Agreement. Copies of such Plan and
Agreement are on file at the offices of Walbro Corporation, 6242
Garfield Street, Cass City, Michigan 48726."
The Committee may require that the certificates evidencing such shares be held
in custody by the Company until the restrictions thereon shall have lapsed and
that, as a condition of any Award of Restricted Stock, the participant shall
have delivered a stock power, endorsed in blank, relating to the stock covered
by such award.
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(c) Terms and Conditions. Shares of Restricted Stock shall be subject
to the following terms and conditions:
(i) Restrictions. Subject to the provisions of the Plan and the
Restricted Stock Agreement referred to in Section 9(c)(vi), during a
period set by the Committee, commencing with the date of such Award
(the "Restriction Period"), the participant shall not be permitted to
sell, assign, transfer, pledge or otherwise encumber shares of
Restricted Stock. Within these limits, the Committee may provide for
the lapse of such restrictions in installments and may accelerate or
waive such restrictions, in whole or in part, based on service,
performance of the participant or of the Company or the subsidiary,
division or department for which the participant is employed or such
other factors or criteria as the Committee may determine.
(ii) Rights as Shareholder. Except as provided in this paragraph
(ii) and Section 9(c)(i), the participant shall have, with respect to
the shares of Restricted Stock, all of the rights of a stockholder of
the Company holding the class or series of Stock that is the subject of
the Restricted Stock, including, if applicable, the right to vote the
shares and the right to receive any cash dividends. Unless otherwise
determined by the Committee and subject to Section 18(f) of the Plan,
(i) cash dividends on the class or series of Common Stock that is the
subject of the Restricted Stock shall be automatically deferred and
reinvested in additional Restricted Stock, and (ii) non-cash dividends
on the class or series of Common Stock that is the subject of the
Restricted Stock payable in Common Stock shall be paid in the form of
Restricted Stock of the same class as the Common Stock on which such
dividend was paid.
(iii) Forfeiture of Restricted Stock. Except to the extent
otherwise provided in the applicable Restricted Stock Agreement
(referred to in Section 9(c)(vi)) and Sections 9(c)(i), 9(c)(iv) and
15(a)(ii), upon a participant's Termination of Employment for any
reason during the Restriction Period, all shares still subject to
restriction shall be forfeited by the participant.
(iv) Waiver of Restrictions. In the event of hardship or other
special circumstances of a participant whose employment is
involuntarily terminated (other than for Cause), the Committee shall
have the discretion to waive in whole or in part any or all remaining
restrictions with respect to such participant's shares of Restricted
Stock.
(v) Expiration of Restriction Period. If and when the Restriction
Period expires without a prior forfeiture of the Restricted Stock
subject to such Restriction Period, unlegended certificates for such
shares shall be delivered to the participant.
(vi) Each Award shall be confirmed by, and be subject to the terms
of, a Restricted Stock Agreement.
SECTION 10. Deferred Stock.
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(a) Administration. Deferred Stock may be awarded either alone or in
addition to other Awards granted under the Plan. The Committee shall determine
the officers and key employees to whom and the time or times at which Deferred
Stock shall be awarded, the number of shares of Deferred Stock to be awarded to
any participant, the duration of the period (the "Deferral Period") during
which, and the conditions under which, receipt of the Common Stock will be
deferred and any other terms and conditions of the Award, in addition to those
contained in Section 10(b). Directors shall not be awarded Deferred Stock.
The Committee may condition the grant of Deferred Stock upon the
attainment of specified performance goals of the participant or of the Company
or subsidiary, division or department of the Company for or within which the
participant is primarily employed or upon such other factors or criteria the
Committee shall determine. The provisions of Deferred Stock Awards need not be
the same with respect to each recipient.
(b) Terms and Conditions. Deferred Stock Awards shall be subject to the
following terms and conditions:
(i) Subject to the provisions of the Plan and the Deferred Stock
Agreement referred to in Section 10(b)(vii), Deferred Stock Awards may
not be sold, assigned, transferred, pledged or otherwise encumbered
during the Deferral Period. At the expiration of the Deferral Period
(or Elective Deferral Period as defined in Section 10(b)(vi), where
applicable), the Committee my elect to deliver (1) Stock or (2) cash
equal to the Fair Market Value of such Stock to the participant for the
shares covered by the Deferred Stock Award.
(ii) Unless otherwise determined by the Committee and subject to
Section 18(f) of the Plan, amounts equal to any dividends declared
during the Deferral Period on the class or series of Stock covered by
the Deferred Stock Award, with respect to the number of shares covered
by a Deferred Stock Award, will be awarded, automatically deferred and
deemed to be reinvested in additional Deferred Stock.
(iii) Except to the extent otherwise provided in the applicable
Deferred Stock Agreement and Sections (10)(b)(iv), 10(b)(v) and
15(a)(ii), upon a participant's Termination of Employment for any
reason during the Deferral Period, the rights to shares still covered
by the Deferred Stock Award shall be forfeited by the participant.
(iv) Based on service, performance of the participant or of the
Company or the subsidiary, division or department for which the
participant is employed or such other factors or criteria as the
Committee may determine, the Committee may provide for the lapse of
deferral limitations in installments and may accelerate the vesting of
all or any part of any Deferred Stock Award and waive the deferral
limitations for all or any part of such Award.
(v) Except to the extent otherwise provided in Section 15(a)(ii),
in the event that a participant's employment is involuntarily
terminated (other than for Cause), the
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Committee shall have the discretion to waive in whole or in part any or
all remaining deferral limitations with respect to any or all of such
participant's Deferred Stock.
(vi) A participant may elect to further defer receipt of the
Deferred Stock payable under an Award (or an installment of an Award)
for a specified period or until a specified event, subject in each case
to the Committee's approval and to such terms as are determined by the
Committee. Subject to any exceptions adopted by the Committee, such
election must generally be made at least 12 months prior to completion
of the Deferral Period for the Award (or for such installment of an
Award).
(vii) Each Award shall be confirmed by, and be subject to the
terms of a Deferred Stock Agreement.
SECTION 11. Director Deferrals
(a) Deferred Retainer
A Director who desires to have a Deferred Retainer credited to
an Account on his or her behalf shall file a Deferral Election pursuant to the
procedures of the Committee specifying and authorizing an amount or percentage
of his or her Retainer otherwise payable to be reduced and to be
(1) posted to the Cash Account; or
(2) posted to the Stock Account; or
(3) replaced by Deferred Options; or
(4) a combination of any of the foregoing.
If a Director's Deferral Election is, in whole or in part, the election to
receive a Deferred Option, the terms and conditions regarding such Deferred
Option shall be determined under Section 7 and unless otherwise specified shall
be the same as any other Stock Options granted to Directors under the Plan. A
Director who does not elect a Deferred Retainer shall be deemed to have made an
Election to receive all the Retainer on a current basis.
(b) Election Procedures. If properly executed and received by the
Committee, a Deferral Election shall be effective only with respect to a
Retainer paid in a Retainer Year to which the Deferral Election applies and only
with respect to a Retainer paid after the Notice Date for the Deferral Election.
Consistent with the above, the Committee may establish rules and procedures
governing when a Deferral Election will be effective and what Retainer will be
deferred by the Deferral Election; provided such rules and procedures are not
more permissive than the terms and provisions of this Plan.
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(c) Posting. For each Retainer Year for which a Deferral Election is
in effect, the Company shall
(1) post to the Cash Account the amount reflected in the
Deferral Election to be so posted;
(2) post to the Stock Account the number of shares of Common
Stock equal to the amount of the Deferred Retainer to be
posted to the Stock Account divided by the Fair Market
Value per share of the Common Stock on the posting date;
(3) distribute to the Participant Deferred Options; or
(4) a combination of the foregoing.
(d) Fully Vested Deferral Accounts. A Director shall be fully vested
and have a nonforfeitable right to his or her Account at all times.
(e) Distribution. A Director shall receive the value of the Account
in cash in a single sum on the Payment Date (in the case of a Payment Date other
than due to the death of the Director).
(f) Payment to a Representative. Upon the death of a Director, the
balance in his or her Accounts shall be paid to the Director's beneficiary in a
single sum as soon as administratively possible after the Director's Payment
Date (which is due to the death of the Director).
SECTION 12. Accounting for Directors' Accounts and for Investment Funds.
(a) Individual Accounting.
(1) Account Maintenance. The Committee shall cause the Accounts
for each Director to reflect transactions involving amounts posted
to the Accounts and the measurement of investment returns on
Accounts in accordance with this Plan. Investment returns during
or with respect to an accounting period shall be accounted for at
the individual account level by "posting" such returns to each of
the appropriate Accounts of each affected Director. Account values
shall be maintained in shares, units or dollars. Cash dividends
credited to the Director's Stock Account shall be deemed to be
invested in additional shares of Common Stock.
(2) Trade Date Accounting and Investment Cycle. For any
financial transaction involving a change in the measurement of
investment returns, or distributions to be processed as of a Trade
Date, the Committee must receive instructions by the Sweep Date
and such instructions shall apply only to amounts posted to the
Accounts as of the Trade Date. Such financial transactions in an
Investment Fund shall be posted to a Director's Accounts as of the
Trade Date and based upon the Trade Date values.
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All such transactions shall be effected on the Settlement Date
(or as soon as is administratively feasible) relating to the Trade
Date as of which the transaction occurs.
(3) Suspension of Transactions. Whenever the Committee considers
such action to be appropriate, the Committee, in its discretion,
may suspend from time to time the Trade Date.
(4) Error Correction. The Committee may correct any errors or
omissions in the administration of this Plan by restoring or
charging any Account with the amount that would be credited or
charged to the Account had no error or omission been made.
(b) Accounting for Investment Funds. The investment returns of each
Investment Fund shall be tracked in the manner directed by the Committee.
Investment income, earnings, and losses charged against the Accounts shall be
based solely upon the actual performance of each of the Investment Funds for the
period of time all or some portion of each of the Accounts has been designated
to use such Investment Fund as a measurement of investment returns.
SECTION 13. Investment Funds and Elections
(a) General. The Committee may provide in its sole discretion for the
application of Investment Funds under the Plan. If so, a separate Investment
Election and Conversion Election must be made with respect to the Deferred
Retainer and Accounts; provided however, if no Investment Election or Conversion
Election is received from a Director, such Director will be deemed to have
submitted a Conversion Election with respect to his or her Accounts, which
designates that such Account will have its investment returns measured by the
Earnings Factor. If Investment Funds are not applied by the Committee,
investment returns shall be measured by the Earning Factor.
(b) Investment of Deferred Retainer.
(1) Investment Election. Subject to Section 13(a), each Director
may, by submission to the Committee of a completed Investment
Election form provided for that purpose by the Committee, request
the Committee to use a measurement of investment returns for
Deferred Retainers posted to his or her Cash Account in one or
more Investment Funds.
(2) Effective Date of Investment Election; Change of Investment
Election. A Director's initial Investment Election will be
effective with respect to a Fund on the Trade Date which relates
to the Sweep Date on which or prior to which the Investment
Election is received pursuant to procedures specified by the
Committee. Any Investment Election which has not been properly
completed will be deemed not to have been received. A Director's
Investment Election will continue in effect notwithstanding any
change in the Retainer until the effective date of a new
Investment Election. A change in Investment Election shall be
effective with respect
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to a Fund on the Trade Date which relates to the Sweep Date on
which or prior to which the Committee receives the Director's new
Investment Election.
(c) Investment of Cash Accounts.
(1) Conversion Election. Notwithstanding a Director's Investment
Election, if the Committee permits the application of Investment
Funds, a Director may request the Committee, by submission of a
completed Conversion Election provided for that purpose to the
Committee, to change the measurement of investment returns of his
or her Cash Account.
(2) Effective Date of Conversion Election. A Conversion Election
to change a Participant's measurement of investment returns of his
or her Cash Accounts in one Investment Fund to another Investment
Fund shall be effective with respect to such Investment Funds on
and after the Trade Date which relates to the Sweep Date on which
or prior to which the Conversion Election is received pursuant to
procedures specified by the Committee. Notwithstanding the
foregoing, to the extent required by any provisions of an
Investment Fund, the effective date of any Conversion Election may
be delayed or the amount of any permissible Conversion Election
may be reduced. Any Investment Election which has not been
properly completed will be deemed not to have been received.
SECTION 14. FUNDING.
(a) Satisfaction of Obligation. The Company's obligation to a
Director with respect to an Account shall be satisfied by payments made to the
Director from the Trust or from the Company in its sole discretion.
(b) Trust. The Company may establish the Trust on or about the date
this Agreement is adopted. The Trust may be revocable or irrevocable.
(c) Letter of Credit. Within thirty (30) days of the Effective Date,
the Company may place in the Trust a standing letter of credit for an amount
sufficient to pay estimated accruals under this Agreement. Within the first
thirty (30) days of commencement of each Fiscal Year, the Company may adjust the
amount of the letter of credit to equal the sum of all Directors' Accounts as of
the last Valuation Date in the prior fiscal year of the Company plus a good
faith estimate of accruals for the current fiscal year. The letter of credit may
be irrevocable.
(d) Notice to Trustee. If a payment required under the terms of this
Agreement has not been made to a Director or Representative, the Director or
Representative must notify the Trustee in writing of the amount owed to him
pursuant to this Agreement and the date such amount was due and payable.
SECTION 15. Change in Control Provisions.
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<PAGE> 22
(a) Impact of Event. Notwithstanding any other provision of the Plan
to the contrary, in the event of a Change in Control (as defined in Section
15(b)):
(i) Any Stock Appreciation Rights, Stock Options and Deferred
Stock Options outstanding as of the date such Change in Control is
determined to have occurred and not then exercisable and vested
shall become fully exercisable and vested in the full extent of
the original grant; provided, however, that, in the case of the
holder of Stock Appreciation Rights who is actually subject to
Section 16(b) of the Exchange Act, such Stock Appreciation Rights
shall have been outstanding for at least six months at the date
such Change in Control is determined to have occurred.
