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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K
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(Mark One)
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the fiscal year ended September 30, 1998
or
[_] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the period from to .
Commission file number: 000-23731
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NUTRACEUTICAL INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 87-0515089
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
1400 Kearns Boulevard, 2nd Floor
Park City, Utah 84060
(Address of principal executive offices including zip code)
Registrant's telephone number, including area code: (435) 655-6106
Securities registered pursuant to Section 12(b) of the Act: None.
Securities registered pursuant to Section 12(g) of the Act: Common Stock,
par value $.01 per share
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 the 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 voting stock held by non-affiliates of the
Registrant as of December 23, 1998 at a closing sale price of $4.88 as reported
by the Nasdaq National Market was approximately $26.2 million. Shares of Common
Stock held by each officer and director and by each person who owns or may be
deemed to own 10% or more of the outstanding Common Stock have been excluded
since such persons may be deemed to be affiliates. This determination of
affiliate status is not necessarily a conclusive determination for other
purposes.
As of December 23, 1998, the Registrant had 11,670,475 shares of Common
Stock outstanding.
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Documents Incorporated by Reference: Portions of the Registrant's Proxy
Statement to be used in connection with the solicitation of proxies for the
Registrant's Fiscal 1998 Annual Meeting of Stockholders (the "Proxy Statement")
are incorporated by reference in Part III of this Annual Report of Form 10-K
(the "Form 10-K").
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NUTRACEUTICAL INTERNATIONAL CORPORATION
INDEX TO ANNUAL REPORT ON FORM 10-K
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PART I
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Item 1 Business................................................................................. 1
Item 2 Properties............................................................................... 15
Item 3 Legal Proceedings........................................................................ 15
Item 4 Submission of Matters to a Vote of Security-Holders...................................... 15
Item 4A Executive Officers of the Registrant................................................ 16
PART II
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Item 5 Market for the Registrant's Common Equity and Related Stockholder Matters................ 17
Item 6 Selected Financial Data.................................................................. 18
Item 7 Management's Discussion and Analysis of Financial Condition and Results of Operations.... 19
Item 7A Quantitative and Qualitative Disclosure About Market Risk........................... 24
Item 8 Financial Statements and Supplementary Data.............................................. 24
Item 9 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure..... 24
PART III
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Item 10 Directors and Executive Officers of the Registrant....................................... 25
Item 11 Executive Compensation................................................................... 25
Item 12 Security Ownership of Certain Beneficial Owners and Management........................... 25
Item 13 Certain Relationships and Related Transactions........................................... 25
PART IV
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Item 14 Exhibits, Financial Statement Schedules and Reports on Form 8-K.......................... 26
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PART I
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Item 1. Business.
Unless the context otherwise requires, the terms "Company" and
"Nutraceutical" refer to Nutraceutical International Corporation and, as
applicable, its direct and indirect subsidiaries, Nutraceutical Corporation,
Solaray, Inc. ("Solaray"), Premier One Products, Inc. ("Premier One"), Makers of
KAL, Inc. and Makers of KAL, B.V. ("KAL"), NaturalMax, Inc. ("NaturalMax"),
Veglife, Inc. ("VegLife"), Action Labs, Inc. ("Action Labs"), Monarch
Nutritional Laboratories, Inc. ("Monarch Nutritional Laboratories"), Au Naturel,
Inc. ("Au Naturel") and NutraForce (Canada) International, Inc. ("NutraForce").
General
Nutraceutical is one of the nation's largest manufacturers and marketers of
quality branded nutritional supplements sold to health food stores. The Company
sells its branded products under the Solaray, KAL, NaturalMax, VegLife, Premier
One, Solar Green and Natural Sport brand names directly to health food stores in
the United States. The Action Labs product line is sold to distributors and
health food stores in the United States. Internationally, the Company sells its
branded products primarily to distributors and retailers. The Company
manufactures and/or distributes one of the broadest branded product lines in the
industry with over 1600 stock keeping Units ("SKUs"), including approximately
200 SKUs exclusively sold internationally. With its new Natural Sport line
(introduced late in fiscal 1998), the Company introduced its all-natural sport
supplement line to health food stores. The Company believes that as a result of
its emphasis on quality, loyalty, education and customer service, the Company's
brands are widely recognized in health food stores and among health food store
consumers.
In addition to branded products, the Company manufactures premium bulk
formulations for use by itself and for sale to other manufacturers and marketers
of nutritional supplements under the tradenames Monarch Nutritional Laboratories
and Great Basin Botanicals.
The Company was formed in 1993 by senior management and Bain Capital, Inc.
("Bain") to effect a consolidation strategy in the highly fragmented vitamin,
mineral, herbal and other nutritional supplements industry (the "VMS Industry").
Since its formation, the Company has successfully completed six acquisitions,
including Solaray, Premier One, KAL/NaturalMax, Monarch Nutritional
Laboratories, Action Labs and NutraForce. As a result of these acquisitions and
internal growth, the Company has grown in net sales and operating income.
Management believes that the Company is well positioned to continue to
capitalize on the consolidation occurring in the VMS Industry.
The Company has adopted a strategy of selling its branded products directly
to health food stores in the United States (the "Healthy Foods Channel"). This
strategy has enabled the Company to benefit from the rapid growth of the Healthy
Foods Channel. The Healthy Foods Channel consists of approximately 10,100
retailers including (i) independent health food stores, (ii) health food stores
affiliated with local, regional and national health food chains (including
healthy food supermarket chains, such as Whole Foods Market and Wild Oats
Markets) and (iii) GNC stores. The Healthy Foods Channel has historically
experienced strong growth based on the continued expansion of independent health
food stores and local, regional and national health food chains in response to
strong demand from consumers who desire product education, service and high
quality natural ingredients. The growth of the Healthy Foods Channel does not
appear to be currently at (and may not continue at) historical levels. The
Company believes there are significant differences between mass market retailers
(such as drugstores, warehouse clubs and supermarkets), which typically offer a
limited selection of discounted and lower potency items, and the Healthy Foods
Channel, where natural ingredients, quality, potency, selection and customer
support are emphasized.
The Company believes that it benefits from substantially greater customer
diversification than most of its larger competitors. The Company
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also benefits from product diversification.
The Company believes that it is among the largest suppliers of nutritional
supplements to the Healthy Foods Channel that develops, manufactures, markets
and directly distributes a majority of its own products. The Company
manufactured over 90% of its products in fiscal 1998 and believes that the
quality of its products is among the highest in the industry. The Company
markets its branded products through one of the industry's largest sales forces
dedicated to the Healthy Foods Channel. The Company seeks to be a market leader
in the development of new and innovative products, introducing over 150 new SKUs
in fiscal 1998.
The Company's principal executive offices are located at 1400 Kearns Blvd.,
Second Floor, Park City, Utah, 84060. The Company's telephone number is 435-655-
6106.
Industry
The total United States retail market for nutritional supplements (the "VMS
Market") is highly fragmented and historically has grown rapidly, generating
$6.5 billion in 1996 sales, as compared to $5.0 billion in 1994. The Company
believes that this growth was due to a number of factors, including (i)
increased interest in healthier lifestyles, (ii) the publication of research
findings supporting the positive health effects of certain nutritional
supplements and (iii) the aging of the "Baby Boom" generation combined with the
tendency of consumers to purchase more nutritional supplements as they age. The
Company does not have reliable data for industry trends after calendar 1996.
Recently various publicly traded nutritional supplement companies have announced
that there appears to be a slow-down in sales of nutritional supplements which
the Company also experienced during the third and fourth fiscal quarters of
1998. The Company believes that this slow-down may be the result of, among other
things, the lack of any recent industry-wide "hit" products (such as St. John's
Wort in 1997).
Products
As of September 30, 1998, the Company sold over 1600 SKUs, including
approximately 200 SKUs exclusively sold internationally. The Company's products
generally fall into one of three categories: (i) supplements, (ii) vitamins and
minerals and (iii) diet, energy and other. The Company's products come in
various formulations and delivery forms, including tablets, capsules, softgels,
liquids, powders and whole herbs.
The Company currently markets its products through a multiple brand
strategy that the Company believes has been successful in encouraging retailers
to allocate additional shelf space to the Company's brands. The Company has
enhanced the strength of all of its brands since their respective acquisitions
by instituting appropriate business strategies in each case that have included
(i) consolidating sales forces and increasing the brands' geographic coverage
through an expanded sales force, (ii) instituting performance and growth based
incentives for sales representatives, (iii) introducing more sophisticated
management information systems and (iv) updating each brand's packaging.
As of September 30, 1998, the Company's portfolio of established brand
names consisted of the following:
Solaray. Solaray began manufacturing and selling herbal products in 1973,
originally as a pioneer in formulating and marketing blended herbal products
that contain two or more herbs with complementary effects. From its inception,
Solaray focused on encapsulated products which offer rapid disintegration and
are easy to swallow and has sold its products through independent sales
representatives to the Healthy Foods Channel. By 1984, Solaray had become a full
line manufacturer, carrying not only herbs, but also a full line of vitamins and
minerals. Solaray has become one of the most popular and well-known brands of
nutritional supplements in the Healthy Foods Channel and has developed a
reputation for quality, consistency and innovation. Three of the most
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popular products developed by Solaray include (i) Spectro, considered by many to
be the premier multivitamin/mineral supplement, (ii) CranActin, which the
Company believes is the best-selling cranberry supplement in the Healthy Foods
Channel, and (iii) Pygeum/Saw Palmetto, two ingredients intended to help
maintain a healthy prostate. Solaray's brand packaging is distinguished by white
bottles with a rainbow of five colors across the top of the label as a backdrop
to the distinctive Solaray logo.
KAL. The KAL product line was established in Southern California in 1932 as
one of the first nutritional supplement lines in the United States. Although
KAL's first products were in powdered form, KAL soon shifted its focus to
tableted products that are generally more economical than capsules as a delivery
form and which allow for fewer units per dose than encapsulated products. KAL
has been a pioneer in the introduction of new and innovative products, as well
as new and unique delivery forms. Among its innovative product introductions was
Beyond Garlic, which remains a popular garlic product in the Healthy Foods
Channel and was the first "enteric coated softgel" garlic product. This unique
delivery form allowed for fresh garlic oil inside of a softgel to pass through
the stomach into the intestine before being digested, thereby virtually
eliminating any potential garlic odor. KAL was also the first nutritional
supplement marketer in the Healthy Foods Channel to introduce pycnogenol and
melatonin. More recently, KAL has been an innovator in introducing lipospray
products, a new delivery form that allows for quick absorption through a liquid
spray. KAL's brand packaging consists of a white bottle and includes the
circular red and black KAL logo as a prominent feature on the principal display
panel.
NaturalMax. The NaturalMax brand began as a product line of the KAL brand
in approximately 1993, with a focus on diet products (with diet plans) as well
as energy and rest products. The NaturalMax brand uses tablets, softgels,
capsules and liquids, depending on the most desired form for the particular
product. After the acquisition of KAL/Natural Max, the Company established
NaturalMax as a separate brand in order to bring special focus to the NaturalMax
product line. The product line includes such innovative and popular products as
Super DietMax and Thin-Thin, a nutritional supplement and diet plan with natural
5-HTP derived from griffonia beans. The packaging of NaturalMax products always
includes the distinctive NaturalMax logo.
Premier One. The Premier One brand was founded in July 1984 in Omaha,
Nebraska as one of the first product lines devoted entirely to natural,
nutritional supplements derived from bee products. The Premier One brand uses
various delivery forms, each chosen for its particular benefits, including
capsules, chewable wafers, granules, energy bars, tinctures and products in a
honey base. Aside from Royal Jelly in Honey, some of Premier One's other popular
products include Raw Energy, an energy product that includes royal jelly, bee
pollen and a variety of herbs, and Beefense, a popular product which includes
bee propolis and echinacea. Premier One's brand packaging includes a distinctive
logo of a bee harvesting scene in a mountain setting, with gold highlights on
the label.
VegLife. VegLife is a relatively new brand which began in 1992 as a product
line under the Solaray brand. The goal was to create a line of products that
would be suitable for strict vegetarians who will not consume any products which
include any animal-derived ingredients, including gelatin capsules. VegLife was
among the first to introduce a line of nutritional supplements using a
cellulose-based capsule with substantially equivalent characteristics to
traditional gelatin capsules. Vegetarian consumers showed substantial interest
in this product line, so the Company established it as a separate brand in 1995
in order to allow a management team to focus on the development of a full line
of vegetarian products. This management team scrutinizes every element of each
product developed, as well as the materials used in formulation, to ensure that
strict vegetarian standards are met. The VegLife brand focuses primarily on
encapsulated products, but also now includes a popular soy-based protein drink
supplement sold under the trademark Peaceful Planet as well as a kava beverage
sold under the trademark Peaceful Kava. VegLife's brand packaging includes a
distinctive green and blue label, as well as a logo with an attractive depiction
of a budding plant.
Solar Green. Solar Green was launched in April 1997. The Solar Green brand
is focused on chlorophyll-laden "green foods," such as algaes (including
chlorella, spirulina and blue green algae) and cereal grasses (such as barley
and wheat grass). These products are currently offered in tablet forms. Solar
Green also introduced "green food" drink mixes which can be combined with juice
or water to create a nutritious beverage
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supplement. Solar Green's brand packaging includes a distinctive Solar Green
logo and a label with green borders and accents.
Action Labs. The Action Labs brand started in 1989 with a focus on men's
and women's specialty supplements and diet and energy products. The Company
acquired this brand late in fiscal 1998 and is in the process of bringing the
manufacturing of many Action Labs products in-house and updating some of the
labeling. The Action Labs brand has a relatively strong presence on the East
Coast and in GNC stores. The packaging of Action Labs products includes the
distinctive Action Labs logo and brightly colored text.
Natural Sport. Natural Sport was launched in September 1998 as the
Company's newest brand. The Natural Sport brand is focused on all-natural sport
supplements for not only serious athletes, but also for individuals who exercise
for fitness, health or to lose weight. As of September 30, 1998, the Natural
Sport line included two innovative sport beverage supplements, Pre-Burn (to be
taken prior to exercise to increase fat metabolism and endurance) and Post-Up
(to be taken after exercise to increase muscle glycogen rejuvenation). The line
also includes ProSoy, a soy protein beverage supplement, creatine monohydrate
and two separate sport multivitamin mineral formulas, one for men and one for
women, under the name Phyto Sport. Natural Sport's packaging includes a
distinctive Natural Sport logo in black and white, as well as blue lids and a
label with an attractive blue swath running up one side of the front panel.
Research and Development; Quality Control
The Company has a strong commitment to research and development. The
Company believes that product quality and innovation are fundamental to its
long-term growth and success. Through its research and development efforts, the
Company seeks to (i) identify the active ingredients in current and potential
new products, (ii) test the safety, potency and efficacy of products, (iii)
develop more effective and efficient means of extracting ingredients for use in
products, (iv) develop testing methods for ensuring and verifying the
consistency of the dosage of ingredients included in the Company's products, (v)
develop new, more effective product delivery forms and (vi) develop new products
either by combining existing ingredients used in nutritional supplements or
identifying new ingredients that can be used in nutritional supplements. The
Company's efforts are designed to lead not only to the development of new and
improved products, but also to ensure effective manufacturing quality control
measures.
The Company has entered into a cooperative arrangement with Weber State
University in Ogden, Utah through which, among other things, the University
provides the Company with access to certain laboratory space and equipment. The
University has assigned one faculty member as a project director to coordinate
the use of any projects undertaken at the University facility. The Company also
conducts research and development in Company-owned laboratories. The Company
currently employs various professionals in its research and development and
quality control departments, including individuals with Ph.D. degrees.
Professionals employed by the Company have degrees in, among other things,
chemistry, botany, microbiology, nutrition and engineering and, in many cases,
have received training in natural health food products. In addition, the Company
retains the services of outside laboratories from time to time to validate its
product standards and manufacturing protocols.
The Company's quality control program seeks to ensure the superior quality
of the Company's products and that they are manufactured in accordance with
current Good Manufacturing Practices. The Company's processing methods are
monitored closely to ensure that only quality ingredients are used and to ensure
product purity. The Company has been a leader in establishing industry product
quality guidelines.
Sales and Marketing
The Company promotes demand for its products by educating retailers, who in
turn educate consumers, as to the qualities of its natural vitamin, mineral and
herbal nutritional supplements and the wide range of its products. The
Company's branded products are currently sold in the United States to retailers
in the Healthy Foods Channel, which consists of approximately 10,100 stores,
including (i) independent health food stores, (ii) health food stores affiliated
with local, regional and national health food chains (including healthy food
supermarket chains such as Whole Foods Market and Wild Oats Markets) and (iii)
GNC stores. Unlike many of its competitors, the Company does not sell its
branded products in the United States to mass market retailers, but
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instead focuses on sales to the Healthy Foods Channel. The Company believes that
its products are attractive to retailers in the Healthy Foods Channel due to
factors such as the strength of its brand names, the quality and potency of its
products, service and the availability of sales support and educational
materials regarding the products.
The Company markets its products through a direct sales force dedicated to
the Healthy Foods Channel. The Company's sales representatives (including
independent, employee and sub-representatives) regularly visit each assigned
health food store in their respective territories to assist in the solicitation
of orders for products and provide related product sales assistance. The Company
monitors and periodically updates its payment structure for its sales force in
order to ensure that appropriate incentives are provided for sales growth. The
Company also sells products directly to certain retailers through its telephone
marketing organization. The Action Labs brand of products are sold principally
to distributors and through the Action Labs separate telephone marketing
organization.
The Company's marketing efforts are focused on educating retailers to
enable them to then educate the ultimate consumer about the Company's products.
The Company sponsors a retailer seminar program which the Company believes has
made an important contribution to the growth of its brands. The Company also
sponsors seminars for consumers. Participants receive product education
presentations with background information relating to existing products and with
special emphasis given to new products. The Company's seminars are designed to
foster relationships with the Company's customers in the Healthy Foods Channel
and to increase retailer and consumer awareness of the Company's products.
Au Naturel was formed in fiscal 1995 for the purpose of marketing the
Company's branded products internationally. During fiscal 1998, Au Naturel
marketed products to distributors and customers in more than 30 foreign
countries. Although Au Naturel is not a product brand, it functions as a
separate business unit. Au Naturel markets standard and unique formulations that
must meet specific requirements of certain foreign countries, including minor
product formulation and labeling changes for Au Naturel's international
customers. Au Naturel uses specialized labels to meet the specific requirements
of each country.
During late fiscal 1998, the Company acquired all of the outstanding stock
of its Canadian distributor and shortly thereafter merged this entity into its
Canadian subsidiary, NutraForce (Canada) International, Inc.
Monarch Nutritional Laboratories and Great Basin Botanicals market premium
bulk formulations as well as bulk minerals and herbs in the United States
through its own sales force and internationally both directly to manufacturers
and through an independent sales representative and a distributor, both based in
Europe.
Manufacturing
The Company's manufacturing process generally consists of the following
operations (i) extracting the ingredients contained in a particular product from
a bulk source of such ingredient and measuring the ingredient for inclusion in
such product, (ii) blending the measured ingredients into a mixture with a
homogeneous consistency and
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(iii) encapsulating or tableting the blended mixture into the appropriate dosage
form using either automatic or semiautomatic equipment. The next step, bottling
and packaging, involves placing the encapsulated or tableted product in
packaging with appropriate tamper-evident features and sending the packaged
product to a distribution point for delivery to retailers. The Company places
special emphasis on quality control and conducts inspections throughout the
manufacturing process, including raw material verification, homogeneity testing,
weight deviation measurements and package quality sampling. See "Research and
Development; Quality Control."
The Company manufactured over 90% of its products in fiscal 1998, based
on net sales. By manufacturing the majority of its own products, the Company
believes it maintains better control over product quality and availability while
also reducing production costs. The Company's manufacturing operations are
performed in its facilities located in the greater Ogden, Utah area. The Company
also has a working relationship with numerous outside manufacturers and
packagers and utilizes these outside sources from time to time. The Company does
not have any material backlogs.
Monarch Nutritional Laboratories and Great Basin Botanicals source raw
material components, provide contract grinding and milling services, manufacture
premium bulk formulations and supply these to the Company and other marketers of
nutritional supplements, including, in certain cases, competitors of the
Company. Monarch Nutritional Laboratories was acquired in September 1995, and
certain assets of Great Basin Botanicals were purchased in March 1997.
Management Information and Communication Systems
The Company uses a custom computer software system for handling order entry
and invoicing, shipping, warehouse operations and customer service inquiries.
The system provides product delivery and order information and allows for
inventory management. The Company believes that this system has improved
operating efficiencies and customer service. In addition, the Company has
installed an advanced telephone communication system which provides the platform
for computer-telephone integration and facilitates intra-company communication.
See "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Year 2000 Issue" for a discussion of concerns and
potential exposures related to the Company's computer systems vis-a-vis the
"Year 2000" issue.
Materials and Suppliers
The Company's purchasing staff includes individuals with product knowledge
and experience related to herbs, minerals, bulk products, bottles, caps, labels,
packaging and advertising, marketing and selling material and merchandise. The
purchasing staff, in cooperation with quality control personnel, maintains
supplier relationships and gathers market information to inform management of
issues that might adversely impact the Company's ability to acquire sufficient
quantities of raw materials to meet customer demand. The Company engages in
extensive sample testing of raw materials to be incorporated in the Company's
products.
The Company believes that its continued success will depend upon the
availability of raw materials that permit the Company to meet its labeling
claims, quality control standards and demand for unique ingredients. Due to
issues related to quality, efficacy, safety or third-party intellectual property
protection, a number of the Company's branded products contain one or more
ingredients that may only be available from a single source or supplier. In
addition, the supply of herbal products is subject to the same risks normally
associated with agricultural production, such as climatic conditions, insect
infestations and availability of manual labor for harvesting. Any significant
delay in or disruption of the supply of raw materials could substantially
increase the cost of such materials and could require product reformulations, as
well as the qualification of new suppliers and repackaging. Accordingly,
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there can be no assurance that the disruption of the Company's supply sources
will not have a material adverse effect on the Company.
Although the Company acquires the majority of its raw materials from U.S.
suppliers, the ingredients of a number of the Company's products include one or
more ingredients that originate outside of the United States. The Company's
business is therefore subject to the risks generally associated with doing
business outside the United States, such as delays in shipments, embargoes,
changes in economic and political conditions, tariffs, foreign exchange rates
and trade disputes. The Company's business is also subject to the risks
associated with the enactment of United States and foreign legislation and
regulations relating to imports and exports, including quotas, duties, taxes or
other charges or restrictions that could be imposed upon the importation of
products into the United States.
The Company seeks to mitigate the risk of the shortage of certain raw
materials through its relationships with approximately 100 principal suppliers.
The Company also acquired Monarch Nutritional Laboratories, a manufacturer of
premium bulk formulations, which has purchased manufacturing equipment and hired
personnel to allow more extensive vertical integration and to improve the
quality and consistency of ingredients.
Distribution
The Company ships the majority of its products directly to retailers via
Federal Express. Shipments are generally made from the Company's primary
distribution facilities in Clearfield, Utah and Memphis, Tennessee. These
distribution facilities have been strategically located to reduce the Company's
expenses relating to outbound freight charges without sacrificing delivery
times. Certain of the Company's largest customers receive shipments directly
from the Company's central warehouse, located in a separate facility in
Clearfield, Utah, which also services the Company's two primary distribution
centers.
In fiscal 1998, the Company executed a short-term two year lease with
multiple two year renewal options for a facility formerly used by the Department
of Defense in the Ogden, Utah area ("DDO") in which it intends to consolidate
distribution and certain other operations which are currently being performed in
five different buildings and locations. This facility is currently under
renovation and has been designed to respond quickly to customer demands for the
Company's products and to assist the Company to reduce the risk of out-of-stocks
and to maintain appropriate levels of finished goods inventory. By integrating
the bulk product inventory distribution operation with the bottling and
packaging operation, the Company believes it will be able to bottle and package
finished goods on a more selective customer demand basis. The Company expects
that its Memphis, Tennessee facility will continue to operate for Eastern
distribution.
Government Regulation
The formulation, manufacturing, processing, packaging, labeling,
advertising, distribution and sale of nutritional supplements such as those sold
by the Company are subject to regulation by one or more federal agencies,
principally the FDA and the FTC, and to a lesser extent the Consumer Product
Safety Commission and United States Department of Agriculture. These activities
are also regulated by various governmental agencies for the states and
localities in which the Company's products are manufactured, distributed or
sold, as well as by governmental agencies in certain foreign countries in which
the Company's products are sold. Among other matters, regulation of the Company
by the FDA and FTC is concerned with claims made with respect to a product which
refer to the value of the product in treating or preventing disease or other
adverse health conditions.
Federal agencies, primarily the FDA and FTC, have a variety of remedies and
processes available to them, including initiating investigations, issuing
warning letters and cease and desist orders, requiring corrective labels or
advertising, requiring consumer redress (for example, requiring that a company
offer to repurchase products previously sold to consumers), seeking injunctive
relief or product seizure and imposing civil penalties or commencing criminal
prosecution. In addition, certain state agencies have similar authority, as well
as the authority to prohibit or restrict the manufacture or sale of products
within their jurisdiction. These federal and state agencies have in the past
used these remedies in regulating participants in the nutritional supplements
industry, including the imposition by federal agencies of civil penalties in the
millions of dollars against a few industry participants. In
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addition, certain product lines now manufactured by the Company had been the
subject of investigations prior to the acquisition of those product lines by the
Company, and the Company's bulk product subsidiary has been the subject of an
investigation by the FDA and by the Attorney General's Office of the State of
California during fiscal 1998. Although none of these investigations has had a
material adverse effect on the Company, there can be no assurance that future
regulatory action will not have such an effect. There can be no assurance that
the regulatory environment in which the Company operates will not change or that
such regulatory environment, or any specific action taken against the Company,
will not result in a material adverse effect on the Company's business,
financial condition or results of operations. In addition, increased sales and
publicity of nutritional supplements may result in increased regulatory scrutiny
of the nutritional supplements industry.
The Dietary Supplement Health and Education Act of 1994 (the "Act") was
enacted in October 1994, amending the Food, Drug and Cosmetic Act. The Company
believes this law is generally favorable to the dietary supplement industry. The
Act establishes a new statutory class of "dietary supplements," which provide
vitamins, minerals, herbs, amino acids and other dietary ingredients for human
use to supplement the diet. Dietary ingredients on the market as of October 15,
1994 will not require the submission by the manufacturer or distributor of
evidence of a history of use or other evidence of safety establishing that the
supplement will reasonably be expected to be safe, but a dietary supplement
which contains a dietary ingredient which was not on the market as of October
15, 1994 does require such submission of evidence of a history of use or other
evidence of safety. Among other things, this law prevents the further regulation
of dietary ingredients as "food additives" and allows the use of statements of
nutritional support on product labels.
The FDA issued final dietary supplement labeling regulations in calendar
1997. These final regulations require the Company to revise most of its product
labels by March 1999. The Company has completed its first round of revisions,
but still expects to incur substantial increased costs related to these labeling
conversions, in part because many of the new labels are the more expensive "peel
off" variety. Applicable regulations also currently require the Company to
submit notification to the FDA of certain "statements of nutritional support"
made in labeling and advertising for the Company's products.
Advertising and label claims for dietary supplements and conventional foods
have been regulated by state and federal authorities under a number of disparate
regulatory schemes. There can be no assurance that a state will not interpret
claims presumptively valid under federal law as illegal under that state's
regulations, or that future FDA regulations or FTC decisions will not restrict
the permissible scope of such claims.
The FDA is currently proposing to regulate the sale of nonprescription
products containing ephedra, a natural product that contains a small percentage
of ephedrine alkaloids which are used in some prescriptions and over the counter
stimulants and antihistamines. Various state legislatures and agencies have also
expressed concern regarding ephedra-based products. For example, Arkansas,
Hawaii, Missouri, Ohio, Florida and Texas have passed legislation or adopted
regulations regulating the over-the-counter sale of certain ephedra products or
are considering doing so. The Company believes that other states are considering
or will consider taking similar action and may take such action in the future.
The loss of sales of these products or a further limitation in the states and
other jurisdictions where these products may be sold could have a material
adverse effect on the Company.
More recently, the DEA issued proposed regulations governing the sale of
products containing ephedrine alkaloids because of concerns by the DEA that
these products may be used in the illegal manufacture of methamphetamines.
These proposed regulations would require that certain manufacturers,
distributors and retailers who carry covered products register with the DEA and
comply with certain requirements. The proposed regulations exempt from
registration any products containing 2% or less by weight of ephedrine
alkaloids. As of September 30, 1998, all of the Company's products which
contain ephedrine alkaloids had 2% or less by weight of ephedrine alkaloids.
However, there can be no assurance that the DEA will not modify its proposal or
take a more aggressive stance such that some of the Company's products, as well
as certain of Company's customers, might be subject to registration and other
requirements, and it is possible such a regulation could have a material adverse
effect on the Company.
8
<PAGE>
In March 1993, the staff of the Cleveland Regional Office of the FTC began
an investigation into advertising claims made by the seller in the KAL/Max
Acquisition, and made an inquiry to the Company in August 1995 concerning
certain products and claims associated with the KAL and NaturalMax product
lines. The Company has responded to the FTC and, to the Company's knowledge, the
FTC has taken no further action.
In July 1997, the Company received a notice that it may be a defendant
along with a number of other participants in the dietary supplement industry in
a threatened action by certain private litigants or the Attorney General of the
State of California, which alleged that certain products containing fish and
salmon oils also may be in violation of a California law known as "Proposition
65" for failure to include required warning labels. Proposition 65 allows
private litigants or the California Attorney General to recover monetary
penalties or injunctive relief under certain circumstances. The Company has
learned that the Attorney General of the State of California completed testing
of all of the products in question sometime during the early summer of 1998, and
has further been advised that the Attorney General would contact each company
individually to discuss the results. The Company has not been contacted
concerning the results of these tests, nor has the Company received any
correspondence or communication from the Attorney General of the State of
California or the private party litigant for many months. The Company believes
that this issue may have been resolved by the test results. If not, the Company
intends to dispute the allegations. However, there can be no assurance that this
matter has been completely resolved or that the resolution would not have an
adverse impact on the Company's results of operations and financial conditions.
In October 1997, the Company and a number of other suppliers, processors
and marketers of nutritional supplements received warning letters from the FDA
relating to an allegedly contaminated batch of an herb called plantain. These
letters claimed that the plantain, which had been shipped to the United States
from Europe, had been contaminated with another botanical product with
potentially harmful side effects. The letter that the Company received alleged
that some of this plantain had been included in a shipment of products that
Great Basin had processed for a third party on a contract basis. The Company has
replied to the FDA, explaining that, among other things, it did not own the
products or market them for human consumption but simply provided grinding
services for the owner of the herbs. The Company further noted to the FDA that
it did not process any plantain that could have been incorporated into any
products that were actually consumed as the only batch it processed was returned
to the supplier/owner following the FDA's initial press releases on this matter.
The Company has denied responsibility for any adverse effects and affirmed its
commitment to good manufacturing practices. There can be no assurances that the
FDA will not take further action and that, if taken, such action will not result
in a material adverse effect on the Company.