(ii) The restrictions and deferral limitations applicable to
any Restricted Stock and Deferred Stock shall lapse, and such
Restricted Stock and Deferred Stock shall become free of all
restrictions and become fully vested and transferable to the full
extent of the original grant.
(b) Definition of Change in Control. For purposes of the Plan, a
"Change in Control" shall mean the happening of any of the following events:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act
(a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of thirty percent (30%) or more of
either (1) the then outstanding shares of Common Stock of the Company
or (2) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors; provided, however, that the following acquisitions shall not
constitute a Change in Control: (1) any acquisition directly from the
Company; (2) any acquisition by the Company; (3) any acquisition by a
Person including the participant or with whom or with which the
participant is affiliated; (4) any acquisition by a Person or Persons
one or more of which is a member of the Board or an officer of the
Company or an affiliate of any of the foregoing on the Effective Date,
(5) any acquisition by any employee benefit Plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by
the Company; or (6) any acquisition by any corporation pursuant to a
transaction described in clauses (A), (B) and (C) of paragraph (iii) of
this Section 15(b); or
(ii) During any period of twenty-four (24) consecutive
months, individuals who, as of the beginning of such period,
constituted the entire Board cease for any reason to constitute at
least a majority of the Board, unless the election, or nomination for
election, by the Company's stockholders, of each new director was
approved by a vote of at least two-thirds (2/3) of the Continuing
Directors, as hereinafter defined, in office on the date of such
election or nomination for election for the new director. For purposes
hereof, "Continuing Director" shall mean:
(a) any member of the Board at the close of business
on the Effective Date; or
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<PAGE> 23
(b) any member of the Board who succeeded any
Continuing Director described in clause (1) above if
such successor's election, or nomination for election,
by the Company's stockholders, was approved by a vote
of at least two-thirds (2/3) of the Continuing
Directors then still in office. The term "Continuing
Director" shall not, however, include any individual
whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as
such term is used in Rule 14a-11 of Regulation 14A of
the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of
a person other than the Board.
(iii) Approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, unless following
such reorganization, merger or consolidation, (A) more than 60% of the
then outstanding securities having the right to vote in the election of
directors of the corporation resulting from such reorganization, merger
or consolidation is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who where the
beneficial owners of the outstanding securities having the right to
vote in the election of directors of the Company immediately prior to
such reorganization, merger or consolidation, (B) no Person (excluding
the Company, any employee benefit Plan (or related trust) of the
Company or such corporation resulting from such reorganization, merger
or consolidation and any Person beneficially owning, immediately prior
to such reorganization, merger or consolidation, directly or
indirectly, 30% or more of the then outstanding securities having the
right to vote in the election of directors of the Company) beneficially
owns, directly or indirectly, 30% or more of the then outstanding
securities having the right to vote in the election of the corporation
resulting from such reorganization, merger or consolidation, and (C) at
least a majority of the members of the board of directors of the
corporation resulting from such reorganization, merger are Continuing
Directors at the time of the execution of the initial agreement
providing for such reorganization, merger or consolidation; or
(iv) Approval by the stockholders of the Company of (A)
complete liquidation or dissolution of the Company or (B) the sale or
other disposition of all or substantially all of the assets of the
Company, other than to a corporation, with respect to which following
such sale or other disposition, (1) more than 60% of the then
outstanding securities having the right to vote in the election of
directors of such corporation is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners of the outstanding securities having the
right to vote in the election of directors of the Company immediately
prior to such sale or other disposition of such outstanding securities,
(2) no Person (excluding the Company and any employee benefit Plan (or
related trust) of the Company or such corporation and any Person
beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, 30% or more of the outstanding
securities having the right to vote in the election of directors of the
Company) beneficially owns, directly or indirectly, 30% or more of the
then outstanding securities having the right to vote in the election of
directors of such corporation and (3) at least a majority of the
members of the board of directors of such
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<PAGE> 24
corporation are Continuing Directors at the time of the execution of
the initial agreement or action of the Board providing for such sale or
other disposition assets of the Company.
(c) Change in Control Price. For purposes of the Plan, "Change in
Control Price" means the highest price per share (i) paid in any transaction
reported on the New York Stock Exchange Composite or other national exchange on
which such shares are listed or on NASDAQ, or (ii) paid or offered in any bona
fide transaction related to a potential or actual Change in Control of the
Company at any time during the preceding sixty (60) day period as determined by
the Committee.
SECTION 16. Amendments and Termination.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which would (i) impair the rights of
an optionee under a Stock Option or a Deferred Option or a recipient of a Stock
Appreciation Right, Restricted Stock Award and Deferred Stock Award theretofore
granted without the optionee's or recipient's consent, except such an amendment
made to cause the Plan to qualify for the exemption provided by Rule 16b-3 or
(ii) disqualify the Plan from the exemption provided by Rule 16b-3. In addition,
no such amendment shall be made without the approval of the Company's
stockholders to the extent such approval is required by law, agreement or the
rules of any exchange upon which the Common Stock is listed or NASDAQ.
The Committee may amend the terms of any Award theretofore granted,
prospectively or retroactively, but no such amendment shall impair the rights of
any holder without the holder's consent except such an amendment made to cause
the Plan or Award to qualify for the exemption provided by Rule 16b-3, and no
amendment shall reduce the Option price.
Subject to the above provisions, the Board shall have the authority to
amend the Plan to take into account changes in law and tax and accounting rules,
as well as other factors necessary to administer the Plan in accordance with the
intentions of the Company in establishing the Plan and to grant Awards which
qualify for beneficial treatment under such rules without shareholder approval.
SECTION 17. Unfunded Status of Plan.
It is presently intended that the Plan constitute an "unfunded" Plan
for incentive and deferred compensation. The Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Stock or make payments; provided, however, that unless the
Committee otherwise determines, the existence of such trusts or other
arrangements is consistent with the "unfunded" status of the Plan.
SECTION 18. General Provisions.
(a) The Committee may require each person purchasing or receiving
shares pursuant to an Award to represent to and agree with the Company in
writing that such person is acquiring
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<PAGE> 25
the shares without a view to the distribution thereof. The certificates for such
shares may include any legend which the Committee deems appropriate to reflect
any restrictions on transfer.
All certificates for shares of Common Stock or other securities
delivered under the Plan shall be subject to such stock transfer orders and
other restrictions as the Committee may deem advisable under the rules,
regulations and other requirements of the Commission, any stock exchange upon
which the Common Stock is then listed (or NASDAQ) and any applicable Federal or
state securities law, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.
(b) Nothing contained in the Plan shall prevent the Company or an
Affiliate from adopting other or additional compensation arrangements for its
employees.
(c) The adoption of the Plan shall not confer upon any employee any
right to continued employment or service as a Director nor shall it interfere in
any way with the right of the Company or an Affiliate to terminate the
employment of any employee at any time.
(d) No later than the date as of which an amount first becomes
includible in the gross income of the participant for Federal income tax
purposes with respect to any Award under the Plan, the participant shall pay to
the Company, or make arrangements satisfactory to the Company regarding the
payment of, any Federal, state, local or foreign taxes of any kind required by
law to be withheld with respect to such amount. Unless otherwise determined by
the Company, withholding obligations may be settled with Common Stock, including
Common Stock that is part of the Award that gives rise to the withholding
requirement. The obligations of the Company under the Plan shall be conditional
on such payment or arrangements, and the Company and its Affiliates shall, to
the extent permitted by law, have the right to deduct any such taxes from any
payment otherwise due to the participant.
(e) At the time of grant, the Committee may provide in connection with
any grant made under the Plan that the shares of Common Stock received as a
result of such grant shall be subject to a right of first refusal pursuant to
which the participant shall be required to offer to the Company any shares that
the participant wishes to sell at the then Fair Market Value of the Common
Stock, subject to such other terms and conditions as the Committee may specify
at the time of grant.
(f) The reinvestment of cash dividends in additional Restricted Stock
or Deferred Stock at the time of any dividend payment shall only be permissible
if sufficient shares of Common Stock are available under Section 4 for such
reinvestment (taking into account then outstanding Stock Options and other Plan
Awards).
(g) The Committee shall establish such procedures as it deems
appropriate for a participant to designate a beneficiary to whom any amounts
payable in the event of the participant's death are to be paid.
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<PAGE> 26
(h) The Plan and all Awards made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of Delaware.
(i) In addition to such other rights of indemnification as they may
have as members of the Board and to the extent permitted by law, the members of
the Committee or the Committee shall be indemnified and held harmless by the
Company against the reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, to which they or any of
them may be a party by reason of any action taken or any failure to act under or
in connection with the Plan or any Option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is approved
by legal counsel selected by the Company) as paid by them in satisfaction of a
judgment in any action, suit or proceeding, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such
Committee or Committee Member is liable for gross negligence or gross misconduct
in the performance of its or his duties; provided that, within 60 days after
institution of any such action, suit or proceeding, the Committee or the
Committee member shall offer the Company, in writing, the opportunity at its own
expense, to handle and defend the action, suit or proceeding.
(j) This Plan shall inure to the benefit of and be binding upon the
Company and its successors and permitted assigns.
(k) A grant of any Award pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structures or to merge,
consolidate, dissolve, liquidate, sell or transfer all or part of its business
or its assets.
-26-
<PAGE> 1
EXHIBIT 10.22
WALBRO CORPORATION
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
FOR
FRANK E. BAUCHIERO
Effective April 17, 1998
<PAGE> 2
TABLE OF CONTENTS
1. Employment.......................................................... 1
2. Term................................................................ 1
3. Office and Duties................................................... 2
4. Salary and Annual Incentive Compensation............................ 2
5. Long-Term Compensation, Including Stock Options, and Benefits,
Deferred Compensation, and Expense Reimbursement.................... 3
6. Governing Law; Reimbursements....................................... 9
7. Miscellaneous....................................................... 10
8. Definitions......................................................... 12
i
<PAGE> 3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Employment Agreement")
by and between WALBRO CORPORATION, a Delaware corporation (the "Company"), and
Frank E. Bauchiero ("Executive") is dated August __, 1998.
RECITALS
A. Executive has been President of the Company since August 16, 1996
(the "Employment Date") and a director of the Company since 1990. Between the
Employment Date and April 17, 1998, Executive also served as Chief Operating
Officer of the Company.
B. The Company and Executive desire to amend and restate the Employment
Agreement dated October 3, 1996 in its entirety as set forth below to reflect
the appointment of Executive as President and Chief Executive Officer of the
Company on April 17, 1998.
C. The definitions of certain capitalized terms are set forth in
Section 8 of this Employment Agreement.
AGREEMENT
In consideration of the mutual agreements contained herein, the Company
and Executive hereby agree as follows:
1. EMPLOYMENT.
The Company hereby agrees to continue to employ Executive as its
President and Chief Executive Officer of the Company and Executive hereby agrees
to continue to accept such employment and serve in such capacity, during the
Term as defined in Section 2 and upon the terms and conditions set forth in this
Employment Agreement.
2. TERM. The term of employment of Executive under this Employment
Agreement (the "Term") shall be the period commencing on April 17, 1998 and
terminating on Decem ber 31, 2001 and any period of extension thereof in
accordance with this Section 2, subject to earlier termination in accordance
with the Amended and Restated Termination and Change of Control Agreement dated
the date of this Employment Agreement between the Company and the Executive
("Termination Agreement"). The Term shall be extended automatically without
further action by either party for a one-year period beginning on January 1,
2002 and each succeeding annual anniversary thereafter, unless either party
shall have served written notice in accordance with the provisions of Section
7(d) upon the other party on or prior to the applicable anniversary date upon
which such extension would become effective, electing not to extend the Term, in
which case the
1
<PAGE> 4
Term shall terminate (subject to earlier termination in accordance with the
Termination Agreement) on the last business day prior to the applicable
anniversary date with respect to which such notice is received. Notwithstanding
the above, if there is a Change of Control, the Company hereby agrees to
continue the Term of this Employment Agreement and the Executive in its employ,
and the Executive hereby agrees to remain in the employ of the Company, in each
case subject to the terms and conditions of the Termination Agreement and, to
the extent provided in the Termination Agreement, this Employment Agreement, for
the period commencing on the Extension Date and ending on the third anniversary
of such date (such period, the "Extended Employment Period").
3. OFFICE AND DUTIES.
The provisions of this Section 3 will apply during the Term:
(a) Generally. During the Term, Executive shall serve as President and
Chief Executive Officer of the Company, and shall perform such duties and
responsibilities as are substantially consistent with his duties,
responsibilities, rank and status as President and Chief Executive Officer of
the Company as of April 17, 1998. It is also contemplated that, in connection
with each annual meeting of stockholders of the Company during the Term, the
Board will nominate Executive for election as a member of the Board, and the
stockholders of the Company will reelect Executive as a member of the Board.
During the Term, and excluding any periods of disability, vacation, or sick
leave to which Executive is entitled, Executive shall devote full business time
and attention, and his best efforts, abilities, experience, and talent to the
performance of such duties and responsibilities for the businesses of the
Company and its subsidiaries; provided, however, that nothing in this Employment
Agreement shall preclude or prohibit Executive from engaging in other activities
to the extent that such other activities do not preclude Executive's employment
or otherwise inhibit the performance of Executive's duties and responsibilities
under this Employment Agreement or conflict with the businesses of the Company
or its subsidiaries.
(b) Place of Employment. Executive's principal place of employment
shall be the Executive's present headquarters location or such other
headquarters location as may be assigned by the Company which is less than
thirty-five (35) miles from the present headquarters location in Auburn Hills,
Michigan.
4. SALARY AND ANNUAL INCENTIVE COMPENSATION.
As partial compensation for the services to be rendered hereunder by
Executive, the Company agrees to pay to Executive during the Term the
compensation set forth in this Section 4.
(a) Base Salary. Effective as of April 17, 1998, the Company will pay
to Executive during the Term a base salary at the annual rate of $450,000
("Annual Base Salary"), payable in cash in substantially equal monthly
installments during each calendar year, or portion thereof, of the Term and
otherwise in accordance with the Company's usual payroll practices with respect
to senior executives. Executive's Annual Base Salary shall be reviewed by the
Compensation
2
<PAGE> 5
Committee at least once in each calendar year and may from time to time be
increased as determined by the Compensation Committee. Effective as of the date
of any such increase, the Annual Base Salary as so increased shall be considered
the new Annual Base Salary for all purposes of this Employment Agreement and may
not thereafter be reduced.
(b) Annual Incentive Compensation. For 1998 and each subsequent
calendar year during the Term, the Company will pay to Executive annual
incentive compensation ("Annual Bonus") as follows:
(i) For the calendar year 1998, the amount of the Annual Bonus
shall equal the greater of (A) 25% of Executive's Annual Base Salary,
or (B) the amount, if any, determined in accordance with the 1998 plan
for an Annual Bonus.
(ii) For calendar years 1999, 2000 and 2001, the amount of the
Annual Bonus shall be based upon Executive's satisfaction of the
following EPS performance standards, and with payouts, as a percentage
of Annual Base Salary during such year, equal to the following
benchmark percentages:
<TABLE>
<CAPTION>
BONUS LEVEL 1999 2000 2001
----------- ---- ---- ----
<S><C>
25% An amount equal to the previous year's actual EPS level,
"Threshold Bonus" or if higher, as determined by the
Compensation Com mittee (after consultation with
Executive) within 90 days after the beginning of
such calendar year.
50% $1.50 $2.60 $3.00
"Target Bonus"
75% $2.60 $3.00 As determined by the Compensation
"Maximum Bonus" Committee within 90 days after the
beginning of such calendar year.
</TABLE>
(iii) The Company shall pay the entire Annual Bonus that is
payable with respect to a calendar year in a lump-sum cash payment as
soon as practicable (but in no event more than 90 days) after the close
of such year as the Compensation Committee can determine whether and
the degree to which Maximum Bonus, Target Bonus or Threshold Bonus has
been achieved.
5. LONG-TERM COMPENSATION, INCLUDING STOCK OPTIONS, AND BENEFITS,
DEFERRED COMPENSATION, AND EXPENSE REIMBURSEMENT.
(a) Executive Equity Plans. During the Term, Executive shall be
entitled during the Term to participate in all executive equity plans,
practices, policies and programs intended for
3
<PAGE> 6
general participation by senior executives of the Company, as presently in
effect or as they may be modified or added to by the Company from time to time,
subject to the eligibility and other requirements of such plans and programs
(which requirements shall not result in Executive being treated any less
favorably than any other senior executive of the Company). Notwithstanding the
preceding sentence, the Company will make Option grants to the Executive as
follows:
(i) As an inducement to Executive to enter into this
Employment Agreement, the Company shall grant to Executive, effective
as of the date of this Employment Agreement, an Option to purchase
100,000 shares of Common Stock (the "First Option") and, effective as
of the date of the first meeting of the stockholders of the after the
date of this Employment Agreement, an Option to purchase 350,000 shares
of Common Stock (the "Second Option"); provided, however, that the
grant of the Second Option shall be subject to the approval by the
stockholders of the Company of an amendment of the Existing Equity Plan
or the adoption of a New Equity Plan, which amendment or New Equity
Plan authorizes the delivery of at least 350,000 additional shares of
Common Stock to employees of the Company, including Executive
("Shareholder Approval").
(ii) Although the Company and Executive intend the First
Option and the Second Option to be in lieu of normal annual or other
Option grants through Decem ber 31, 2001, the Compensation Committee
may at any time in its discretion consider Executive for possible
grants of additional Options.
(iii) Each Option shall have a term of at least ten (10) years
and an exercise price equal to 100% of the Fair Market Value of the
Common Stock on the date of its grant.
(iv) The First Option shall be fully and immediately vested
and exercisable immediately upon grant.
(v) For so long as Executive is an employee, the Second Option
shall become vested and exercisable in the following percentages based
on the Company's achievement of the following amounts of EPS:
(x) as to 33-1/3% of the shares subject to the Second
Option, when EPS first equals or exceeds $1.50,
(y) as to a total of 66-2/3% of the shares subject to
the Second Option, when EPS first equals or exceeds $2.60; and
(z) as to a total of 100% of the shares subject to
the Second Option, when EPS first equals or exceeds $3.00.
Any such vesting and exercisability in respect of any such year shall
occur on the date the Company releases its financial report for such
year (as derived from the Company's audited consolidated financial
statements for such year). Any unvested and unexercisable portion of
the Second Option shall in all events vest and become exercisable on
the fifth
4
<PAGE> 7
anniversary of its date of grant, if Executive is then employed by the
Company; provided, however, if the Second Option does not receive
Shareholder Approval at the April 1999 stockholders meeting, then any
unvested and unexercisable portion of the Second Option, if any, shall
in all events vest and become exercisable on April 17, 2003, if
Executive is then employed by the Company
(vi) Effective upon (x) Executive's Date of Termination that
is prior to a Change of Control and in connection with a Termination
Without Cause or a Termination For Good Reason, or (y) Executive's Date
of Termination that is prior to, on or after a Change of Control and in
connection with a termination of employment by reason of Executive's
Normal Retirement, Approved Early Retirement, death or Disability, the
portion of the Second Option that remains unvested and unexercisable as
of such Date of Termination shall vest and become exercisable on the
fifth anniversary of its date of grant; provided, however, if the
Second Option does not receive shareholder approval at the April 1999
shareholders meeting, then any unvested and unexercisable portion of
the Second Option, if any, shall in all events vest and become
exercisable on April 17, 2003.
(vii) If, immediately prior to the commencement of the
Company's cooperation with a due diligence investigation by a potential
acquiror of the Company, the Second Option is not yet granted by the
Board pursuant to paragraph (i) above, the Board shall determine
whether, in its absolute discretion, it shall cause the Second Option
to be granted notwithstanding the Shareholder Approval condition on
granting the Second Option contained in paragraph (i) above. If, on the
date of a Change of Control, the Second Option is unvested and
unexercisable as to the first 33-1/3% of the shares subject thereto,
the Second Option shall become vested and exercisable on such date as
to such 33-1/3%. If, immediately prior to the commencement of the
Company's cooperation with a due diligence investigation by a potential
acquirer of the Company, the Second Option is unvested and
unexercisable as to any portion of the remaining 66-2/3% of the shares
subject thereto, the Board shall determine whether, in its absolute
discretion, it shall cause such remaining portion of the shares subject
to the Second Option to become vested and exercisable effective upon
such Change of Control. Effective upon Executive's Date of Termination
that is on or after the date of a Change of Control and in connection
with a Termination Without Cause or a Termination For Good Reason, any
portion of the Second Option, if any, that remains unvested and
unexercisable as of such Date of Termination shall vest and become
exercisable as of such Date of Termination.
(viii) After a Termination Without Cause, a Termination for
Good Reason, or a termination of Executive's employment by reason of
death or Disability, each Option shall, to the extent such Option is
vested and exercisable on the Date of Termination (after giving effect
to any acceleration of exercisability pursuant to this Section 5(a)) or
thereafter becomes vested and exercisable pursuant to this Section
5(a), be exercisable for five years after the Date of Termination, but
not after the expiration of the term of such Option.
(ix) Executive, his Permitted Transferee or, if after
Executive's death, a Beneficiary may pay the exercise price of the
Option and any related Withholding Taxes
5
<PAGE> 8
in any one or more of the following: (A) cash, (B) previously-owned
shares of Common Stock (which, if acquired from the Company or an
Affiliate, shall have been held by Executive for at least six months)
valued at their Fair Market Value on the date of exercise, or (C)
pursuant to a so-called "cashless exercise" arrangement approved by the
Company (which approval shall not unreasonably be withheld or delayed).
The Company shall use its reasonable best efforts to cause all shares
issued upon the exercise of Options to be registered or qualified under
all applicable securities laws so that all such shares shall be
unrestricted and freely transferable, except for such restrictions, if
any, which result solely from Executive being considered an Affiliate.
(x) An Option shall not be transferable by Executive during
his lifetime except to a Permitted Transferee.
In addition, this Employment Agreement shall not terminate or modify
Executive's right to vest in 10,000 shares of restricted stock on December 31,
1998.
(b) Welfare Benefit Plans. During the Term, Executive and/or his
family, as the case may be, shall be eligible to participate in and shall
receive all benefits under welfare benefit plans and programs provided by the
Company (including medical, prescription, dental, disability, salary
continuance, employee life, group life, dependent life, accidental death and
travel accident insurance plans and programs) to the extent such plans and
programs are from time to time available to other senior executives of the
Company, subject to the eligibility and other requirements of such plans and
programs.
In furtherance of and not in limitation of the foregoing, during the
Term:
(i) Executive will participate in all executive and employee
vacation and time-off programs and shall be entitled to not less than
four weeks paid annual vacation;
(ii) The Company will provide Executive with coverage by
long-term disability insurance and benefits no less favorable
(including any required contributions by Executive) than the more
favorable to Executive of (x) such insurance and benefits provided to
Executive on April 17, 1998 or (y) from time to time provided to any
other senior executive of the Company; and
(iii) The Company will provide Executive coverage by group
term life insurance providing a death benefit of one and one-half
(1-1/2) times Executive's Annual Base Salary but not to exceed
$150,000.
(c) Savings, Profit Sharing and Stock Ownership Plans. In addition to
Annual Base Salary and an Annual Bonus, Executive shall be entitled to
participate during the Term in all savings, profit sharing and stock ownership
plans and programs that are from time to time available to other senior
executives of the Company.
(d) Supplemental Retirement Benefit.
6
<PAGE> 9
(i) The Executive will receive from the Company a nonqualified
supplemental employee retirement benefit ("Supplemental Retirement
Benefit") which will provide to Executive a single life annuity,
commencing when the Executive attains age 65, in an
amount equal to one and one-half percent (1.5%) of average Annual Base
Salary of the Executive for the three consecutive years of employment
with the Company during which Executive received the highest average
annual amount. For purposes of calculating such benefits, Executive
shall be credited with service (x) for each full or partial year of
service during calendar years 1996, 1997, 1998, 1999, 2000 and 2001, in
an amount equal to three (3) times the actual service earned during
such years and (y) for each full or partial year of service after 2001,
in an amount equal to one (1.0) times the actual service earned during
such years. (For example, at the end of 1999 and assuming a July 1,
1996 start date, the Executive will have earned 10.5 years of service
credit.) In addition, for purposes of calculating such benefits,
Executive shall be credited with no less than 10.5 years of service
credit in the event of a Termination Without Cause, a termination of
Executive's employment by reason of death or disability, or a
Termination For Good Reason. Executive's Supplemental Retirement
Benefit is and shall remain fully vested.
(ii) The Company may settle its obligation to pay the
Supplemental Retirement Benefit by directing the trustee of an
irrevocable "rabbi trust" to distribute all or part of the assets of
such trust and the Company shall be relieved of such obligation to the
extent that assets are so distributed. Executive acknowledges that his
rights to the Supplemental Retirement Benefit are no greater than those
of a general unsecured creditor of the Company, and that such rights
may not be pledged, collateralized, encumbered, hypothecated, or liable
for or subject to any lien, obligation, or liability of Executive, or
be assignable or transferable by Executive, otherwise than by will or
the laws of descent and distribution, provided that Executive may
designate one or more Beneficia ries to receive any payment of such
amounts in the event of his death.
(iii) If, prior to the first to occur of the Date of
Termination or the date on which first occurs a Change of Control,
Executive shall elect to receive the Supplemental Retirement Benefit in
the form of a single-life annuity, the Supplemental Retirement Benefit
shall be paid in such form in annual installments commencing on the
Date of Termination or, if earlier, the first date of a Change of
Control. If the Company shall not have been timely notified in writing
of Executive's election in accordance with the preceding sentence, the
Supplemental Retirement Benefit shall be paid as of the Date of
Termination or, if earlier, the first date of a Change of Control in a
lump sum equal to the aggregate present value of the annuity described
in this Section 5(d), as determined under generally-accepted actuarial
principles using an interest rate of 7.2% and the 1983 Group Annuity
Mortality Tables. In the event of a termination of Executive's
employment by reason of his death, the amount of such lump sum payment
to the Beneficiary shall equal the lump sum payment that would have
been payable to Executive if he had been alive on the Date of
Termination.
(iv) This Employment Agreement shall not terminate or modify
Executive's fully-vested right to a life and 50% surviving spouse
annuity in an annual amount equal
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to 60% of the annual retainer for non-employee directors (as modified
from time to time) payable pursuant to Company's Board of Directors
Retirement Policy in respect of Executive's service as a non-employee
director of the Company between 1990 and 1996.
(e) Relocation. The Executive shall be provided by the Company with a
relocation package for relocating from Illinois to Michigan, together with a
Gross-Up Payment on Taxes incurred by Executive with respect to such relocation
package. Such relocation package shall include the following features. The
Executive shall have the right to either (i) sell his home through his own
efforts, or (ii) to direct the Company to purchase the Executive's home at such
time as the Executive shall direct not later than December 31, 1999. The
purchase price for the Executive's home for purposes of the preceding sentence
shall be the fair market value of the home as established by an appraisal
performed, no more than sixty (60) days prior to the closing date of the sale,
by an appraiser who is mutually acceptable to the Executive and the Company.
Until such time as the Executive sells his home, the Company shall reimburse the
Executive for all travel costs for the Executive and the Executive's spouse
between the Executive's temporary living quarters and the Executive's current
home, and shall pay to the Executive the cost of temporary living expenses,
including the rental of a furnished apartment and utilities. Upon the
Executive's sale of his home, the Company shall pay all costs of moving and
relocating his principal residence from his current home to a new home in
Michigan at which the Executive intends to reside.