On January 20, 1998, Monarch Nutritional Laboratories received a written
notice from an attorney representing a private party that alleged that Monarch
violated Proposition 65 by not providing appropriate warning statements with
respect to the level of lead contained in copper gluconate. This notice alleged
that the violation arose from the sale of bulk quantities of copper gluconate to
a wholesale customer. The private party that initiated this notice alleged that
it purchased some of these bulk products from Monarch's customer. Monarch
reached a resolution of this matter with the private party and has had no
further communication from the Attorney General of the State of California.
However, the FDA contacted the Company regarding this matter and conducted an
investigation of the Company's bulk product subsidiary with the assistance of
the Company and its outside counsel. The Company has not received any
correspondence or communications from the FDA regarding this matter for many
months. It is possible that either or both of the foregoing proceedings may
result in monetary penalties, adverse publicity, lost sales or a change in the
Company's labeling as to the products in question and could have a material
adverse effect on the Company.
In September 1998, the Company received a letter written by the FDA to
all manufacturers and distributors of the supplement L-5-hydroxytryptophan,
warning that the FDA believed this supplement might be implicated in the
occurrence of a certain disorder known as EMS in a small subgroup of the general
population. The FDA asserted in this correspondence that it believed EMS might
be related to the presence of a contaminant or substance possibly found in L-5-
hydroxytryptophan which it labeled "Peak X." The FDA's letter described a
protocol for testing for "Peak X" and urged manufacturers, distributors and
marketers of these supplements to test for "Peak X" and to report adverse events
related to this supplement to the FDA. The Company has established its own
testing protocol for "Peak X" and is actively monitoring the product and any
potential adverse reactions.
9
<PAGE>
In November 1998, the FTC announced its new advertising guidelines for the
dietary supplement industry, which it labeled "Dietary Supplements: An
Advertising Guide for Industry." These guidelines reiterate many of the policies
the FTC has periodically announced over the years, including requirements for
substantiation of claims made in advertising about dietary supplements.
Governmental regulations in foreign countries where the Company plans to
commence or expand sales may prevent or delay entry into the market or prevent
or delay the introduction, or require the reformulation, of certain of the
Company's products. Compliance with such foreign governmental regulations is
generally the responsibility of the Company's distributors for those countries.
These distributors are independent contractors over whom the Company has limited
control.
As a result of the Company's efforts to comply with applicable statutes and
regulations, the Company has from time to time reformulated, eliminated or
relabeled certain of its products and revised certain provisions of its sales
and marketing program. The Company cannot predict the nature of any future laws,
regulations, interpretations or applications, nor can it determine what effect
additional governmental regulations or administrative orders, when and if
promulgated, would have on its business in the future. They could, however,
require the reformulation of certain products to meet new standards, the recall
or discontinuance of certain products not capable of reformulation, additional
recordkeeping, expanded documentation of the properties of certain products,
expanded or different labeling, and/or scientific substantiation. Any or all of
such requirements could have a material adverse effect on the Company's results
of operations and financial condition.
There can be no assurance that the foregoing proceedings or investigations,
or any future proceedings or investigations, will not have a material adverse
effect on the Company.
Competition
The nutritional supplements segment of the natural health food products
industry is highly competitive. The Company's principal competitors in the
Healthy Foods Channel include a limited number of large nationally known
manufacturers (such as Twinlab Corporation, Solgar and Nature's Way Products,
Inc.) and many smaller manufacturers and distributors of nutritional
supplements. Certain of the Company's principal competitors are larger than the
Company, have greater access to capital and may be better able to withstand
volatile market conditions within the VMS Industry. Moreover, because this
industry generally has low barriers to entry, additional competitors could enter
the market at any time.
Private label products of the Company's customers also provide competition
to the Company's products. For example, a substantial portion of GNC's vitamin
and mineral supplement offerings are products offered under GNC's own private
label. Whole Foods Market, Wild Oats Markets and most large health food stores
also sell a portion of their supplement offerings under their own private
labels.
The Company believes that health food retailers are increasingly likely to
align themselves with those companies that offer a wide variety of high quality
products, have a loyal customer base, support their brands with strong marketing
and advertising programs and provide consistently high levels of customer
service. The Company believes that it competes favorably with other nutritional
supplement companies because of its comprehensive line of products, premium
brand names, commitment to quality, ability to rapidly introduce innovative
products, competitive pricing, strong and effective sales force and distribution
strategy and sophisticated advertising and promotional support. The wide
variety and diversity of the forms, potencies and categories of the Company's
products are important points of differentiation between the Company and many of
its competitors.
Although the Company does not compete in the mass market retail channel of
distribution, it is possible that as increasing numbers of companies sell
nutritional supplement products in the mass market channels, these product
offerings may affect sales in the Healthy Foods Channel. Several major
pharmaceutical companies have recently introduced herbal lines in the mass
market, including American Home Products (Centrum), Whitehall-Robins (Quanterra)
and Bayer (One-A-Day). Many of these companies have substantially greater
financial and other resources than the Company.
10
<PAGE>
In that regard, although the VMS Industry to date has been characterized by
many relatively small participants, there can be no assurance that additional
national or international companies (which may include additional pharmaceutical
companies or additional suppliers to mass merchandisers) will not seek in the
future to enter or to increase their presence in the VMS Market. Increased
competition in the VMS Market could have a material adverse effect on the
Company.
Intellectual Property
The Company owns 78 trademarks that have been registered with the United
States Patent and Trademark Office and has filed applications to register an
additional 55 trademarks. In addition, the Company claims domestic trademark
and servicemark rights in numerous additional marks used by the Company. The
Company owns a number of trademark registrations in foreign countries and is in
the process of filing additional registration applications in various countries.
The Company regards its trademarks and other proprietary rights as valuable
assets and believes they make a significant positive contribution to the
marketing of its products.
The Company protects its legal rights concerning its trademarks by
appropriate legal action. The Company relies on common law trademark rights to
protect its unregistered trademarks. Common law trademark rights do not provide
the company with the same level of protection as afforded by a United States
federal registration of a trademark. In addition, common law trademark rights
are limited to the geographic area in which the trademark is actually used,
while a United States federal registration of a trademark enables the registrant
to stop the unauthorized use of the trademark by any third party anywhere in the
United States, even if the registrant has never used the trademark in the
geographic area wherein the unauthorized use is being made (provided, however,
that an unauthorized third party user has not, prior to the registration date,
perfected its common law rights in the trademark in that geographic area). The
Company has registered and intends to register its trademarks in certain foreign
jurisdictions where the Company's products are sold. However, the protection
available in such jurisdictions may not be as extensive as the protection
available to the Company in the United States.
The Company is currently involved in trademark infringement litigation
relating to the Solaray rainbow logo. The Company is vigorously defending the
suit and believes that its use of such logo does not infringe on the plaintiff's
registered trademark. See "Legal Proceedings."
Employees
At September 30, 1998, the Company and its subsidiaries employed over 410
full-time and over 50 part-time employees. None of the Company's employees is
represented by a collective bargaining unit. The Company believes that it has a
good relationship with its employees.
RISK FACTORS
In addition to the other information contained in this Form 10-K, the
following factors should be considered in evaluating whether to buy, sell, or
hold Common Stock of the Company:
Government Regulation
The formulation, manufacturing, processing, packaging, labeling,
advertising, distribution and sale of nutritional supplements such as those sold
by the Company are subject to regulation by a number of federal, state and
foreign agencies, principally, the Food and Drug Administration ("FDA") and the
Federal Trade Commission ("FTC"). Among other matters, such regulation is
concerned with health claims made with respect to a product that assert the
healing or nutritional value of such product. Such agencies have a variety of
remedies and processes available to them, including initiating investigations,
issuing warning letters and cease and desist orders, requiring corrective labels
or advertising, requiring consumer redress (for example, by requiring that a
company offer to repurchase products previously sold to consumers), seeking
injunctive relief or product seizure, imposing civil penalties, or commencing
criminal prosecution. Federal and state agencies have in the past used these
remedies in regulating participants in the nutritional supplements industry,
including the imposition by federal agencies of civil penalties in the millions
of dollars against a few industry participants. In addition, increased sales and
publicity of nutritional supplements may result in increased regulatory scrutiny
of the nutritional supplements industry. There can be no assurance that the
regulatory environment in which the Company operates will not change or that
such regulatory environment, or any specific action taken against the Company,
will not result in a material adverse effect on the Company's business,
financial condition or results of operations. Additional proceedings and issues
are outlined under "Business--Government Regulation." There can be no assurance
that such proceedings or investigations or any future proceedings or
investigations will not have a material adverse effect on the Company. See
"Business--Government Regulation."
Product Liability; Potential Adverse Product Publicity
The Company, like any other retailer, distributor or manufacturer of
products that are designed to be ingested, faces an inherent risk of exposure to
11
<PAGE>
product liability claims in the event that the use of its products results in
injury. In the event that the Company does not have adequate insurance or
contractual indemnification, product liability claims could have a material
adverse effect on the Company. Like other manufacturers and distributors of
nutritional supplements, the Company and its predecessors currently are or have
been named as defendants in product liability lawsuits. The successful assertion
or settlement of any uninsured claim, a significant number of insured claims, or
a claim exceeding the Company's insurance coverage could have a material adverse
effect on the Company.
The Company is highly dependent upon consumers' perception of the safety
and quality of its products as well as similar products distributed by other
companies. Thus, the mere publication of reports asserting that such products
may be harmful could have a material adverse effect on the Company, regardless
of whether such reports are scientifically supported and regardless of whether
the harmful effects would be present at the dosages recommended for such
products.
Limited Availability of Conclusive Clinical Studies
Although many of the ingredients in the Company's products are vitamins,
minerals, herbs and other substances for which there is a long history of human
consumption, some of the Company's products contain innovative ingredients or
combinations of ingredients. Although the Company believes all of its products
to be safe when taken as directed by the Company, there is little long-term
experience with human consumption of certain of these innovative product
ingredients or combinations thereof in concentrated form. Although the Company
performs research and/or tests the formulation and production of its products,
it has only sponsored limited clinical studies.
Competition
See "Business--Competition."
Risk of Limited Supply Sources; Dependence on Foreign Suppliers
The Company believes that its continued success will depend upon the
availability of raw materials that permit the Company to meet its labeling
claims, quality control standards and desire for unique ingredients. Due to
issues relating to quality or third party intellectual property rights, a number
of the Company's branded products contain one or more ingredients that may only
be available from a single source or supplier. In addition, the supply of herbal
products is subject to the same risks normally associated with agricultural
production, such as climactic conditions, insect infestations and availability
of manual labor or equipment for harvesting. Any significant delay in or
disruption of the supply of raw materials could substantially increase the cost
of such materials, could require product reformulations, the qualification of
new suppliers and repackaging and could result in a substantial reduction or
termination by the Company of its sales of certain products, any of which could
have a material adverse effect upon the Company. Accordingly, there can be no
assurance that the disruption of the Company's supply sources will not have a
material adverse effect on the Company.
Although the Company acquires the majority of its raw materials from U.S.
suppliers, the ingredients of a number of the Company's products include one or
more ingredients that originate outside of the United States. The Company's
business is therefore subject to the risks generally associated with doing
business outside the United States, such as delays in shipments, embargoes,
changes in economic and political conditions, tariffs, foreign exchange rates
and trade disputes. The Company's business is also subject to the risks
associated with the enactment of United States and foreign legislation and
regulations relating to imports and exports, including quotas, duties, taxes or
other charges or restrictions that could be imposed upon the importation of
products into the United States. See "Business--Materials and Suppliers." These
factors could result in a delay in or disruption of the supply of certain raw
materials and could have the consequences described in the preceding paragraph,
any of which could have a material adverse effect on the Company.
Reliance on Key Management
The operation of the Company requires managerial and operational expertise.
In particular, the Company is dependent upon the management and leadership
skills of a number of its senior managers, including Frank W. Gay II, Bruce R.
Hough, Jeffrey A. Hinrichs, William T. Logan and Leslie M. Brown, Jr.
Substantially all of the Company's employees are employed "at will." None of the
key management employees has a long-term employment contract with the Company
and there can be no assurance that such individuals will remain with the
Company. The failure of such key personnel to continue to be active in
management could have a material adverse effect on the Company. See "Executive
Officers of the Registrant."
Risks Associated with Implementation of the Business Strategy
Implementation of the Company's business strategy is subject to risks and
uncertainties, including certain factors that are within the Company's control
and other factors that are outside of the Company's control. In addition,
certain elements of the Company's business strategy, notably the acquisition of
complementary businesses or product lines, could result in significant
expenditures of cash and management resources. See "--Risk Associated with
Acquisitions." Finally, implementation of the Company's business strategy is
subject to risks associated with market and competitive conditions. See
"--Competition" and "--No Assurance of Future Industry Growth."
12
<PAGE>
Risks Associated with Acquisitions
The Company has completed six acquisitions, including the Solaray
acquisition, since 1993 and expects to pursue additional acquisitions in the
future as a key component of the Company's business strategy. See "Business--
General." There can be no assurances that attractive acquisition opportunities
will be available to the Company, that the Company will be able to obtain
financing for or otherwise consummate any future acquisitions or that any
acquisitions which are consummated will prove to be successful. Moreover,
acquisitions involve numerous risks, including the risk that the acquired
business will not perform in accordance with expectations, difficulties in the
integration of the operations and products of the acquired businesses with the
Company's other businesses, the diversion of management's attention from other
aspects of the Company's business, the risks associated with entering geographic
and product markets in which the Company has limited or no direct prior
experience and the potential loss of key employees of the acquired business. The
acquisition of another business can also subject the Company to liabilities and
claims arising out of such business. In addition, future acquisitions would
likely require additional financing, which would likely result in an increase in
the Company's indebtedness or the issuance of additional capital stock which
could be dilutive to holders of Common Stock. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations--Liquidity and Capital
Resources."
No Assurance of Future Industry Growth
There can be no assurance that the VMS Market or the Healthy Foods Channel
are as large as reported or that projected or expected growth will occur or
continue. Market data and projections, such as those presented in this Form
10-K, are inherently uncertain and subject to change. In addition, the
underlying market conditions are subject to change based on economic conditions,
consumer preferences and other factors that are beyond the Company's control.
There can be no assurance that an adverse change in size or growth rate of the
VMS Market or the Healthy Foods Channel will not have a material adverse effect
on the Company.
Risks Associated with International Markets
The Company's continued growth is dependent in part upon its ability to
expand its operations into new markets, including international markets. The
Company may experience difficulty entering new international markets due to
greater regulatory barriers, the necessity of adapting to new regulatory systems
and problems related to entering new markets with different cultural bases and
political systems. Operating in international markets exposes the Company to
certain risks, including, among other things: (i) changes in or interpretations
of foreign regulations that may limit the Company's ability to sell certain
products or repatriate profits to the United States, (ii) exposure to currency
fluctuations, (iii) the potential imposition of trade or foreign exchange
restrictions or increased tariffs and (iv) political instability. As the Company
continues to expand its international operations, these and other risks
associated with international operations are likely to increase. See "Business--
General."
Reliance on Independent Contractors
The Company places significant reliance on its independent contractors to
act as its primary sales force and sell its products to health food retailers.
As with any independent contractor, such contractors are not employed or
otherwise controlled by the Company and are generally free to conduct their
businesses at their own discretion. Although these contractors enter into
contracts with the Company, such contracts typically can be terminated at any
time by the Company or the independent contractor. The simultaneous loss of the
services of a number of these independent contractors could have a material
adverse effect on the Company.
Control by Existing Stockholders
Investment funds (the "Bain Capital Funds") controlled by Bain Capital
beneficially own approximately 40.1% of the outstanding Common Stock. By virtue
of such stock ownership, Bain Capital may be able to exert significant influence
over the election of the members of the Company's Board of Directors and to
exert significant influence over the affairs of the Company. Such concentration
of ownership could also have the effect of delaying, deterring or preventing a
change in control of the Company that might otherwise be beneficial to
stockholders. In addition, three representatives of Bain Capital currently serve
on the Company's Board of Directors. There can be no assurance that conflicts of
interest will not arise with respect to such Directors or that such conflicts
will be resolved in a manner favorable to the Company.
Computer Systems and Year 2000 Issues
The "Year 2000" issue concerns the potential exposures related to the
automated generation of business and financial misinformation resulting from the
application of computer programs which have been written using two digits,
rather than four, to define the applicable year of business transactions. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Year 2000 Issue." Failure of the Company or its software providers
to adequately address the Year 2000 issue could result in misstatement of
reported financial information or otherwise adversely affect the Company's
business operations.
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<PAGE>
Possible Volatility of Stock Price
The market price of the Common Stock may fluctuate significantly. These
fluctuations could result from, among other things, variations in the Company's
results of operations, which could be adversely affected by a number of factors
(some which are beyond the Company's control), including economic downturns,
variations in demand for nutritional supplements, changes in the mix of products
sold, price changes in response to competition, increases in the cost of raw
materials and possible supply shortages. In particular, the market price of the
Common Stock could be materially adversely affected by reports by official or
unofficial health and medical authorities and the general media regarding the
potential health benefits or detriments of products sold by the Company or of
similar products distributed by other companies regardless of whether such
reports are scientifically supported and regardless of whether the Company's
operating results are likely to be affected by such reports, as well as by
consumer perceptions regarding the safety and efficacy of nutritional
supplements and consumer preferences generally. In addition, the stock market in
general has experienced wide price and volume fluctuations in recent periods,
and these fluctuations may be unrelated to the operating performance of the
specific issuers whose stock is affected.
Shares Eligible for Future Sale
No prediction can be made as to the effect, if any, that sales of shares of
Common Stock or the availability of shares of Common Stock for sale will have on
the market price of the Common Stock from time to time. The sale of a
substantial number of shares held by existing stockholders, whether pursuant to
subsequent public offerings or otherwise, or the perception that such sales
could occur, could adversely affect the market price of the Common Stock and
could materially impair the Company's future ability to raise capital through an
offering of equity securities.
Certain Anti-Takeover Effects
Certain provisions of the Company's Restated Certificate of Incorporation
(the "Restated Certificate") and Amended and Restated By-laws (the "By-laws")
may inhibit changes in control of the Company not approved by the Company's
Board of Directors. These provisions include (i) a classified Board of
Directors, (ii) a prohibition on stockholder action through written consents,
(iii) a requirement that special meetings of stockholders be called only by the
Board of Directors, (iv) advance notice requirements for stockholder proposals
and nominations, (v) limitations on the ability of stockholders to amend, alter
or repeal the By-laws and (vi) the authority of the Board to issue without
stockholder approval preferred stock, with such terms as the Board may
determine. The Company is also afforded the protections of Section 203 of the
Delaware General Corporation Law, which could have similar effects.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained herein under "Business," and "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
including statements concerning (i) the Company strategy, (ii) the Company's
expansion plans, (iii) the market for the Company's products, (iv) the effects
of government regulation of the Company's products and (v) the effects on the
Company of certain legal proceedings, contain certain forward-looking statements
concerning the Company's operations, economic performance and financial
condition. Because such statements involve risks and uncertainties, actual
results may differ materially from those expressed or implied by such forward-
looking statements. Factors that could cause such differences include, but are
not limited to, those discussed under "Risk Factors." See also "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Forward-Looking Statements."
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Item 2. Properties.
The following table describes the principal properties of the Company as of
September 30, 1998:
<TABLE>
<CAPTION>
Square
Purpose Location Footage
------- --------------------- -------
<S> <C> <C>
DDO (proposed distribution, bottling and bulk material manufacturing). Ogden, Utah 297,200
Brand manufacturing+.................................................. Ogden, Utah 31,230
Finished goods warehouse*............................................. Clearfield, Utah 28,000
Western distribution*................................................. Clearfield, Utah 28,000
Raw material and bulk distribution*................................... Ogden, Utah 25,000
Eastern distribution.................................................. Memphis, Tennessee 22,400
Monarch manufacturing*................................................ Ogden, Utah 21,100
Brand marketing and product development............................... Park City, Utah 10,444
Printing facility..................................................... Las Vegas, Nevada 7,974
Administrative offices and customer service........................... Ogden, Utah 7,830
Action Labs sales and marketing....................................... Long Island, New York 7,300
Great Basin manufacturing*............................................ Clearfield, Utah 6,400
Executive offices and corporate sales and marketing................... Park City, Utah 6,103
Information systems and data management............................... Park City, Utah 3,228
Canadian distribution................................................. Langley, British 2,817
Columbia
Research, development and quality control............................. Ogden, Utah 1,813
</TABLE>
- --------------------
+ With the exception of this property, which is owned by the Company, the
Company leases all of the principal properties identified above. Lease
terms with respect to such properties end between 1998 and 2003, although
the Company has negotiated extension options in many cases.
* The operations currently housed in these facilities are expected to be
moved to the Company's proposed distribution, bottling and bulk material
manufacturing facility at DDO in Ogden, Utah.
Item 3. Legal Proceedings.
The Company is currently a party to various claims and legal actions which
arise in the ordinary course of business. The Company believes such claims and
legal actions, individually or in the aggregate, will not have a material
adverse effect on the business, financial condition or results of operations of
the Company. The Company carries insurance coverage in the types and amounts
that management considers reasonably adequate to cover the risks it faces in the
industry in which it competes. There can be no assurance, however, that such
insurance coverage will be adequate to cover all losses which the Company may
incur in future periods.
The Company has been sued by American Cyanimid, the manufacturer of the
Centrum line of vitamin/mineral supplements. American Cyanimid alleges that the
Solaray rainbow logo, as well as two KAL labels, infringe, or have infringed, on
the Centrum color spectrum logo. The Company is vigorously defending the
lawsuit. The case appears to be proceeding to trial, and although the Company
expects to prevail, there can be no assurance of this, nor any assurance that
the Company may not be required to pay damages or attorney fees and costs, and
change or abandon some of its labels and/or logos.
The Company is presently engaged in various other legal actions which arise
in the ordinary course of business. Although ultimate liability cannot be
determined at the present time, the Company believes that the amount of such
liability, if any, from these other actions, after taking into consideration the
Company's insurance coverage, will not have a material adverse effect on its
results of operations or financial condition.
Item 4. Submission of Matters to a Vote of Security-Holders.
No matters were submitted to a vote of the Company's security-holders in
the fourth quarter of fiscal 1998.
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Item 4A. Executive Officers of the Registrant.
The following table sets forth certain information concerning the executive
officers of the Company.
<TABLE>
<CAPTION>
Name Age Position
- ---- --- --------
<S> <C> <C>
Frank W. Gay II.......... 53 Director, Chairman of the Board and Chief Executive Officer
Bruce R. Hough........... 44 Director, President
Jeffrey A. Hinrichs...... 41 Director, Chief Operating Officer and Executive Vice President
William T. Logan......... 56 Senior Vice President, Marketing and Sales
Leslie M. Brown, Jr...... 34 Senior Vice President, Finance and Chief Financial Officer
Stanley E. Soper......... 35 Vice President, Legal Affairs
</TABLE>
Frank W. Gay II has served as the Chairman of the Board of Directors of the
Company since its inception and as Chief Executive Officer since 1994. Mr. Gay
has been a partner of F.W. Gay & Sons, a private equity investment group, from
1967 to present.
Bruce R. Hough has served as a member of the Board of Directors of the
Company since its inception and was made its President in 1994. Prior to joining
the Company, Mr. Hough acted as a consultant from 1991 to 1993 and as President
of Keystone Communications, a telecommunications firm, from 1987 to 1991.
Jeffrey A. Hinrichs has served as Chief Operating Officer and Executive
Vice President of the Company since 1994. Prior to joining the Company, Mr.
Hinrichs served as President of Solaray, from 1993 to 1994 and as Chief
Financial Officer and in other management positions with Solaray from 1984 to
1993.
William T. Logan has served as Senior Vice President, Marketing and Sales
since February 1995. Mr. Logan served as Senior Vice President of Makers of KAL,
Inc. ("Old KAL") from 1978 to January 1995. Prior to joining Old KAL, he held
several sales and marketing positions with Gillette.
Leslie M. Brown, Jr. joined the Company in January 1995 as Vice President
and Controller. Mr. Brown became Senior Vice President, Finance and Chief
Financial Officer in October 1997. Prior to joining the Company, he was employed
by Price Waterhouse LLP. Mr. Brown is a Certified Public Accountant.
Stanley E. Soper has been Vice President, Legal Affairs for the Company
since July 1997. Mr. Soper graduated from Yale Law School in 1991, and was in
private law practice from 1991 to 1997, most recently with Holland & Hart LLP.
16
<PAGE>
PART II
-------
Item 5. Market for the Registrant's Common Equity and Related Stockholder
Matters.
Market Information
The Company's Common Stock is traded on the Nasdaq National Market
("Nasdaq") under the symbol "NUTR." The Common Stock commenced trading on
February 20, 1998. The following table sets forth the high and low prices per
share for the Common Stock as reported by the Nasdaq for the period indicated:
<TABLE>
<CAPTION>
High Low
-------- -------
<S> <C> <C>
1998:
Second Quarter (from February 20, 1998)........ $23.63 $19.88
Third Quarter.................................. 22.25 8.50
Fourth Quarter................................. 12.75 5.88
1999:
First Quarter (through December 23, 1998)...... 7.69 4.88
</TABLE>
Holders
As of the close of business on December 23, 1998, there were 68 holders of
record of Common Stock. The Company believes that it has a significantly larger
number of beneficial holders of Common Stock. A recent reported last sale price
of the Common Stock on the Nasdaq is set forth on the cover page of this report.
Dividends
Since its incorporation in 1993, the Company has not declared or paid any
cash or other dividends on its Common Stock and does not expect to pay dividends
for the foreseeable future. Instead, the Company currently intends to retain
earnings to support its growth strategy and reduce indebtedness. As a holding
company, the ability of the Company to pay dividends in the future is dependent
upon the receipt of dividends or other payments from its principal operating
subsidiary. Any future determination to pay dividends will be at the discretion
of the Company's Board of Directors and will depend upon, among other factors,
the Company's results of operations, financial condition, capital requirements
and contractual restrictions.
Recent Sales of Unregistered Securities
No securities of the Company that were not registered under the Securities
Act have been issued or sold by the Company within the period covered by this
report.
Use of Proceeds
The 3,829,500 shares of Common Stock registered and sold in the Company's
initial public offering on February 25, 1998 (the "Offering") were offered and
sold on behalf of the Company by Donaldson, Lufkin & Jenrette Securities
Corporation and Salomon Smith Barney (the "Underwriters"). The issuance of
2,144,618 primary shares resulted in gross proceeds to the Company of
$37,530,815 based on the price to the public of $17.50. The Company incurred the
following expenses in connection with the Offering: (i) underwriting discounts
and commissions of $2,627,157; (ii) non-accountable expenses to the Underwriter
of $55,000; and (iii) other expenses including, but not limited to, legal,
accounting and printing expenses of $2,041,718. From the effective date of the
Company's registration statement on February 11, 1998 until the end of the
Company's fiscal year on September 30, 1998, the Company applied approximately
$28,678,000 of net proceeds toward the repayment of indebtedness and $4,128,940
for other general corporate purposes.
17
<PAGE>
Item 6. Selected Financial Data.
The selected financial data presented below were derived from the
consolidated financial statements of the Company. The consolidated financial
statements for each of the years in the five year period ended September 30,
1998 have been audited by PricewaterhouseCoopers LLP, independent accountants.
This selected financial data should be read in conjunction with "Management's
Discussion and Analysis of Results of Operations and Financial Condition" and
the Company's consolidated financial statements and the notes thereto.
<TABLE>
<CAPTION>
Year Ended September 30,
---------------------------------------------------------------
1994(a) 1995 1996 1997 1998
---------- ---------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Consolidated Statement of Operations Data:
Net sales...................................... $ 26,083 $ 62,932 $ 83,923 $ 98,096 $ 104,688
Cost of sales.................................. 13,410 35,885 45,099 52,277 57,750
---------- ---------- ----------- ----------- -----------
Gross profit................................. 12,673 27,047 38,824 45,819 46,938
Operating expenses:
Selling, general and administrative.......... 8,116 21,140 27,308 28,879 31,233
Amortization of intangibles.................. 394 1,059 1,483 1,346 1,391
Non-recurring payments to management
advisors................................... 187 269 300 300 1,135
One-time payment to executive officer........ -- -- -- 1,700 --
---------- ---------- ----------- ----------- -----------
Income from operations......................... 3,976 4,579 9,733 13,594 13,179
Interest expense, net.......................... 1,820 4,478 7,126 6,572 3,971
---------- ---------- ----------- ----------- -----------
Income before provision for income taxes....... 2,156 101 2,607 7,022 9,208
Provision for income taxes..................... 848 23 1,056 2,774 3,509
---------- ---------- ----------- ----------- -----------
Net income before extraordinary loss........... 1,308 78 1,551 4,248 5,699
Extraordinary loss on early extinguishment of
debt, net of tax............................. -- (478) -- -- (3,129)
---------- ---------- ----------- ----------- -----------
Net income (loss).............................. $ 1,308 $ (400) $ 1,551 $ 4,248 $ 2,570
========== ========== =========== =========== ===========
Net income before extraordinary loss per common
share, basic................................. $ 0.18 $ 0.01 $ 0.17 $ 0.46 $ 0.53
Net income before extraordinary loss per
common share, diluted........................ $ 0.16 $ 0.01 $ 0.15 $ 0.40 $ 0.48
Net income per common share, basic............. $ 0.18 $ (0.05) $ 0.17 $ 0.46 $ 0.24
Net income per common share, diluted........... $ 0.16 $ (0.04) $ 0.15 $ 0.40 $ 0.22
Weighted average shares outstanding, basic..... 7,279,196 8,824,623 9,308,583 9,308,583 10,806,178
Weighted average shares outstanding, diluted... 8,198,261 9,878,693 10,421,667 10,502,749 11,902,348
Other Financial Data:
Adjusted EBITDA (b)............................ $ 5,724 $ 11,831 $ 13,118 $ 19,563 $ 19,410
Capital expenditures (excluding acquisitions).. 452 2,837 5,498 3,652 3,380
Cash flows provided by (used in):
Operating activities......................... 1,958 (64) 4,559 9,363 10,063
Investing activities......................... (10,065) (49,155) (5,498) (3,652) (17,815)
Financing activities......................... 8,341 49,645 2,600 (3,617) 5,309
Balance Sheet Data (at period end):
Cash........................................... $ 234 $ 660 $ 2,321 $ 4,415 $ 1,967
Working capital................................ 2,814 17,165 19,727 15,616 24,047
Total assets................................... 16,076 83,498 84,755 90,110 104,308
Total debt..................................... 8,769 60,881 63,657 60,259 37,133
Stockholders' equity........................... 3,738 10,512 12,091 16,354 51,622
</TABLE>
- -----------------
(a) The Company's audited financial statements for the year ended September 30,
1994 primarily reflect operations after October 27, 1993, the date of the
Solaray acquisition. The Company's operations prior to such date were
immaterial.
(b) "Adjusted EBITDA" is defined herein as net income before extraordinary loss
plus provision for income taxes, net interest expense, depreciation and
amortization and other non-recurring items. Management believes that
Adjusted EBITDA, as presented, represents a useful measure of assessing the
performance of the Company's ongoing operating activities as it reflects the
earnings trends of the Company without the impact of the purchase accounting
applied in connection with the Company's history of acquisitions, the
financing required to consummate such transactions and other non-recurring
items. Targets and positive trends in Adjusted EBITDA are used as the
18
<PAGE>
performance measure for determining management's bonus compensation and are
also used by the Company's creditors in assessing debt covenant compliance.