(f) Fringe Benefits. During the Term, the Company shall provide to
Executive the following fringe benefits: (i) all fringe benefits available to
other senior executives of the Company, (ii) use of corporate aircraft for
business and personal purposes (provided that such personal use shall not
significantly interfere with the Company's use such aircraft for business
purposes), together with a Gross-up Payment with respect to Taxes payable by
Executive or members of his immediate family in connection any taxable income
attributable to such personal use, (iii) an annual physical, (iv) the use of a
current model, luxury automobile in connection with Executive's services on
behalf of the Company, together with the payment of all costs relating thereto,
including gasoline, repairs, maintenance and insurance, and (v) a country club
membership.
(g) Deferral of Compensation.
(i) The Company shall permit Executive to elect to defer
receipt, pursuant to written deferral election terms and forms executed
by Executive and filed with the Company (the "Deferral Election Forms")
or as may otherwise be specified in the Termination Agreement, of all
or a specified portion of his Annual Bonus until such date(s) or
event(s) as elected by Executive and specified in the Deferral Election
Forms; provided, however, that such deferrals shall not reduce
Executive's total cash compensation in any calendar year below the sum
of the FICA maximum taxable wage base plus 1.45% of Executive's wages
in excess of such FICA maximum.
(ii) In accordance with such executed Deferral Election Forms,
the Company shall, in lieu of payment by the Company to Executive,
credit to one or more bookkeeping
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<PAGE> 11
accounts maintained for Executive ("Deferral Accounts"), on each date
on which an Annual Bonus would otherwise be payable to Executive, a
number of phantom shares of Common Stock ("Deferral Shares") equal to
(1) divided by (2), where (1) is the cash amount deferred multiplied
times the number 1.25 and (2) is the Fair Market Value of a share of
Common Stock on the date such shares are credited. Phantom shares shall
not entitle Executive to vote, or receive any dividends on account of,
any shares of Common Stock.
(iii) Upon such date(s) or event(s) set forth in the Deferral
Election Forms (including forms filed after deferral but before
settlement in which Executive may elect to further defer settlement),
the Company shall pay to Executive cash equal to the then value of any
phantom shares of Common Stock then credited to Executive's Deferral
Accounts, less applicable withholding taxes, and such distribution
shall be deemed to fully settle such Deferral Accounts; provided,
however, that the Company may instead settle such Deferral Accounts in
full or in part by directing the trustee of a "rabbi trust" to
distribute all or part of the assets of such trust and the Company
shall be relieved of its obligation under this Employment Agreement and
the Termination Agreement to the extent that assets are so distributed.
The Company and Executive agree that compensa tion deferred pursuant to
this Section 5(g) shall be fully vested and nonforfeitable; provided,
however, Executive acknowledges that his rights to the deferred
compensation provided for in this Section 5(g) shall be no greater than
those of a general unsecured creditor of the Company, and that such
rights may not be pledged, collateralized, encumbered, hypothecated, or
liable for or subject to any lien, obligation, or liability of
Executive, or be assignable or transferable by Executive, otherwise
than by will or the laws of descent and distribution, provided that
Executive may designate one or more Beneficiaries to receive any
payment of such amounts in the event of his death.
(h) Expense Reimbursement. The Company shall from time to time
reimburse Executive for all reasonable employment-related expenses incurred by
him during the Term promptly after the Company's receipt of an accounting in
accordance with practices, policies and procedures applicable to other senior
executives of the Company.
6. GOVERNING LAW; REIMBURSEMENTS.
(a) Governing Law; Severability. This Employment Agreement is governed
by and is to be construed, administered, and enforced in accordance with the
laws of the State of Michigan, without regard to Michigan conflicts of law
principles, except insofar as the Delaware General Corporation Law and federal
laws and regulations may be applicable. If under the governing law, any portion
of this Employment Agreement is at any time deemed to be in conflict with any
applicable statute, rule, regulation, ordinance, or other principle of law, such
portion shall be deemed to be modified or altered to the extent necessary to
conform thereto or, if that is not possible, to be omitted from this Employment
Agreement. The invalidity of any such portion shall not affect the force,
effect, and validity of the remaining portion hereof.
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<PAGE> 12
(b) Legal Expense Reimbursement. All reasonable costs and expenses
(including fees and disbursements of counsel) incurred by Executive in
negotiating the terms and conditions of this Employment Agreement shall be paid
on behalf of or reimbursed to Executive promptly by the Company. All reasonable
costs and expenses (including fees and disbursements of counsel) incurred by
Executive in seeking to enforce rights pursuant to this Employment Agreement
shall be paid on behalf of or reimbursed to Executive promptly by the Company,
whether or not Executive prevails in his assertion of such rights. The Company
shall pay to Executive a Tax Gross-Up Payment with respect to any Taxes incurred
by Executive as a result of any payments made to or on behalf of Executive
pursuant to this Section 6(b).
(c) Overdue Payments. Effective as of the Date of Termination, if the
Company shall fail to pay any amount due to Executive under this Employment
Agreement within 14 days after such amount first becomes due, the Company shall
pay to Executive interest on such unpaid amount at a rate equal to the highest
rate of interest charged by the Company's principal lender or, in the absence of
such a lender, at the prime commercial lending rate published in The Wall Street
Journal on the date such amount is due or, if no such rate shall be so published
on such date, the immediately prior date on which such a rate is so published;
provided, however, that if the interest rate determined in accordance with this
Section exceeds the highest legally- permissible interest rate, then the
interest rate shall the highest legally-permissible interest rate.
(d) Gross-Up Payment. If it shall be determined that any payment to
Executive pursuant to this Employment Agreement or the Termination Agreement or
any other payment or benefit from the Company, any Affiliate, or any shareholder
of the Company or any other Person would be subject to the excise tax imposed by
Section 4999 of the Code or any similar tax payable under any United States
federal, state, local or other law, then Executive shall receive a Gross-Up
Payment with respect to all such excise taxes and similar taxes.
7. MISCELLANEOUS.
(a) Integration. This Employment Agreement modifies and supersedes any
and all prior agreements and understandings between the parties hereto with
respect to the employment of Executive by the Company and its subsidiaries,
except for the Termination Agreement and contracts relating to compensation
under executive compensation and employee benefit plans of the Company. Subject
to the rights, benefits and obligations provided for in such executive
compensation contracts and employee benefit plans of the Company, this
Employment Agreement and the Termination Agreement constitute the entire
agreement among the parties with respect to the matters herein provided, and no
modification or waiver of any provision hereof shall be effective unless in
writing and signed by the parties hereto. Executive shall not be entitled to any
payment or benefit under this Employment Agreement which duplicates a payment or
benefit received or receivable by Executive under such prior agreements and
understandings with the Company or under any benefit or compensation plan of the
Company.
(b) Non-Transferability. Neither this Employment Agreement nor the
rights or obliga tions hereunder of the parties hereto shall be transferable or
assignable by Executive, except in accordance with the laws of descent and
distribution or as specified in Sections 5(a)(ix) or 7(c).
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<PAGE> 13
The Company may assign this Employment Agreement and the Company's rights and
obligations hereunder, and shall assign this Employment Agreement, to any
Successor (as hereinafter defined) which, by operation of law or otherwise,
continues to carry on substantially the business of the Company prior to the
event of succession, and the Company shall, as a condition of the succession,
require such Successor to agree to assume the Company's obligations and be bound
by this Employment Agreement and the Termination Agreement; provided, however,
that the Company shall remain jointly and severally liable with such Successor
for all of the obligations of such Successor under the Employment Agreement and
the Termination Agreement. For purposes of this Employment Agreement,
"Successor" shall mean any Person that succeeds to, or has the practical ability
to control (either immediately or with the passage of time), the Company's
business directly, by merger or consolidation, or indirectly, by purchase of the
Company's voting securities or all or substantially all of its assets, or
otherwise.
(c) Beneficiaries. If Executive dies prior to receiving all of the
amounts payable to him in accordance with the terms of this Employment
Agreement, such amounts shall be paid to one or more beneficiaries (each, a
"Beneficiary") designated by Executive in writing to the Company during his
lifetime, or if no such Beneficiary is designated, to Executive's estate. Such
payments shall be made in a lump sum to the extent so payable and, to the extent
not payable in a lump sum, in accordance with the terms of this Employment
Agreement. Executive, without the consent of any prior Beneficiary, may change
his designation of Beneficiary or Beneficiaries at any time or from time to time
by a submitting to the Company a new designation in writing.
(d) Notices. Any notice given under this Employment Agreement shall be
in writing, signed by the party or parties giving or making the same, and shall
be served on the person or persons for whom it is intended or who should be
advised or notified, by Federal Express or other similar overnight service or by
certified or registered mail, return receipt requested, postage prepaid and
addressed to such party at the address set forth below or at such other address
as may be designated by such party by like notice:
If to the Company: Walbro Corporation
6242 Garfield Street
Cass City, Michigan 48726-1397
Attention: Secretary
If to Executive: Frank E. Bauchiero
P.O. Box 790
Roscoe, Illinois 61073
with copies to: Roger C. Siske, Esquire
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
If the parties by mutual agreement supply each other with telecopier numbers for
the purposes of providing notice by facsimile, such notice shall also be proper
notice under this Employment
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<PAGE> 14
Agreement. In the case of Federal Express or other similar overnight service,
such notice or advice shall be effective one business day after deposit with
such service during its normal business hours, and, in the cases of certified or
registered mail, shall be effective five business days after deposit with the
U.S. Postal Service.
(e) Headings. The headings of this Employment Agreement are for
convenience of reference only and do not constitute a part hereof.
(f) No General Waivers. The failure of any party at any time to require
performance by any other party of any provision hereof or to resort to any
remedy provided herein or at law or in equity shall in no way affect the right
of such party to require such performance or to resort to such remedy at any
time thereafter, nor shall the waiver by any party of a breach of any of the
provisions hereof be deemed to be a waiver of any subsequent breach of such
provisions. No such waiver shall be effective unless in writing and signed by
the party against whom such waiver is sought to be enforced.
(g) Successors and Assigns. This Employment Agreement shall be binding
upon and shall inure to the benefit of Executive, his heirs, executors,
administrators and Beneficiaries, and shall be binding upon and inure to the
benefit of the Company and its successors and assigns.
8. DEFINITIONS.
As used in this Employment Agreement, the terms set forth below have
the following meanings (such meanings to be applicable to both the singular and
plural forms, except where otherwise expressly indicated):
(a) "Affiliate" means any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, the Company. For
the purposes of this definition, the term "control" when used with respect to
any Person means the power to direct or cause the direction of management or
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise.
(b) "Annual Base Salary" -- see Section 4(a).
(c) "Annual Bonus" -- see Section 4(b).
(d) "Approved Early Retirement" has the meaning specified in the
Termination Agreement.
(e) "Beneficiary" -- see Section 7(c).
(f) "Board" means the Board of Directors of the Company.
(g) "Cause" has the meaning specified in the Termination Agreement.
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<PAGE> 15
(h) "Change of Control" has the meaning specified in the Termination
Agreement.
(i) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(j) "Common Stock" means the common stock, $0.50 par value, of the
Company.
(k) "Company" -- see the introductory paragraph of this Employment
Agreement.
(l) "Compensation Committee" means the Compensation Committee of the
Board.
(m) "Date of Termination" has the meaning specified in the Termination
Agreement.
(n) "Disability" has the meaning specified in the Termination
Agreement.
(o) "Employment Agreement" -- see the introductory paragraph of this
Employment Agreement.
(p) "EPS" means the fully diluted, net income earnings per share (as
adjusted to eliminate the effect of restructuring charges or extraordinary items
which have been approved by the Board) for such year and after all applicable
taxes.
(q) "Executive" -- see the introductory paragraph of this Employment
Agreement.
(r) "Existing Equity Plan" means the Company's Equity Based Long Term
Incentive Plan.
(s) "Extension Date" has the meaning specified in the Termination
Agreement.
(t) "Fair Market Value" means, as of any date, (a) the average of the
high and low prices of the Common Stock on such date reported on The NASDAQ
Stock Market or a national securities exchange (as applicable) or, if no sale of
the Common Stock was reported for such date, on the next preceding date on which
such a sale of such security was reported, (b) if the Common Stock is not listed
on The NASDAQ Stock Market or any national securities exchange as of such date,
the average of the high bid and low asked quotations for the Common Stock on
such date in the over-the-counter market or, if no quotation of the Common Stock
was reported for such date, on the next preceding date on which such a quotation
of such security was report ed, or (c) if there is no public market for the
Common Stock as of such date, the fair market value of the Common Stock
determined by the Compensation Committee in the good faith exercise of its
discretion.
(u) "First Option" -- see Section 5(b)(i).
(v) "Good Reason" has the meaning specified in the Termination
Agreement.
(w) "Gross-Up Payment" has the meaning specified in the Termination
Agreement.
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(x) "New Equity Plan" means any successor to the Existing Equity Plan
that permits the grant of Options on terms and conditions that are in all
material respects at least as favorable to Executive as the terms and conditions
of the Existing Equity Plan.
(y) "Option" means an option to purchase shares of Common Stock.
(z) "Permitted Transferee" means the spouse of Executive, a lineal
descendant of Executive or a spouse of a lineal descendant of Executive or a
trust, limited partnership or other entity principally benefitting all or a
portion of such individuals.
(aa) "Person" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government instrumentality,
division, agency, body or department.
(ab) "Second Option" -- see Section 5(b)(i).
(ac) "Supplemental Retirement Benefit" -- see Section 5(e).
(ad) "Taxes" means the incremental United States federal, state and
local income, excise and other taxes payable by Executive with respect to any
applicable item of income.
(ae) "Term" -- see Section 2.
(af) "Termination Agreement" -- see Section 2.
(ag) "Termination For Good Reason" means a termination by Executive of
his employment during the Term for a Good Reason.
(ah) "Termination Without Cause" means a termination by the Company of
Executive's employment during the Term for any reason other than Cause or
Executive's death or Disability.
(ai) "Withholding Taxes" means any United States federal, state, local
or foreign withholding taxes and other deductions required to be paid in
accordance with applicable law by reason of compensation received pursuant to
this Employment Agreement or the Termination Agreement.
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IN WITNESS WHEREOF, Executive and the Company have executed this
Employment Agreement on first date above written.
WALBRO CORPORATION
By:
--------------------------------------
Name: ------------------------------------
Title: -----------------------------------
FRANK E. BAUCHIERO
------------------------------------------
15
<PAGE> 1
EXHIBIT 10.23
WALBRO CORPORATION
AMENDED AND RESTATED
TERMINATION AND CHANGE OF CONTROL AGREEMENT
FOR
FRANK E. BAUCHIERO
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
1. Term and Application............................................................ 1
2. Office and Duties............................................................... 2
3. Salary and Annual Incentive Compensation........................................ 2
4. Long-Term Compensation, Including Stock Options, and Benefits, Deferred
Compensation, and Expense Reimbursement......................................... 3
5. Termination of Employment....................................................... 4
6. Payments Upon Termination of Employment......................................... 4
7. Other Amounts................................................................... 9
8. Definitions Relating to Termination Events...................................... 10
9. Excise Tax Gross-Up............................................................. 15
10. Non-Competition and Non-Disclosure; Executive Cooperation....................... 19
11. Governing Law................................................................... 20
12. Expense Reimbursement........................................................... 20
13. Funding of Company Obligations.................................................. 21
14. Miscellaneous................................................................... 21
15. Indemnification................................................................. 23
16. Definitions..................................................................... 23
</TABLE>
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AMENDED AND RESTATED
TERMINATION AND CHANGE OF CONTROL AGREEMENT
THIS AMENDED AND RESTATED TERMINATION AND CHANGE OF CONTROL AGREEMENT
("Termination Agreement") by and between WALBRO CORPORATION, a Delaware
corporation (the "Company"), and Frank E. Bauchiero ("Executive") is dated
August __, 1998.
RECITALS
A. Executive has been President of the Company since August 16, 1996
(the "Employment Date") and a director of the Company since 1990. Between the
Employment Date and April 17, 1998, Executive also served as the Chief Operating
Officer of the Company.
B. The Company and Executive desire to amend and restate the
Termination and Change of Control Agreement dated October 3, 1996 between the
Company and Executive in its entirety as set forth below to reflect the
appointment of Executive as President and Chief Executive Officer of the Company
on April 17, 1998.
C. The definitions of certain capitalized terms used in this
Termination Agreement shall have the respective meanings specified in Sections 9
and 16 of this Termination Agreement.
D. The Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company. The Board believes it is imperative to diminish
the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control and
to encourage the Executive's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives, the Board has
caused the Company to enter into this Termination Agreement.
AGREEMENT
In consideration of the mutual agreements contained herein, the Company
and Executive hereby agree as follows:
1. TERM AND APPLICATION. The term of Executive's employment under this
Termination Agreement (the "Term of this Termination Agreement") shall be the
same (subject to earlier termination in accordance with this Agreement) as the
term (the "Term of the Employment Agreement") of the Employment Agreement, dated
October 3, 1996 and as amended
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and restated as of the date of this Termination Agreement, between the Company
and the Executive (the "Employment Agreement"); provided, however,
notwithstanding the Term of the Employment Agreement, on or after the Extension
Date (as defined in Section 9(g) of this Termination Agreement), the Term of
this Termination Agreement shall be the Extended Employment Period (as defined
in the Employment Agreement). Notwithstanding the Employment Agreement, the
terms and provisions of this Termination Agreement shall also apply on and after
the Extension Date and, where specifically in conflict with the Employment
Agreement, shall supersede the Employment Agreement. In no event shall Executive
receive benefits under both this Termination Agreement and the Employment
Agreement with respect to the same Termination of Employment.
2. OFFICE AND DUTIES.
(a) Generally. During the Extended Employment Period, the Executive's
position (including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least commensurate in all
material respects with the most significant of those held, exercised and
assigned at any time during the 120-day period immediately preceding the
Extension Date.
During the Extended Employment Period it shall not be a violation of
the Employment Agreement for the Executive to (i) serve on corporate, civic or
charitable boards or committees, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions, and (iii) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Termination Agreement. It is expressly understood and
agreed that, to the extent that any activities have been conducted by the
Executive prior to the Extension Date, the continued conduct of such activities
(or the conduct of activities similar in nature and scope thereto) subsequent to
the Extension Date shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the Company.
(b) Place of Employment. During the Extended Employment Period, the
Executive's services shall be performed at the present headquarters location of
the Company in Auburn Hills, Michigan or such other headquarters location as may
be assigned by the Company which is less than thirty-five (35) miles from such
present headquarters location.
3. SALARY AND ANNUAL INCENTIVE COMPENSATION.
(a) Base Salary. During the Extended Employment Period, the Executive
shall receive an Annual Base Salary, which shall be paid at a monthly rate, at
least equal to twelve (12) times the highest monthly base salary paid or
payable, including any base salary which has been earned but deferred, to the
Executive by the Company and its affiliated companies in respect of the 12-
month period immediately preceding the month in which the Extension Date occurs.
During the Extended Employment Period, the Annual Base Salary shall be reviewed
by the Compensation
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<PAGE> 5
Committee of the Board no more than twelve (12) months after the last salary
increase awarded to the Executive prior to the Extension Date and thereafter at
least annually. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Termination Agreement.
Annual Base Salary shall not be reduced after any such increase and the term
Annual Base Salary as utilized in this Termination Agreement shall refer to
Annual Base Salary as so increased. As used in this Termination Agreement, the
term "affiliated companies" shall include any company controlled by, controlling
or under common control with the Company.
(b) Annual Incentive Compensation. During the Extended Employment
Period, any annual incentive compensation payable to Executive shall, subject to
the last sentence of this Section 3(b), be paid in accordance with the Company's
usual practices in effect prior to the Extension Date with respect to payment of
incentive compensation of senior executives (except to the extent deferred). In
addition to Annual Base Salary, the Executive shall be awarded, for each fiscal
year ending during the Extended Employment Period, an Annual Bonus in cash at
least equal to the Executive's highest Annual Bonus for the last three full
fiscal years prior to the Extension Date (annualized in the event that the
Executive was not employed by the Company for the whole of such fiscal year)
(the "Recent Annual Bonus"). Each such Annual Bonus shall be paid no later than
the end of the third month of the fiscal year next following the fiscal year for
which the Annual Bonus is awarded, unless the Executive shall elect to defer the
receipt of such Annual Bonus.
4. LONG-TERM COMPENSATION, INCLUDING STOCK OPTIONS, AND BENEFITS,
DEFERRED COMPENSATION, AND EXPENSE REIMBURSEMENT.
(a) Executive Equity Plans. During the Extended Employment Period, the
Company shall provide Executive with benefits, options to acquire Common Stock,
and compensation and incentive award opportunities (measured with respect to
both regular and special incentive opportunities, to the extent, if any, that
such distinction is applicable) under its incentive and compensation Plans which
are no less favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for the Executive under
such Plans, including without limitation, the long-term incentive features of
the Company's Equity Based Long Term Incentive Plan (together with any successor
plan, the "EBP"), as in effect at any time during the 120-day period immediately
preceding the Extension Date or, if more favorable to the Executive, those
provided at any time after the Extension Date to any other senior executives of
the Company and its affiliated companies.
(b) Employee and Executive Benefit Plans. During the Extended
Employment Period, the Company's benefit plans and programs, including but not
limited to, the welfare benefit plans, fringe benefit plans and deferred
compensation plans described in Sections 5(b), (c), (e), (f) and (g) of the
Employment Agreement, shall provide Executive with benefits which are at least
as favorable to Executive as the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time during the 120-day
period immediately preceding the Extension Date or, if more favorable to the
Executive, those provided at any time after the
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<PAGE> 6
Extension Date to any other senior executive of the Company and its affiliated
companies.
5. TERMINATION OF EMPLOYMENT
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Term of this Termination
Agreement. If the Board determines in good faith that the Disability of the
Executive has occurred during the Term of this Termination Agreement, the
Company may give to the Executive written notice of its intention to terminate
the Executive's employment. In such event, the termination of Executive's
employment is effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the thirty
(30) days after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties.
(b) Notice of Termination. Any termination by the Company for Cause, or
by the Executive for Good Reason, shall be communicated by Notice of Termination
for Cause or Notice of Termination for Good Reason, as applicable, to the other
party hereto given in accordance with Section 9(b) or 9(h), respectively, of
this Termination Agreement, including without limitation the substantive and
procedural requirements thereof.
(c) Date of Termination. "Date of Termination" means (i) if the
Executive's employ ment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination for
Cause or the Notice of Termination for Good Reason, as applicable, or any later
date specified therein, as the case may be, (ii) if the Executive's employment
is terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the Executive that
the Executive's employment will terminate, (iii) if the Executive's employment
is terminated by reason of death or Disability, the Date of termination shall be
the date of death of the Executive or the Disability Effective Date, as the case
may be, (iv) if the Executive terminates his employment without Good Reason due
to Approved Early Retirement, Normal Retirement or other voluntary termination,
the date the Executive notifies the Company that the Executive's employment will
terminate, and (v) if the Executive's employment is terminated by reason of the
Company's not renewing the Term of the Employment Agreement for reasons other
than Cause, the Date of termination shall be the last day of the Term of this
Termination Agreement.
6. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) Normal Retirement, Approved Early Retirement, Death, or Disability.
Upon Executive's Termination of Employment due to a voluntary decision by
Executive to retire on or after the Executive's Normal Retirement Date (other
than for Good Reason) ("Normal Retirement") or a mutually agreed upon early
retirement date ("Approved Early Retirement") or due to Executive's death or
Disability, all obligations of the Company and Executive under Sections 1
through 5 of the Employment Agreement or Sections 1 through 4 of this
Termination Agreement, as applicable, shall immediately cease to accrue and the
Company shall:
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(i) pay to Executive (or his Beneficiaries) as soon as
practicable after the Date of Termination (but in any
event within ten (10) days thereafter) a lump sum
amount equal to the sum of Executive's Accrued Base
Salary, Accrued Annual Bonus and Prorata Annual
Bonus;
(ii) pay to Executive in accordance with the terms and
conditions of all compensation and benefit Plans (and
the agreements and documents thereunder) in which
Executive participated prior to the Date of Termina
tion, all vested, nonforfeitable amounts owing and
accrued at the Date of Termination under such Plans,
including any earned Performance Shares;
(iii) cause all Deferral Accounts under the Employment
Agreement to be settled in accordance with the
provisions of Section 5(g) of the Employment
Agreement and the Executive's Deferral Election Forms
(as defined in such Section); and
(iv) if the Company has terminated Executive's employment
due to Disability:
(x) provide for Executive and his family to
continue to participate throughout the
period extending from the Date of
Termination until Executive reaches age 65
in all employee benefit Plans providing
health, medical, and life insurance in
which Executive and his family were
participating immediately prior to the Date
of Termina tion and the terms of which
allow Executive's continued participa tion,
at the same times and in the same manner as
such benefits would have been received by
Executive and his family under such Plans
if the Executive had continued in
employment with the Company during such
period, and
(y) to the extent that such Plans do not
allow Executive's continued participation
therein after the Date of Termination, pay
to Executive a cash amount that is
equivalent on an after-tax basis to the
value of the additional benefits Executive
would have received under such Plans if he
had received credit under such Plans for
age and service with the Company during
such period following the Date of
Termination; provided that with respect to
any benefit to be provided on a third-party
insured basis, such value shall be the
present value of the premiums expected to
be paid for such coverage, and with respect
to other benefits, such value shall be the
present value of the expected net cost to
the Company of providing such benefits.
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(b) Termination by the Company for Cause and Termination by Executive
for Reasons Other Than Normal Retirement, Approved Early Retirement, Death or
Disability. Upon a Termination of Employment by the Company for Cause or
voluntarily by Executive for reasons other than Good Reason, but excluding a
Termination of Employment due to Normal Retirement, Approved Early Retirement,
death or Disability, all obligations of the Company and Executive under Sections
1 through 5 of the Employment Agreement or Sections 1 through 4 of this
Termination Agreement, as applicable, shall immediately cease to accrue and the
Company shall:
(i) pay to Executive (or his Beneficiaries) as soon as
practicable after the Date of Termination (but in any
event within ten (10) days thereafter) a lump sum
amount equal to the sum of Executive's Accrued Base
Salary and Accrued Annual Bonus;
(ii) pay to Executive in accordance with the terms and
conditions of all compensation and benefit Plans (and
the agreements and documents thereunder) in which
Executive participated prior to the Date of Termina
tion all vested, nonforfeitable amounts owing and
accrued at the Date of Termination under such Plans,
including any earned Performance Shares; and
(iii) pay to Executive as soon as practicable following
such Date of Termina tion, but in any event within
ten (10) days thereafter, and without regard to any
otherwise applicable period of deferral, an amount
equal to the Fair Market Value as of the Date of
Termination of all Deferral Shares credited to
Executive's Deferral Accounts as of the Date of
Termination; provided, however, that the Company may
instead settle such Deferral Accounts by directing
the trustee under a "rabbi trust" to make a
distribution of the assets of the such trust (in
which case the Company shall be relieved of its
obligation in respect of such Deferral Accounts the
extent of such distribution).