The Company understands that while Adjusted EBITDA is frequently used by
securities analysts in the evaluation of nutritional supplement companies,
it is not necessarily comparable to other similarly titled captions of other
companies due to potential inconsistencies in the method of calculation.
Adjusted EBITDA is not intended as an alternative to cash flows from
operating activities, as a measure of liquidity or as an alternative to net
income as an indicator of the Company's operating performance or any other
measure of performance in accordance with generally accepted accounting
principles. The following table sets forth a reconciliation of net income
before extraordinary loss to Adjusted EBITDA for each period included
herein:
<TABLE>
<CAPTION>
Year Ended September 30,
---------------------------------------------
1994 1995 1996 1997 1998
------ ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Net income before extraordinary
loss.............................. $1,308 $ 78 $ 1,551 $ 4,248 $ 5,699
Provision for income taxes.......... 848 23 1,056 2,774 3,509
Interest expense, net (1)........... 1,820 4,478 7,126 6,572 3,971
Depreciation and amortization (2)... 1,561 6,983 3,085 3,969 5,096
Non-recurring payments to management
advisors (3)...................... 187 269 300 300 1,135
One-time payment to executive
officer (4)....................... -- -- -- 1,700 --
------ ------- ------- ------- -------
Adjusted EBITDA................... $5,724 $11,831 $13,118 $19,563 $19,410
====== ======= ======= ======= =======
</TABLE>
- -----------------
(1) Includes amortization of capitalized debt issuance costs.
(2) Includes non-recurring amortization of inventory write up.
(3) Represents management fees paid to Bain Capital and F.W. Gay & Sons pursuant
to a management advisory agreement, which was terminated in connection with
the Offering. As is often the case in stand-alone acquisition scenarios such
as the Company's original acquisition of Solaray, during the early stages of
the Company's development it relied heavily on an affiliate of its equity
sponsors, Bain Capital, to provide certain management services, paying a
recurring annual fee pursuant to the management advisory agreement in
respect of such services. Over time, the Company has developed the
infrastructure to provide these services internally and, as a result,
terminated the management advisory agreement (and the recurring management
fees payable thereunder) upon consummation of the Offering.
(4) Reflects a one-time payment to the Company's Chief Executive Officer for
successfully positioning the Company for the Offering. Such payment is in
excess of the Chief Executive Officer's annual compensation (salary and
bonus), and the Company does not expect to make any further payments of this
nature or magnitude in the future.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
The following discussion and analysis of the Company's financial condition
and results of operations should be read in conjunction with the Company's
audited consolidated financial statements and accompanying notes thereto
included elsewhere in this Form 10-K.
Overview
The Company was formed in 1993 by senior management and Bain Capital to
effect a consolidation strategy in the fragmented VMS Industry. The Company
purchased Solaray in October 1993 with a view toward using it as a platform for
future acquisitions of businesses in the VMS Industry. In fiscal 1995, the
Company completed three additional significant acquisitions: Premier One in
October 1994, KAL/NaturalMax in January 1995 and Monarch Nutritional
Laboratories in September 1995 (collectively, the "Fiscal 1995 Acquisitions").
In fiscal 1998, the Company completed two additional acquisitions: Action Labs
in July 1998 and NutraForce in August 1998 (collectively, the "Fiscal 1998
Acquisitions").
19
<PAGE>
Results of Operations
The following table sets forth certain consolidated statement of operations
data as a percentage of net sales for the periods indicated:
<TABLE>
<CAPTION>
Year Ended September 30,
------------------------
1996 1997 1998
----- ----- -----
<S> <C> <C> <C>
Net sales............................................................ 100.0% 100.0% 100.0%
Cost of sales........................................................ 53.7 53.3 55.2
----- ----- -----
Gross profit......................................................... 46.3 46.7 44.8
Selling, general and administrative.................................. 32.5 29.4 29.8
Amortization of intangibles.......................................... 1.8 1.4 1.3
Non-recurring payments to management advisors........................ 0.4 0.3 1.1
One-time payment to executive officer................................ -- 1.7 --
----- ----- -----
Income from operations............................................... 11.6 13.9 12.6
Interest expense, net................................................ 8.5 6.7 3.8
----- ----- -----
Income before provision for income taxes............................. 3.1 7.2 8.8
Provision for income taxes........................................... 1.3 2.8 3.4
----- ----- -----
Net income before extraordinary loss................................. 1.8 4.4 5.4
Extraordinary loss on early extinguishment of debt, net of tax....... -- -- (2.9)
----- ----- -----
Net income........................................................... 1.8% 4.4% 2.5%
===== ===== =====
</TABLE>
Comparison of Fiscal 1998 to Fiscal 1997
Net Sales. Net sales increased by $6.6 million, or 6.7%, to $104.7 million
for fiscal 1998 from $98.1 million for fiscal 1997. The increase in net sales
was primarily the result of increased sales volume. The Company believes that
the increased volume was primarily attributable to industry growth and the
success of new product introductions and, to a lesser extent, the Fiscal 1998
Acquisitions which occurred during the fourth fiscal quarter.
Gross Profit. Gross profit increased by $1.1 million, or 2.4%, to $46.9
million for fiscal 1998 from $45.8 million for fiscal 1997. This increase in
gross profit was primarily attributable to growth in sales volume. As a
percentage of net sales, gross profit decreased to 44.8% for fiscal 1998 from
46.7% for fiscal 1997. This decrease in gross profit as a percentage of net
sales was primarily attributable to higher packaging costs associated with label
and bottle conversions and additional discounting associated with certain
promotional programs during fiscal 1998. Label conversions are and were
necessitated by FDA regulations which become effective in March 1999. Bottle
costs increased as the Company moved from polystyrene to PET bottles.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased by $2.3 million, or 8.2%, to $31.2 million for
fiscal 1998 from $28.9 million for fiscal 1997. As a percentage of net sales,
selling, general and administrative expenses increased to 29.8% for fiscal 1998
from 29.4% for fiscal 1997. This increase in selling, general and
administrative expenses as a percentage of net sales was primarily attributable
to the Company's investment in information systems, including increased
amortization associated with prior year capital expenditures.
Amortization of Intangibles. Amortization of intangibles increased by $0.1
million, or 3.3%, to $1.4 million for fiscal 1998 from $1.3 million for fiscal
1997. As a percentage of net sales, amortization of intangibles decreased to
1.3% for fiscal 1998 from 1.4% for fiscal 1997. This increase in amortization of
$0.1 million was primarily attributable to the Fiscal 1998 Acquisitions. During
fiscal 1998, approximately two months of amortization expense related to these
acquisitions was incurred compared to no amortization expense for fiscal 1997.
Non-recurring Payments to Management Advisors. Non-recurring payments to
management advisors represent payments pursuant to a management advisory
agreement which was terminated in connection with the Offering.
One-Time Payment to Executive Officer. One-time payment to executive
officer of $1.7 million for fiscal 1997 represents a payment to the Company's
Chief Executive Officer for successfully positioning the Company for the
Offering.
Interest Expense, Net. Interest expense decreased by $2.6 million, or
39.6%, to $4.0 million for fiscal 1998 from $6.6 million for fiscal 1997. As a
percentage of net sales, interest expense decreased to 3.8% for fiscal 1998 from
6.7% for fiscal 1997. This decrease in interest expense was primarily
attributable to decreased indebtedness associated with debt repayments made with
proceeds of the Offering.
20
<PAGE>
Provision for Income Taxes. The Company's effective tax rate decreased to
38.1% for fiscal 1998 from 39.5% for fiscal 1997. In each fiscal year, the
effective tax rate is higher than statutory rates primarily due to the non-
deductibility for tax purposes of goodwill amortization arising from the
purchase of Solaray. The impact of Solaray goodwill on the effective tax rate
for fiscal 1998 decreased compared to fiscal 1997 as a result of the Company's
higher income before provision for taxes.
Extraordinary Loss on Early Extinguishment of Debt. An extraordinary loss
on early extinguishment of debt of $3.1 million, net of tax, was recognized in
fiscal 1998. This loss was incurred in connection with the Offering when new
financing (the "New Credit Agreement") was used to extinguish previous debt
arising from the Company's previous credit agreement (the "Senior Credit
Agreement").
Comparison of Fiscal 1997 to Fiscal 1996
Net Sales. Net sales increased by $14.2 million, or 16.9%, to $98.1
million for fiscal 1997 from $83.9 million for fiscal 1996. The increase in net
sales was primarily the result of increased sales volume and, to a lesser
extent, minimal increases in the prices of the Company's products. Such price
increases were immaterial to revenue growth. The Company believes that the
increased volume was primarily attributable to industry growth as well as to the
success of the Company's new growth-based incentive compensation structure for
independent sales representatives and the success of new product introductions.
Gross Profit. Gross profit increased by $7.0 million, or 18.0%, to $45.8
million for fiscal 1997 from $38.8 million for fiscal 1996. This increase in
gross profit was primarily attributable to growth in sales volume. As a
percentage of net sales, gross profit increased to 46.7% for fiscal 1997 from
46.3% for fiscal 1996. This increase in gross profit as a percentage of net
sales was primarily attributable to decreased material costs associated with new
vendor sourcing.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased by $1.6 million, or 5.8%, to $28.9 million for
fiscal 1997 from $27.3 million for fiscal 1996. As a percentage of net sales,
selling, general and administrative expenses decreased to 29.4% for fiscal 1997
from 32.5% for fiscal 1996. This decrease in selling, general and
administrative expenses as a percentage of net sales was primarily attributable
to the Company's efforts to implement new incentive and cost control programs.
Amortization of Intangibles. Amortization of intangibles decreased by $0.2
million, or 9.2%, to $1.3 million for fiscal 1997 from $1.5 million for fiscal
1996. As a percentage of net sales, amortization of intangibles decreased to
1.4% for fiscal 1997 from 1.8% for fiscal 1996. This decrease in amortization
of intangibles was primarily attributable to the use of the declining balance
method of amortization associated with certain non-compete covenants arising
from the Fiscal 1995 Acquisitions.
Non-recurring Payments to Management Advisors. Non-recurring payments to
management advisors represent payments pursuant to a management advisory
agreement which was terminated in connection with the Offering.
One-Time Payment to Executive Officer. One-time payment to executive
officer of $1.7 million for fiscal 1997 represents a payment to the Company's
Chief Executive Officer for successfully positioning the Company for the
Offering.
Interest Expense, Net. Interest expense decreased by $0.5 million, or
7.8%, to $6.6 million for fiscal 1997 from $7.1 million for fiscal 1996. As a
percentage of net sales, interest expense decreased to 6.7% for fiscal 1997 from
8.5% for fiscal 1996. This decrease in interest expense was primarily
attributable to decreased indebtedness associated with the Senior Credit
Agreement.
Provision for Income Taxes. The Company's effective tax rate decreased to
39.5% for fiscal 1997 from 40.5% for fiscal 1996. In each fiscal year, the
effective tax rate is higher than statutory rates primarily due to the non-
deductibility for tax purposes of goodwill amortization arising from the
purchase of Solaray. The impact of Solaray goodwill on the effective tax rate
for fiscal 1997 decreased compared to fiscal 1996 as a result of the Company's
higher income before provision for taxes.
21
<PAGE>
Selected Quarterly Financial Data; Seasonality
The following table sets forth certain quarterly financial date for fiscal
1997 and 1998. This quarterly information is unaudited, has been prepared on the
same basis as the annual financial statements and, in the opinion of the
Company's management, reflects all normally recurring adjustments necessary for
fair presentation of the information for the periods presented. Operating
results for any quarter are not necessarily indicative of results of any future
period.
<TABLE>
<CAPTION>
Fiscal 1997 Fiscal 1998
---------------------------------- ---------------------------------
First Second Third Fourth First Second Third Fourth
Quarter Quarter Quarter Quarter Quarter Quarter Quarter Quarter
------- ------- ------- ------- ------- ------- ------- -------
(dollars in thousands, except per share data: unaudited)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net sales....................... $22,365 $25,120 $24,795 $25,815 $25,857 $27,799 $25,004 $26,027
Gross profit.................... 10,562 11,800 11,540 11,917 12,000 13,057 11,027 10,854
Net income before
extraordinary loss(a)......... 1,023 1,493 1,632 100 1,432 1,482 1,724 1,061
Net income (loss)............... 1,023 1,493 1,632 100 1,432 (1,647) 1,724 1,061
Earnings (loss) per
common share before
extraordinary loss:
Basic....................... $0.11 $0.16 $0.18 $0.01 $0.15 $0.14 $0.15 $0.09
Diluted..................... $0.10 $0.14 $0.16 $0.01 $0.14 $0.13 $0.14 $0.08
- ----------------
</TABLE>
(a) During the second quarter of fiscal 1998, the Company incurred an
extraordinary loss of $3,129, net of tax, related to the early
extinguishment of debt in connection with the Offering.
The Company believes that its business is characterized by minor
seasonality. Furthermore, sales to any particular customer can vary
substantially from one quarter to the next based on such factors as industry
trends, timing of promotional discounts, international economic conditions and
acquisition related activities. Historically, the Company has recorded higher
sales volume during the second fiscal quarter due to increased interest in
health-related products among consumers following the holiday season and in
anticipation of the summer months. The Company does not believe that the impact
of seasonality on its results of operations is material. In addition, the
Company's sales of premium bulk formulations are characterized by periodic
shipments to certain customers and can vary significantly from quarter to
quarter.
Year 2000 Issue
Many existing computer programs use only two digits to identify years.
These programs were designed without consideration for the effect of the
upcoming change in century, and if not corrected, could fail or create erroneous
results by or at the year 2000. Essentially all the Company's information
technology based systems, as well as many non-information technology based
systems, are affected by the Year 2000 issue. Specific systems include
accounting, payroll, financial reporting, product formulation and development,
manufacturing, inventory tracking and control, business planning, tax, accounts
receivable, accounts payable, purchasing, distribution and numerous word
processing and similar applications. Non-information technology based systems
include equipment and services containing imbedded microprocessors, such as
manufacturing and bottling equipment, clocks, security systems and building
management systems. The Company also has relationships with numerous third
parties, including material suppliers, utility companies, transportation
companies, and banks and brokerage firms that may be affected by the Year 2000
issue.
Remediation plans have been established for all major systems potentially
affected by the Year 2000 issue. These remediation plans constitute an ongoing
process that the Company expects to adequately complete before the Year 2000.
Identification of areas of potential third party risk is currently in
process. Plans will be developed and implemented based on the results of such
identification and assessment. No areas of material risk have been identified to
date.
The Company is in the process of determining the risks it would face in the
event certain aspects of its Year 2000 remediation plan fail. It is also
developing contingency plans for all mission-critical processes. Under a "worst
case" scenario, the Company's manufacturing operations would be unable to build
and deliver products in a timely fashion due to internal system failures and/or
the inability of vendors to deliver raw materials and components. Alternative
suppliers are being identified (where possible) and inventory levels of certain
key components may be temporarily increased. While virtually all internal
systems can be replaced with manual systems on a temporary basis, the failure of
mission-critical systems would have at least a short-term negative affect on
operations. The failure of national and worldwide banking systems could result
in the inability of many businesses, including the Company, to conduct business.
Remediation, risk assessment and contingency plans are expected to be completed
in a timely enough manner before the Company experiences any material adverse
impact to its ongoing operations. The total cost to the Company of achieving
Year 2000 compliance is not expected to exceed $200,000, not including internal
resources. Spending to date totals approximately $20,000.
22
<PAGE>
Liquidity and Capital Resources
For the fiscal year ended September 30, 1998, net cash provided by
operations was $10.1 million compared to $9.4 million for the year ended
September 30, 1997 and $4.6 million for the year ended September 30, 1996. The
increases in fiscal 1998 and 1997 were primarily attributable to higher net
income before extraordinary loss and reflect higher levels of accounts payable
and deferred income taxes, offset by higher accounts receivable and inventory
balances arising from higher sales volume.
Net cash used in investing activities was $17.8 million, $3.7 million and
$5.5 million for the years ended September 30, 1998, 1997 and 1996,
respectively. The Company's investing activities consist primarily of
acquisitions and, to a lesser extent, costs associated with capital
expenditures. The higher level of cash used in investing activities for fiscal
1998 reflects the Company's purchase of net assets related to the Fiscal 1998
Acquisitions. Capital expenditures during fiscal 1998, 1997 and 1996 related
primarily to manufacturing equipment and information systems required to expand
capacity and improve overall operating efficiency. The Company intends to
finance anticipated capital expenditures through internally generated cash flow
and, if necessary, through funds provided under the New Credit Agreement.
Net cash provided by (used in) financing activities was $5.3 million,
$(3.6) million and $2.6 million for the years ended September 30, 1998, 1997 and
1996, respectively. The Company's financing activities consist primarily of the
proceeds generated in connection with the Offering and, to a lesser extent,
borrowings and repayments under the Senior Credit Agreement and the New Credit
Agreement related to operating needs.
The New Credit Agreement currently makes $70.0 million of revolving credit
borrowings available to the Company. The available revolving credit borrowings
are reduced to $65.0 million, $45.0 million and $37.5 million during fiscal
2001, 2002 and 2003, respectively. Borrowings under the New Credit Agreement are
secured by certain assets of the Company and bear interest at the applicable
Eurodollar Rate plus a variable margin or at the Federal Funds Rate plus 0.5%
plus a variable margin. At September 30, 1998, the applicable interest rate was
5.88%. The Company is also required to pay a variable quarterly fee on the
unused balance under the New Credit Agreement. At September 30, 1998, the
applicable rate was 0.2%.
Accrued interest on Federal Funds Rate borrowings is payable quarterly.
Accrued interest on Eurodollar Rate borrowings is payable based on an elected
interval of one, two or three months. The Company is required to pay all
principal outstanding under the New Credit Agreement in January 2003.
The New Credit Agreement contains restrictive covenants, including
restrictions on incurring other indebtedness, limitations on capital
expenditures, requirements that the Company maintain a minimum level of
consolidated net worth, a minimum ratio of cash flow to fixed charges, a minimum
level of Adjusted EBITDA, and a maximum ratio of debt to Adjusted EBITDA. Upon
the occurrence of an event of default under the New Credit Agreement, the lender
may require the Company to repay all amounts borrowed thereunder and may proceed
against the collateral. The New Credit Agreement also restricts the Company's
ability to make certain payments, including the payment of dividends on its
Common Stock and payments with respect to certain capital expenditures, without
the approval of its lenders.
A key component of the Company's business strategy is to seek to make
additional acquisitions, which will likely require that the Company obtain
additional financing, which could include the incurrence of substantial
additional indebtedness. The Company believes that borrowings under the New
Credit Agreement or a replacement credit facility, together with cash flows from
operations, will be sufficient to make required payments under the New Credit
Agreement or any such replacement facility, and to make anticipated capital
expenditures and fund working capital needs for fiscal 1999.
New Accounting Standards
The Financial Accounting Standards Board issued SFAS No. 130, Reporting
Comprehensive Income, which became effective for fiscal years beginning after
December 15, 1997 and established standards for the way that companies report
and display comprehensive income and its components in a full set of general
purpose financial statements. The Company is currently assessing the impact of
SFAS No. 130 on its financial statements.
The Financial Accounting Standards Board issued SFAS No. 131, Disclosures
about Segments of an Enterprise and Related Information, which became effective
for fiscal years beginning after December 15, 1997 and established standards for
the way that public business enterprises report information about operating
segments in annual and quarterly financial statements. SFAS No. 131 also
established standards for related disclosures about products and services,
geographic areas and major customers. The Company is currently assessing the
impact of SFAS No. 131 on its financial statements.
The American Institute of Certified Public Accountants issued SOP 98-1,
Accounting for the Costs of Computer Software Developed or Obtained for Internal
Use, which became effective for fiscal years beginning after December 15, 1997
and established standards for the way that public business enterprises account
for the costs of internal use computer software. The Company is currently
assessing the impact of SOP 98-1 on its financial statements.
Inflation
Inflation affects the cost of raw materials, goods and services used by the
Company. In recent years, inflation has been modest. The competitive
environment somewhat limits the ability of the Company to recover higher costs
resulting form inflation by raising prices. Overall product prices have
generally been stable and the Company seeks to mitigate the adverse effects of
inflation primarily through improved productivity and cost containment programs.
The Company does not believe that inflation has had a material impact on its
results of operations for the periods presented.
23
<PAGE>
Forward-Looking Statements
Management's Discussion and Analysis of Financial Condition and Results of
Operations ("MD&A") contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the "Securities Act").
Such forward-looking statements are based on the beliefs of the Company's
management as well as on assumptions made by and information currently available
to the Company at the time such statements were made. When used in this MD&A,
the words "anticipate," "believe," "estimate," "expect," "intends," and similar
expressions, as they relate to the Company are intended to identify forward-
looking statements, which include statements relating to, among other things,
(i) the ability of the Company to continue to compete successfully in the
dietary supplements market; (ii) the anticipated benefits from new product
introductions; (iii) the continued effectiveness of the Company's sales and
marketing strategy; and (iv) the ability of the Company to continue to
successfully develop and launch new products. Actual results could differ
materially from those projected in the forward-looking statements as a result of
the matters discussed herein and certain economic and business factors, some of
which may be beyond the control of the Company.
Item 7A. Quantitative and Qualitative Disclosure About Market Risk.
Borrowings under the New Credit Agreement bear interest at the applicable
Eurodollar Rate plus a variable margin or at the Federal Funds Rate plus
0.5% plus a variable margin. At September 30, 1998, the applicable interest rate
was 5.88% and the Company had total borrowings outstanding of $37.0 million. To
date, the Company has not obtained interest rate protection with respect to
these borrowings due to the recent stability of interest rates.
Item 8. Financial Statements and Supplementary Data.
The information required by Item 8 is set forth on pages F-1 through F-17
of this Form 10-K. The supplementary financial information required by Item 302
of Regulation S-K is set forth in "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Selected Quarterly Financial
Data; Seasonality."
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
None.
24
<PAGE>
PART III
--------
Item 10. Directors and Executive Officers of the Registrant.
Information with respect to Directors of the Company is set forth in the
Proxy Statement under the heading "The Board of Directors," which information is
incorporated herein by reference. Information regarding the executive officers
of the Company is included as Item 4A of Part I of the Form 10-K as permitted by
Instruction 3 to Item 401(b) of Regulation S-K. Information required by Item 405
of Regulation S-K is set forth in the Proxy Statement under the heading "Section
16(a) Beneficial Ownership Reporting Compliance," which information is
incorporated herein by reference.
Item 11. Executive Compensation.
Information with respect to executive compensation is set forth in the
Proxy Statement under the heading "Executive Compensation," which information is
incorporated herein by reference (except for the Compensation Committee Report
and the Performance Graph).
Item 12. Security Ownership of Certain Beneficial Owners and Management.
Information with respect to security ownership of certain beneficial owners
and management is set forth in the Proxy Statement under the heading "Principal
Stockholders," which information is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions.
Information with respect to certain relationships and related transactions
is set forth in the Proxy Statements under the headings "The Board of Directors-
- - Compensation Committee Interlocks and Insider Participation" and "The Board of
Directors--Certain Relationships and Related Transactions," which information is
incorporated herein by reference.
25
<PAGE>
PART IV
-------
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
(a) The following documents are filed as part of this report:
1. Financial Statements, as set forth on the attached Index to Financial
Statements.
2. Exhibits, as set forth on the attached Exhibit Index.
3. Financial Statement Schedules.
Schedule II--Valuation and Qualifying Accounts
(b) Reports on Form 8-K.
The Company filed a Current Report on Form 8-K on July 21, 1998.
26
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of Section 13 or 15(d) of the Securities and
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, on this 29th day of
December, 1998.
NUTRACEUTICAL INTERNATIONAL CORPORATION
By: /s/ Frank W. Gay II
----------------------------
Name: Frank W. Gay II
Title: Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1994, this
report has been signed below by the following persons on behalf of the
registrant in the capacities indicated on this 29th day of December, 1998.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Frank W. Gay II Director, Chairman of the Board and Chief Executive
- -------------------------------- Officer
Frank W. Gay II
/s/ Bruce R. Hough
- --------------------------------
Bruce R. Hough Director, President
/s/ Jeffrey A. Hinrichs Director, Chief Operating Officer and Executive Vice
- -------------------------------- President
Jeffrey A. Hinrichs
/s/ Leslie M. Brown, Jr.
- --------------------------------
Leslie M. Brown, Jr. Senior Vice President, Finance and Chief Financial Officer
/s/ Alexander Gordon Bearn, M.D.
- --------------------------------
Alexander Gordon Bearn, M.D. Director
/s/ Robert C. Gay
- --------------------------------
Robert C. Gay Director
/s/ Matthew S. Levin
- --------------------------------
Matthew S. Levin Director
/s/ Geoffrey S. Rehnert
- --------------------------------
Geoffrey S. Rehnert Director
/s/ Jon Steven Young
- --------------------------------
Jon Steven Young Director
</TABLE>
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Number Description
- ------ -----------
<C> <S>
3.1 Form of Amended and Restated Certificate of Incorporation of the Registrant(1)
3.2 Form of By-laws of the Registrant(1)
4.1 Form of certificate representing Common Stock(1)
4.2 Amended and Restated Registration Agreement dated as of January 31, 1995 among the Company and
certain of its stockholders(1)
4.3 Credit Agreement dated as of February 25, 1998 among the Company and its lenders*
10.1 Nutraceutical International Corporation 1998 Stock Incentive Plan(1)
10.2 Nutraceutical International Corporation 1998 Non-Employee Director Stock Option Plan(1)
10.3 Nutraceutical International Corporation Employee Stock Discount Purchase Plan(1)
10.4 Transaction Services Agreement between the Company and Bain Capital(1)
10.5 Consultant Stock Agreement dated as of October 28, 1993 between the Company and Bruce R.
Hough(1)
10.6 Executive Stock Agreement dated as of October 28, 1993 between the Company and Jeffrey A.
Hinrichs(1)
10.7 Stock Option Agreement dated as of November 15, 1994 between the Company and Jeffrey A.
Hinrichs(1)
10.8 Stock Option Agreement dated as of November 15, 1994 between the Company and Bruce R.
Hough(1)
10.9 Stock Option Agreement dated as of November 15, 1994 between the Company and Frank W. Gay
II(1)
10.10 Form of Area Sales Consultant Agreement(1)
11.1 Computation of earnings per share
The information required by Exhibit 11.1 is set forth on page F-14 of
this Form 10-K.
21.1 Subsidiaries of the Company
23.1 Consent of PricewaterhouseCoopers LLP
27.1 Financial Data Schedule
</TABLE>
- ------------------
(1) Incorporated by reference to the applicable exhibit to the Registrant's
Registration Statement on Form S-1, Registration No. 333-41909.
* The Company agrees to furnish supplementally to the Commission a copy of
any omitted schedule or exhibit to such agreement upon request by the
Commission.
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
Financial Statements:
<S> <C>
Report of Independent Accountants...................................... F-2
Consolidated Balance Sheets at September 30, 1997 and 1998............. F-3
Consolidated Statements of Operations for the years ended September 30,
1996, 1997 and 1998................................................... F-4
Consolidated Statements of Cash Flows for the years ended September 30,
1996, 1997 and 1998................................................... F-5
Consolidated Statements of Stockholders' Equity for the years ended
September 30, 1996, 1997 and 1998..................................... F-6
Notes to Consolidated Financial Statements............................. F-7
Financial Statement Schedules:
For each of the three years in the period ended September 30, 1998
Schedule II -- Valuation and Qualifying Accounts
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders
of Nutraceutical International Corporation.
In our opinion, the consolidated financial statements listed in the
accompanying index present fairly, in all material respects, the financial
position of Nutraceutical International Corporation and its subsidiaries at
September 30, 1997 and 1998, and the results of their operations and their cash
flows for each of the three years in the period ended September 30, 1998, in
conformity with generally accepted accounting principles. These financial
statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
/s/ PricewaterhouseCoopers LLP
Salt Lake City, Utah
November 17, 1998
F-2
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
CONSOLIDATED BALANCE SHEETS
(dollars in thousands, except per share data)
<TABLE>
<CAPTION>
SEPTEMBER 30,
-----------------
1997 1998
------- --------
ASSETS
- ------
<S> <C> <C>
Current assets:
Cash...................................................... $ 4,415 $ 1,967
Accountants receivable, net............................... 8,001 9,149
Inventories, net.......................................... 20,753 23,935
Prepaid expenses and other assets......................... 1,018 1,649
Deferred income taxes..................................... 897 1,101
------- --------
Total current assets.................................... 35,084 37,801
Property, plant and equipment, net.......................... 10,711 10,770
Goodwill, net............................................... 42,008 54,375
Other assets, net........................................... 2,307 1,362
------- --------
$90,110 $104,308
======= ========
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
<S> <C> <C>
Current liabilities:
Current portion of long-term debt......................... $ 7,085 $ --
Current portion of capital lease obligations.............. 181 53
Accounts payable.......................................... 6,932 9,614
Accrued expenses.......................................... 5,270 4,087
------- --------
Total current liabilities............................... 19,468 13,754
Long-term debt.............................................. 52,860 37,000
Capital lease obligations................................... 133 80
Deferred income taxes, net.................................. 1,295 1,852
------- --------
Total liabilities....................................... 73,756 52,686
------- --------
Commitments and contingencies (Notes 10, 13 and 16)
Stockholders' equity:
Common Stock, $.01 par value, 50,000,000 shares
authorized, 9,308,583 and 11,764,879 shares issued and
outstanding at September 30, 1997 and 1998,
respectively............................................. 93 118
Preferred Stock, $.01 par value, 5,000,000 shares
authorized, no shares issued and outstanding at September
30, 1997 and 1998........................................ -- --
Additional paid-in capital................................ 9,609 42,515
Subscriptions receivable.................................. (55) --
Retained earnings......................................... 6,707 9,277
Cumulative translation adjustment......................... -- 13
Treasury stock at cost, 41,800 shares at September 30,
1998..................................................... -- (301)
------- --------
Total stockholders' equity.............................. 16,354 51,622
------- --------
$90,110 $104,308
======= ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(dollars in thousands, except per share data)
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
--------------------------------
1996 1997 1998
---------- ---------- ----------
<S> <C> <C> <C>
Net sales................................... $ 83,923 $ 98,096 $ 104,688
Cost of sales............................... 45,099 52,277 57,750
---------- ---------- ----------
Gross profit............................ 38,824 45,819 46,938
---------- ---------- ----------
Operating expenses:
Selling, general and administrative....... 27,308 28,879 31,233
Amortization of intangibles............... 1,483 1,346 1,391
Non-recurring payments to management
advisors................................. 300 300 1,135
One-time payment to executive officer..... -- 1,700 --
---------- ---------- ----------
29,091 32,225 33,759
---------- ---------- ----------
Income from operations...................... 9,733 13,594 13,179
Interest expense, net....................... 7,126 6,572 3,971
---------- ---------- ----------
Income before provision for income taxes.... 2,607 7,022 9,208
Provision for income taxes.................. 1,056 2,774 3,509
---------- ---------- ----------
Net income before extraordinary loss........ 1,551 4,248 5,699
Extraordinary loss on early extinguishment
of debt, net of tax........................ -- -- (3,129)
---------- ---------- ----------
Net income.................................. $ 1,551 $ 4,248 $ 2,570
========== ========== ==========
Net income before extraordinary loss per
common share:
Basic..................................... $ 0.17 $ 0.46 $ 0.53
Diluted................................... $ 0.15 $ 0.40 $ 0.48
Extraordinary loss per common share:
Basic..................................... $ -- $ -- $ (0.29)
Diluted................................... $ -- $ -- $ (0.26)
Net income per common share:
Basic..................................... $ 0.17 $ 0.46 $ 0.24
Diluted................................... $ 0.15 $ 0.40 $ 0.22
Weighted average common shares outstanding:
Basic..................................... 9,308,583 9,308,583 10,806,178
Diluted................................... 10,421,667 10,502,749 11,902,348
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(dollars in thousands, except per share data)
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
--------------------------
1996 1997 1998
------- ------- --------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income....................................... $ 1,551 $ 4,248 $ 2,570
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization (includes
amortization of inventory write-up of $381
during 1998).................................. 3,085 3,969 5,096
Amortization of debt issuance costs............ 785 817 468
Extraordinary loss on early extinguishment of
debt, net of tax.............................. -- -- 3,129
Loss on disposal of property, plant and
equipment..................................... -- -- 7
Changes in assets and liabilities, net of
effects from acquisitions:
Accounts receivable.......................... 3,932 (794) (456)
Inventories.................................. (1,491) (3,390) (2,460)
Prepaid expenses and other assets............ (358) 190 (453)
Deferred income taxes........................ 909 608 520
Other assets................................. (1) (3) (305)
Accounts payable............................. (2,838) 1,939 1,960
Accrued expenses............................. (1,015) 1,779 (13)
------- ------- --------
Net cash provided by operating activities.. 4,559 9,363 10,063
------- ------- --------
Cash flows from investing activities:
Purchases of property and equipment.............. (5,498) (3,652) (3,380)
Acquisitions, net of cash acquired............... -- -- (14,435)
------- ------- --------
Net cash used in investing activities...... (5,498) (3,652) (17,815)
------- ------- --------
Cash flows from financing activities:
Proceeds from long-term debt..................... 4,250 -- 46,450
Payments on long-term debt....................... (1,500) (3,450) (71,955)
Principal payments on capital lease obligations.. (178) (182) (181)
Payment of deferred financing fees............... -- -- (1,058)
Prepayment penalty and fees on early
extinguishment of debt.......................... -- -- (632)
Receipts of subscriptions receivable............. 28 15 55
Proceeds from issuance of common stock........... -- -- 32,931
Purchase of treasury shares...................... -- -- (301)
------- ------- --------
Net cash provided by (used in) financing
activities................................ 2,600 (3,617) 5,309
------- ------- --------
Effect of exchange rate changes on cash............. -- -- (5)
------- ------- --------
Net increase (decrease) in cash.................... 1,661 2,094 (2,448)
Cash at beginning of period........................ 660 2,321 4,415
------- ------- --------
Cash at end of period.............................. $ 2,321 $ 4,415 $ 1,967
======= ======= ========
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest....................................... $ 6,164 $ 5,924 $ 3,882
Income taxes................................... $ 513 $ 2,432 $ 874
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(dollars in thousands, except per share data)
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL CUMULATIVE TOTAL
----------------- PAID-IN SUBSCRIPTIONS RETAINED TRANSLATION TREASURY STOCKHOLDERS'
SHARES AMOUNT CAPITAL RECEIVABLE EARNINGS ADJUSTMENT STOCK EQUITY
---------- ------ ---------- ------------- -------- ----------- -------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at October 1,
1995................... 9,308,583 $ 93 $ 9,609 $(98) $ 908 $-- $ -- $10,512
Receipt of subscriptions
receivable............. -- -- -- 28 -- -- -- 28
Net income.............. -- -- -- -- 1,551 -- -- 1,551
---------- ---- ------- ---- ------ ---- ----- -------
Balance at September 30,
1996................... 9,308,583 93 9,609 (70) 2,459 -- -- 12,091
Receipt of subscriptions
receivable............. -- -- -- 15 -- -- -- 15
Net income.............. -- -- -- -- 4,248 -- -- 4,248
---------- ---- ------- ---- ------ ---- ----- -------
Balance at September 30,
1997................... 9,308,583 93 9,609 (55) 6,707 -- -- 16,354
Issuance of common
stock.................. 2,456,296 25 32,906 -- -- -- -- 32,931
Receipt of subscriptions
receivable............. -- -- -- 55 -- -- -- 55
Net income.............. -- -- -- -- 2,570 -- -- 2,570
Cumulative translation
adjustment............. -- -- -- -- -- 13 -- 13
Purchase of treasury
stock.................. -- -- -- -- -- -- (301) (301)
---------- ---- ------- ---- ------ ---- ----- -------
Balance at September 30,
1998................... 11,764,879 $118 $42,515 $-- $9,277 $ 13 $(301) $51,622
========== ==== ======= ==== ====== ==== ===== =======
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share data)
1. DESCRIPTION OF BUSINESS
Nutraceutical International Corporation (the Company) develops, manufactures
and markets high quality branded vitamin, mineral, herbal and specialty dietary
supplements to domestic health food stores and international distributors under
the Solaray, Kal, NaturalMax, VegLife, Premier One, Solar Green, Natural Sport
and Action Labs brand names. The Company also produces chelated minerals and
processed herbs for its own use and sells these items to other manufacturers and
marketers in the dietary supplement industry. The Company's wholly-owned direct
and indirect subsidiaries consist of Nutraceutical Corporation; Solaray, Inc.
(Solaray); Premier One Products, Inc. (Premier One); Makers of KAL, Inc. and
Makers of KAL B.V. (KAL); NaturalMax, Inc. (NaturalMax); Monarch Nutritional
Laboratories, Inc. (Monarch Nutritional Laboratories); AuNaturel, Inc.; VegLife,
Inc.; Action Labs, Inc. (Action Labs) and Nutraforce (Canada) International,
Inc. (Nutraforce).
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation--The consolidated financial statements include the
accounts of the Company and its subsidiaries (Note 1). The acquired operations
of Action and Nutraforce have been consolidated from their respective dates of
acquisition (Note 3). All significant intercompany transactions and balances
have been eliminated.
Use of Estimates--The preparation of these financial statements in conformity
with generally accepted accounting principles required management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the dates of
the financial statements and the reported amounts of net sales and expenses
during the reporting periods. Estimates include reserves for obsolete and slow
moving inventory, customer returns and allowances and uncollectible accounts
receivable. Actual results could differ from these estimates.
Reclassification--Certain prior year amounts have been reclassified to conform
with the current year's presentation.
Fair Value of Financial Instruments--The fair value of financial instruments,
including cash, accounts receivable, other current assets, accounts payable,
accrued expenses and debt, approximates their respective book values.
Cash--Substantially all of the Company's cash is held by one bank at September
30, 1998. The Company does not believe that, as a result of this concentration,
it is subject to any unusual financial risk beyond the normal risk associated
with commercial banking relationships.
Inventories--Inventories include freight-in, materials, labor and overhead
costs and are stated at the lower of cost or market, cost being determined by a
moving weighted average under the first-in, first-out method.
Property, Plant and Equipment--Property, plant and equipment are stated at
cost, less accumulated depreciation and amortization. Depreciation and
amortization are provided using the straight-line method over the estimated
useful lives of the respective assets. Expenditures for renewals and betterments
are capitalized while maintenance and repairs are charged to operations in the
period incurred.
Goodwill--The excess of the purchase price over the fair market values of the
assets acquired and liabilities assumed is classified as goodwill and is being
amortized using the straight-line method over periods ranging from 25 to 40
years. The Company periodically evaluates the recoverability of goodwill based
on undiscounted future cash flows. No impairments of goodwill have been recorded
as a result of these evaluations.
Non-Compete Agreements--Included in long-term other assets are capitalized
costs associated with non-compete agreements the Company entered into with
certain key executives associated with the Solaray, Premier One, KAL/NaturalMax
and Monarch Nutritional Laboratories acquisitions. These capitalized costs are
being amortized using the declining balance method over the lives of the
agreements which expire during fiscal 2000.
F-7
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
Deferred Financing Fees--The Company deferred certain debt issuance costs
related to the establishment of new financing loans (Note 9). These costs are
capitalized in long-term other assets and are being amortized using the
effective interest rate method over the life of the loans.
Interest Rate Cap Agreement--During fiscal 1995, the Company entered into an
interest rate cap agreement to hedge against the interest rate risk associated
with its variable rate debt obligations (Note 9). The effect of this interest
rate cap was to minimize the impact of interest rate fluctuations on the
Company's operating results. At September 30, 1997, the Company had an
outstanding interest rate cap agreement with a notional principal amount of
$26,000. This interest rate cap agreement was cancelled in connection with the
Offering.
Common Stock--On February 19, 1998, the Company completed the initial public
offering (the Offering) of its common stock (Common Stock), par value $0.01 per
share.
In connection with the Offering, the Company reclassified all of its
outstanding classes of capital stock (including accrued preference amounts) into
shares of Common Stock and authorized a single class of undesignated preferred
stock. Concurrently with the Offering, the Company effected a 7.5291-for-one
stock split of all outstanding shares of Common Stock and a corresponding
adjustment in the number of shares issuable upon the exercise of all outstanding
options and warrants. After giving effect to the reclassification and stock
split, the Company had 9,308,583 shares of Common Stock outstanding and no
shares of preferred stock outstanding. All periods presented have been
retroactively adjusted for the effect of the reclassification and stock split.
The Company sold 2,144,618 shares of Common Stock in the Offering and certain
selling stockholders sold an additional 1,684,882 shares of Common Stock
(including shares sold pursuant to the underwriters overallotment option). Of
the shares sold by the selling stockholders, 302,947 shares were issued in
connection with the Offering upon the exercise of outstanding warrants.
Immediately following the Offering, the Company had a total of 11,756,148 shares
of Common Stock outstanding. The net proceeds to the Company from the sale of
shares in the Offering of approximately $32,807 were primarily used to repay
existing indebtedness (Note 9). In addition, the Company recorded a one-time
payment related to the termination of a management advisory agreement and for
services rendered in connection with the Offering (Note 14).
Foreign Currency Translation--All assets and liabilities of foreign
subsidiaries are translated into U.S. dollars at fiscal year-end exchange rates.
Income and expense items are translated at average exchange rates prevailing
during the fiscal year. The resulting translation adjustments are recorded as a
component of stockholders' equity.
Revenue Recognition--Sales are recognized upon shipment of merchandise to a
customer. Provision is made for estimated customer returns, discounts and
allowances at the time of sale.
Research and Development--The Company expenses research and development costs
as incurred. For the years ended September 30, 1996, 1997 and 1998, the Company
incurred $837, $850 and $842, respectively, in research and development
expenditures. These costs are included in selling, general and administrative
expenses for the respective periods.
Advertising--The Company expenses advertising costs as incurred. These costs
are included in selling, general and administrative expenses for the respective
periods in the statements of operations.
Income Taxes--The Company accounts for income taxes using the asset and
liability method as prescribed by Statement of Financial Accounting Standards
No. 109, Accounting for Income Taxes (SFAS 109). SFAS 109 requires the Company
to record deferred tax assets and liabilities for expected future tax
consequences of events that have been recognized in different periods for
financial statements versus tax returns.
F-8
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
Accounting for Stock-Based Compensation--The Company has adopted Statement
of Financial Accounting Standards No. 123, Accounting for Stock-Based
Compensation (SFAS 123). The Company measures compensation expense for its
stock-based employee compensation plans using the intrinsic value method
prescribed by the Accounting Principles Board Opinion No. 25, Accounting for
Stock Issued to Employees, and will, when material, provide pro forma
disclosures of net income and net income per share as if the fair value-based
method prescribed by SFAS 123 had been applied in measuring compensation
expense.
Concentrations of Credit Risk--In the normal course of business, the Company
provides credit terms to its customers; however, collateral is not required.
Accordingly, the Company performs ongoing credit evaluations of its customers
and maintains allowances for possible losses which, when realized, have been
within the range of management's expectations. From time to time, a higher
concentration of credit risk may exist on outstanding accounts receivable for
a select number of customers depending on individual buying patterns. At
September 30, 1997 and 1998, no customer accounted for more than 10 percent of
trade accounts receivable. Furthermore, no customer accounted for more than 10
percent of net sales in any of the three years ended September 30, 1998.
3. ACQUISITIONS
Acquisitions--On July 20, 1998 and August 31, 1998, the Company acquired
substantially all of the assets and assumed certain liabilities of Action Labs
and Nutraforce, respectively (collectively referred to as the Acquired
Businesses or the Fiscal 1998 Acquisitions). These acquisitions were accounted
for using the purchase method of accounting. Accordingly, the purchase price
assigned to the assets acquired and liabilities assumed was their fair market
values at their respective dates of acquisition. The excess of the purchase
price over the fair market values of the assets acquired and liabilities assumed
has been classified as goodwill and is being amortized using the straight-line
method (Note 2). The consolidated statements of operations and statements of
cash flows presented herein include the activities of the Acquired Businesses
from their respective dates of acquisition.
The aggregate purchase price for the Fiscal 1998 Acquisitions totaled $14,683,
consisting of cash of $14,435, forgiveness of certain seller liabilities of $224
owed to the Company and a net payable to a seller of $24. The following reflects
the allocation of the aggregate purchase price for the Fiscal 1998 Acquisitions
to the aggregate assets acquired and the liabilities assumed:
<TABLE>
<CAPTION>
FISCAL 1998
ACQUISITIONS
------------
<S> <C>
Aggregate purchase price for Fiscal 1998 Acquisitions........ $14,683
=======
Aggregate assets acquired and liabilities assumed:
Current assets............................................. 2,022
Property, plant and equipment.............................. 12
Goodwill................................................... 13,665
Other assets............................................... 166
Current liabilities........................................ (1,182)
-------
Total.................................................... $14,683
=======
</TABLE>
4. ACCOUNTS RECEIVABLE, NET
Accounts receivable, net, consist of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30,
---------------
1997 1998
------ -------
<S> <C> <C>
Accounts receivable...................................... $8,811 $10,173
Less allowances.......................................... (810) (1,024)
------ -------
$8,001 $ 9,149
====== =======
</TABLE>
F-9
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
5. INVENTORIES, NET
Inventories, net of reserves for obsolete and slow moving inventory, are
comprised of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30,
---------------
1997 1998
------- -------
<S> <C> <C>
Raw materials............................................. $10,090 $ 8,562
Work-in-process........................................... 3,064 4,981
Finished goods............................................ 7,599 10,392
------- -------
$20,753 $23,935
======= =======
</TABLE>
In connection with the Fiscal 1998 Acquisitions (Note 3), the inventories of
the Acquired Businesses were valued at net realizable value as of their
respective acquisition dates. The amount ascribed in excess of historical cost
(write-up) was $381 for the year ended September 30, 1998 and was charged to
cost of sales in the accompanying statements of operations as the inventories
were sold.
6. PROPERTY, PLANT AND EQUIPMENT, NET
Property, plant and equipment, net, are comprised of the following:
<TABLE>
<CAPTION>
ESTIMATED
USEFUL SEPTEMBER 30,
LIFE ----------------
(YEARS) 1997 1998
--------- ------- -------
<S> <C> <C> <C>
Land........................................ -- $ 422 $ 422
Building and improvements................... 30 2,576 2,623
Furniture, fixtures and equipment........... 3-10 12,708 16,033
------- -------
15,706 19,078
Less accumulated depreciation and
amortization............................... (4,995) (8,308)
------- -------
$10,711 $10,770
======= =======
</TABLE>
At September 30, 1997 and 1998, furniture, fixtures and equipment includes
$474 of leased equipment with an accumulated amortization balance of $304 and
$352, respectively. Certain property and equipment collateralize debt
obligations (Note 9).
Depreciation and amortization of property, plant and equipment totaled
$1,541, $2,561 and $3,324 for the years ended September 30, 1996, 1997 and
1998, respectively.
7. GOODWILL, NET
Goodwill, net, is comprised of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30,
----------------
1997 1998
------- -------
<S> <C> <C>
Goodwill................................................ $45,237 $58,902
Less accumulated amortization........................... (3,229) (4,527)
------- -------
$42,008 $54,375
======= =======
</TABLE>
F-10
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
8. ACCRUED EXPENSES
Accrued expenses are comprised of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30,
----------------
1997 1998
------- -------
<S> <C> <C>
Employee payroll, benefits, taxes and performance
incentives.............................................. $ 2,009 $ 2,036
One-time payment to executive officer.................... 1,700 --
Other.................................................... 1,561 2,051
------- -------
$ 5,270 $ 4,087
======= =======
</TABLE>
9. LONG-TERM DEBT
Long-term debt is comprised of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30,
----------------
1997 1998
------- -------
<S> <C> <C>
Note payable, payable in two installments as follows:
$500 in October 1997 and $765 in January 1998; interest
is payable with principal installments and accrues at
8% per annum........................................... $ 1,265 $ --
Senior Credit Agreement:
Revolving Credit Facility............................. 9,240 --
Term A Loan........................................... 37,000 --
Term B Loan, net of unamortized discount of $2,560.... 12,440
New Credit Agreement:
Revolving Credit Facility............................. -- 37,000
------- -------
Total long-term debt.................................... 59,945 37,000
Less current portion.................................... (7,085) --
------- -------
$52,860 $37,000
======= =======
</TABLE>
On February 25, 1998, the Company replaced its Senior Credit Agreement,
under which the Company had outstanding borrowings of $60,178 (before
unamortized discount of $2,454), with a new credit agreement (the New Credit
Agreement). The Company realized an extraordinary loss on the early
extinguishment of the Senior Credit Agreement of $3,129, net of tax of $1,804.
The New Credit Agreement currently makes $70,000 of revolving credit
borrowings available to the Company. The available revolving credit borrowings
are reduced to $65,000, $45,000 and $37,500 during fiscal 2001, 2002 and 2003,
respectively. Borrowings under the New Credit Agreement are secured by certain
assets of the Company and bear interest at the applicable Eurodollar Rate plus a
variable margin or at the Federal Funds Rate plus 0.5% plus a variable margin.
At September 30, 1998, the applicable interest rate was 5.88%. The Company is
also required to pay a variable quarterly fee on the unused balance under the
New Credit Agreement. At September 30, 1998, the applicable rate was 0.2%.
Accrued interest on Federal Funds Rate borrowings is payable quarterly.
Accrued interest on Eurodollar Rate borrowings is payable based on an elected
interval of one, two or three months. The Company is required to repay all
principal outstanding under the New Credit Agreement in January 2003.
Accordingly, the outstanding principal balance at September 30, 1998 was
classified as long-term debt.
F-11
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
10. LEASE COMMITMENTS AND OBLIGATIONS
The Company leases office and warehouse facilities under non-cancelable
operating leases expiring June of 2003. These operating leases require the
Company to pay all taxes, insurance and maintenance. The Company also leases
certain computer, manufacturing and laboratory equipment under capital leases.
The following summarizes future minimum lease payments required under
capital and operating leases:
<TABLE>
<CAPTION>
YEAR ENDING CAPITALIZED OPERATING
SEPTEMBER 30, LEASES LEASES
------------- ----------- ---------
<S> <C> <C>
1999............................................. $ 63 $1,110
2000............................................. 63 656
2001............................................. 23 151
2002............................................. -- 126
2003............................................. -- 52
Thereafter....................................... -- --
---- ------
Future minimum lease payments.................... 149 $2,095
======
Less amounts representing interest............... (16)
====
Present value of future minimum lease payments... 133
Less amounts due within one year................. (53)
----
Amounts due after one year....................... $ 80
====
</TABLE>
Total rent expense incurred by the Company under non-cancelable operating
leases for the years ended September 30, 1996, 1997 and 1998 was $898, $950
and $1,142, respectively.
11. INCOME TAXES
The provision for income taxes is comprised of the following:
<TABLE>
<CAPTION>
YEAR ENDED
SEPTEMBER 30,
--------------------
1996 1997 1998
------ ------ ------
<S> <C> <C> <C>
Current:
Federal............................................ $ 134 $2,058 $ 862
State.............................................. 13 197 133
Deferred:
Federal............................................ 830 508 647
State.............................................. 79 11 63
------ ------ ------
$1,056 $2,774 $1,705
====== ====== ======
</TABLE>
The provision for income taxes for 1998 consists of a provision of $3,509
resulting from income before provision for income taxes offset by a benefit of
$1,804 resulting from the extraordinary loss on early extinguishment of debt.
F-12
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
A summary of the composition of net deferred income tax assets and
liabilities is as follows:
<TABLE>
<CAPTION>
SEPTEMBER 30,
-------------
1997 1998
------ ------
<S> <C> <C>
ASSETS
Inventory differences...................................... $ 108 $ 470
Accounts receivable reserves............................... 41 347
Accrued liabilities........................................ 748 273
Other...................................................... -- 11
------ ------
Current deferred income tax assets......................... $ 897 $1,101
====== ======
LIABILITIES
Amortization of intangibles................................ $1,131 $1,845
Depreciation............................................... 164 7
------ ------
Long-term deferred income tax liabilities, net............. $1,295 $1,852
====== ======
</TABLE>
The differences between income taxes at the statutory federal income tax
rate and income taxes reported in the statements of operations are as follows:
<TABLE>
<CAPTION>
YEAR ENDED
SEPTEMBER 30,
---------------------
1996 1997 1998
------ ------ ------
<S> <C> <C> <C>
Tax at federal statutory rate...................... $ 886 $2,387 $1,454
State tax, net of federal benefit.................. 94 249 152
Non-deductible expenses............................ 86 102 113
Other.............................................. (10) 36 (14)
------ ------ ------
$1,056 $2,774 $1,705
====== ====== ======
</TABLE>
12. CAPITAL STOCK
Description of Capital Stock -- At September 30, 1998, the Company had two
authorized classes of stock: Common Stock with a par value of $0.01 per share
and Preferred Stock with a par value of $0.01 per share.
The Company has adopted Statement of Financial Accounting Standards No. 128,
Earnings per Share (SFAS 128). Under this statement, both "basic" earnings per
share and "diluted" earnings per share are presented on the face of the income
statement. As required under SFAS 128, both basic earnings per share and
diluted earnings per share for the years ended September 30, 1996 and 1997
have been calculated giving retroactive effect to the Company's stock
reclassification and stock split which occurred in conjunction with the
Offering (Note 2). The following table provides a reconciliation of both net
income and the number of common shares used in the computations of basic
earnings per share, which utilizes the weighted average number of common
shares outstanding without regard to potential common shares, and diluted
earnings per share which includes all such shares:
F-13
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
--------------------------------
1996 1997 1998
---------- ---------- ----------
<S> <C> <C> <C>
Net income (Numerator):
Net income before extraordinary loss....... $ 1,551 $ 4,248 $ 5,699
Extraordinary loss on early extinguishment
of debt, net of tax....................... -- -- (3,129)
---------- ---------- ----------
Net income................................. $ 1,551 $ 4,248 $ 2,570
========== ========== ==========
Weighted average common shares (Denominator):
Basic weighted average common shares....... 9,308,583 9,308,583 10,806,178
Add: Dilutive effect of stock options and
warrants.................................. 1,113,084 1,194,166 1,096,170
---------- ---------- ----------
Diluted weighted average common shares..... 10,421,667 10,502,749 11,902,348
========== ========== ==========
Net income before extraordinary loss per
common share:
Basic...................................... $ 0.17 $ 0.46 $ 0.53
Diluted.................................... $ 0.15 $ 0.40 $ 0.48
Extraordinary loss per common share:
Basic...................................... -- -- $ (0.29)
Diluted.................................... -- -- $ (0.26)
Net income (loss) per common share:
Basic...................................... $ 0.17 $ 0.46 $ 0.24
Diluted.................................... $ 0.15 $ 0.40 $ 0.22
</TABLE>
Stock Warrants--As part of the Solaray acquisition, the Company issued
detachable stock warrants which entitle the holder to purchase 993,393 shares of
Common Stock at an exercise price of $0.01 per share, of which 302,947 warrants
were exercised in connection with the Offering. The aggregate estimated fair
value of these warrants on the date of issuance was $292. These warrants expire
October 28, 2003. As part of the Premier One and KAL acquisitions, the Company
issued warrants to purchase 163,976 shares of Common Stock at exercise prices
ranging from $4.86 to $4.91 per share, which were considered to be the estimated
fair market values per share of the Common Stock at the respective dates of
issuance. These warrants expire in January 2005.
Stock Options--During November 1994, the Company issued 301,164 options to
certain key executives at an exercise price of $3.45, which was considered to be
the estimated fair market value of the Company's stock at the date of grant.
These grants vest over a period of up to five years and expire no later than the
10th anniversary of the date of grant. As of September 30, 1998, 257,495 shares
were exercisable.
Stock Option Plans--During the year ended September 30, 1995, the Company's
Board of Directors adopted the 1995 Stock Option Plan (the 1995 Option Plan).
The 1995 Option Plan provides for granting options to executives and key
employees of the Company and its subsidiaries to purchase Common Stock. In
aggregate, 225,873 shares have been reserved for issuance under the 1995 Option
Plan.
During the year ended September 30, 1998, the Company's Board of Directors
adopted the 1998 Stock Incentive Plan (the 1998 Stock Plan). The 1998 Stock
Plan provides for granting options to executives and key employees of the
Company and its subsidiaries to purchase Common Stock. In aggregate, 1,050,000
shares of Common Stock have been reserved for issuance under the 1998 Stock
Plan.
During the year ended September 30, 1998, the Company's Board of Directors
adopted the 1998 Non-Employee Director Stock Option Plan (the Director Option
Plan). The Director Option Plan provides for granting options to non-employee
Directors of the Company to purchase Common Stock. In aggregate, 150,000
shares of Common Stock have been reserved for issuance under the Director
Option Plan.
F-14
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
The following table sets forth option grants made under the 1995 Option Plan,
the 1998 Stock Plan and the Director Option Plan:
<TABLE>
<CAPTION>
NUMBER OF AVERAGE PRICE AGGREGATE
OPTIONS PER SHARE OPTION PRICE
--------- ------------- ------------
<S> <C> <C> <C>
Outstanding at October 1, 1995...... -- $-- $ --
Granted........................... 190,486 5 936
Exercised......................... -- -- --
Canceled.......................... (15,246) 5 (75)
------- --- ------
Outstanding at September 30, 1996... 175,240 5 861
------- --- ------
Granted........................... 26,352 9 228
Exercised......................... -- -- --
Canceled.......................... (33,316) 5 (164)
------- --- ------
Outstanding at September 30, 1997... 168,276 5 925
------- --- ------
Granted........................... 314,074 16 5,105
Exercised......................... -- -- --
Canceled.......................... (20,580) 16 (336)
------- --- ------
Outstanding at September 30, 1998... 461,770 $12 $5,694
------- --- ------
</TABLE>
These options were issued at exercise prices which represent management's
estimate of the fair market value per share of Common Stock at the respective
grant dates. The 1995 Option Plan grants vest over a period of four years and
expire on the tenth anniversary of the date of grant. The 1998 Stock Incentive
Plan grants vest over a period of two to four years and expire no later than the
tenth anniversary of the date of grant. The Director Option Plan grants vest
over a period of approximately three years and expire no later than the tenth
anniversary of the date of grant.
F-15
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
The following table sets forth data related to exercise prices and lives for
option grants made under the 1995 Option Plan, the 1998 Stock Plan and the
Director Option Plan:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1998
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
--------------------------- ---------------------------
RANGE OF WEIGHTED-AVERAGE WEIGHTED-AVERAGE
EXERCISE PRICES SHARES EXERCISE PRICE SHARES EXERCISE PRICE
- ---------------------- ------- ---------------- ------- ---------------
<S> <C> <C> <C> <C>
$ 4.91 - $ 4.91 140,042 $ 4.91 108,979 $ 4.91
(Avg. life: 6.5 years)
$ 8.63 - $13.38 92,881 $10.77 9,920 $10.23
(Avg. life: 9.4 years)
$17.50 - $17.50 228,847 $17.50 37,545 $17.50
(Avg. life: 9.3 years)
</TABLE>
The weighted average fair value per share of options granted was $1.76 and
$10.13 for the years ended September 30, 1997 and 1998, respectively. The
Company's pro forma net income for the years ended September 30, 1997 and 1998
would have been $4,239 and $2,321, respectively, if compensation cost had been
measured under the fair value method of SFAS 123. The Company's pro forma basic
net income per common share for the fiscal years ended September 30, 1997 and
1998 would have been $0.46 and $0.21, respectively. The Company's pro forma
diluted net income per common share for the fiscal years ended September 30,
1997 and 1998 would have been $0.40 and $0.20, respectively.
The fair value of these options was estimated as of the date of grant using a
Black-Scholes option pricing model with the following assumptions for the years
ended September 30, 1997 and 1998, respectively: risk free interest rate of
6.15% and 5.52%; expected life of 5 years and 5 years; expected volatility of 1%
and 70%; and expected dividend yield of 0% and 0%. Because changes in the
subjective input assumptions can materially affect the fair value estimate,
management's opinion is that the existing valuation models do not necessarily
provide a reliable single measure of the fair value of its employee stock
options. The initial impact on pro forma net income may not be representative of
pro forma compensation expense in future years, depending upon the amount of
stock options awarded in the future and their related vesting periods.
Stock Purchase Plan--During the year ended September 30, 1998, the Company's
Board of Directors adopted the Employee Stock Discount Purchase Plan (the Stock
Purchase Plan). The Stock Purchase Plan is intended to give employees desiring
to do so a convenient means of purchasing shares of Common Stock through payroll
and lump-sum deductions. In aggregate, 750,000 shares of Common Stock have been
reserved for issuance under the Stock Purchase Plan.
Treasury Stock Repurchase Program--During the year ended September 30, 1998,
the Company's Board of Directors approved a treasury stock repurchase program to
repurchase up to 400,000 shares of Common Stock of the Company. As of September
30, 1998, the Company had repurchased 41,800 shares under this plan at an
aggregate price of $301.
F-16
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
13. EMPLOYEE BENEFIT PLANS
401(k) Plan--The Company has a 401(k) defined contribution profit sharing plan
which covers substantially all employees. Under the plan, employees can
contribute up to 15% of their compensation, not to exceed the prescribed annual
statutory limit ($10 for calendar 1998). The Company makes matching and
discretionary contributions to the plan which approximate 5% of all eligible
employees' salaries. The amounts contributed to the plan by the Company during
the years ended September 30, 1996, 1997 and 1998 were $254, $317 and $384,
respectively.
Self-Funded Health Insurance Plan--The Company has a self-insured health
care program for its employees and their dependents. Under the program, the
Company pays claims up to $35 per year for each individual, while claims
exceeding $35 per individual, or $694 in the aggregate as of September 30,
1998, are covered by a third party stop-loss insurance policy. Total health
insurance expense incurred by the Company, which includes claims, third party
insurance premiums and other related costs, for the years ended September 30,
1996, 1997 and 1998 was $526, $770 and $898, respectively. At September 30,
1998, the Company had accrued $166 for claims incurred but not reported and
claims reported but not paid.