(c) Termination Without Cause and Termination for Good Reason Before
the Extension Date. Upon a Termination Without Cause or a Termination for Good
Reason, in either case prior to the Extension Date, all obligations of the
Company and Executive under Sections 1 through 5 of the Employment Agreement or
Sections 1 through 4 of this Termination Agreement, as applicable, shall
immediately cease to accrue and the Company shall:
(i) pay to Executive (or his Beneficiaries) immediately
after the Date of Termination, a lump-sum cash amount
equal to the sum of the following:
(A) Executive's Accrued Base Salary,
(B) Executive's Accrued Annual Bonus,
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(C) Executive's Prorata Annual Bonus,
(D) the product of (I) the sum of Executive's
Annual Base Salary multiplied by (II) a
factor equal to the lesser of two (2.0) or
the number of whole and fractional years
during the period commenc ing on the Date of
Termination and the date on which the Term
of this Termination Agreement would have
expired without giving effect to any
Termination of Employment; provided that
such factor shall in no event be less than
one (1.0);
(E) an amount equal to the Fair Market Value as
of the Date of Termination of all Deferral
Shares credited to Executive's Deferral
Accounts as of the Date of Termination;
provided, however, that the Company may
instead settle such Deferral Accounts by
directing the trustee under a "rabbi trust"
to make a distribution of the assets of the
such trust (in which case the Company shall
be relieved of its obligation in respect of
such Deferral Accounts to the extent of such
distribution); and
(ii) to the extent that any vested, nonforfeitable amounts
remain owing to Executive at the Date of Termination
under any compensation and benefit Plans are not
covered by clause (i) above, the Company shall pay
all such amounts under the terms and conditions of
the Plans (and agreements and documents thereunder)
pursuant to which such compensation and benefits were
granted.
Amounts which are immediately payable pursuant to this Section will be paid as
promptly as practicable (but in any event within five (5) business days) after
the Date of Termination, without regard to any stated period of deferral
otherwise remaining in respect of such amounts.
(d) Termination Without Cause and Termination for Good Reason During
the Extended Employment Period. Upon a Termination Without Cause or a
Termination for Good Reason, in either case during the Extended Employment
Period, obligations of the Company and Executive under Sections 1 through 5 of
the Employment Agreement or Sections 1 through 4 of this Termination Agreement,
as applicable, shall immediately cease to accrue and the Company shall:
(i) pay to Executive (or his Beneficiaries) immediately
after the Date of Termination (without regard to any
stated period of deferral otherwise applicable in
respect of such amounts), a lump-sum cash amount
equal to the sum of the following:
(A) Executive's Accrued Base Salary,
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(B) Executive's Accrued Annual Bonus,
(C) Executive's Prorata Annual Bonus,
(D) three (3.0) times the sum of Executive's
Annual Base Salary and Highest Annual Bonus;
(E) in lieu of any payment in respect of
Performance Shares, or other long term
incentive awards (including awards of
phantom shares under the EBP) granted prior
to the Extension Date or in accordance with
Section 4(a), for any performance period not
completed at the Date of Termination, an
amount equal to the cash amount payable plus
the Fair Market Value of any shares of
Common Stock or other property (valued as of
the Date of Termination) payable upon the
achievement of maximum performance (or in
the case of phantom shares, target
performance under the EBP) in respect of
each tranche of such Performance Shares or
awards, without proration and as if the Date
of Termination had occurred at the end of
the performance period; and
(F) a cash amount equal to the Fair Market Value
as of the Date of Termination of any
Deferral Shares credited to Executive's
Deferral Accounts as of the Date of
Termination; provided, however, that the
Company may instead settle such accounts by
directing the Trustee to distribute the
assets of the "rabbi trust" and the Company
shall be relieved of its obligation in
respect of such Deferral Accounts to the
extent of such distribution;
(ii) to the extent not covered in clause (i) above, pay to
Executive under the terms and conditions of the Plans
(and agreements and documents thereunder) pursuant to
which such compensation and benefits were granted,
all vested, nonforfeitable amounts owing or accrued
as of the Date of Termination under any other
compensation and benefit Plans in which Executive
theretofore participated;
(iii) (x) continue for three years after the Date of
Termination (or the longest period that is
provided under the terms of the applicable
Plan) to provide to the Executive and his
family welfare plan benefits at least equal
to those which would have been provided in
accordance with Section 4(b) of this
Termination Agreement if the Executive's
employment had not been terminated or, if
more favorable to the Executive, as in
effect at any time thereafter with respect
to any other senior executives of the
Company and its
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<PAGE> 11
affiliated companies and their families;
provided, however, that if the Executive
becomes reemployed with another employer and
receives medical or other welfare benefits
under another employer- provided plan, the
medical and other welfare benefits described
herein shall be secondary to those provided
under such other plan, and
(y) to the extent that such Plans do not allow
Executive's continued participation therein
after the Date of Termination or that
Executive so elects, pay to Executive a cash
amount that is equivalent on an after-tax
basis to the value of the additional
benefits Executive would have received under
such Plans if he had received credit under
such Plans for age and service with the
Company during such period following the
Date of Termination; provided that with
respect to any benefit to be provided on a
third-party insured basis, such value shall
be the present value of the premiums
expected to be paid for such coverage, and
with respect to other benefits, such value
shall be the present value of the expected
net cost to the Company of providing such
benefits; and
(iv) pay or reimburse Executive as incurred for the cost
of outplacement services, the scope and provider of
which shall be selected by the Executive in his sole
discretion.
7. OTHER AMOUNTS.
(a) Stock Options and Restricted Stock. In the event of any Termination
of Employment, stock options and restricted stock held by Executive as of the
Date of Termination will be exercisable or vested, as applicable, to the extent
and for such periods, and otherwise governed, by the Plans (and the agreements
and other documents thereunder) pursuant to which such stock options or
restricted stock were granted; provided, however, that the stock options
described in Section 5(b) of the Employment Agreement shall be fully vested and
shall be exercisable to the extent and for such periods, and otherwise governed
by, the provisions of Section 5(b) of the Employment Agreement.
(b) Supplemental Retirement Benefit. In the event of any Termination of
Employment, the Executive's Supplemental Retirement Benefit shall be paid at the
time or times and in the amounts determined in accordance with Section 5(e) of
the Employment Agreement, except that in the event of a Termination Without
Cause or a Termination for Good Reason during the Extended Employment Period,
the Supplemental Retirement Benefit shall be computed as though (i) Executive's
employment with the Company had continued for three years after the Date of
Termination for purposes of determining his years of employment with the Company
(as determined pursuant to Section 5(d) of the Employment Agreement) and (ii)
Executive had
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<PAGE> 12
received compensation in each of such three years determined in accordance with
Section 3 hereof.
8. DEFINITIONS RELATING TO TERMINATION EVENTS.
(a) "Cause." For purposes of this Termination Agreement, "Cause" shall
mean Executive's gross misconduct (as defined herein) or willful breach of
Section 10 of this Termination Agreement that results in financial detriment
that is material to the Company and its affiliated companies taken as a whole.
For purposes of this definition, "gross misconduct" shall mean (A) a felony
conviction in a court of law under applicable federal or state laws which
results in material damage to the Company and its affiliated companies taken as
a whole or materially impairs the value of Executive's services to the Company,
or (B) willfully engaging in one or more acts, or willfully omitting to act in
accordance with duties hereunder, which is demonstrably and materially damaging
to the Company and its affiliated companies taken as a whole. Cause shall not
include any one or more of the following: (A) any act or failure to act
resulting from any incapacity of Executive, (B) bad judgment, (C) negligence,
(D) any act or omission that Executive believed in good faith to have been in or
not opposed to the interest of the Company (without intent of Executive to gain
therefrom, directly or indirectly, a profit to which he was not legally
entitled), or (E) any act or omission of which any member of the Board who is
not a party to such act or omission has had actual knowledge for at least six
months. Notwithstanding the foregoing, Executive shall not be terminated for
Cause unless and until:
(A) no fewer than 60 days prior to the Date of
Termination, the Company provides Executive with
written notice (the "Notice of Consideration") of its
intent to consider termination of Executive's
employment for Cause, including a detailed
description of the specific reasons which form the
basis for such consideration;
(B) for a period of not less than 30 days after the date
Notice of Consideration is provided, Executive shall
have the opportunity to (x) appear before the Board,
with or without legal representation, at Executive's
election, to present arguments and evidence on his
own behalf and (y) to correct the acts or omissions
complained of, if correctable; and
(C) following the presentation to the Board as provided
in clause (B) above or Executive's failure to appear
before the Board at a date and time specified in the
Notice of Consideration (which date shall not be less
than 30 days after the date the Notice of
Consideration is provided), Executive may be
terminated for Cause only if (x) the Board, by the
affirmative vote of all of its members (excluding
Executive if he is a member of the Board, and any
other member of the Board reasonably believed by the
Board to be involved in the events leading the Board
to terminate Executive for Cause), deter mines that
the actions or inactions of Executive specified in
the Notice of Consideration did occur, that such
actions or inactions constitute Cause,
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<PAGE> 13
and that Executive's employment should accordingly be
terminated for Cause; and (y) the Board provides
Executive with a written determination
(a "Notice of Termination for Cause") setting forth
in specific detail the basis of such termination of
employment, which Notice of Termination for Cause
shall be consistent with the reasons set forth in the
Notice of Consideration.
Unless the Company establishes, by clear and convincing evidence, both (x) its
full compliance with the substantive and procedural requirements of this Section
prior to its Termination for Cause, and (y) that Executive's action or inaction
specified in the Notice of Termination for Cause did occur and constituted
Cause, any Termination of Employment shall be deemed a Termination Without
Cause.
(b) "Change of Control." For purposes of this Termination Agreement, a
"Change of Control" shall mean:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent
(20%) or more of either (A) the then-outstanding
shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the
combined voting power of the then-outstanding voting
securities of the Company entitled to vote generally
in the election of directors (the "Outstanding
Company Voting Securities"); provided, however, that
for purposes of this subsection (i), the following
acquisitions shall not constitute a Change of
Control: (A) any acquisition directly from the
Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company, (D) any
acquisition by a lender to the Company pursuant to a
debt restructuring of the Company, or (E) any
acquisition by any corporation pursuant to a
transaction which complies with clauses (A), (B) and
(C) of subsection (iii) of this Section;
(ii) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the
Board; provided, however, that any individual
becoming a director subsequent to the date hereof
whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at
least a majority of the directors then comprising the
Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual
whose initial assumption
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<PAGE> 14
of office occurs as a result of an actual or
threatened election contest with respect to the
election or removal of directors or other actual or
threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board;
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a
"Business Combination"), in each case, unless,
following such Business Combination, (A) all or
substantially all of the individuals and entities
who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or
indirectly, more than fifty percent (50%) of,
respectively, the then- outstanding shares of common
stock and the combined voting power of the then
outstanding voting securities entitled to vote
generally in the election of directors, as the case
may be, of the corporation resulting from such
Business Combination (including, without limitation,
a corporation which as a result of such transaction
owns the Company or all or substantially all of the
Company's assets either directly or through one or
more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) no Person
(excluding any corporation resulting from such
Business Combination or any employee benefit plan
(or related trust) of the Company or such
corporation resulting from such Business
Combination) beneficially owns, directly or
indirectly, 15% or more of, respectively, the then
outstanding shares of common stock of the
corporation resulting from such Business
Combination, or the combined voting power of the
then-outstanding voting securities of such
corporation except to the extent that such ownership
existed prior to the Business Combination and (C) at
least a majority of the members of the board of
directors of the corporation resulting from such
Business Combination were members of the Incumbent
Board at the time of the execution of the initial
agreement, or of the action of the Board, providing
for such Business Combination; or
(iv) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
(c) "Disability" means a mental or physical condition which, in the
opinion of the Board, renders Executive unable or incompetent to carry out the
material job responsibilities which such Executive held or the material duties
to which Executive was assigned at the time the disability was incurred, which
has existed for at least three months and which in the opinion of a physician
mutually agreed upon by the Company and Executive (provided that neither party
shall
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<PAGE> 15
unreasonably withhold his agreement) is expected to be permanent or to last for
an indefinite duration or a duration in excess of six months.
(d) "Extension Date" shall mean the first date during the Term of the
Employment Agreement on which a Change of Control occurs. Anything in this
Termination Agreement or the Employment Agreement to the contrary
notwithstanding, if a Change of Control occurs after a Date of Termination, and
if the Executive reasonably demonstrates that such Termination of Employment (i)
was at the request of a third party who has taken steps reasonably calculated to
effect a Change of Control or (ii) otherwise arose in connection with or
anticipation of a Change of Control, then for all purposes of this Termination
Agreement and the Employment Agreement the "Extension Date" shall mean the date
immediately prior to the date of such Termination of Employment.
(e) "Good Reason." For purposes of this Termination Agreement, "Good
Reason" shall mean the occurrence of any of the following, without Executive's
prior written consent that such event shall not be Good Reason:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's
position (including status, offices, titles and
reporting requirements), authority, duties or
responsibilities as contemplated by Section 3(a) of
the Employment Agreement of, on or after the
Extension Date, Section 2(a) of this Termination
Agreement, or any other action by the Company which
results in a diminution in such position, authority,
duties or responsibilities, excluding for this
purpose an isolated, insubstan tial and inadvertent
action not taken in bad faith and which is remedied
by the Company promptly after receipt of notice
thereof given by the Execu tive;
(ii) any failure by the Company to comply with any of the
provisions of this Termination Agreement or the
Employment Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring
in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the
Executive;
(iii) any failure to nominate or elect Executive as
President and Chief Executive Officer of the Company
or as member of the Board;
(iv) causing or requiring Executive to report to anyone
other than the Board; or
(v) the Company's requiring the Executive to be based at
any office or location other than as provided in
Section 3(b) of the Employment Agreement or, on or
after the Extension Date, Section 2(b) hereof or the
Company's requiring the Executive to travel on
Company business to a substantially
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<PAGE> 16
greater extent than generally required of other
senior execu tives of the Company immediately prior
to the date of this Agreement;
(vi) any failure by the Company to perform any material
obligation under, or breach by the Company of any
material provision of, this Termination Agreement or
the Employment Agreement;
(vii) any purported Termination of Employment by the
Company otherwise than as expressly permitted by this
Termination Agreement;
(viii) any failure by the Company to comply with Section
14(b) of this Termination Agreement;
(ix) any failure of the Company to assign this Termination
Agreement and the Employment to a successor to the
Company or failure of a successor to the Company to
explicitly assume and agree to be bound by this
Termina tion Agreement and the Employment Agreement;
(x) the delivery to Executive of a Notice of
Consideration pursuant to Section 14(c) hereof if,
within a period of 90 days thereafter, the Board
fails for any reason to terminate Executive for Cause
in compliance with all of the substantive and
procedural requirements of set forth in the
definition of "Cause" in Section 8 hereof;
(xi) any termination of Employment by Executive for any
reason or no reason during the 60 day period
commencing two months after a Change of Control.
For purposes of this Section, any good faith determination of "Good Reason" made
by the Executive shall be conclusive. Any Termination for Good Reason shall be
communicated by a Notice of Termination for Good Reason to the Company given in
accordance with Section 13(d) of this Termination Agreement. For purposes of
this Termination Agreement, a "Notice of Termination for Good Reason" means a
written notice which (i) indicates the specific termination provision in this
Termination Agreement relied upon, (ii) sets forth in reasonable detail the
facts and circumstances claimed to constitute Good Reason and (iii) if the Date
of Termination is other than the date of receipt of such notice, specifies the
Date of Termination (which date shall be not more than thirty (30) days after
the giving of such notice). The failure by the Executive to set forth in the
Notice of Termination for Good Reason any fact or circumstance which contributes
to a showing of Good Reason shall not waive any right of the Executive hereunder
or preclude the Executive from asserting such fact or circumstance in enforcing
the Executive's rights hereunder.
(f) "Normal Retirement Date" means the date of Executive's attainment
of age sixty-five (65).
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<PAGE> 17
9. EXCISE TAX GROSS-UP.
(a) If Executive becomes entitled to one or more payments (with a
"payment" including, without limitation, the vesting of an option or other
non-cash benefit or property), whether pursuant to the terms of this Termination
Agreement, the Employment Agreement or any other Plan or agreement with the
Company or any of its affiliated companies (the "Total Payments"), which are or
become subject to the tax imposed by Section 4999 of the Code or any similar tax
that may hereafter be imposed (the "Excise Tax"), the Company shall pay to
Executive at the time specified below an additional amount (the "Gross-up
Payment") (which shall include, without limitation, reimbursement for any
penalties and interest that may accrue in respect of such Excise Tax) such that
the net amount retained by Executive, after reduction for any Excise Tax
(including any penalties or interest thereon) on the Total Payments and any
federal, state and local income or employment tax and Excise Tax on the Gross-up
Payment provided for by this Section, but before reduction for any federal,
state, or local income or employment tax on the Total Payments, shall be equal
to the sum of (a) the Total Payments, and (b) an amount equal to the product of
any deductions disallowed for federal, state, or local income tax purposes
because of the inclusion of the Gross-up Payment in Executive's adjusted gross
income multiplied by the highest applicable marginal rate of federal, state, or
local income taxation, respectively, for the calendar year in which the Gross-up
Payment is to be made.
(b) For purposes of determining whether any of the Total Payments will
be subject to the Excise Tax and the amount of such Excise Tax:
(i) The Total Payments shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of
the Code, and all "excess parachute payments" within
the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless, and
except to the extent that, in the written opinion of
independent compensation consultants or auditors of
nationally recognized standing ("Independent
Advisors") selected by the Company and reasonably
acceptable to Executive, the Total Payments (in whole
or in part) do not constitute parachute payments, or
such excess parachute payments (in whole or in part)
represent reasonable compensa tion for services
actually rendered before a Change of Control within
the meaning of Section 280G(b)(4)(B) of the Code in
excess of the base amount within the meaning of
Section 280G(b)(3) of the Code or are otherwise not
subject to the Excise Tax;
(ii) The amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal
to the lesser of (i) the total amount of the Total
Payments or (ii) the total amount of excess parachute
payments within the meaning of Section 280G(b)(1) of
the Code (after applying clause (a) above); and
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<PAGE> 18
(iii) The value of any non-cash benefits or any deferred
payment or benefit shall be determined by the
Independent Advisors in accordance with the
principles of Sections 280G(d)(3) and (4) of the
Code.
(c) For purposes of determining the amount of the Gross-up Payment,
Executive shall be deemed (A) to pay federal income taxes at the highest
marginal rate of federal income taxation for the calendar year in which the
Gross-up Payment is to be made; (B) to pay any applicable state and local income
taxes at the highest marginal rate of taxation for the calendar year in which
the Gross-up Payment is to be made, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local
taxes if paid in such year (determined without regard to limitations on
deductions based upon the amount of Executive's adjusted gross income); and (C)
to have otherwise allowable deductions for federal, state, and local income tax
purposes at least equal to those disallowed because of the inclusion of the
Gross-up Payment in Executive's adjusted gross income. In the event that the
Excise Tax is subsequently determined to be less than the amount taken into
account hereunder at the time the Gross-up Payment is made, Executive shall
repay to the Company at the time that the amount of such reduction in Excise Tax
is finally determined (but, if previously paid to the taxing authorities, not
prior to the time the amount of such reduction is refunded to Executive or
otherwise realized as a benefit by Executive) the portion of the Gross-up
Payment that would not have been paid if such Excise Tax had been applied in
initially calculating the Gross-up Payment, plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount taken into account
hereunder at the time the Gross-up Payment is made (including by reason of any
payment the existence or amount of which cannot be determined at the time of the
Gross-up Payment), the Company shall make an additional Gross-up Payment in
respect of such excess (plus any interest and penalties payable with respect to
such excess) at the time that the amount of such excess is finally determined.
(d) The Gross-up Payment provided for above shall be paid on the 30th
day (or such earlier date as the Excise Tax becomes due and payable to the
taxing authorities) after it has been determined that the Total Payments (or any
portion thereof) are subject to the Excise Tax; provided, however, that if the
amount of such Gross-up Payment or portion thereof cannot be finally determined
on or before such day, the Company shall pay to Executive on such day an
estimate, as determined by the Independent Advisors, of the minimum amount of
such payments and shall pay the remainder of such payments (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code), as soon as
the amount thereof can be determined. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by the Company to Executive, payable on the
fifth day after demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up
Payment is made, the amount of each Gross-up Payment shall be computed so as not
to duplicate any prior Gross-up Payment.
(e) Notwithstanding the foregoing, the Executive may at any time elect
to demand the payment of the amount which the Executive, in accordance with an
Opinion of counsel to the
-16-
<PAGE> 19
Executive, determines to be the Gross-Up Payment. Any such demand by the
Executive shall be made by delivery to the Company of a written notice which
specifies the Gross-Up Payment determined by the Executive and an Opinion of
counsel to the Executive regarding such Gross- Up Payment (such written notice
and Opinion collectively, the "Executive's Determination"). Within fourteen (14)
days after the Executive's delivery of the Executive's Determination to the
Company, the Company shall:
(i) pay to the Executive the Gross-Up Payment set forth
in the Executive's Determination
unless
(ii) the Company shall deliver to the Executive a written
notice specifying the Gross-Up Payment determined by
the Company together with an Opinion of the Company's
counsel regarding such Gross-Up Payment (such written
notice and Opinion collectively, the "Company's
Determination") and shall pay to the Executive the
Gross-Up Payment specified in the Company's
Determination.
For purposes of this Section, "Opinion" shall mean an unqualified legal opinion
that a Gross-Up Payment has been calculated in accordance with this Section and
applicable law, unless such Opinion shall state therein that an unqualified
Opinion cannot be given as to any Gross-Up Payment. In such case, the Opinion
shall state that the Gross-Up Payment set forth therein both (A) is more likely
than not to be in accordance with this Section and applicable law, and (B) is
more likely to be in accordance with this Section and applicable law than any
other Gross-Up Payment.
(f) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested
by the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in
writing from time to time, including, without
-17-
<PAGE> 20
limitation, accepting legal representation with
respect to such claim by an attorney reasonably
selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section, the Company shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and sue for a refund or to contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority. If, after the receipt by the Executive of an amount advanced by the
Company pursuant to this Section, the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of this Section) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to this Section, a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of thirty (30) days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
-18-
<PAGE> 21
10. NON-COMPETITION AND NON-DISCLOSURE; EXECUTIVE COOPERATION.
(a) Non-Competition. Without the consent in writing of the Board, upon
a Termination of Employment for any reason, Executive will not, for a period of
one year thereafter, acting alone or in conjunction with others, directly or
indirectly:
(i) engage (either as owner, investor, partner, stockholder,
employer, employee, consultant, advisor or director) in any business in
the continental United States in which he has been directly engaged, or
has supervised as an executive, during the last two years prior to such
Date of Termination and which is directly in competition with a
business conducted by the Company or its subsidiaries as of the Date of
Termination and, for the Company's most recently-completed fiscal year,
contributed more than 5% of the Company's consolidated revenues;
provided, however, that Executive shall not be deemed to have breached
this clause (i) solely as a result of Executive being employed by or
otherwise providing services to a business of which a unit is in
competition with the Company or any subsidiary but as to which unit
Executive does not have direct or indirect responsibilities for the
products or services involved;
(ii) induce any customers of the Company or any of its
subsidiaries with whom Executive has had contacts or relationships,
directly or indirectly, during and within the scope of his employment
with the Company or any of its subsidiaries, to curtail or cancel their
business with such companies or any of them; or
(iii) induce, or attempt to influence, any employee of the
Company or any of its subsidiaries to terminate employment.
The provisions of subparagraphs (i), (ii), and (iii) above are separate and
distinct commitments independent of each of the other subparagraphs. It is
agreed that the ownership of not more than one percent of the equity securities
of any company having securities listed on an exchange or regularly traded in
the over-the-counter market shall not, of itself, be deemed inconsistent with
clause (i) of this paragraph (a).
(b) Non-Disclosure. Executive shall not at any time (including
following a Termination of Employment for any reason), disclose, use, transfer,
or sell, except in the course of employment with or other service to the
Company, any confidential or proprietary information of the Company or any of
its subsidiaries so long as such information has not otherwise been disclosed or
is not otherwise in the public domain, except as required by law or pursuant to
legal process.
(c) Cooperation With Regard to Litigation. Executive agrees to
cooperate with the Company (including following a Termination of Employment for
any reason), provided that such cooperation would not unreasonably interfere
with the personal or business activities or employment obligations of the
Executive, by making himself available to testify on behalf of the
Company or any subsidiary or affiliate of the Company, in any action, suit, or
proceeding,
-19-
<PAGE> 22
whether civil, criminal, administrative, or investigative, and to assist the
Company, or any subsidiary or affiliate of the Company, in any such action,
suit, or proceeding, by providing information and meeting and consulting with
the Board and its representatives or counsel, or representatives or counsel of
or to the Company, or any subsidiary or affiliate of the Company, as reasonably
requested; provided, however, this subsection (c) shall not apply to any action
between the Executive and the Company to enforce this Termination Agreement or
the Employment Agreement. The Company agrees to reimburse Executive for all
expenses actually incurred in connection with his provision of testimony or
assistance, together with a Tax Gross- up Payment with respect to Taxes payable
by Executive in connection any taxable income attributable to such
reimbursement.
(d) Survival. Notwithstanding any provision of this Termination
Agreement to the contrary, the provisions of this Section shall survive the
termination or expiration of this Termination Agreement, shall be valid and
enforceable, and shall be a condition precedent to the Executive (or his
Beneficiaries) receiving any amounts payable hereunder.
11. GOVERNING LAW. This Termination Agreement is governed by and is to
be construed, administered, and enforced in accordance with the laws of the
State of Michigan, without regard to Michigan conflicts of law principles,
except insofar as the Delaware General Corporation Law and federal laws and
regulations may be applicable. If under the governing law, any portion of this
Termination Agreement is at any time deemed to be in conflict with any
applicable statute, rule, regulation, ordinance, or other principle of law, such
portion shall be deemed to be modified or altered to the extent necessary to
conform thereto or, if that is not possible, to be omitted from this Termination
Agreement. The invalidity of any such portion shall not affect the force,
effect, and validity of the remaining portion hereof. If any court determines
that any provision of Section 12 hereof is unenforceable because of the duration
or geographic scope of such provision, it is the parties' intent that such court
shall have the power to modify the duration or geographic scope of such
provision, as the case may be, to the extent necessary to render the provision
enforceable and, in its modified form, such provision shall be enforced.
12. EXPENSE REIMBURSEMENT. All reasonable costs and expenses (including
fees and disbursements of counsel) incurred by Executive in negotiating the
terms and conditions of this Termination Agreement shall be paid on behalf of or
reimbursed to Executive promptly by the Company. All reasonable costs and
expenses (including fees and disbursements of counsel) incurred by Executive in
seeking to enforce rights pursuant to this Termination Agreement shall be paid
on behalf of or reimbursed to Executive promptly by the Company, whether or not
Executive is successful in asserting such rights[; provided, however, that if
Executive does not prevail (after exhaustion of all available judicial remedies)
in respect of a claim by Executive or by the Company hereunder, and the Company
establishes before a court of competent jurisdiction, by clear and convincing
evidence, that Executive had no reasonable basis for his claim hereunder, or for
his response to the Company's claim hereunder, and acted in bad faith, no
further reimbursement for legal fees and expenses shall be due to Executive in
respect of such claim and Executive shall refund any amounts previously
reimbursed hereunder with respect to such claim].
-20-
<PAGE> 23
The Company shall pay to Executive a Tax Gross-Up Payment in respect to any
Taxes incurred by Executive with respect to all amounts reimbursed pursuant to
this Section 12.