14. RELATED PARTY TRANSACTIONS
On January 31, 1995, the Company entered into a five year management
agreement (the Agreement) with certain stockholders of the Company. The
Agreement required the Company to pay a monthly management fee of $25 plus
out-of-pocket expenses payable on a quarterly basis in arrears commencing
March 31, 1995. The Agreement was terminated in conjunction with the Offering.
A fee of $1,012 was incurred related to the termination of the Agreement and
other services performed in connection with the Offering. For the years ended
September 30, 1996, 1997, and 1998, the Company incurred $339, $360 and
$1,185, respectively, in fees and out-of-pocket expenses for these certain
stockholders.
During fiscal 1994, the Company loaned $112 to certain stockholders for the
purchase of the Company's stock. The loans accrued interest at 6% per annum
and were payable in four annual installments commencing October 28, 1994 and
ending October 28, 1997. The amount outstanding under these loans at September
30, 1997 was $55 and was repaid in full during fiscal 1998.
15. SUPPLEMENTAL DISCLOSURES OF NON-CASH INVESTING AND FINANCING ACTIVITIES
As part of the Fiscal 1998 Acquisitions, the Company forgave $224 in certain
seller liabilities owed to the Company and incurred a net payable of $24 to a
seller.
16. COMMITMENTS AND CONTINGENCIES
The formulation, manufacturing, processing, packaging, labeling,
advertising, distribution and sale of dietary supplements (consisting of
vitamins, amino acids, minerals, herbs, other botanicals and other dietary
ingredients) such as those sold by the Company are subject to regulation by
one or more federal agencies, principally the Food and Drug Administration and
the Federal Trade Commission and, to a lesser extent, the Consumer Product
Safety Commission and United States Department of Agriculture. These
activities are also regulated by various governmental agencies for the states
and localities in which the Company's products are sold, as well as by
governmental agencies in certain foreign countries in which the Company's
products are sold.
Although management believes that the Company is in compliance, in all
material respects, with the statutes, laws, rules and regulations of every
jurisdiction in which it operates, no assurance can be given that the
Company's compliance with applicable statutes, laws, rules and regulations
will not be challenged by governing authorities or that such challenges will
not have a material adverse effect on the Company's financial position or
results of operations or cash flows.
F-17
<PAGE>
NUTRACEUTICAL INTERNATIONAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(dollars in thousands, except per share data)
The Company, like any other retailer, distributor and manufacturer of
products that are designed to be ingested, also faces inherent risk of
exposure to product liability claims in the event that the use of its products
results in injury. With respect to product liability claims, the Company has
liability insurance; however, there can be no assurance that such insurance
will be adequate to cover potential liabilities. In the event that the Company
does not have adequate insurance or contractual indemnification from parties
supplying raw materials or marketing its products, product liabilities
relating to defective products could have a material adverse effect on the
Company.
The Company is not currently a named defendant in any product liability
lawsuit. However, the Company is involved in various legal matters arising in
the normal course of business. In the opinion of management, the Company's
liability, if any, arising from legal proceedings related to these matters is
not expected to have a material adverse impact on the Company's financial
position.
F-18
<PAGE>
Nutraceutical International Corporation
Schedule II--Valuation and Qualifying Accounts
<TABLE>
<CAPTION>
Balance at Charged Charged Balance at
Beginning to Costs and to Other End of
Description of Period Expenses Accounts Deductions Period
---------- ---------- ------------ -------- ---------- ----------
<S> <C> <C> <C> <C> <C>
September 30 1998
Deducted from related asset account:
Allowance for sales returns.................... $ 420 $313 $165 $295 $ 603
Allowance for doubtful accounts................ $ 390 $223 $ 15 $207 $ 421
Provision for inventory........................ $1,167 $410 $164 $620 $1,121
September 30 1997
Deducted from related asset account:
Allowance for sales returns.................... $ 456 $207 $ -- $243 $ 420
Allowance for doubtful accounts................ $ 355 $ 35 $ -- $ -- $ 390
Provision for inventory........................ $ 675 $492 $ -- $ -- $1,167
September 30 1996
Deducted from related asset account:
Allowance for sales returns.................... $ 412 $601 $ -- $557 $ 456
Allowance for doubtful accounts................ $ 420 $ -- $ -- $ 65 $ 355
Provision for inventory........................ $ 625 $ 50 $ -- $ -- $ 675
</TABLE>
<PAGE>
EXHIBIT 4.3
[Conformed Copy with EXHIBITS
F, G and H Conformed as Executed]
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
among
NUTRACEUTICAL INTERNATIONAL CORPORATION,
NUTRACEUTICAL CORPORATION,
VARIOUS LENDING INSTITUTIONS,
and
BANKERS TRUST COMPANY,
AS AGENT
---------------------------------------------------------
Dated as of February 25, 1998
---------------------------------------------------------
$70,000,000
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. Amount and Terms of Credit........................................... 1
1.01 Commitments.......................................................... 1
1.02 Minimum Borrowing Amounts, etc....................................... 3
1.03 Notice of Borrowing.................................................. 3
1.04 Disbursement of Funds................................................ 4
1.05 Notes................................................................ 5
1.06 Conversions.......................................................... 5
1.07 Pro Rata Borrowings.................................................. 6
1.08 Interest............................................................. 6
1.09 Interest Periods..................................................... 7
1.10 Increased Costs, Illegality, etc..................................... 8
1.11 Compensation......................................................... 10
1.12 Change of Lending Office............................................. 11
1.13 Replacement of Banks................................................. 11
SECTION 2. Letters of Credit.................................................... 12
2.01 Letters of Credit.................................................... 12
2.02 Letter of Credit Requests; Notices of Issuance....................... 14
2.03 Agreement to Repay Letter of Credit Payments......................... 14
2.04 Letter of Credit Participations...................................... 15
2.05 Increased Costs...................................................... 17
SECTION 3. Fees; Commitments.................................................... 18
3.01 Fees................................................................. 18
3.02 Voluntary Termination or Reduction of Total Unutilized
Revolving Loan Commitment......................................... 19
3.03 Mandatory Adjustments of Commitments, etc............................ 20
SECTION 4. Payments............................................................. 22
4.01 Voluntary Prepayments................................................ 22
4.02 Mandatory Prepayments................................................ 23
4.03 Method and Place of Payment.......................................... 24
4.04 Net Payments......................................................... 24
SECTION 5. Conditions Precedent................................................. 26
5.01 Execution of Agreement; Notes........................................ 26
5.02 No Default; Representations and Warranties........................... 26
5.03 Officer's Certificate................................................ 26
5.04 Opinions of Counsel.................................................. 27
5.05 Corporate Proceedings................................................ 27
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
5.06 Adverse Change, etc..................................................... 27
5.07 Litigation.............................................................. 27
5.08 Approvals............................................................... 28
5.09 Consummation of the Transaction......................................... 28
5.10 Existing Credit Agreement............................................... 28
5.11 Security Documents...................................................... 28
5.12 Subsidiary Guaranty..................................................... 29
5.13 Mortgages; Title Insurance; Surveys, etc................................ 30
5.14 Plans; Collective Bargaining Agreements; Existing Indebtedness
Agreements; Shareholders' Agreements; Management
Agreements; Employment Agreements; Tax Allocation
Agreements; Material Contracts....................................... 31
5.15 Solvency Certificate; Evidence of Insurance............................. 32
5.16 Pro Forma Balance Sheets................................................ 32
5.17 Projections............................................................. 32
5.18 Existing Indebtedness................................................... 32
5.19 Payment of Fees......................................................... 33
5.20 Notice of Borrowing; Letter of Credit Request........................... 33
SECTION 6. Representations, Warranties and Agreements............................. 33
6.01 Corporate Status........................................................ 33
6.02 Corporate Power and Authority........................................... 34
6.03 No Violation............................................................ 34
6.04 Litigation.............................................................. 34
6.05 Use of Proceeds; Margin Regulations..................................... 35
6.06 Governmental Approvals.................................................. 35
6.07 Investment Company Act.................................................. 35
6.08 Public Utility Holding Company Act...................................... 35
6.09 True and Complete Disclosure............................................ 35
6.10 Financial Condition; Financial Statements............................... 36
6.11 Security Interests...................................................... 37
6.12 Existing Indebtedness................................................... 37
6.13 Transaction............................................................. 37
6.14 Special Purpose Corporation............................................. 38
6.15 Compliance with ERISA................................................... 38
6.16 Capitalization.......................................................... 39
6.17 Subsidiaries............................................................ 39
6.18 Intellectual Property................................................... 40
6.19 Compliance with Statutes, etc........................................... 40
6.20 Environmental Matters................................................... 40
6.21 Properties.............................................................. 41
6.22 Labor Relations......................................................... 41
6.23 Tax Returns and Payments................................................ 41
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 7. Affirmative Covenants.................................................. 42
7.01 Information Covenants................................................... 42
7.02 Books, Records and Inspections.......................................... 45
7.03 Insurance............................................................... 45
7.04 Payment of Taxes........................................................ 46
7.05 Corporate Franchises.................................................... 46
7.06 Compliance with Statutes, etc........................................... 46
7.07 Compliance with Environmental Laws...................................... 46
7.08 ERISA................................................................... 47
7.09 Good Repair............................................................. 48
7.10 End of Fiscal Years; Fiscal Quarters.................................... 48
7.11 Additional Security; Further Assurances................................. 48
7.12 Register................................................................ 49
7.13 Foreign Subsidiaries Security........................................... 50
7.14 Contributions; Payments................................................. 50
SECTION 8. Negative Covenants..................................................... 51
8.01 Changes in Business..................................................... 51
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc.................. 51
8.03 Liens................................................................... 56
8.04 Indebtedness............................................................ 58
8.05 Advances, Investments and Loans......................................... 60
8.06 Dividends, etc.......................................................... 64
8.07 Transactions with Affiliates............................................ 65
8.08 Capital Expenditures.................................................... 66
8.09 Minimum Consolidated EBITDA............................................. 67
8.10 Interest Coverage Ratio................................................. 67
8.11 Leverage Ratio.......................................................... 68
8.12 Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements;
Issuance of Capital Stock; etc......................................... 68
8.13 Limitation on Certain Restrictions on Subsidiaries...................... 68
8.14 Limitation on the Creation of Subsidiaries.............................. 68
SECTION 9. Events of Default...................................................... 69
9.01 Payments................................................................ 69
9.02 Representations, etc.................................................... 69
9.03 Covenants............................................................... 69
9.04 Default Under Other Agreements.......................................... 69
9.05 Bankruptcy, etc......................................................... 70
9.06 ERISA................................................................... 70
9.07 Security Documents...................................................... 71
9.08 Guaranties.............................................................. 71
9.09 Judgments............................................................... 71
</TABLE>
(iii)
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<TABLE>
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9.10 Ownership............................................................. 71
SECTION 10. Definitions......................................................... 72
SECTION 11. The Agent........................................................... 97
11.01 Appointment.......................................................... 97
11.02 Delegation of Duties................................................. 98
11.03 Exculpatory Provisions............................................... 98
11.04 Reliance by Agent.................................................... 98
11.05 Notice of Default.................................................... 99
11.06 Non-Reliance on Agent and Other Banks................................ 99
11.07 Indemnification...................................................... 100
11.08 Agent in its Individual Capacity..................................... 100
11.09 Holders.............................................................. 100
11.10 Resignation of the Agent; Successor Agent............................ 101
SECTION 12. Miscellaneous....................................................... 101
12.01 Payment of Expenses, etc............................................. 101
12.02 Right of Setoff, Collateral Matters.................................. 102
12.03 Notices.............................................................. 103
12.04 Benefit of Agreement................................................. 103
12.05 No Waiver; Remedies Cumulative....................................... 105
12.06 Payments Pro Rata.................................................... 105
12.07 Calculations; Computations........................................... 105
12.08 Governing Law; Submission to Jurisdiction; Venue..................... 106
12.09 Counterparts......................................................... 107
12.10 Effectiveness........................................................ 107
12.11 Headings Descriptive ................................................ 107
12.12 Amendment or Waiver; etc............................................. 107
12.13 Survival............................................................. 108
12.14 Domicile of Loans.................................................... 108
12.15 Confidentiality...................................................... 109
12.16 Waiver of Jury Trial................................................. 109
SECTION 13. Holdings Guaranty;.................................................. 109
13.01 The Guaranty......................................................... 109
13.02 Bankruptcy........................................................... 110
13.03 Nature of Liability.................................................. 110
13.04 Independent Obligation............................................... 110
13.05 Authorization........................................................ 111
13.06 Reliance............................................................. 112
13.07 Subordination........................................................ 112
13.08 Waiver............................................................... 112
</TABLE>
(iv)
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13.09 Nature of Liability............................................... 113
ANNEX I List of Banks and Commitments
ANNEX II Bank Addresses
ANNEX III Real Properties
ANNEX IV Projections
ANNEX V Subsidiaries
ANNEX VI Insurance
ANNEX VII Existing Indebtedness
ANNEX VIII Existing Liens
ANNEX IX Capitalization
ANNEX X Investments
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Letter of Credit Request
EXHIBIT B-1 -- Form of Revolving Note
EXHIBIT B-2 -- Form of Swingline Note
EXHIBIT C -- Form of Section 4.04(b)(ii) Certificate
EXHIBIT D -- Form of Opinion of Kirkland & Ellis
EXHIBIT E -- Form of Officers' Certificate
EXHIBIT F -- Form of Pledge Agreement
EXHIBIT G -- Form of Security Agreement
EXHIBIT H -- Form of Subsidiary Guaranty
EXHIBIT I -- Form of Assignment and Assumption Agreement
EXHIBIT J -- Form of Intercompany Note
EXHIBIT K -- Form of Solvency Certificate
EXHIBIT L -- Form of Shareholder Subordinated Note
EXHIBIT M -- Form of Borrower Subordinated Note
</TABLE>
(v)
<PAGE>
CREDIT AGREEMENT, dated as of February 25, 1998, among NUTRACEUTICAL
INTERNATIONAL CORPORATION, a Delaware corporation ("Holdings"), NUTRACEUTICAL
CORPORATION, a Delaware corporation (the "Borrower"), the lenders from time to
time party hereto (each, a "Bank" and, collectively, the "Banks"), and BANKERS
TRUST COMPANY, as Agent (in such capacity, the "Agent"). Unless otherwise
defined herein, all capitalized terms used herein and defined in Section 10 are
used herein as so defined.
WITNESSETH:
----------
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available the credit facility provided for
herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
--------------------------
1.01 Commitments. (a) Subject to and upon the terms and conditions
-----------
herein set forth, each Bank severally agrees, at any time and from time to time
on and after the Effective Date and prior to the Maturity Date, to make a
revolving loan or loans (each, a "Revolving Loan" and, collectively, the
"Revolving Loans") to the Borrower, which Revolving Loans (i) shall be
denominated in U.S. Dollars, (ii) except as hereinafter provided, may, at the
option of the Borrower, 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 Agent has
determined that the Syndication Date has occurred (at which time this clause (y)
shall no longer be applicable), no more than three Borrowings of Revolving Loans
to be maintained as Eurodollar Loans may be incurred prior to the 90th day after
the Effective Date (each of which Borrowings of Eurodollar Loans may only have
an Interest Period of one month, and the first of which Borrowings may only be
made on a single date on or after the Effective Date and on or before the sixth
Business Day following the Effective Date, the second of which Borrowings may
only be made on the last day of the Interest Period of the first such Borrowing
and the third of which Borrowing may only be made on the last day of the
Interest Period of the second such Borrowing), (iii) may be repaid and
reborrowed in accordance with the provisions hereof and (iv) shall not exceed
for any Bank at any time outstanding that aggregate principal amount which, when
combined with (I) the aggregate principal amount of all other then outstanding
Revolving Loans made by such Bank and (II) such Bank's Percentage, if any, of
the Swingline Loans then outstanding and the Letter of
<PAGE>
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, Revolving Loans or
Swingline Loans) at such time, equals the Revolving Loan Commitment, if any, of
such Bank at such time.
(b) Subject to and upon the terms and conditions herein set forth,
BTCo in its individual capacity agrees to make at any time and from time to time
after the Effective Date and prior to the Swingline Expiry Date, a loan or loans
to the Borrower (each, a "Swingline Loan" and, collectively, the "Swingline
Loans"), which Swingline Loans (i) shall be made and maintained as Base Rate
Loans, (ii) shall be denominated in U.S. Dollars, (iii) may be repaid and
reborrowed in accordance with the provisions hereof, (iv) shall not exceed in
aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of, Revolving Loans
or Swingline Loans) at such time, an amount equal to the Total Revolving Loan
Commitment then in effect and (v) shall not exceed in aggregate principal amount
at any time outstanding the Maximum Swingline Amount. BTCo shall not be
obligated to make any Swingline Loans at a time when a Bank Default exists
unless BTCo has entered into arrangements satisfactory to it and the Borrower to
eliminate BTCo's risk with respect to the Defaulting Bank's or Banks'
participation in such Swingline Loans, including by cash collateralizing such
Defaulting Bank's or Banks' Percentage of the outstanding Swingline Loans. BTCo
will not make a Swingline Loan after it has received written notice from the
Borrower or the Required Banks stating that a Default or an Event of Default
exists until such time as BTCo shall have received a written notice of (i)
rescission of such notice from the party or parties originally delivering the
same or (ii) a waiver of such Default or Event of Default from the Required
Banks.
(c) On any Business Day, BTCo may, in its sole discretion, give notice
to the Banks that its outstanding Swingline Loans shall be funded with a
Borrowing of Revolving Loans (provided that each such notice shall be deemed to
--------
have been automatically given upon the occurrence of a Default or an Event of
Default under Section 9.05 or upon the exercise of any of the remedies provided
in the last paragraph of Section 9), in which case a Borrowing of Revolving
Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all
Banks pro rata based on each Bank's Percentage, and the proceeds thereof shall
--- ----
be applied directly to repay BTCo for such outstanding Swingline Loans. Each
Bank hereby irrevocably agrees to make Base Rate Loans upon one Business Day's
notice pursuant to each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date specified in writing by
BTCo, notwithstanding (i) that the amount of the Mandatory Borrowing may not
comply with the Minimum Borrowing Amount otherwise required hereunder, (ii)
whether any conditions specified in Section 5 are then satisfied, (iii) whether
a Default or an Event of Default has occurred and is continuing, (iv) the date
of such Mandatory Borrowing and (v) any reduction in the Total Revolving Loan
Commitment after any such Swingline Loans were made. In the event that
-2-
<PAGE>
any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code in respect of the Borrower), each Bank
(other than BTCo) hereby agrees that it shall forthwith purchase from BTCo
(without recourse or warranty) such assignment of the outstanding Swingline
Loans as shall be necessary to cause the Banks to share in such Swingline Loans
ratably based upon their respective Percentages, provided that all interest
--------
payable on the Swingline Loans shall be for the account of BTCo until the date
the respective assignment is purchased and, to the extent attributable to the
purchased assignment, shall be payable to the Bank purchasing same from and
after such date of purchase.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount of
-------------------------------
each Borrowing of Loans shall not be less than the Minimum Borrowing Amount
applicable to such Loans. More than one Borrowing may be incurred on any day;
provided, that at no time shall there be outstanding more than ten Borrowings of
- --------
Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur
-------------------
Revolving Loans (excluding Borrowings of Revolving Loans pursuant to a Mandatory
Borrowing), the Borrower shall give the Agent at its Notice Office, prior to
1:00 P.M. (New York time), at least three Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each Borrowing of
Eurodollar Loans to be made hereunder and shall give the Agent at its Notice
Office not later than 12:00 Noon (New York time) on the day a Borrowing of Base
Rate Loans is to be made, written notice (or telephonic notice promptly
confirmed in writing) of each such Borrowing to be made hereunder. Each such
notice (each, a "Notice of Borrowing") shall, except as provided in Section
1.10, be irrevocable, and, in the case of each written notice and each
confirmation of telephonic notice, shall be in the form of Exhibit A-1,
appropriately completed to specify (i) the aggregate principal amount of
Revolving Loans to be made pursuant to such Borrowing, (ii) the date of such
Borrowing (which shall be a Business Day) and (iii) 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. The Agent shall promptly give each Bank written
notice (or telephonic notice promptly confirmed in writing) of each proposed
Borrowing, of such Bank's proportionate share thereof, if any, and of the other
matters covered by the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of Swingline
Loans hereunder, it shall give BTCo not later than 2:00 P.M. (New York time) on
the day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Loan to be made hereunder. Each
such notice shall be irrevocable and shall specify in each case (x) the date of
such Borrowing (which shall be a Business Day) and (y) the aggregate principal
amount of the Swingline Loan to be made pursuant to such Borrowing.
-3-
<PAGE>
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(c), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section 1.01(c).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Agent or BTCo (in the case of a Borrowing of Swingline Loans) or the respective
Letter of Credit Issuer (in the case 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 Agent, BTCo, or such Letter of
Credit Issuer, as the case may be, in good faith to be from an Authorized
Officer of the Borrower. In each such case, the Borrower hereby waives the right
to dispute the Agent's, BTCo's or such Letter of Credit Issuer's record of the
terms of such telephonic notice.
1.04 Disbursement of Funds. (a) No later than 1:00 P.M. (New York
---------------------
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 4:00 P.M. (New York time) on the date specified
in Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not later than
1:00 P.M. (New York time) on the date specified in Section 1.01(c)), each Bank
will make available its pro rata share of each Borrowing requested to be made on
--- ----
such date (or in the case of Swingline Loans, BTCo shall make available the full
amount thereof) in the manner provided below. All amounts shall be made
available to the Agent in U.S. Dollars and immediately available funds at the
Payment Office and the Agent promptly will make available to the Borrower by
depositing to its account at the Payment Office the aggregate of the amounts so
made available in the type of funds received. Unless the Agent shall have been
notified by any Bank prior to the date of Borrowing that such Bank does not
intend to make available to the Agent its portion of the Borrowing or Borrowings
to be made on such date, the Agent may assume that such Bank has made such
amount available to the Agent on such date of Borrowing, and the Agent, in
reliance upon such assumption, may (in its sole discretion and without any
obligation to do so) make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Agent by such
Bank and the Agent has made available same to the Borrower, the Agent shall be
entitled to recover such corresponding amount from such Bank. If such Bank does
not pay such corresponding amount forthwith upon the Agent's demand therefor,
the Agent shall promptly notify the Borrower, and the Borrower shall immediately
pay such corresponding amount to the Agent. The Agent shall also be entitled to
recover from the Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Agent to the Borrower to the date such
corresponding amount is recovered by the Agent, at a rate per annum equal to (x)
if paid by such Bank, the overnight Federal Funds rate or (y) if paid by the
Borrower, the then applicable rate of interest, calculated in accordance with
Section 1.08, for the respective Loans.
-4-
<PAGE>
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
the Borrower may have against any Bank as a result of any default by such Bank
hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
-----
interest on, all the Loans made to it by each Bank shall be evidenced (i) if
Revolving Loans, by a promissory note substantially in the form of Exhibit B-1
with blanks appropriately completed in conformity herewith (each, a "Revolving
Note" and, collectively, the "Revolving Notes") and (ii) if Swingline Loans, by
a promissory note substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Bank shall (i) be executed by
the Borrower, (ii) be payable to the order of such Bank or its registered
assigns and be dated the Initial Borrowing Date, (iii) be in a stated principal
amount equal to the Revolving Loan Commitment of such Bank and be payable in the
principal amount of the Revolving Loans evidenced thereby, (iv) mature on the
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 4.01, and mandatory repayment as provided in Section 4.02, and (vii)
be entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Swingline Note issued to BTCo shall (i) be executed by the
Borrower, (ii) be payable to the order of BTCo or its registered assigns and be
dated the Initial Borrowing Date, (iii) be in a stated principal amount equal to
the Maximum Swingline Amount and be payable in the principal amount of the
Swingline Loans evidenced thereby, (iv) mature on the Swingline Expiry Date, (v)
bear interest as provided in Section 1.08 in respect of the Base Rate Loans
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
shall not affect the Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert on any
-----------
Business Day occurring on or after the Initial Borrowing Date, all or a portion
at least equal to the applicable Minimum Borrowing Amount of the outstanding
principal amount of the Revolving Loans owing by the Borrower into a
Borrowing or Borrowings of another Type of Loan; provided, that (i) except as
--------
otherwise provided in Section 1.10(b), no partial conversion of a Borrowing of
Eurodollar Loans shall reduce the outstanding principal amount
-5-
<PAGE>
of the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no payment Default, or Event of Default, is in
existence on the date of the conversion, (iii) Borrowings of Eurodollar Loans
resulting from this Section 1.06 shall be limited in number as provided in
Section 1.02 and (iv) unless the Agent has determined that the Syndication Date
has occurred (at which time this clause (iv) shall no longer be applicable),
prior to the 90th day after the Effective Date, conversions of Base Rate Loans
into Eurodollar Loans may only be made if any such conversion is effective on
the first day of the first, second or third Interest Period referred to in
clause (y) of the proviso to each of Section 1.01(a)(ii) and then only so long
as such conversion does not result in a greater number of Borrowings of
Eurodollar Loans prior to the 90th day after the Effective Date as are permitted
under such Sections. Each such conversion shall be effected by the Borrower by
giving the Agent at its Notice Office, prior to 1:00 P.M. (New York time), at
least three Business Days' (or one Business Day's in the case of a conversion
into Base Rate Loans) prior written notice (or telephonic notice promptly
confirmed in writing) (each, a "Notice of Conversion") specifying the Revolving
Loans to be so converted, the Type of Revolving Loans to be converted into
and, if to be converted into a Borrowing of Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Agent shall give each Bank prompt
notice of any such proposed conversion affecting any of its Revolving Loans.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans under this
-------------------
Agreement shall be made by the Banks pro rata on the basis of their Revolving
--- ----
Loan Commitments. It is understood that no Bank shall be responsible for any
default by any other Bank of its obligation to make Revolving Loans hereunder
and that each Bank shall be obligated to make the Revolving Loans to be made by
it hereunder, regardless of the failure of any other Bank to fulfill its
commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base Rate Loan
--------
shall bear interest from the date of the Borrowing thereof until the earlier of
(i) the maturity (whether by acceleration or otherwise) of such Base Rate Loan
and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan pursuant to
Section 1.06, at a rate per annum which shall at all times be the Applicable
Base Rate Margin plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurodollar Loan and (ii)
the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06, 1.09 or 1.10(b), as applicable, at a rate per annum which shall at all
times be the Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
-6-
<PAGE>
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall bear interest at a rate per annum equal
to the greater of (x) the rate which is 2% in excess of the rate then borne by
such Loans and (y) the rate which is 2% in excess of the rate otherwise
applicable to Base Rate Loans from time to time. Interest which accrues under
this Section 1.08(c) shall be payable on demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on (x) the date
of any prepayment or repayment thereof (on the amount prepaid or repaid), (y)
the date of any conversion into a Base Rate Loan pursuant to Section 1.06, 1.09
or 1.10(b), as applicable (on the amount converted) and (z) the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Agent, upon determining the interest rate for any Borrowing
of Eurodollar Loans for any Interest Period, shall promptly notify the Borrower
and the Banks thereof.
1.09 Interest Periods. At the time the Borrower gives a Notice of
----------------
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 1:00 P.M. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Agent written notice (or telephonic notice promptly confirmed in writing) of
the Interest Period applicable to such Borrowing, which Interest Period shall,
at the option of the Borrower, be a one, two, three or six-month period or, to
the extent approved by all Banks, a twelve-month period. Notwithstanding
anything to the contrary contained above:
(i) all Eurodollar Loans comprising a Borrowing shall have the same
Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar Loans
shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period expires;
-7-
<PAGE>
(iii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided, that if any Interest Period would
--------
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(v) no Interest Period for a Borrowing may be elected if it would
extend beyond the Maturity Date;
(vi) no Interest Period may be elected at any time when a payment
Default, or an Event of Default, is then in existence; and
(vii) no Interest Period shall extend beyond any date upon which a
mandatory commitment reduction is scheduled to occur under Section 3.03(b)
if, after giving effect to the selection of such Interest Period, the
aggregate principal amount of Revolving Loans maintained as Eurodollar
Loans with Interest Periods ending after such commitment reduction date
would exceed the aggregate principal amount of Revolving Loans permitted to
be outstanding after such commitment reduction.
If upon the expiration of any Interest Period, the Borrower has failed to elect,
or is not permitted to elect by virtue of the application of clause (vi) above,
a new Interest Period to be applicable to the respective Borrowing of Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Borrowing into a Borrowing of Base Rate Loans effective as of the
expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that (x) in
---------------------------------
the case of clause (i) below, the Agent or (y) in the case of clauses (ii) and
(iii) below, any Bank, shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period, that, by reason of any changes arising after the date of
this Agreement affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
-8-
<PAGE>
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a change
in the rate of net income taxes or similar charges) because of (x) any
change since the Effective Date in any applicable law, governmental rule,
regulation, guideline, order or request (whether or not having the force of
law), or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline,
order or request (such as, for example, but not limited to a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate) and/or (y) other circumstances affecting such Bank,
the interbank Eurodollar market or the position of such Bank in such
market; or
(iii) at any time since the Effective Date, that the making or
continuance of any Eurodollar Loan has become unlawful by compliance by
such Bank in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule,
regulation, guideline or order not having the force of law but with which
such Bank customarily complies even though the failure to comply therewith
would not be unlawful), or has become impracticable as a result of a
contingency occurring after the Effective Date which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Agent in the case of clause (i)
above) shall (x) on such date and (y) as promptly as practicable (and in any
event within five Business Days) after the date on which such event no longer
exists give notice (by telephone confirmed in writing) to the Borrower and
(except in the case of clause (i)) to the Agent of such determination (which
notice the Agent shall promptly transmit to each of the other Banks).
Thereafter, (x) in the case of clause (i) above, Eurodollar Loans shall no
longer be available until such time as the Agent notifies the Borrower and the
Banks that the circumstances giving rise to such notice by the Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower
with respect to Eurodollar Loans which have not yet been incurred shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower agrees to pay to such Bank, upon written demand therefor (accompanied
by the written notice referred to below), such additional amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its sole discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional
amounts owed to such Bank, showing the basis for the calculation thereof,
submitted to the Borrower by such Bank shall, absent manifest error, be final
and conclusive and binding upon all parties hereto) and (z) in the case of
clause (iii) above, the Borrower shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law.