13. FUNDING OF COMPANY OBLIGATIONS. During the Extended Employment
Period, the Company agrees to maintain a minimum amount in a rabbi trust (or to
provide to the trustee of such rabbi trust an irrevocable letter of credit in an
amount equal to such minimum amount and callable at will by such trustee)
sufficient to fund the aggregate present value of all liabilities potentially
owed to the Executive hereunder or under the Employment Agreement as if the
Company had terminated Executive's employment without Cause.
14. MISCELLANEOUS.
(a) Integration. This Termination Agreement modifies and supersedes any
and all prior agreements and understandings between the parties hereto with
respect to the employment of Executive by the Company and its subsidiaries,
except for the Employment Agreement and contracts relating to compensation under
executive compensation and employee benefit Plans of the Company. Subject to the
rights, benefits and obligations provided for in such executive compensation
contracts and employee benefit Plans of the Company, this Termination Agreement
and the Employment Agreement together constitute the entire agreement among the
parties with respect to the matters herein provided, and no modification or
waiver of any provision hereof shall be effective unless in writing and signed
by the parties hereto. Executive shall not be entitled to any payment or benefit
under this Termination Agreement which duplicates a payment or benefit received
or receivable by Executive under such prior agreements and understandings with
the Company or under any benefit or compensation Plan of the Company.
(b) Non-Transferability. Executive may not assign any of his
obligations under this Employment Agreement. The Company may not assign its
rights or obligations under this Termination Agreement without the prior written
consent of Executive except to a successor of the Company's business which
expressly assumes the Company's obligations hereunder in writing. This
Termination Agreement shall be binding upon and inure to the benefit of
Executive, his estate and Beneficiaries, the Company and the successors and
permitted assigns of the Company.
(c) Beneficiaries. If Executive dies prior to receiving all of the
amounts payable to him in accordance with the terms of this Termination
Agreement, such amounts shall be paid to one or more beneficiaries (each, a
"Beneficiary") designated by Executive in writing to the Company during his
lifetime, or if no such Beneficiary is designated, to Executive's estate. Such
payments shall be made in a lump sum to the extent so payable and, to the extent
not payable in a lump sum, in accordance with the terms of this Termination
Agreement. Executive, without the consent of any prior Beneficiary, may change
his designation of Beneficiary or Beneficiaries at any time or from time to time
by a submitting to the Company a new designation in writing.
(d) Notices. Any notice under this Termination Agreement shall be in
writing, signed by the party or parties giving or making the same, and shall be
served on the person or persons
-21-
<PAGE> 24
for whom it is intended or who should be advised or notified, by Federal Express
or other similar overnight service or by certified or registered mail, return
receipt requested, postage prepaid and addressed to such party at the address
set forth below or at such other address as may be designated by such party by
like notice:
If to the Company: Walbro Corporation
6242 Garfield Street
Cass City, Michigan 48726-1397
Attention: Secretary
If to Executive: Frank E. Bauchiero
P.O. Box 790
Roscoe, Illinois 61073
With copies to: Roger C. Siske, Esquire
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
If the parties by mutual agreement supply each other with telecopier numbers for
the purposes of providing notice by facsimile, such notice shall also be proper
notice under this Termination Agreement. In the case of Federal Express or other
similar overnight service, such notice or advice shall be effective one business
day after deposit with such service during its normal business hours, and, in
the cases of certified or registered mail, shall be effective five business days
after deposit with the U.S. Postal Service.
(e) Reformation. The invalidity of any portion of this Termination
Agreement shall not deemed to render the remainder of this Termination Agreement
invalid.
(f) Headings. The headings of this Termination Agreement are for
convenience of reference only and do not constitute a part hereof.
(g) No General Waivers. The failure of any party at any time to require
performance by any other party of any provision hereof or to resort to any
remedy provided herein or at law or in equity shall in no way affect the right
of such party to require such performance or to resort to such remedy at any
time thereafter, nor shall the waiver by any party of a breach of any of the
provisions hereof be deemed to be a waiver of any subsequent breach of such
provisions. No such waiver shall be effective unless in writing and signed by
the party against whom such waiver is sought to be enforced.
(h) No Obligation to Mitigate. Executive shall not be required to seek
other employment or otherwise to mitigate Executive's damages hereunder, nor
shall the amount of any payment hereunder be reduced by any compensation earned
by the Executive as a result of employment by
-22-
<PAGE> 25
another employer; provided, however, that any health and other insurance
benefits provided for this Termination Agreement shall not duplicate any
benefits that are provided to Executive and his family by such other employer
and shall be secondary to any coverage provided by such other employer.
(i) No Offsets; Withholding. The amounts required to be paid by the
Company to Executive pursuant to this Termination Agreement shall not be subject
to offset, counterclaim, recoupment, defense or other claim, right or action
which the Company may have against Executive or others, other than with respect
to any amounts that are owed to the Company by Executive due to his receipt of
Company funds as a result of his fraudulent activity. The foregoing and other
provisions of this Termination Agreement notwithstanding, all payments to be
made to Executive under this Termination Agreement will be subject to
Withholding Taxes and other required deductions.
(j) Successors and Assigns. This Termination Agreement shall be binding
upon and shall inure to the benefit of Executive, his heirs, executors,
administrators and beneficiaries, and shall be binding upon and inure to the
benefit of the Company and its successors and assigns.
15. INDEMNIFICATION. All rights to indemnification by the Company now
existing in favor of Executive as provided in the Company's Certificate of
Incorporation or By-Laws or pursuant to other agreements in effect on the date
of this Termination Agreement shall continue in full force and effect (including
after the expiration of the Term), and the Company shall also advance expenses
for which indemnification may be ultimately claimed as such expenses are
incurred to the fullest extent permitted under applicable law, subject to any
requirement that Executive provide an undertaking to repay such advances if it
is ultimately determined that Executive is not entitled to indemnification;
provided, however, that any determination required to be made with respect to
whether Executive's conduct complies with the standards required to be met as a
condition of indemnification or advancement of expenses under applicable law and
the Company's Certificate of Incorporation, By-Laws, or other agreement shall be
made by independent counsel mutually acceptable to Executive and the Company
(except to the extent otherwise required by law). The Company shall not amend
its Certificate of Incorporation or By-Laws or any agreement in any manner which
adversely affects the rights of Executive to indemnification thereunder. Any
provision contained herein notwithstanding, this Termination Agreement shall not
limit or reduce any rights of Executive to indemnification pursuant to
applicable law. In addition, the Company will maintain directors' and officers'
liability insurance in effect and covering acts and omissions of Executive,
during the Term and for a period of six years thereafter, on terms substantially
no less favorable as those in effect on the date of this Termination Agreement.
16. DEFINITIONS. As used in this Termination Agreement, the terms set
forth below have the following meanings (such meanings to be applicable to both
the singular and plural forms, except where otherwise expressly indicated):
-23-
<PAGE> 26
(a) "Accrued Annual Bonus" means any unpaid amount of Executive's Annual
Bonus with respect to the Company's most recent fiscal year ended prior to the
Date of Termination determined in accordance with (i) Section 4(b) of the
Employment Agreement (if such fiscal year ended before an Extension Date) or
(ii) Section 3(b) of this Termination Agreement (if such fiscal year ended on or
after the Extension Date).
(b) "Accrued Base Salary" means the sum of (i) the amount of Executive's
Annual Base Salary (as determined under Section 4(a) of the Employment
Agreement) which is accrued through the Extension Date but not yet paid as of
the Date of Termination and (ii) the amount of Executive's Annual Base Salary
(as determined under Section 3(a) of this Termination Agreement) which is
accrued but not yet paid as of the Date of Termination.
(c) "affiliated companies" -- see Section 2(a) hereof.
(d) "Annual Bonus" means, for 1998 and subsequent years, the annual
incentive compensation paid to Executive pursuant to Section 4(b) of the
Employment Agreement or Section 3(b) of this Termination Agreement, as
applicable, and, for years prior to 1998, the annual cash incentive compensation
paid to Executive pursuant of the Former Employment Agreement.
(e) "Approved Early Retirement" -- see Section 6 hereof.
(f) "Beneficiary" -- see Section 14(c) hereof.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Date of Termination" -- see Section 5(b) hereof:
(i) "Deferral Account" the accounts on the Company's books that reflect
the Company's unfunded obligations under the deferral arrangements authorized
under Section 5 of the Employ ment Agreement.
(j) "Deferral Shares" means the phantom shares of Common Stock credited
to Executive's Deferral Accounts.
(k) "EBP" -- see Section 4(a).
(l) "Extended Employment Period" shall have the meaning specified in
Section 2(d) of the Employment Agreement.
(m) "Fair Market Value" has the meaning specified in Section 8 of the
Employment Agreement.
-24-
<PAGE> 27
(n) "Highest Annual Bonus" means the higher of (i) the Recent Annual
Bonus and (ii) the Annual Bonus that would have been payable (without giving
effect to any deferral elections in regard thereof) for the most recently
completed fiscal year of the Company (annualized for any fiscal year consisting
of less than twelve (12) full months), assuming full satisfaction of any
performance standards or targets applicable to determining the maximum amount
payable.
(o) "Normal Retirement" -- see Section 6 hereof.
(p) "Notice of Non-Renewal" has the meaning specified in Section 2(b) of
the Employment Agreement.
(q) "Performance Shares" means performance shares granted under the EBP
and any performance shares, performance units, stock grants, or other long-term
incentive arrangements adopted as a successor or replacement to performance
shares under the EBP or other Plans of the Company.
(r) "Plans" means plans, practices, policies, programs and arrangements.
(s) "Prorata Annual Bonus" for any year means the product of (i) the
Executive's target annual bonus for such year multiplied by (ii) a fraction of
which the numerator is the numbers of days which have elapsed in such fiscal
year through and including the Date of Termination and the denominator of which
is 365; provided, however, that if a Date of Termination occurs after the
Extension Date, the Highest Annual Bonus shall be used instead of the Target
Annual Bonus for purposes of this definition.
(t) "Recent Annual Bonus" -- see Section 3(b).
(u) "Supplemental Retirement Benefit" has the meaning specified in
Section 5(e) of the Employment Agreement.
(v) "Tax Gross-Up Payment" has the meaning specified in Section 8 of the
Employment Agreement.
(w) "Termination of Employment" means a termination by the Company or by
Executive of Executive's employment with the Company.
(x) "Termination For Good Reason" means a Termination of Employment by
Executive for a Good Reason, whether during or after the Term.
(y) "Termination Without Cause" means a Termination of Employment by the
Company for any reason other than Cause or Executive's death or Disability,
whether during or after the Term, including a Termination of Employment at the
end of the Term of the Employment Agreement after the Company's giving a Notice
of Non-Renewal.
-25-
<PAGE> 28
(z) "Withholding Taxes" has the meaning specified in Section 8 of the
Employment Agreement.
IN WITNESS WHEREOF, Executive and the Company have executed this
Termination Agreement as of the date first above written.
WALBRO CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
FRANK E. BAUCHIERO
--------------------------------------
--------------------------------------
-26-
<PAGE> 1
EXHIBIT 21.1
<TABLE>
<CAPTION>
SUBSIDIARIES OF WALBRO CORPORATION
Name of Subsidiary Jurisdiction of Incorporation
------------------ -----------------------------
<S> <C>
Auburn Diecast Corporation Michigan
U.S. Coexcell, Inc. Ohio
Walbro Capital Pte. Ltd. Republic of Singapore
Walbro Automotive Corporation Delaware
Walbro Automotive A.S Norway
Walbro Automotive do Brasil Ltd.a. Brazil
Walbro Automotive Europe S.A. France
Walbro Automotive FSC, Inc. U.S. Virgin Islands
Walbro Automotive GmbH Germany
Walbro Automotive Japan, Inc. Japan
Walbro Automotive Limited Great Britain
Walbro Automotive N.V. Belgium
Walbro Automotive S.A. France
Walbro Automotive S.A. Spain
Walbro Korea, Ltd. Republic of Korea
Walbro Netherlands B.V. Netherlands
Sharon Manufacturing Company Michigan
Whitehead Engineered Products, Inc. Delaware
Walbro Engine Management Corporation Delaware
Walbro de Mexico, S.A. de C.V. Mexico
Walbro GmbH Germany
Walbro Japan, Inc. Japan
Walbro Singapore Pte. Ltd. Republic of Singapore
Walbro Tucson Corporation Delaware
Tucson Precision Products Delaware
Fujian Hualong Carburetor Co., Ltd. People's Republic of China
Tianjin Walbro Industries, Ltd. People's Republic of China
Mutual Walbro P. Ltd. India
Walbro Capital Trust Delaware
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of
our reports dated February 17, 1999 included (or incorporated by reference) in
this Form 10-K, into the Company's previously filed Registration Statement File
Nos. 33-20841, 33-32068 and 33-48562.
/s/ ARTHUR ANDERSEN LLP
Detroit, Michigan,
March 29, 1999.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 19,647
<SECURITIES> 0
<RECEIVABLES> 154,416
<ALLOWANCES> 0
<INVENTORY> 60,871
<CURRENT-ASSETS> 257,403
<PP&E> 407,898
<DEPRECIATION> 129,357
<TOTAL-ASSETS> 648,667
<CURRENT-LIABILITIES> 160,477
<BONDS> 324,289
69,000
0
<COMMON> 4,344
<OTHER-SE> 73,212
<TOTAL-LIABILITY-AND-EQUITY> 648,667
<SALES> 677,990
<TOTAL-REVENUES> 677,990
<CGS> 571,992
<TOTAL-COSTS> 571,992
<OTHER-EXPENSES> 68,526
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 31,806
<INCOME-PRETAX> 14,118
<INCOME-TAX> 3,967
<INCOME-CONTINUING> 5,191
<DISCONTINUED> 0
<EXTRAORDINARY> (1,473)
<CHANGES> 0
<NET-INCOME> 3,718
<EPS-PRIMARY> .43
<EPS-DILUTED> .43
</TABLE>