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<PAGE>
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii), or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Agent, require the affected Bank to convert each
such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the
circumstances described in Section 1.10(a)(iii), shall occur no later than the
last day of the Interest Period then applicable to such Eurodollar Loan (or such
earlier date as shall be required by applicable law)); provided, that if more
--------
than one Bank is affected at any time, then all affected Banks must be treated
the same pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the Effective Date,
the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by the National Association of
Insurance Commissioners ("NAIC") or any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by such Bank or any corporation controlling such Bank with any
request or directive regarding capital adequacy (whether or not having the force
of law) of the NAIC or any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on such Bank's or
such other corporation's capital or assets as a consequence of such Bank's
Revolving Loan Commitments or obligations hereunder to a level below that which
such Bank or such other corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Bank's or
such other corporation's policies with respect to capital adequacy), then from
time to time, upon written demand by such Bank (with a copy to the Agent),
accompanied by the notice referred to in the last sentence of this clause (c),
the Borrower agrees to pay to such Bank such additional amount or amounts as
will compensate such Bank or such other corporation for such reduction. Each
Bank, upon determining in good faith that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to
the Borrower, which notice shall set forth the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish the Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
1.11 Compensation. The Borrower agrees to compensate each Bank,
------------
promptly upon its written request (which request shall set forth the basis for
requesting such compensation and shall be made through the Agent), 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 Bank to fund its Eurodollar Loans
but excluding loss of anticipated profit with respect to any Loans)
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which such Bank may sustain: (i) if for any reason (other than a default by such
Bank or the Agent) a Borrowing of Eurodollar Loans does not occur on a date
specified therefor in a Notice of Borrowing or Notice of Conversion (whether or
not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any repayment (including any repayment made pursuant to Section 4.02 or
as a result of an acceleration of the Loans pursuant to Section 9) or conversion
of any Eurodollar Loans occurs on a date which is not the last day of an
Interest Period applicable thereto; (iii) if any prepayment of any Eurodollar
Loans is not made on any date specified in a notice of prepayment given by the
Borrower; or (iv) as a consequence of (x) any other default by the Borrower to
repay its Eurodollar Loans when required by the terms of this Agreement or (y)
an election made pursuant to Section 1.10(b). Calculation of all amounts payable
to a Bank under this Section 1.11 shall be made as though that Bank had actually
funded its relevant Eurodollar Loan through the purchase of a Eurodollar deposit
bearing interest at the Eurodollar Rate in an amount equal to the amount of that
Loan, having a maturity comparable to the relevant Interest Period and through
the transfer of such Eurodollar deposit from an offshore office of that Bank to
a domestic office of that Bank in the United States of America; provided,
--------
however, that each Bank may fund each of its Eurodollar Loans in any manner it
- -------
sees fit and the foregoing assumption shall be utilized only for the calculation
of amounts payable under this Section 1.11. It is further understood and agreed
that if any repayment of Eurodollar Loans pursuant to Section 4.01 or any
conversion of Eurodollar Loans pursuant to Section 1.06 in either case occurs on
a date which is not the last day of an Interest Period applicable thereto, such
repayment or conversion shall be accompanied by any amounts owing to any Bank
pursuant to this Section 1.11.
1.12 Change of Lending Office. Each Bank agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.05 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Revolving Loans or
Letters of Credit affected by such event; provided, that such designation is
--------
made on such terms that, in the sole judgment of such Bank, such Bank and its
lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequences of the event giving rise to the operation of
any such Section. Nothing in this Section 1.12 shall affect or postpone any of
the obligations of the Borrower or the right of any Bank provided in Section
1.10, 2.05 or 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a Defaulting Bank,
--------------------
(y) upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect
to any Bank which results in such Bank charging to the Borrower increased costs
in excess of those being generally charged by the other Banks or (z) in the case
of a refusal by a Bank to consent to a proposed change, waiver, discharge or
termination with respect to this Agreement which has been approved by the
Required Banks as provided in Section 12.12(b), the Borrower shall have the
right, if no payment Default, or Event of Default, then exists, to replace such
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Bank (the "Replaced Bank") with one or more other Eligible Transferee or
Transferees, none of whom shall constitute a Defaulting Bank at the time of such
replacement (collectively, the "Replacement Bank") reasonably acceptable to the
Agent, provided that (i) at the time of any replacement pursuant to this Section
--------
1.13, the Replacement Bank shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 12.04(b) (and with all fees payable
pursuant to said Section 12.04(b) to be paid by the Replacement Bank) pursuant
to which the Replacement Bank shall acquire the Revolving Loan Commitment and
outstanding Revolving Loans of, and participations in Letters of Credit by, the
Replaced Bank and, in connection therewith, shall pay to (x) the Replaced Bank
in respect thereof an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Revolving Loans of
the Replaced Bank, (B) an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Bank, together with all then
unpaid interest with respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant to
Section 3.01, (y) the respective Letter of Credit Issuer an amount equal to such
Replaced Bank's Percentage of any Unpaid Drawing (which at such time remains an
Unpaid Drawing) with respect to a Letter of Credit issued by it to the extent
such amount was not theretofore funded by such Replaced Bank and (z) BTCo an
amount equal to such Replaced Bank's Percentage of any Mandatory Borrowing to
the extent such amount was not theretofore funded by such Replaced Bank, and
(ii) all obligations (including, without limitation, all such amounts, if any,
due and owing under Section 1.11) of the Borrower due and owing to the Replaced
Bank (other than those specifically described in clause (i) above in respect of
which the assignment purchase price has been, or is concurrently being, paid)
shall be paid in full to such Replaced Bank concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Agent pursuant to Section 7.12 and, if so
requested by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Note or Notes executed by the Borrower, (x) the Replacement Bank
shall become a Bank hereunder and the Replaced Bank shall cease to constitute a
Bank hereunder, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Replaced Bank and (y) Annex I hereto
shall be deemed modified to reflect the changed Revolving Loan Commitments
resulting from the assignment from the Replaced Bank to the Replacement Bank.
SECTION 2. Letters of Credit.
-----------------
2.01 Letters of Credit. (a) Subject to and upon the terms and
-----------------
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time on or after the Initial Borrowing Date and
prior to the Maturity Date to issue, for the account of the Borrower and in
support of, (x) trade obligations of the Borrower or any of its Subsidiaries
that arise in the ordinary course of business and are in respect of general
corporate purposes of the Borrower or its Subsidiaries, as the case may be,
and/or
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<PAGE>
(y) on a standby basis, L/C Supportable Indebtedness, and subject to and upon
the terms and conditions herein set forth each Letter of Credit Issuer agrees to
issue from time to time, irrevocable letters of credit in such form as may be
approved by such Letter of Credit Issuer (each such letter of credit, a "Letter
of Credit" and, collectively, the "Letters of Credit"). Notwithstanding the
foregoing, no Letter of Credit Issuer shall be under any obligation to issue any
Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that such Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Letter of Credit Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Letter of Credit Issuer is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Letter of Credit Issuer as of the
date hereof and which such Letter of Credit Issuer in good faith deems
material to it; or
(ii) such Letter of Credit Issuer shall have received notice from the
Required Banks prior to the issuance of such Letter of Credit of the type
described in clause (vi) of Section 2.01(b).
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $10,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans and Swingline Loans then outstanding, the Total
Revolving Loan Commitment at such time; (ii) (x) each standby Letter of Credit
shall have an expiry date occurring not later than one year (or, in the case of
standby Letters of Credit issued in support of Foreign Subsidiary Working
Capital Indebtedness, three years, provided, that the aggregate Stated Amount of
--------
all such Letters of Credit shall not exceed $3,000,000), provided, that any
--------
standby Letter of Credit may be automatically extendable for periods of up to
one year so long as such standby Letter of Credit provides that the respective
Letter of Credit Issuer retains an option, satisfactory to such Letter of Credit
Issuer, to terminate such standby Letter of Credit within a specified period of
time prior to each scheduled extension date and (y) each trade Letter of Credit
shall have an expiry date occurring not later than 180 days after such trade
Letter of Credit's date of issuance; (iii) (x) no standby Letter of Credit shall
have an expiry date occurring later than the Business Day next preceding the
Maturity Date and (y) no trade Letter of Credit shall have an expiry date
occurring later than 30 days prior to the Maturity
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<PAGE>
Date; (iv) each Letter of Credit shall be denominated in U.S. Dollars and
payable on a sight basis; (v) the Stated Amount of each Letter of Credit shall
not be less than $50,000 or such lesser amount as is acceptable to the Letter of
Credit Issuer; and (vi) no Letter of Credit Issuer will issue any Letter of
Credit after it has received written notice from the Borrower or the Required
Banks stating that a Default or an Event of Default exists until such time as
such Letter of Credit Issuer shall have received a written notice of (i)
rescission of such notice from the party or parties originally delivering the
same or (ii) a waiver of such Default or Event of Default by the Required Banks.
(c) Notwithstanding the foregoing, in the event a Bank Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless the respective Letter of Credit Issuer has entered into
arrangements satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit of
the Defaulting Bank or Banks, including by cash collateralizing such Defaulting
Bank's or Banks' Percentage of the Letter of Credit Outstandings.
2.02 Letter of Credit Requests: Notices of Issuance. (a) Whenever it
----------------------------------------------
desires that a Letter of Credit be issued, the Borrower shall give the Agent and
the respective Letter of Credit Issuer written notice (or telephonic notice
confirmed in writing) thereof prior to 1:00 P.M. (New York time) at least five
Business Days (or such shorter period as may be acceptable to such Letter of
Credit Issuer) prior to the proposed date of issuance (which shall be a Business
Day) which written notice shall be in the form of Exhibit A-2 (each such notice,
a "Letter of Credit Request"). Each Letter of Credit Request shall include any
other documents as the respective Letter of Credit Issuer customarily requires
in connection therewith.
(b) Each Letter of Credit Issuer shall, promptly after the date of
each issuance of or amendment or modification to a Letter of Credit by it, give
the Agent, each Bank and the Borrower written notice of the issuance of or
amendment or modification to such Letter of Credit, accompanied by a copy to the
Agent of such Letter of Credit or Letters of Credit or such amendment or
modification.
2.03 Agreement to Repay Letter of Credit Payments. (a) The Borrower
--------------------------------------------
hereby agrees to reimburse the respective Letter of Credit Issuer, by making
payment to the Agent in immediately available funds at the Payment Office, for
any payment or disbursement made by such Letter of Credit Issuer under any
Letter of Credit issued by it (each such amount so paid or disbursed until
reimbursed, an "Unpaid Drawing") no later than one Business Day following the
date of such payment or disbursement, with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior
to 1:00 P.M. (New York time) on the date of such payment or disbursement, from
and including the date paid or disbursed to but not including the date such
Letter of Credit Issuer is reimbursed therefor at a rate per annum which shall
be the Applicable Base Rate Margin plus the Base Rate as in effect from time to
time (plus an additional 2% per
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<PAGE>
annum if not reimbursed by the third Business Day after the date of such payment
or disbursement), such interest also to be payable on demand. Each Letter of
Credit Issuer shall provide the Borrower prompt notice of any payment or
disbursement made by it under any Letter of Credit issued by it, although the
failure of, or delay in, giving any such notice shall not release or diminish
the obligations of the Borrower under this Section 2.03(a) or under any other
Section of this Agreement.
(b) The Borrower's obligation under this Section 2.03 to reimburse
the respective Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower may have or have had against such Letter
of Credit Issuer, the Agent or any Bank, including, without limitation, any
defense based upon the failure of any drawing under a Letter of Credit issued by
it to substantially conform to the terms of the Letter of Credit or any
nonapplication or misapplication by the beneficiary of the proceeds of such
drawing; provided, however, that the Borrower shall not be obligated to
-------- -------
reimburse such Letter of Credit Issuer for any wrongful payment made by such
Letter of Credit Issuer under a Letter of Credit issued by it as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of such Letter of Credit Issuer.
2.04 Letter of Credit Participations. (a) Immediately upon the
-------------------------------
issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Bank,
and each such Bank (each, a "Participant") shall be deemed irrevocably and
unconditionally to have purchased and received from such Letter of Credit
Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such Participant's Percentage, in such Letter of Credit, each
substitute Letter of Credit, each drawing made thereunder and the obligations of
the Borrower under this Agreement with respect thereto (although Letter of
Credit Fees shall be payable directly to the Agent for the account of the Banks
as provided in Section 3.01(b) and the Participants shall have no right to
receive any portion of any Facing Fees) and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Loan Commitments of the
Banks pursuant to Section 1.13 or 12.04(b) or otherwise, it is hereby agreed
that, with respect to all outstanding Letters of Credit and Unpaid Drawings,
there shall be an automatic adjustment to the participations pursuant to this
Section 2.04 to reflect the new Percentages of the assigning and assignee Banks.
(b) In determining whether to pay under any Letter of Credit, no
Letter of Credit Issuer shall have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to comply on their
face with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by any Letter of Credit Issuer under or in connection with any
Letter of Credit issued by it if taken or omitted in the absence of gross negli-
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<PAGE>
gence or willful misconduct, shall not create for such Letter of Credit Issuer
any resulting liability.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to such Letter of Credit Issuer pursuant to
Section 2.03(a), such Letter of Credit Issuer shall promptly notify the Agent,
and the Agent shall promptly notify each Participant of such failure, and each
Participant shall promptly and unconditionally pay to the Agent for the account
of such Letter of Credit Issuer, the amount of such Participant's Percentage of
such payment in U.S. Dollars and in same day funds; provided, however, that no
-------- -------
Participant shall be obligated to pay to the Agent its Percentage of such
unreimbursed amount for any wrongful payment made by such Letter of Credit
Issuer under a Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Letter
of Credit Issuer. If the Agent so notifies any Participant required to fund a
payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any
Business Day, such Participant shall make available to the Agent for the account
of the respective Letter of Credit Issuer such Participant's Percentage of the
amount of such payment on such Business Day in same day funds. If and to the
extent such Participant shall not have so made its Percentage of the amount of
such payment available to the Agent for the account of the respective Letter of
Credit Issuer, such Participant agrees to pay to the Agent for the account of
such Letter of Credit Issuer, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is paid
to the Agent for the account of such Letter of Credit Issuer at the overnight
Federal Funds rate. The failure of any Participant to make available to the
Agent for the account of the respective Letter of Credit Issuer its Percentage
of any payment under any Letter of Credit issued by it shall not relieve any
other Participant of its obligation here-under to make available to the Agent
for the account of such Letter of Credit Issuer its Percentage of any payment
under any such Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other Participant to
make available to the Agent for the account of such Letter of Credit Issuer such
other Participant's Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Agent has received for the account of
such Letter of Credit Issuer any payments from the Participants pursuant to
clause (c) above, such Letter of Credit Issuer shall promptly pay to the Agent
and the Agent shall promptly pay to each Participant which has paid its
Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to
such Participant's Percentage of the principal amount thereof and interest
thereon accruing after the purchase of the respective participations.
(e) The obligations of the Participants to make payments to the Agent
for the account of the respective Letter of Credit Issuer with respect to
Letters of Credit issued by it shall be irrevocable and not subject to
counterclaim, set-off or other defense or any
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<PAGE>
other qualification or exception whatsoever and shall be made in accordance with
the terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Agent, any Letter of Credit
Issuer, any Bank, or other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein or
any unrelated transactions (including any underlying transaction between
the Borrower or any of its Subsidiaries and the beneficiary named in any
such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Increased Costs. If after the Effective Date, the adoption or
---------------
effectiveness of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Letter of Credit
Issuer or any Participant with any request or directive (whether or not having
the force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by such Letter
of Credit Issuer or such Participant's participation therein, or (ii) impose on
any Letter of Credit Issuer or any Participant any other conditions affecting
this Agreement, any Letter of Credit or such Participant's participation
therein; and the result of any of the foregoing is to increase the cost to such
Letter of Credit Issuer or such Participant of issuing, maintaining or
participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Letter of Credit Issuer or such Participant
hereunder, then, upon written demand to the Borrower by such Letter of Credit
Issuer or such Participant (a copy of which notice shall be sent by such Letter
of Credit Issuer or such Participant to the Agent), accompanied by the
certificate described in the last sentence of this Section 2.05, the Borrower
shall pay to such Letter of Credit Issuer or such Participant such additional
amount or amounts as
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<PAGE>
will compensate such Letter of Credit Issuer or such Participant for such
increased cost or reduction. A certificate submitted to the Borrower by such
Letter of Credit Issuer or such Participant, as the case may be (a copy of which
certificate shall be sent by such Letter of Credit Issuer or such Participant to
the Agent), setting forth the basis for the determination of such additional
amount or amounts necessary to compensate such Letter of Credit Issuer or such
Participant as aforesaid shall be final and conclusive and binding on the
Borrower absent manifest error, although the failure to deliver any such
certificate shall not release or diminish the Borrower's obligations to pay
additional amounts pursuant to this Section 2.05 upon subsequent receipt of such
certificate.
SECTION 3. Fees: Commitments.
-----------------
3.01 Fees. (a) The Borrower shall pay to the Agent for distribution to
----
each Non-Defaulting Bank a commitment fee (the "Commitment Fee") for the period
from the Effective Date to but not including the date the Total Revolving Loan
Commitment has been terminated, computed at a rate for each day equal to the
Applicable Commitment Fee Percentage on the daily Unutilized Revolving Loan
Commitment of such Non-Defaulting Bank. Accrued Commitment Fees shall be due and
payable in arrears on each Quarterly Payment Date and the date upon which the
Total Revolving Loan Commitment is terminated.
(b) The Borrower shall pay to the Agent for the account of the Banks
pro rata on the basis of their Percentages, a fee in respect of each Letter of
- --- ----
Credit (the "Letter of Credit Fee") computed at a rate per annum equal to the
Applicable Eurodollar Margin then in effect on the daily Stated Amount of such
Letter of Credit. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and upon the first day after
the termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding.
(c) The Borrower shall pay to the Agent for the account of the
respective Letter of Credit Issuer a fee in respect of each Letter of Credit
issued by such Letter of Credit Issuer (the "Facing Fee") computed at the rate
of 1/4 of 1% per annum on the daily Stated Amount of such Letter of Credit;
provided, that in no event shall the annual Facing Fee with respect to each
- --------
Letter of Credit be less than $500; it being agreed that, on the date of
issuance of any Letter of Credit and on each anniversary thereof prior to the
termination of such Letter of Credit, if $500 will exceed the amount of Facing
Fees that will accrue with respect to such Letter of Credit for the immediately
succeeding 12-month period, the full $500 shall be payable on the date of
issuance of such Letter of Credit and on each such anniversary thereof prior to
the termination of such Letter of Credit. Except as provided in the immediately
preceding sentence, accrued Facing Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and upon the first day after the
termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding.
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<PAGE>
(d) The Borrower hereby agrees to pay directly to the respective
Letter of Credit Issuer upon each issuance of, payment under, and/or amendment
of, a Letter of Credit issued by it such amount as shall at the time of such
issuance, payment or amendment be the administrative charge which such Letter of
Credit Issuer is customarily charging for issuances of, payments under or
amendments of, letters of credit issued by it.
(e) The Borrower shall pay to the Agent, for its own account, such
fees as may be agreed to from time to time between the Borrower and the Agent,
when and as due.
(f) All computations of Fees shall be made in accordance with Section
12.07(b).
3.02 Voluntary Termination or Reduction of Total Unutilized Revolving
----------------------------------------------------------------
Loan Commitment. (a) Upon at least two Business Days' prior written notice (or
- ---------------
telephonic notice promptly confirmed in writing) to the Agent at its Notice
Office (which notice the Agent shall promptly transmit to each of the Banks),
the Borrower shall have the right, without premium or penalty, to terminate or
partially reduce the Total Unutilized Revolving Loan Commitment; provided that
--------
(x) any such termination or partial reduction shall apply to proportionately and
permanently reduce the Revolving Loan Commitment of each Bank, (y) any partial
reduction pursuant to this Section 3.02(a) shall be in the amount of at least
$1,000,000 and (z) any partial reduction to the Total Revolving Loan Commitment
pursuant to this Section 3.02(a) shall apply to reduce the remaining Scheduled
Commitment Reductions on a pro rata basis (based upon the then remaining amount
--- ----
of each such Scheduled Commitment Reduction).
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
12.12(b), the Borrower shall have the right, upon five Business Days' prior
written notice to the Agent at its Notice Office (which notice the Agent shall
promptly transmit to each of the Banks), to terminate the entire Revolving Loan
Commitment of such Bank, so long as all Revolving Loans, together with accrued
and unpaid interest, Fees and all other amounts, due and owing to such Bank are
repaid concurrently with the effectiveness of such termination pursuant to
Section 4.01(b) and the Borrower shall pay to the Agent at such time an amount
in cash and/or Cash Equivalents equal to such Bank's Percentage of the
outstanding Letters of Credit (which cash and/or Cash Equivalents shall be held
by the Agent as security for the obligations of the Borrower hereunder in
respect of the outstanding Letters of Credit pursuant to a cash collateral
agreement to be entered into in form and substance reasonably satisfactory to
the Agent, which shall permit certain investments in Cash Equivalents reasonably
satisfactory to the Agent until the proceeds are applied to the secured
obligations) (at which time Annex I shall be deemed modified to reflect such
changed amounts), and at such time, such Bank shall no longer constitute a
"Bank" for purposes of this Agreement, except with respect to indemnifications
under this Agreement (including,
-19-
<PAGE>
without limitation, Sections 1.10, 1.11, 2.05, 4.04, 12.01 and 12.06), which
shall survive as to such repaid Bank.
3.03 Mandatory Adjustments of Commitments. etc. (a) The Total
-----------------------------------------
Revolving Loan Commitment (and the Revolving Loan Commitment of each Bank) shall
terminate on the earlier of (x) the date on which a Change of Control Event
occurs and (y) the Maturity Date. In addition, the Total Revolving Loan
Commitment (and the Revolving Loan Commitment of each Bank) shall terminate on
March 30, 1998 unless the Initial Borrowing Date has occurred on or before such
date.
(b) The Total Revolving Loan Commitment shall be reduced on each date
set forth below by the amount set forth opposite such date below (each such
reduction, as the same may be reduced as provided in Sections 3.02 and 3.03(h),
a "Scheduled Commitment Reduction"):
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
April 30, 2001 $ 2,500,000
July 31, 2001 $ 2,500,000
October 31, 2001 $ 2,500,000
January 31, 2002 $ 2,500,000
April 30, 2002 $ 7,500,000
July 31, 2002 $ 7,500,000
October 31, 2002 $ 7,500,000
Maturity Date $37,500,000
</TABLE>
(c) In addition to any other mandatory commitment reduction pursuant
to this Section 3.03 but except as otherwise provided in Section 3.03(f) below,
on the third Business Day after the date of receipt thereof by Holdings and/or
any of its Subsidiaries of Proceeds from any Asset Sale (or, in the case of an
Asset Sale in which payments to Holdings or any of its Subsidiaries originate
from outside the United States, within five Business Days after the date of
receipt of such Proceeds), the Total Revolving Loan Commitment shall be
permanently reduced by an amount equal to 75 % of the Net Proceeds from such
Asset Sale, provided that with respect to no more than $3,000,000 in the
--------
aggregate of the Net Proceeds received in connection with all Asset Sales in any
fiscal year of the Borrower, the Net Proceeds therefrom shall not give rise to a
reduction of the Total Revolving Loan Commitment on such date pursuant to this
Section 3.03(c) to the extent that no payment Default, or Event of Default, then
exists and the Borrower delivers a certificate to the Agent on or prior to such
date stating that such Net Proceeds shall be used to purchase assets used or to
be used in the businesses referred to in Section 8.01(a) (including, without
limitation, capital stock of a corporation engaged in any such business) within
one year following the date of receipt of such Proceeds from such Asset Sale
(which certificate shall set forth the estimates of the proceeds to be so
expended), provided, that
--------
-20-
<PAGE>
(1) if all or any portion of such Net Proceeds are not so used (or contractually
committed to be used) within such one year period, the Total Revolving Loan
Commitment shall be permanently reduced on the last day of such period by an
amount equal to 75% of such remaining portion and (2) if all or any portion of
such Net Proceeds are not so used within such one year period referred to in
clause (1) above because such amount is contractually committed to be used and
subsequent to such date such contract is terminated or expires without such
portion being so used, then the Total Revolving Loan Commitment shall be
permanently reduced on the date of such termination or expiration by an amount
equal to 75% of such remaining portion.
(d) In addition to any other mandatory commitment reduction pursuant
to this Section 3.03 but except as otherwise provided in Section 3.03(f) below,
on the date of the receipt thereof by Holdings and/or any of its Subsidiaries,
the Total Revolving Loan Commitment shall be permanently reduced by an amount
equal to 100% of the proceeds (net of underwriting discounts, fees and
commissions and other costs and expenses associated therewith) of the incurrence
of Indebtedness by Holdings and/or any of its Subsidiaries (other than
Indebtedness permitted to be incurred by Section 8.04 as in effect on the
Effective Date).
(e) In addition to any other mandatory commitment reduction pursuant
to this Section 3.03 but except as otherwise provided in Section 3.03(f) below,
within 10 days following each date on which Holdings or any of its Subsidiaries
receives any proceeds from any Recovery Event, the Total Revolving Loan
Commitment shall be reduced by an amount equal to 100% of the proceeds of such
Recovery Event (net of costs, expenses and taxes incurred in connection with
such Recovery Event); provided that so long as no Default or Event of Default
--------
then exists and such proceeds do not exceed $20,000,000, such proceeds shall not
give rise to a reduction of the Total Revolving Loan Commitment pursuant to this
Section 3.03(e) on such date to the extent that the Borrower has delivered a
certificate to the Agent on or prior to such date stating that such proceeds
shall be used to replace or restore any properties or assets in respect of which
such proceeds were paid within one year following the date of the receipt of
such proceeds (which certificate shall set forth the estimates of the proceeds
to be so expended), and provided further, that (i) if the amount of such
----------------
proceeds exceeds $20,000,000, then the Total Revolving Loan Commitment shall be
permanently reduced by the portion in excess of $20,000,000, (ii) if all or any
portion of such proceeds not giving rise to a reduction of the Total Revolving
Loan Commitment pursuant to the preceding proviso are not so used (or
contractually committed to be used) within one year after the date of the
receipt of such proceeds, the Total Revolving Loan Commitment shall be
permanently reduced on the last day of such period by an amount equal to such
remaining portion and (iii) if all or any portion of such proceeds are not so
used within the one year period referred to in clause (ii) above because such
amount is contractually committed to be used and subsequent to such date such
contract is terminated or expires without such portion being so used, then the
Total
-21-
<PAGE>
Revolving Loan Commitment shall be permanently reduced on the date of such
termination or expiration in an amount equal to such remaining portion.
(f) Notwithstanding anything to the contrary contained in Sections
3.03(c), (d), and (e) above, in no event shall the Total Revolving Loan
Commitment be reduced to an amount less than $15,000,000 pursuant to or as a
result of any such Section.
(g) Each reduction or adjustment of the Total Revolving Loan
Commitment pursuant to this Section 3.03 shall apply proportionately to the
Revolving Loan Commitment of each Bank.
(h) Any amount required to be applied to reduce the Total Revolving
Loan Commitment pursuant to this Section 3.03 shall be applied to reduce the
then remaining Scheduled Commitment Reductions pro rata based upon the then
--- ----
remaining amount of such Scheduled Commitment Reductions after giving effect to
all prior reductions thereto.
SECTION 4. Payments.
---------
4.01 Voluntary Prepayments. (a) The Borrower shall have the right to
---------------------
prepay the Loans made to it, in whole or in part, without premium or penalty,
except as otherwise provided in this Agreement, from time to time on the
following terms and conditions: (i) the Borrower shall give the Agent at its
Notice Office written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay such Loans, whether such Loans are Revolving
Loans or Swingline Loans, the amount of such prepayment and (in the case of
Eurodollar Loans) the specific Borrowing(s) pursuant to which made, which notice
shall be given by the Borrower prior to 1:00 P.M. (New York time) (x) at least
one Business Day prior to the date of such prepayment in the case of Revolving
Loans maintained as Base Rate Loans, (y) on the date of such prepayment in the
case of Swingline Loans and (z) at least three Business Days prior to the date
of such prepayment in the case of Eurodollar Loans, which notice shall, except
in the case of Swingline Loans, promptly be transmitted by the Agent to each of
the Banks; (ii) each prepayment shall be in an aggregate principal amount of (A)
at least $500,000 in the case of Eurodollar Loans and (B) at least $250,000 in
the case of Base Rate Loans (or $100,000 in the case of Swingline Loans);
provided, that no partial prepayment of Eurodollar Loans made pursuant to a
- --------
Borrowing shall reduce the aggregate principal amount of the Eurodollar Loans
outstanding pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount applicable thereto; and (iii) each prepayment in respect of any
Loans made pursuant to a Borrowing shall be applied pro rata among such Loans;
--- ----
provided, that at the Borrower's election in connection with any prepayment of
- --------
Revolving Loans pursuant to this Section 4.01, such prepayment shall not be
applied to any Revolving Loans of a Defaulting Bank at any time when the
aggregate amount of Revolving Loans of any Non-Defaulting Bank exceeds such Non-
Defaulting Bank's Percentage of all Revolving Loans then outstanding.
-22-
<PAGE>
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
12.12(b), the Borrower shall have the right, upon five Business Days' prior
written notice to the Agent at its Notice Office (which notice the Agent shall
promptly transmit to each of the Banks) to repay all Revolving Loans of such
Bank, together with accrued and unpaid interest, Fees and all other amounts due
and owing to such Bank in accordance with said Section 12.12(b), so long as (A)
the Revolving Loan Commitment of such Bank is terminated concurrently with such
repayment pursuant to Section 3.02(b) (at which time Annex I shall be deemed
modified to reflect the changed Revolving Loan Commitments) and (B) the consents
required by Section 12.12(b) in connection with the repayment pursuant to this
clause (b) shall have been obtained.
4.02 Mandatory Prepayments. (a) If on any date the sum of (i) the
---------------------
aggregate outstanding principal amount of Revolving Loans and Swingline Loans
(after giving effect to all other repayments thereof on such date) plus (ii) the
Letter of Credit Outstandings on such date exceeds the Total Revolving Loan
Commitment as then in effect, the Borrower shall repay on such date the
principal of Swingline Loans, and if no Swingline Loans are or remain
outstanding, Revolving Loans, in an aggregate amount equal to such excess. If,
after giving effect to the prepayment of all outstanding Swingline Loans and
Revolving Loans, the aggregate amount of Letter of Credit Outstandings exceeds
the Total Revolving Loan Commitment as then in effect, the Borrower agrees to
pay to the Agent an amount in cash and/or Cash Equivalents equal to such excess
(up to the aggregate amount of Letter of Credit Outstandings at such time) and
the Agent shall hold such payment as security for the obligations of the
Borrower hereunder pursuant to a cash collateral agreement to be entered into in
form and substance reasonably satisfactory to the Agent (which shall permit
certain investments in Cash Equivalents reasonably satisfactory to the Agent
until the proceeds are applied to the secured obligations).
(b) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans which are to be repaid and
the specific Borrowing(s) pursuant to which made; provided, that (i) Eurodollar
--------
Loans may be designated for repayment pursuant to this Section 4.02 only on the
last day of an Interest Period applicable thereto unless all Eurodollar Loans
with Interest Periods ending on such date of required prepayment and all Base
Rate Loans have been paid in full; (ii) if any repayment of Eurodollar Loans
made pursuant to a single Borrowing shall reduce the outstanding Revolving Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount, such Borrowing shall be immediately converted into Base Rate Loans; and
(iii) each repayment of any Revolving Loans made pursuant to a Borrowing shall
be applied pro rata among such Revolving Loans; provided, that no repayment
--- ---- --------
pursuant to Section 4.02(a) shall be applied to any Revolving Loans of a
Defaulting Bank at any time when the aggregate amount of the Revolving Loans of
any Non-Defaulting Bank exceeds such Non-Defaulting Bank's Percentage of
Revolving Loans then outstanding. In
-23-
<PAGE>
the absence of a designation by the Borrower as described in the preceding
sentence, the Agent shall, subject to the above, make such designation in its
sole discretion with a view, but no obligation, to minimize breakage costs owing
under Section 1.11.
(c) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date and (ii) all outstanding Revolving Loans shall be
repaid in full on the Maturity Date.
4.03 Method and Place of Payment. Except as otherwise specifically
---------------------------
provided herein, all payments under this Agreement shall be made to the Agent
for the ratable account of the Banks entitled thereto, not later than 1:00 P.M.
(New York time) on the date when due and shall be made in immediately available
funds and in U.S. Dollars at the Payment Office, it being understood that
written, telex or facsimile transmission notice by the Borrower to the Agent to
make a payment from the funds in the Borrower's account at the Payment Office
shall constitute the making of such payment to the extent of such funds held in
such account. Any payments under this Agreement which are made later than 1:00
P.M. (New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder or
------------
under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imports, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or net profits of a Bank pursuant to the laws
of the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect thereto (all such non-excluded taxes, levies, imports,
duties, fees, assessments or other charges being referred to collectively as
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Agreement or under any Note,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. If any amounts are payable
in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to
reimburse each Bank, upon the written request of such Bank, for taxes imposed on
or measured by the net income or net profits of such Bank pursuant to the laws
of the jurisdiction in which the principal office or applicable lending
-24-
<PAGE>
office of such Bank is located or under the laws of any political subdivision or
taxing authority of any such jurisdiction in which the principal office or
applicable lending office of such Bank is located and for any withholding of
taxes as such Bank shall determine are payable by, or withheld from, such Bank
in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Bank pursuant to this sentence. The Borrower will furnish to the Agent within 45
days after the date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts evidencing such payment by the Borrower. The
Borrower agrees to indemnify and hold harmless each Bank, and reimburse such
Bank upon its written request, for the amount of any Taxes so levied or imposed
and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Agent on or prior to the Effective Date, or in the case of a Bank that
is an assignee or transferee of an interest under this Agreement pursuant to
Section 1.13 or 12.04 (unless the respective Bank was already a Bank hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Bank, (i) two accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Bank's entitlement as of such date to a complete exemption
from United States withholding tax with respect to payments to be made under
this Agreement and under any Note, or (ii) if the Bank is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit C (any such certificate, a
"Section 4.04(b)(ii Certificate.) and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. In addition, each Bank agrees that from time to
time after the Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, it will deliver to the Borrower and the Agent two new accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001,
or Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Bank to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note, or
it shall immediately notify the Borrower and the Agent of its inability to
deliver any such Form or Certificate in which case such Bank shall not be
required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a),
but subject to Section 12.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
fees or other amounts payable hereunder for the account of any Bank which is not
a United States person (as such term is defined in Section 7701(a)(30)
-25-
<PAGE>
of the Code) for U.S. Federal income tax purposes to the extent that such Bank
has not provided to the Borrower U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and (y) the
Borrower shall not be obligated pursuant to Section 4.04(a) hereof to gross-up
payments to be made to a Bank in respect of income or similar taxes imposed by
the United States if (I) such Bank has not provided to the Borrower the Internal
Revenue Service Forms required to be provided to the Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that such Forms do not establish a
complete exemption from withholding of such taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 12.04(b), the Borrower agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in Section
4.04(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any amounts deducted or withheld by it
as described in the immediately preceding sentence as a result of any changes
that are effective after the Effective Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Taxes.
SECTION 5. Conditions Precedent. The obligation of each Bank to make
--------------------
each Loan to the Borrower hereunder, and the obligation of any Letter of Credit
Issuer to issue each Letter of Credit hereunder, is subject, at the time of each
such Credit Event (except as otherwise hereinafter indicated), to the
satisfaction of the following conditions:
5.01 Execution of Agreement: Notes. On or prior to the Initial
-----------------------------
Borrowing Date, (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Agent for the account of each Bank the appropriate
Revolving Note and to BTCo the Swingline Note, in each case executed by the
Borrower and in the amount, maturity and as otherwise provided herein.
5.02 No Default: Representations and Warranties. At the time of each
------------------------------------------
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents in effect at such time shall
be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event, unless stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date.
5.03 Officer's Certificate. On the Initial Borrowing Date, the Agent
----------------------
shall have received a certificate dated such date signed by an appropriate
officer of the Borrower stating that all of the applicable conditions set forth
in Sections 5.02, 5.06, 5.07, 5.08 and 5.09 have been satisfied as of such date.
-26-
<PAGE>
5.04 Opinions of Counsel. On the Initial Borrowing Date, the Agent
-------------------
shall have received an opinion, addressed to the Agent and each of the Banks and
dated the Initial Borrowing Date, from Kirkland & Ellis, counsel to the Credit
Parties, which opinion shall cover the matters contained in Exhibit D and such
other matters incident to the transactions contemplated herein as the Agent may
reasonably request.
5.05 Corporate Proceedings. (a) On the Initial Borrowing Date, the
---------------------
Agent shall have received from each Credit Party a certificate, dated the
Initial Borrowing Date, signed by the chairman, a vice chairman, the president
or any vice-president of such Credit Party, and attested to by the secretary or
any assistant secretary of such Credit Party, in the form of Exhibit E with
appropriate insertions, together with copies of the Certificate of Incorporation
and By-Laws of such Credit Party (to the extent required thereby) and the
resolutions of such Credit Party referred to in such certificate and all of the
foregoing (including each such Certificate of Incorporation and By-Laws) shall
be reasonably satisfactory to the Agent.
(b) On the Initial Borrowing Date, all corporate and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Documents shall be reasonably
satisfactory in form and substance to the Agent, and the Agent shall have
received all information and copies of all certificates, documents and papers,
including good standing certificates, bring-down certificates and any other
records of corporate proceedings and governmental approvals, if any, which the
Agent reasonably may have requested in connection therewith, such documents and
papers, where appropriate, to be certified by proper corporate or governmental
authorities.
5.06 Adverse Change, etc. On or prior to the Initial Borrowing Date,
--------------------
nothing shall have occurred since September 30, 1997 (and neither the Banks nor
the Agent shall have become aware of any facts or conditions not previously
known) which the Required Banks or the Agent shall determine (a) has, or could
reasonably be expected to have, a material adverse effect on the rights or
remedies of the Banks or the Agent, or on the ability of any Credit Party to
perform its obligations to them hereunder or under any other Credit Document or
(b) has, or could reasonably be expected to have, a Material Adverse Effect.
5.07 Litigation. On the Initial Borrowing Date, there shall be no
----------
actions, suits or proceedings pending or threatened (a) with respect to this
Agreement or any other Document or the Transaction or (b) which the Agent or the
Required Banks shall determine could reasonably be expected to (i) have a
Material Adverse Effect or (ii) have a material adverse effect on the
Transaction, the rights or remedies of the Banks or the Agent hereunder or under
any other Credit Document or on the ability of any Credit Party to perform its
respective obligations to the Banks or the Agent hereunder or under any other
Credit Document.
-27-
<PAGE>
5.08 Approvals. On or prior to the Initial Borrowing Date, all
---------
necessary governmental (domestic and foreign) and third party approvals in
connection with the Transaction, the transactions contemplated by the Documents
and otherwise referred to herein or therein shall have been obtained and remain
in effect, and all applicable waiting periods shall have expired without any
action being taken by any competent authority which restrains, prevents or
imposes materially adverse conditions upon the consummation of the Transaction,
the transactions contemplated by the Documents and otherwise referred to herein
or therein. Additionally, there shall not exist any judgment, order, injunction
or other restraint issued or filed or a hearing seeking injunctive relief or
other restraint pending or notified prohibiting or imposing materially adverse
conditions upon the consummation of the Transaction or the making of Loans.
5.09 Consummation of the Transaction. On the Initial Borrowing Date,
-------------------------------
(a) Holdings shall have received gross cash proceeds of at least $25,000,000 in
connection with the registered initial public offering (the "IPO") by Holdings
of Holdings Common Stock, (b) Holdings shall have used the net cash proceeds
received from the IPO to make a cash common equity contribution to the Borrower,
and (c) the Agent shall have received (i) true and correct copies of the IPO
Documents and (ii) evidence in form, scope and substance reasonably satisfactory
to it that the matters set forth in this Section 5.09 have been satisfied on
such date.
5.10 Existing Credit Agreement. (a) On the Initial Borrowing Date,
-------------------------
the commitments under the Existing Credit Agreement shall have been terminated,
all loans thereunder shall have been repaid in full, together with all accrued
and unpaid interest thereon, all accrued and unpaid fees thereon shall have been
paid in full, all letters of credit issued thereunder shall have been terminated
and all other amounts then owing pursuant to the Existing Credit Agreement shall
have been repaid in full, and the Agent shall have received evidence in form,
scope and substance reasonably satisfactory to it that the matters set forth in
this Section 5.10(a) have been satisfied at such time.
(b) On the Initial Borrowing Date, all security interests and Liens
created under the Existing Credit Agreement and the related security documents
on the capital stock of, and assets (including intercompany notes) owned by,
Holdings and its Subsidiaries shall have been terminated and released, and the
Agent shall have received all such releases as may have been requested by the
Agent, which releases shall be in form and substance reasonably satisfactory to
the Agent.
5.11 Security Documents. (a) On the Initial Borrowing Date, Holdings,
------------------
the Borrower and each Subsidiary Guarantor shall have duly authorized, executed
and delivered a Pledge Agreement in the form of Exhibit F, together with such
changes (or with such other documents) as may be requested by the Collateral
Agent in connection with local law (as modified, amended or supplemented from
time to time in accordance with the terms thereof and hereof, the "Pledge
Agreement") and shall have delivered to the Collateral
-28-
<PAGE>
Agent, as pledgee thereunder, all of the Pledged Securities referred to therein,
endorsed in blank in the case of promissory notes or accompanied by executed and
undated stock powers in the case of capital stock, and the Pledge Agreement and
such other documents shall be in full force and effect.
(b) On the Initial Borrowing Date, Holdings, the Borrower and each
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Security Agreement in the form of Exhibit G, together with such changes (or with
such other documents) as may be requested by the Collateral Agent in connection
with local law (as modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the "Security Agreement") covering
all of the Security Agreement Collateral, together with:
(A) executed copies of Financing Statements (Form UCC-1 and/or UCC-3)
or appropriate local equivalent in appropriate form for filing under the
UCC or appropriate local equivalent of each jurisdiction as may be
necessary to perfect the security interests purported to be created by the
Security Agreement;
(B) certified copies of Requests for Information or Copies (Form UCC-
11), or equivalent reports, each of a recent date listing all effective
financing statements that name Holdings, the Borrower or any of their
respective Domestic Subsidiaries or a division or operating unit of any
such Person, as debtor and that are filed in the jurisdictions referred to
in clause (A) above, together with copies of such financing statements
(none of which shall cover the Collateral except (x) those with respect to
which appropriate termination statements executed by the secured lender
thereunder have been delivered to the Agent and (y) to the extent
evidencing Permitted Liens);
(C) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created by the Security Agreement; and
(D) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect the security
interests purported to be created by the Security Agreement have been
taken;
and the Security Agreement shall be in full force and effect.
5.12 Subsidiary Guaranty. On the Initial Borrowing Date, each
-------------------
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Subsidiary Guaranty in the form of Exhibit H (as modified, amended or
supplemented from time to time in accordance
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with the terms hereof and thereof, the "Subsidiary Guaranty"), and the
Subsidiary Guaranty shall be in full force and effect.
5.13 Mortgages: Title Insurance: Surveys. etc. (a) On the Initial
---------
Borrowing Date, the Collateral Agent shall have received fully executed
counterparts of deeds of trust, mortgages and similar documents in each case in
form and substance satisfactory to the Collateral Agent (as amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof,
each a "Mortgage" and, collectively, the "Mortgages") covering all the Mortgaged
Properties located in the United States, and arrangements reasonably
satisfactory to the Collateral Agent shall be in place to provide that
counterparts of such Mortgages shall be recorded within two Business Days after
the Initial Borrowing Date in all places to the extent necessary or desirable,
in the judgment of the Collateral Agent, effectively to create a valid and
enforceable first priority Lien, subject only to Permitted Encumbrances, on each
such Mortgaged Property in favor of the Collateral Agent (or such other trustee
as may be required or desired under local law) for the benefit of the Secured
Creditors.
(b) On the Initial Borrowing Date, the Collateral Agent shall have
received mortgagee title insurance policies (or binding commitments to issue
such title insurance policies) issued by title insurers reasonably satisfactory
to the Collateral Agent (the "Mortgage Policies") in amounts reasonably
satisfactory to the Collateral Agent and assuring the Collateral Agent that the
Mortgages are valid and enforceable first priority mortgage Liens on the
respective Mortgaged Properties, free and clear of all defects and encumbrances
except Permitted Encumbrances. Such Mortgage Policies shall be in form and
substance reasonably satisfactory to the Collateral Agent and (i) shall include
an endorsement for future advances under this Agreement, the Notes and the
Mortgages and for any other matter that the Collateral Agent in its discretion
may reasonably request (to the extent available in the respective jurisdiction
of each Mortgaged Property), (ii) shall not include an exception for mechanics'
liens and (iii) shall provide for affirmative insurance and such reinsurance
(including direct access agreements) as the Collateral Agent in its discretion
may reasonably request.
(c) On the Initial Borrowing Date, the Collateral Agent shall have
received a survey for each Mortgaged Property (other than the property located
in Mountain Green, Utah), in form and substance reasonably satisfactory to the
Collateral Agent, certified by a licensed professional surveyor reasonably
satisfactory to the Collateral Agent. The Collateral Agent shall also have
received such estoppel letters, landlord waiver letters, nondisturbance letters
and similar assurances as may have been requested by the Collateral Agent, which
letters shall be in form and substance reasonably satisfactory to the Collateral
Agent.
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5.14 Plans: Collective Bargaining Agreements: Existing Indebtedness
--------------------------------------------------------------
Agreements: Shareholders' Agreements: Management Agreements: Employment
- -----------------------------------------------------------------------
Agreements: Tax Allocation Agreements: Material Contracts. On or prior to the
- ---------------------------------------------------------
Initial Borrowing Date, there shall have been delivered to the Banks copies,
certified as true and correct by an appropriate officer of Holdings or its
Subsidiaries, of:
(a) any Plans of Holdings or any of its Subsidiaries and for each
such Plan (i) that is a "single-employer plan" (as defined in Section
4001(a)(15) of ERISA) the most recently completed actuarial valuation
prepared therefor by such Plan's regular enrolled actuary and the Schedule
B, "Actuarial Information" to the IRS Form 5500 (Annual Report) most
recently filed with the Internal Revenue Service and (ii) that is a
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA), each of
the documents referred to in clause (i) either in the possession of
Holdings, any Subsidiary of Holdings or any ERISA Affiliate or reasonably
available thereto from the sponsor or trustees of such Plan;
(b) any collective bargaining agreements or any other similar
agreement or arrangement covering the employees of Holdings or any of its
Subsidiaries (collectively, the "Collective Bargaining Agreements");
(c) all agreements evidencing or relating to the Existing
Indebtedness that are to remain in effect after giving effect to the
consummation of the Transaction (collectively, the "Existing Indebtedness
Agreements");
(d) all agreements entered into by Holdings or any of its
Subsidiaries governing the terms and relative rights of its capital stock,
and any agreements entered into by shareholders relating to any such entity
with respect to their capital stock, in each case that are to remain in
effect after giving effect to the consummation of the Transaction
(collectively, the "Shareholders' Agreements");
(e) any material agreements (or the forms thereof) with members of,
or with respect to, the management of Holdings or any of its Subsidiaries
that are to remain in effect after giving effect to the consummation of the
Transaction (collectively, the "Management Agreements");
(f) any employment agreements entered into by Holdings or any of its
Subsidiaries (collectively, the "Employment Agreements");
(g) any tax sharing or tax allocation agreements entered into by
Holdings or any of its Subsidiaries (collectively, the "Tax Allocation
Agreements"); and
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<PAGE>
(h) all material contracts and licenses of Holdings or any of its
Subsidiaries that are to remain in effect after giving effect to the
consummation of the Transaction (collectively, the "Material Contracts");
all of which Plans, Collective Bargaining Agreements, Existing Indebtedness
Agreements, Shareholders' Agreements, Management Agreements, Employment
Agreements, Tax Allocation Agreements and Material Contracts shall be in form
and substance reasonably satisfactory to the Agent and shall be in full force
and effect on the Initial Borrowing Date.
5.15 Solvency Certificate: Evidence of Insurance. On the Initial
-------------------------------------------
Borrowing Date, the Agent shall have received:
(a) a Certificate from the Chief Financial Officer of Holdings, in
the form of Exhibit K, addressed to the Agent and each of the Banks and
dated the Initial Borrowing Date and supporting the conclusions, that,
after giving effect to the Transaction and the incurrence of all financings
contemplated herein, the Borrower (on a stand-alone basis) and Holdings and
its Subsidiaries (on a consolidated basis) are not insolvent and will not
be rendered insolvent by the indebtedness incurred in connection herewith,
will not be left with unreasonably small capital with which to engage in
their respective businesses and will not have incurred debts beyond their
ability to pay such debts as they mature and become due; and
(b) evidence of insurance complying with the requirements of Section
7.03 for the business and properties of Holdings and its Subsidiaries, in
scope, form and substance reasonably satisfactory to the Agent and the
Required Banks and naming the Collateral Agent as an additional insured
and/or loss payee, and stating that such insurance shall not be cancelled
or revised without 30 days prior written notice by the insurer to the
Collateral Agent.
5.16 Pro Forma Balance Sheets. On or prior the Initial Borrowing Date,
------------------------
there shall have been delivered to the Agent, an unaudited pro forma
--- -----
consolidated balance sheet of Holdings and its Subsidiaries after giving effect
to the Transaction and prepared in accordance with GAAP, together with a related
funds flow statement, which pro forma balance sheets and funds flow statement
--- -----
shall be reasonably satisfactory in form and substance to the Agent and the
Required Banks.
5.17 Projections. On or prior to the Initial Borrowing Date, the Banks
-----------
shall have received the financial projections (the "Projections") set forth on
Annex IV hereto, which include the projected results of Holdings and its
Subsidiaries for the five fiscal years ended after the Effective Date.
5.18 Existing Indebtedness. On the Initial Borrowing Date and after
---------------------
giving effect to the Transaction and the Loans incurred on the Initial Borrowing
Date, neither
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<PAGE>
Holdings nor any of its Subsidiaries shall have any preferred stock or
Indebtedness outstanding except for Indebtedness permitted under Section 8.04.
On and as of the Initial Borrowing Date, all of the Existing Indebtedness shall
remain outstanding after giving effect to the Transaction and the other
transactions contemplated hereby without any default or events of default
existing thereunder or arising as a result of the Transaction and the other
transactions contemplated hereby (except to the extent amended or waived by the
parties thereto on terms and conditions reasonably satisfactory to the Agent and
the Required Banks). On and as of the Initial Borrowing Date, the Agent and the
Required Banks shall be satisfied with the amount of and the terms and
conditions of all Existing Indebtedness.
5.19 Payment of Fees. On the Initial Borrowing Date, all costs, fees
---------------
and expenses, and all other compensation contemplated by this Agreement, due to
the Agent or the Banks (including, without limitation, legal fees and expenses)
shall have been paid to the extent due.
5.20 Notice of Borrowing: Letter of Credit Request. The Agent shall
---------------------------------------------
have received a Notice of Borrowing satisfying the requirements of Section 1.03
with respect to each incurrence of Loans, and the Agent and the respective
Letter of Credit Issuer shall have received a Letter of Credit Request
satisfying the requirements of Section 2.02 with respect to each issuance of a
Letter of Credit.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Banks that all
of the applicable conditions specified above exist as of the date of such Credit
Event. All of the certificates, legal opinions and other documents and papers
referred to in this Section 5, unless otherwise specified, shall be delivered to
the Agent at its Notice Office for the account of each of the Banks and, except
for the Notes, in sufficient counterparts for each of the Banks and shall be
satisfactory in form and substance to the Agent and the Required Banks.
SECTION 6. Representations, Warranties and Agreements. In order to
------------------------------------------
induce the Banks to enter into this Agreement and to make the Loans and issue
and/or participate in the Letters of Credit provided for herein, each of
Holdings and the Borrower makes the following representations, warranties and
agreements with the Banks in each case after giving effect to the Transaction,
all of which shall survive the execution and delivery of this Agreement, the
making of the Loans and the issuance of the Letters of Credit (with the
occurrence of each Credit Event being deemed to constitute a representation and
warranty that the matters specified in this Section 6 are true and correct in
all material respects on and as of the date of each such Credit Event, unless
stated to relate to a specific earlier date in which all representations and
warranties shall be true and correct in all material respects as of such earlier
date):
6.01 Corporate Status. Holdings and each of its Subsidiaries (i) is a
----------------
duly organized and validly existing corporation in good standing (to the extent
such concept is
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<PAGE>
relevant in such jurisdiction) under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in all jurisdictions where it is required to be so
qualified and where the failure to be so qualified would have a Material Adverse
Effect.
6.02 Corporate Power and Authority. Each Credit Party has the
-----------------------------
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Credit Documents to which it is a party. Each Credit Party has duly
executed and delivered each Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable in accordance with its terms, except to the extent that
the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting creditors' rights
and by equitable principles (regardless of whether enforcement is sought in
equity or at law).
6.03 No Violation. Neither the execution, delivery or performance by
------------
any Credit Party of the Credit Documents to which it is a party nor compliance
by any Credit Party with the terms and provisions thereof, nor the consummation
of the transactions contemplated herein or therein, (i) will contravene any
applicable provision of any law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of Holdings or any of its Subsidiaries pursuant to the terms
of any indenture, mortgage, deed of trust, loan agreement, credit agreement or
any other material agreement or instrument to which Holdings or any of its
Subsidiaries is a party or by which it or any of its property or assets are
bound or to which it may be subject or (iii) will violate any provision of the
Certificate of Incorporation or By-Laws of Holdings or any of its Subsidiaries.
6.04 Litigation. There are no actions, suits or proceedings pending
---------
or, to the knowledge of Holdings or any of its Subsidiaries, threatened, with
respect to Holdings or any of its Subsidiaries (i) that could reasonably be
expected to have a Material Adverse Effect or (ii) that could reasonably be
expected to have a material adverse effect on the rights or remedies of the
Banks or on the ability of any Credit Party to perform its respective
obligations to the Banks hereunder and under the other Credit Documents to which
it is, or will be, a party. Additionally, there does not exist any judgment,
order or injunction prohibiting or imposing material adverse conditions upon the
occurrence of any Credit Event.
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<PAGE>
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of
-----------------------------------
Revolving Loans and Swingline Loans shall be utilized (i) to repay, on the
Initial Borrowing Date, all amounts outstanding under the Existing Credit
Agreement, (ii) to pay fees and expenses incurred in connection with the
Transaction, (iii) to effect Permitted Acquisitions subject to the terms and
conditions set forth herein and (iv) for the general corporate and working
capital purposes of the Borrower and its Subsidiaries; provided that proceeds of
--------
Revolving Loans and Swingline Loans used to finance the Transaction shall not
exceed $40,000,000.
(b) Neither the making of any Loan hereunder, nor the use of the
proceeds thereof, will violate the provisions of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System and no part of the proceeds of
any Loan will be used to purchase or carry any Margin Stock or to extend credit
for the purpose of purchasing or carrying any Margin Stock.
6.06 Governmental Approvals. No order, consent, approval, license,
----------------------
authorization, or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required in
connection with (i) the execution, delivery and performance of any Credit
Document or (ii) the legality, validity, binding effect or enforceability of any
Credit Document.
6.07 Investment Company Act. Neither Holdings nor any of its
----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.08 Public Utility Holding Company Act. Neither Holdings nor any of
---------------------------------
its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
6.09 True and Complete Disclosure. All factual information (taken as a
------------------------------
whole) heretofore or contemporaneously furnished by or on behalf of Holdings or
any of its Subsidiaries in writing to the Agent or any Bank (including, without
limitation, all information contained in the Documents) for purposes of or in
connection with this Agreement or any transaction contemplated herein is, and
all other such factual information (taken as a whole) hereafter furnished by or
on behalf of any such Persons in writing to the Agent or any Bank will be, true
and accurate in all material respects on the date as of which such information
is dated or certified and not incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not misleading at such
time in light of the circumstances under which such information was provided, it
being understood that the representation and warranty made in this Section 6.09
with respect to the information
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<PAGE>
contained in the IPO Documents is only being made on and as of the Initial
Borrowing Date.
6.10 Financial Condition: Financial Statements. (a) On and as of the
----------------------------------------
Initial Borrowing Date, on a pro forma basis after giving effect to the
--- -----
Transaction and to all Indebtedness incurred, and to be incurred (including,
without limitation, the Loans), and Liens created, and to be created, by each
Credit Party in connection therewith, with respect to each of Holdings and its
Subsidiaries (on a consolidated basis) and of the Borrower (on a stand-alone
basis) (x) the sum of the assets, at a fair valuation, of each of Holdings and
its Subsidiaries (on a consolidated basis) and of the Borrower (on a stand-alone
basis) will exceed its debts, (y) it has not incurred nor intended to, nor
believes that it will, incur debts beyond its ability to pay such debts as such
debts mature and (z) it will have sufficient capital with which to conduct its
business. For purposes of this Section 6.10, "debt" means any liability on a
claim, and "claim" means (i) right to payment whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (ii)
right to an equitable remedy for breach of performance if such breach gives rise
to a payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b) The consolidated balance sheet of Holdings and its Subsidiaries
at September 30, 1997 and the related statements of operations and cash flows
and changes in shareholders' equity of Holdings and its Subsidiaries for the
fiscal year ended as of said date, copies of which have heretofore been
furnished to each Bank, present fairly in all material respects the consolidated
financial position of Borrower and its Subsidiaries at the date of said
statements and the results for the period covered thereby. All such financial
statements have been prepared in accordance with GAAP consistently applied
except to the extent provided in the notes to said financial statements.
(c) Since September 30, 1997, nothing has occurred that has had or
could reasonably be expected to have a Material Adverse Effect.
(d) Except as fully reflected in the financial statements described
in Section 6.10(b) and the Indebtedness incurred under this Agreement, (i) there
were as of the Initial Borrowing Date (and after giving effect to any Loans made
on such date), no liabilities or obligations (excluding current obligations
incurred in the ordinary course of business) with respect to Holdings or any of
its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent
or otherwise and whether or not due), and (ii) neither Holdings nor the Borrower
know of any basis for the assertion against Holdings or any of its Subsidiaries
of any such liability or obligation which, in the case of clause (i) or (ii)
either individually or in the aggregate, is or would be reasonably likely to
have, a Material Adverse Effect.
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<PAGE>
(e) The Projections are based on good faith estimates and assumptions
made by the management of Holdings, and on the Initial Borrowing Date such
management believed that the Projections were reasonable and attainable, it
being recognized by the Banks, however, that projections as to future events are
not to be viewed as facts and that the actual results during the period or
periods covered by the Projections probably will differ from the projected
results and that the differences may be material. There is no fact known to
Holdings or any of its Subsidiaries which would have a Material Adverse Effect,
which has not been disclosed herein or in such other documents, certificates and
statements furnished to the Banks for use in connection with the transactions
contemplated hereby.
6.11 Security Interests. On and after the Initial Borrowing Date, each
------------------
of the Security Documents creates (or after the execution and delivery thereof
will create), as security for the Obligations, a valid and enforceable perfected
security interest in and Lien on all of the Collateral subject thereto, superior
to and prior to the rights of all third Persons and subject to no other Liens
(except that the Security Agreement Collateral, the Mortgaged Properties and the
collateral covered by the Additional Security Documents may be subject to
Permitted Liens relating thereto), in favor of the Collateral Agent. No filings
or recordings are required in order to perfect the security interests created
under any Security Document except for filings or recordings required in
connection with any such Security Document which shall have been made on or
prior to the Initial Borrowing Date as contemplated by Section 5.11(b)or 5.13(a)
or on or prior to the execution and delivery thereof as contemplated by Sections
7.11, 7.13 and 8;14.
6.12 Existing Indebtedness. Annex VII sets forth a true and complete
---------------------
list of all Indebtedness of Holdings and its Subsidiaries as of the Initial
Borrowing Date and which is to remain outstanding after giving effect to the
Transaction and the incurrence of Loans on such date (excluding the Loans and
the Letters of Credit, the "Existing Indebtedness"), in each case showing the
aggregate principal amount thereof and the name of the respective borrower and
any other entity which directly or indirectly guaranteed such debt.
6.13 Transaction. At the time of consummation thereof, the Transaction
-----------
shall have been consummated in all material respects in accordance with the
terms of the Documents and all applicable laws. At the time of consummation
thereof, all consents and approvals of, and filings and registrations with, and
all other actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate the Transaction have
been obtained, given, filed or taken or waived and are or will be in full force
and effect (or effective judicial relief with respect thereto has been obtained)
except where the failure to obtain, give, file, or take would not reasonably be
expected to have a Material Adverse Effect. All applicable waiting periods with
respect thereto have or, prior to the time when required, will have, expired
without, in all such cases, any action being taken by any competent authority
which restrains, prevents, or imposes material adverse conditions upon the
Transaction. Additionally, there does not
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<PAGE>
exist any judgment, order or injunction prohibiting or imposing material adverse
conditions upon the Transaction, or the performance by Holdings and its
Subsidiaries of their obligations under the Documents and all applicable laws.
6.14 Special Purpose Corporation. Holdings has no significant assets
---------------------------
(other than the capital stock of the Borrower, immaterial assets used for the
performance of those activities permitted to be performed by Holdings pursuant
to Section 8.01(b) and Borrower Subordinated Notes) or liabilities (other than
this Agreement and the other Credit Documents, those liabilities under the other
Documents, those liabilities permitted to be incurred by Holdings pursuant to
Section 8.01(b), Indebtedness permitted to be incurred by Holdings pursuant to
Section 8.04(p) and, as and when issued from time to time in accordance with the
terms of this Agreement, Permitted Holdings PIK Securities and Shareholder
Subordinated Notes).
6.15 Compliance with ERISA. (a) Each Plan is in substantial compliance
---------------------
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for a waiver
of the minimum funding standard or an extension of any amortization period
within the meaning of Section 412 of the Code; all contributions required to be
made with respect to a Plan and a Foreign Pension Plan have been timely made;
neither Holdings nor any Subsidiary of Holdings nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan pursuant to Section
409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971, 4975 or 4980 of the Code or reasonably expects to
incur any material liability (including any indirect, contingent or secondary
liability) under any of the foregoing Sections with respect to any Plan (other
than liabilities of any ERISA Affiliate which could not, by operation of law or
otherwise, become a liability of Holdings or any of its Subsidiaries); no
proceedings have been instituted to terminate, or to appoint a trustee to
administer, any Plan; no condition exists which presents a material risk to
Holdings or any Subsidiary of Holdings or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; using actuarial assumptions and computation methods
consistent with subpart 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of Holdings and its Subsidiaries and its ERISA Affiliates to all
Plans which are multiemployer plans (as defined in Section 4001(a)(3) of ERISA)
in the event of a complete withdrawal therefrom, as of the close of the most
recent fiscal year of each such Plan ended prior to the date of the most recent
Credit Event, would not result in a Material Adverse Effect; no lien imposed
under the Code or ERISA on the assets of Holdings or any Subsidiary of Holdings
or any ERISA Affiliate exists or is likely to arise on account of any Plan; and
Holdings and its Subsidiaries do not maintain or contribute to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) which provides
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or
-38-
<PAGE>
any employee pension benefit plan (as defined in Section 3(2) of ERISA) the
obligations with respect to which could reasonably be expected to have a
Material Adverse Effect.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. Neither
Holdings nor any of its Subsidiaries has incurred any material obligation in
connection with the termination of or withdrawal from any Foreign Pension Plan.
The present value of the accrued benefit liabilities (whether or not vested)
under each Foreign Pension Plan which is funded, determined as of the end of the
most recently ended fiscal year of the Borrower on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan, and for each Foreign Pension Plan which
is not funded, the obligations of such Foreign Pension Plan are properly
accrued.
6.16 Capitalization. (a) On the Initial Borrowing Date after giving
--------------
effect to the Transaction, the authorized capital stock of Holdings shall
consist of (i) 50,000,000 shares of common stock, $.01 par value per share (such
authorized shares of common stock, together with any subsequently authorized
shares of common stock of Holdings, the "Holdings Common Stock"), of which
11,496,692 shares shall be issued and outstanding and (ii) 5,000,000 shares of
preferred stock (the "Holdings Preferred Stock"), of which no shares shall be
issued and outstanding. All outstanding shares have been duly and validly
issued, are fully paid and nonassessable. On the Initial Borrowing Date, except
as set forth on Annex IX hereto, Holdings does not have outstanding any
additional securities convertible into or exchangeable for its capital stock or
outstanding any additional rights to subscribe for or to purchase, or any
options for the purchase of, or any additional agreements providing for the
issuance (contingent or otherwise) of, or any calls, commitments or claims of
any character relating to, its capital stock.
(b) On the Initial Borrowing Date and after giving effect to the
Transaction and the other transactions contemplated hereby, the authorized
capital stock of the Borrower shall consist of 1,000 shares of common stock,
$.01 par value per share, all of which shares shall be issued and outstanding
and owned by Holdings. All such outstanding shares have been duly and validly
issued and are fully paid and nonassessable. The Borrower does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock.
6.17 Subsidiaries. On and as of the Initial Borrowing Date and after
------------
giving effect to the consummation of the Transaction, Holdings has no
Subsidiaries other than the Borrower and its Subsidiaries, and the Borrower has
no Subsidiaries other than those Subsidiaries listed on Annex V. Annex V
correctly sets forth, as of the Initial Borrowing Date
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<PAGE>
and after giving effect to the Transaction, the percentage ownership (direct and
indirect) of Holdings in each class of capital stock of each of its Subsidiaries
and also identifies the direct owner thereof. All outstanding shares of capital
stock of each Subsidiary of the Borrower have been duly and validly issued, are
fully paid and nonassessable and have been issued free of preemptive rights. No
Subsidiary of the Borrower has outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any right to subscribe for or
to purchase, or any options or warrants for the purchase of, or any agreement
providing for the issuance (contingent or otherwise) of or any calls,
commitments or claims of any character relating to, its capital stock or any
stock appreciation or similar rights.
6.18 Intellectual Property. Holdings and each of its Subsidiaries owns
---------------------
or holds a valid license to use all the patents, trademarks, permits, service
marks, trade names, technology, know-how and formulas or other rights with
respect to the foregoing, free from restrictions that are adverse to the use
thereof, that are used in the operation of the business of Holdings and each of
its Subsidiaries as presently conducted, except in the case of any of the
foregoing to the extent not reasonably expected to have a Material Adverse
Effect.
6.19 Compliance with Statutes. etc. Holdings and each of its
-----------------------------
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including compliance with all applicable
Environmental Laws with respect to any Real Property or governing its business
and the requirements of any permits issued under such Environmental Laws with
respect to any such Real Property or the operations of Holdings or any of its
Subsidiaries), except such non-compliance as is not likely to, individually or
in the aggregate, have a Material Adverse Effect.
6.20 Environmental Matters. (a) Holdings and each of its Subsidiaries
---------------------
have complied with, and on the date of each Credit Event are in compliance with,
all applicable Environmental Laws and the requirements of any permits issued
under such Environmental Laws. There are no pending or, to the best knowledge of
Holdings and the Borrower, past or threatened Environmental Claims against
Holdings or any of its Subsidiaries or any Real Property owned or operated by
Holdings or any of its Subsidiaries that individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect. There are no facts,
circumstances, conditions or occurrences on any Real Property owned or operated
by Holdings or any of its Subsidiaries or, to the best knowledge of Holdings and
the Borrower, on any property adjoining or in the vicinity of any such Real
Property that would reasonably be expected (i) to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries or any such Real
Property that individually or in the aggregate would reasonably be expected to
have a Material Adverse Effect or (ii) to cause any such Real Property to be
subject to any restrictions on the ownership, occupancy,
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use or transferability of such Real Property by Holdings or any of its
Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by Holdings or any of its Subsidiaries where such generation, use,
treatment or storage has violated or would reasonably be expected to violate any
Environmental Law. Hazardous Materials have not at any time been Released on or
from any Real Property owned or operated by Holdings or any of its Subsidiaries.
There are not now any underground storage tanks located on any Real Property
owned or operated by Holdings or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section 6.20, the
representations made in this Section 6.20 shall only be untrue if the aggregate
effect of all restrictions, failures, noncompliance, Environmental Claims,
Releases and presence of underground storage tanks, in each case of the types
described above, would reasonably be expected to have a Material Adverse Effect.
6.21 Properties. All Real Property owned or leased by Holdings or any
----------
of its Domestic Subsidiaries as of the Initial Borrowing Date and after giving
effect to the Transaction, and the nature of the interest therein, is correctly
set forth in Annex III. Holdings and each of its Subsidiaries has good and
marketable title to, or a validly subsisting leasehold interest in, all material
properties owned or leased by it, including all Real Property reflected in Annex
III or in the financial statements referred to in Section 6.10(b), free and
clear of all Liens, other than Permitted Liens.
6.22 Labor Relations. Neither Holdings nor any of its Subsidiaries is
---------------
engaged in any unfair labor practice that could reasonably be expected to have a
Material Adverse Effect. There is (i) no unfair labor practice complaint pending
against Holdings or any of its Subsidiaries or, to the best knowledge of
Holdings and the Borrower, threatened against any of them, before the National
Labor Relations Board, and no grievance or arbitration proceeding arising out of
or under any collective bargaining agreement is so pending against Holdings or
any of its Subsidiaries or, to the best knowledge of Holdings and the Borrower,
threatened against any of them, (ii) no strike, labor dispute, slowdown or
stoppage pending against Holdings or any of its Subsidiaries or, to the best
knowledge of Holdings and the Borrower, threatened against Holdings or any of
its Subsidiaries and (iii) to the best knowledge of Holdings and the Borrower,
no union representation question existing with respect to the employees of
Holdings or any of its Subsidiaries and, to the best knowledge of Holdings and
the Borrower, no union organizing activities are taking place, except (with
respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate) such as is not reasonably likely to have a
Material Adverse Effect.
6.23 Tax Returns and Payments. All Federal, material state and other
------------------------
material returns, statements, forms and reports for taxes (the "Returns")
required to be filed
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by or with respect to the income, properties or operations of Holdings and/or
any of its Subsidiaries have been timely filed with the appropriate taxing
authority. The Returns accurately reflect all liability for taxes of Holdings
and its Subsidiaries, as the case may be, for the periods covered thereby.
Holdings and each of its Subsidiaries have paid all taxes payable by them other
than taxes which are not yet due and payable, and other than those contested in
good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP. Except as disclosed in the financial
statements referred to in Section 6.10(b), there is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the knowledge of
Holdings and the Borrower, threatened by any authority regarding any taxes
relating to Holdings or any of its Subsidiaries. As of the Initial Borrowing
Date, neither Holdings nor any of its Subsidiaries has entered into an agreement
or waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of taxes of
Holdings or any of its Subsidiaries, or is aware of any circumstances that would
cause the taxable years or other taxable periods of Holdings or any of its
Subsidiaries not to be subject to the normally applicable statute of
limitations. Neither Holdings nor any of its Subsidiaries have provided, with
respect to themselves or property held by them, any consent under Section 341 of
the Code. Neither Holdings nor any of its Subsidiaries has incurred, or will
incur, any material tax liability in connection with the Transaction and the
other transactions contemplated hereby.
SECTION 7. Affirmative Covenants. Holdings and the Borrower hereby
---------------------
covenant and agree that on the Effective Date and thereafter for so long as this
Agreement is in effect and until the Total Revolving Loan Commitments has
terminated, no Letters of Credit (other than Letters of Credit, together with
all Fees that have accrued and will accrue thereon through the stated
termination date of such Letters of Credit, which have been supported in a
manner satisfactory to the respective Letter of Credit Issuer in its sole and
absolute discretion) or Notes are outstanding and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations (other than any
indemnities described in Section 12.13 hereof which are not then due and
payable) incurred hereunder, are paid in full:
7.01 Information Covenants. Holdings will furnish to each Bank:
---------------------
(a) Monthly Reports. Within 35 days after the end of each fiscal month
---------------
of Holdings, the consolidated balance sheet of Holdings and its Subsidiaries as
at the end of such fiscal month and the related consolidated statements of
income and retained earnings and of cash flows for such fiscal month and for the
elapsed portion of the fiscal year ended with the last day of such fiscal month,
setting forth comparative figures for the corresponding month in the prior
fiscal year, all of which shall be certified by the chief financial officer or
other Authorized Officer of the Borrower, subject to normal year-end audit
adjustments and the absence of footnote disclosure.
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(b) Quarterly Financial Statements. Within 45 days after the close of
------------------------------
each quarterly accounting period in each fiscal year of Holdings, the
consolidated balance sheet of Holdings and its Subsidiaries as at the end of
such quarterly accounting period and the related consolidated statements of
income and retained earnings and of cash flows for such quarterly accounting
period and for the elapsed portion of the fiscal year ended with the last day of
such quarterly accounting period, all of which shall be in reasonable detail and
certified by the chief financial officer or other Authorized Officer of Holdings
that they fairly present the financial condition of Holdings and its
Subsidiaries as of the dates indicated and the results of their operations and
changes in their cash flows for the periods indicated, subject to normal year-
end audit adjustments and the absence of footnote disclosure.
(c) Annual Financial Statements. Within 90 days after the close of
---------------------------
each fiscal year of Holdings, the consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such fiscal year and the related consolidated
statements of income and retained earnings and of cash flows for such fiscal
year, setting forth comparative budgeted figures for such fiscal year and
setting forth comparative consolidated figures for the preceding fiscal year,
and, in the case of all such financial statements (but excluding such
comparative budgeted figures), certified by Price Waterhouse LLP or such other
independent certified public accountants of recognized national standing as
shall be reasonably acceptable to the Agent, in each case to the effect that
such statements fairly present in all material respects the financial condition
of Holdings and its Subsidiaries as of the dates indicated and the results of
their operations and cash flows, together with a certificate of such accounting
firm stating that in the course of its regular audit of the business of Holdings
and its Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, no Default or Event of Default which has occurred
and is continuing has come to their attention insofar as such Default or Event
of Default relates to financial and accounting matters or, if such a Default or
Event of Default has come to their attention a statement as to the nature
thereof.
(d) Budgets. etc. Not more than 60 days after the commencement of each
-------------
fiscal year of the Borrower, budgets of the Borrower and its Subsidiaries in
reasonable detail for each of the four fiscal quarters of such fiscal year as
customarily prepared by management for its internal use setting forth, with
appropriate discussion, the principal assumptions upon which such budgets are
based. Together with each delivery of financial statements pursuant to Section
7.01(b) and (c), a comparison of the current year to date financial results
(other than in respect of the balance sheets included therein) against the
budgets required to be submitted pursuant to this clause (d) shall be presented.
(e) Officer's Certificates. At the time of the delivery of the
----------------------
financial statements provided for in Section 7.01(b) and (c), a certificate of
the chief financial officer or other Authorized Of ficer of Holdings to the
effect that no Default or Event of Default exists or, if any Default or Event of
Default does exist, specifying the nature and extent thereof,
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which certificate shall set forth the calculations required to establish whether
Holdings and its Subsidiaries were in compliance with the provisions of Sections
8.04(d), 8.04(h), 8.05 and 8.08 through and including 8.11, as at the end of
such fiscal quarter or year, as the case may be.
(f) Notice of Default or Litigation. Promptly, and in any event within
-------------------------------
five Business Days (or 10 Business Days in the case of clause (y) below) after
any Senior Officer of Holdings or any of its Subsidiaries obtains knowledge
thereof, notice of (x) the occurrence of any event which constitutes a Default
or an Event of Default, which notice shall specify the nature thereof, the
period of existence thereof and what action Holdings or the Borrower proposes to
take with respect thereto and shall state that such notice is a "notice of
default" and (y) the commencement of, or threat of, or any significant
development in, any litigation or governmental proceeding pending against
Holdings or any of its Subsidiaries which is likely to have a Material Adverse
Effect, or a material adverse effect on the ability of any Credit Party to
perform its respective obligations hereunder or under any other Credit Document.
(g) Auditors' Reports. Promptly upon receipt thereof, a copy of each
-----------------
report or "management letter" submitted to Holdings or any of its Subsidiaries
by its independent accountants in connection with any annual, interim or special
audit made by them of the books of Holdings or any of its Subsidiaries.
(h) Environmental Matters. Promptly after obtaining knowledge of any
---------------------
of the following, written notice of:
(i) any pending or threatened material Environmental Claim against
Holdings or any of its Subsidiaries or any Real Property owned or operated
by Holdings or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property owned or
operated by Holdings or any of its Subsidiaries that (x) results in
material noncompliance by Holdings or any of its Subsidiaries with any
applicable Environmental Law or (y) could reasonably be anticipated to form
the basis of a material Environmental Claim against Holdings or any of its
Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by Holdings or any of its Subsidiaries that could reasonably be
anticipated to cause such Real Property to be subject to any material
restrictions on the ownership, occupancy, use or transferability by
Holdings or its Subsidiary, as the case may be, of its interest in such
Real Property under any Environmental Law; and
(iv) the taking of any material removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Property owned
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<PAGE>
or operated by Holdings or any of its Subsidiaries where Holdings or any of
its Subsidiaries is or is reasonably expected to be responsible for the
cost of such action or where the taking of such action could reasonably be
expected to materially interfere with the operations of Holdings or any of
its Subsidiaries at such Real Property.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action and
Holdings' or the Borrower's response thereto. In addition, Holdings agrees to
provide the Banks with copies of all material written communications by Holdings
or any of its Subsidiaries with any Person, government or governmental agency
relating to any of the matters set forth in clauses (i)-(iv) above, and such
detailed reports relating to any of the matters set forth in clauses (i)-(iv)
above, as may reasonably be requested by the Agent or the Required Banks.
(i) Other Information. Promptly upon transmission thereof, copies of
-----------------
any filings and registrations with, and reports to, the SEC by Holdings or any
of its Subsidiaries and copies of all financial statements, proxy statements,
notices and reports as Holdings or any of its Subsidiaries shall generally send
to analysts or the holders of their capital stock in their capacity as holders
(in each case to the extent not theretofore delivered to the Banks pursuant to
this Agreement) and, with reasonable promptness, such other information or
documents (financial or otherwise) as the Agent on its own behalf or on behalf
of any Bank may reasonably request from time to time.
7.02 Books. Records and Inspections. Holdings will, and will cause
------------------------------
each of its Subsidiaries to, permit, upon notice to the chief financial officer
or other Authorized Officer of Holdings or the Borrower, (x) officers and
designated representatives of the Agent or any Bank to visit and inspect any of
the properties or assets of Holdings and any of its Subsidiaries in whomsoever's
possession, and to examine the books of account of Holdings and any of its
Subsidiaries and discuss the affairs, finances and accounts of Holdings and of
any of its Subsidiaries with, and be advised as to the same by, their officers
and independent accountants, all at such reasonable times and intervals and to
such reasonable extent as the Agent or any Bank may desire and (y) the Agent, at
the request of the Required Banks, to conduct, at Holdings' and the Borrower's
expense, an audit of the accounts receivable and/or inventories of the Borrower
and its Subsidiaries at such times (but no more frequently than once a year
unless an Event of Default has occurred and is continuing) as the Required Banks
shall reasonably require.
7.03 Insurance. Holdings will, and will cause each of its Subsidiaries
---------
to, at all times from and after the Initial Borrowing Date maintain in full
force and effect insurance with reputable and solvent insurance carriers in such
amounts, covering such risks and liabilities and with such deductibles or self-
insured retentions as are in accordance with normal industry practice. At any
time that insurance at the levels described in Annex VI is not being maintained
by Holdings and its Subsidiaries. Holdings will notify the Banks in
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writing thereof and, if thereafter notified by the Agent to do so, Holdings will
obtain insurance at such levels to the extent then generally available (but in
any event within the deductible or self-insured retention limitations set forth
in the preceding sentence) or otherwise as are acceptable to the Agent. Holdings
will furnish to the Agent on the Initial Borrowing Date and on each date as the
Agent or the Required Banks may reasonably request, a summary of the insurance
carried in respect of Holdings and its Subsidiaries and the assets of Holdings
and its Subsidiaries together with certificates of insurance and other evidence
of such insurance, if any, naming the Collateral Agent as an additional insured
and/or loss payee.
7.04 Payment of Taxes. Holdings will pay and discharge, and will cause
----------------
each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful claims for sums that have become due
and payable which, if unpaid, might become a Lien not otherwise permitted under
Section 8.03(a) or charge upon any properties of Holdings or any of its
Subsidiaries; provided, that neither Holdings nor any of its Subsidiaries shall
--------
be required to pay any such tax, assessment, charge, levy or claim which is
being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
7.05 Corporate Franchises. Holdings will do, and will cause each of
--------------------
its Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises and authority to do business; provided, however, that any transaction
-------- -------
permitted by Section 8.02 will not constitute a breach of this Section 7.05.
7.06 Compliance with Statutes. etc. Holdings will, and will cause each
------------------------------
of its Subsidiaries to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls) other than such
non-compliance as would not have a Material Adverse Effect or a material adverse
effect on the ability of any Credit Party to perform its obligations under any
Credit Document to which it is a party.
7.07 Compliance with Environmental Laws. (a) Holdings will pay, and
----------------------------------
will cause each of its Subsidiaries to pay, all costs and expenses incurred by
it in keeping in compliance with all Environmental Laws, and will keep or cause
to be kept all Real Properties owned or operated by Holdings or any of its
Subsidiaries free and clear of any Liens imposed pursuant to such Environmental
Laws; and (b) neither Holdings nor any of its Subsidiaries will generate, use,
treat, store, release or dispose of, or permit the generation, use, treatment,
storage, release or disposal of, Hazardous Materials on any Real
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<PAGE>
Property owned or operated by Holdings or any of its Subsidiaries, or transport
or permit the transportation of Hazardous Materials to or from any such Real
Property, unless the failure to comply with the requirements specified in clause
(a) or (b) above, either individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect. If Holdings or any of its
Subsidiaries, or any tenant or occupant of any Real Property, cause or permit
any intentional or unintentional act or omission resulting in the presence or
Release of any Hazardous Material (except in compliance with applicable
Environmental Laws), each of Holdings and the Borrower agrees to undertake,
and/or to cause any of its Subsidiaries, tenants or occupants to undertake, at
their sole expense, any clean up, removal, remedial or other action required
pursuant to Environmental Laws to remove and clean up any Hazardous Materials
from any Real Property except where the failure to do so would not be reasonably
expected to have a Material Adverse Effect; provided, that neither Holdings nor
--------
any of its Subsidiaries shall be required to comply with any such order or
directive which is being contested in good faith and by proper proceedings so
long as it has maintained adequate reserves with respect to such compliance to
the extent required in accordance with GAAP.
7.08 ERISA. As soon as possible and, in any event, within 10 days
-------
after Holdings or any Subsidiary of Holdings or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following events to the extent
that one or more of such events is reasonably likely to result in a material
liability to Holdings or any Subsidiary of Holdings, Holdings will deliver to
each of the Banks a certificate of the chief financial officer or other
Authorized Officer of Holdings setting forth details as to such occurrence and
the action, if any, which Holdings, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by Holdings, such Subsidiary, such ERISA Affiliate,
the PBGC, a Plan participant or the Plan administrator with respect thereto:
that a Reportable Event has occurred, that an accumulated funding deficiency has
been incurred or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period
under Section 412 of the Code with respect to a Plan; that a contribution
required to be made to a Plan or Foreign Pension Plan has not been timely made;
that a Plan has been or may be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA; that a Plan has an Unfunded Current Liability
giving rise to a lien under ERISA or the Code; that proceedings may be or have
been instituted to terminate or appoint a trustee to administer a Plan; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that Holdings, any Subsidiary of Holdings or
any ERISA Affiliate will or may incur any liability (including any contingent or
secondary liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409, 502(i) or 502(1) of ERISA; or that Holdings or any Subsidiary of
Holdings has or may incur any liability under any employee welfare benefit plan
(within the meaning of Section
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<PAGE>
3(1) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any employee
pension benefit plan (as defined in Section 3(2) of ERISA). At the request of
any Bank, Holdings will deliver to such Bank a complete copy of the annual
report (Form 5500) of each Plan required to be filed with the Internal Revenue
Service. In addition, at the request of any Bank, copies of annual reports and
any notices received by Holdings or any Subsidiary of Holdings or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan shall be delivered to
such Bank no later than 10 days after the date of any such request.
7.09 Good Repair. Holdings will, and will cause each of its
-----------
Subsidiaries to, ensure that its material properties and equipment used in its
business are kept in good repair, working order and condition, normal wear and
tear and damage by casualty excepted, and, subject to Section 8.08, that from
time to time there are made in such properties and equipment all needful and
proper repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, to the extent and in the manner useful or customary for
companies in similar businesses.
7.10 End of Fiscal Years: Fiscal Quarters. Holdings will, for
------------------------------------
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on September 30 of each year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on dates which are
consistent with a fiscal year ending on September 30.
7.11 Additional Security: Further Assurances. (a) Holdings will, and
---------------------------------------
will cause each of its Domestic Subsidiaries (and to the extent that Section
7.13 is operative, each of its Foreign Subsidiaries) to, grant to the Collateral
Agent security interests and mortgages in such assets and properties of Holdings
and its Subsidiaries as are not covered by the Security Documents, and as may be
requested from time to time by the Agent or the Required Banks (collectively,
the "Additional Security Documents"). All such security interests and mortgages
shall be granted pursuant to documentation reasonably satisfactory in form and
substance to the Agent and shall constitute valid and enforceable perfected
security interests and mortgages superior to and prior to the rights of all
third Persons and subject to no other Liens except for Permitted Liens. The
Additional Security Documents or instruments related thereto shall have been
duly recorded or filed in such manner and in such places as are required by law
to establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Security Documents and
all taxes, fees and other charges payable in connection therewith shall have
been paid in full.
(b) Holdings will, and will cause each of its Subsidiaries to, at the
expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take
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<PAGE>
such further steps relating to the collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, Holdings
shall cause to be delivered to the Collateral Agent such opinions of counsel,
title insurance and other related documents as may be reasonably requested by
the Agent to assure themselves that this Section 7.11 has been complied with.
(c) If the Agent or the Required Banks determine that they are
required by law or regulation to have appraisals prepared in respect of the Real
Property of Holdings and its Subsidiaries constituting Collateral, the Borrower
shall provide to the Agent appraisals which satisfy the applicable requirements
of the Real Estate Appraisal Reform Amendments of the Financial Institution
Reform, Recovery and Enforcement Act of 1989 and which shall be in form and
substance satisfactory to the Agent.
(d) Holdings and the Borrower agree that each action required above by
this Section 7.11 shall be completed as soon as possible, but in no event later
than 90 days after such action is either requested to be taken by the Agent or
the Required Banks or required to be taken by Holdings and its Subsidiaries
pursuant to the terms of this Section 7.11; provided that in no event shall
--------
Holdings or the Borrower be required to take any action, other than using its
reasonable efforts, to obtain consents from third parties with respect to its
compliance with this Section 7.11.
7.12 Register. The Borrower hereby designates the Agent to serve as
--------
the Borrower's agent, solely for purposes of this Section 7.12, to maintain a
register (the "Register") on which it will record the Revolving Loan Commitments
from time to time of each of the Banks, the Loans made by each of the Banks and
each repayment in respect of the principal amount of the Loans of each Bank.
Failure to make any such recordation, or any error in such recordation shall not
affect the Borrower's obligations in respect of such Loans. With respect to any
Bank, the transfer of the Revolving Loan Commitments of such Bank and the rights
to the principal of, and interest on, any Revolving Loan made pursuant to such
Revolving Loan Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Agent with respect to ownership of
such Revolving Loan Commitments and Revolving Loans and prior to such
recordation all amounts owing to the transferor with respect to such Revolving
Loan Commitments and Revolving Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Revolving Loan
Commitments and Revolving Loans shall be recorded by the Agent on the Register
only upon the acceptance by the Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 12.04(b). Coincident
with the delivery of such an Assignment and Assumption Agreement to the Agent
for acceptance and registration of assignment or transfer of all or part of a
Revolving Loan, or as soon thereafter as practicable, the assigning or
transferor Bank shall surrender the Note evidencing such Loan, and thereupon one
or more new Notes in the same aggregate principal amount shall be issued to the
assigning or transferor Bank and/or the new Bank. The Borrower agrees to
indemnify the Agent from and against any and all losses, claims,
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damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Agent in performing its duties under this Section
7.12.
7.13 Foreign Subsidiaries Security. If following a change in the
-----------------------------
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Agent and the Required Banks does not
within 30 days after a request from the Agent or the Required Banks deliver
evidence, in form and substance mutually satisfactory to the Agent and the
Borrower, with respect to any Foreign Subsidiary which has not already had all
of its stock pledged pursuant to the Pledge Agreement that (i) a pledge (x) of
66-2/3 % or more of the total combined voting power of all classes of capital
stock of such Foreign Subsidiary entitled to vote, and (y) of any promissory
note issued by such Foreign Subsidiary to Holdings or any of its Domestic
Subsidiaries, (ii) the entering into by such Foreign Subsidiary of a security
agreement in substantially the form of the Security Agreement and (iii) the
entering into by such Foreign Subsidiary of a guaranty in substantially the form
of the Subsidiary Guaranty, in any such case could reasonably be expected to
cause (I) the undistributed earnings of such Foreign Subsidiary as determined
for Federal income tax purposes to be treated as a deemed dividend to such
Foreign Subsidiary's United States parent for Federal income tax purposes or
(II) other material adverse federal income tax consequences to the Credit
Parties, then in the case of a failure to deliver the evidence described in
clause (i) above, that portion of such Foreign Subsidiary's outstanding capital
stock or any promissory notes so issued by such Foreign Subsidiary, in each case
not theretofore pledged pursuant to the Pledge Agreement shall be pledged to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the Pledge
Agreement (or another pledge agreement in substantially similar form, if
needed), and in the case of a failure to deliver the evidence described in
clause (ii) above, such Foreign Subsidiary shall execute and deliver the
Security Agreement (or another security agreement in substantially similar form,
if needed), granting the Secured Creditors a security interest in all of such
Foreign Subsidiary's assets and securing the Obligations of the Borrower under
the Credit Documents and under any Interest Rate Protection Agreement or Other
Hedging Agreement and, in the event the Subsidiary Guaranty shall have been
executed by such Foreign Subsidiary, the obligations of such Foreign Subsidiary
thereunder, and in the case of a failure to deliver the evidence described in
clause (iii) above, such Foreign Subsidiary shall execute and deliver the
Subsidiary Guaranty (or another guaranty in substantially similar form, if
needed), guaranteeing the Obligations of the Borrower under the Credit Documents
and under any Interest Rate Protection Agreement or Other Hedging Agreement, in
each case to the extent that the entering into such Security Agreement or
Subsidiary Guaranty is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 7.13 to
be in form and substance reasonably satisfactory to the Agent and the Required
Banks.
7.14 Contributions: Payments. Holdings will contribute as an equity
----------------------
contribution to the capital of the Borrower upon its receipt thereof, any cash
proceeds (net of
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reasonable costs associated with such sale or issuance) received by Holdings
from any sale or issuance of its preferred or common equity (including, without
limitation, the proceeds of the IPO) or any cash capital contributions received
by Holdings, provided that to the extent permitted by Section 8.05(r), Holdings
--------
may lend such proceeds to the Borrower through Borrower Subordinated Loans.
SECTION 8. Negative Covenants. Holdings and the Borrower hereby
------------------
covenant and agree that as of the Effective Date and thereafter for so long as
this Agreement is in effect and until the Total Revolving Loan Commitment has
terminated, no Letters of Credit (other than Letters of Credit, together with
all Fees that have accrued and will accrue thereon through the stated
termination date of such Letters of Credit, which have been supported in a
manner satisfactory to the respective Letter of Credit Issuer in its sole and
absolute discretion) or Notes are outstanding and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations (other than any
indemnities described in Section 12.13 hereof which are not then due and
payable) incurred hereunder, are paid in full:
8.01 Changes in Business. (a) Holdings and its Subsidiaries will not
-------------------
engage in any business other than the business engaged in by Holdings and its
Subsidiaries as of the Initial Borrowing Date and activities directly related
thereto, and similar or related businesses.
(b) Notwithstanding the foregoing, Holdings will engage in no
business other than (i) its ownership of the capital stock of the Borrower,
those obligations of officers and employees of Holdings and its Subsidiaries to
the extent permitted by Section 8.05(e) and Borrower Subordinated Notes, (ii)
having those liabilities which it is responsible for under this Agreement and
the other Documents to which it is a party, (iii) the issuance of Permitted
Holdings PIK Securities, shares of Holdings Common Stock and options and
warrants to purchase Holdings Common Stock, and (iv) activities associated with
expenses paid with dividends made by the Borrower pursuant to Sections 8.06(iii)
and (iv). Notwithstanding the foregoing, Holdings may engage in those activities
that are incidental to (a) the maintenance of its corporate existence in
compliance with applicable law, (b) legal, tax and accounting matters in
connection with any of the foregoing activities and (c) the entering into, and
performing its obligations under, this Agreement and the other Documents to
which it is a party.
8.02 Consolidation, Merger, Sale or Purchase of Assets. etc. Holdings
-------------------------------------------------------
will not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of (or agree to do any of the
foregoing at any future time) all or any part of its property or assets (other
than inventory in the ordinary course of business through distribution
arrangements, vendor financial service programs, consignment or otherwise), or
enter into any partnerships, joint ventures or sale-leaseback transactions, or
purchase or
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otherwise acquire (in one or a series of related transactions) any part of the
property or assets (other than purchases or other acquisitions of inventory,
materials and equipment in the ordinary course of business) of any Person,
except that the following shall be permitted:
(a) the Borrower and its Subsidiaries may lease as lessee or lessor
or license as licensee or licensor real or personal property in the
ordinary course of business and otherwise in compliance with this
Agreement, so long as any such lease or license by the Borrower or any of
its Subsidiaries in its capacity as lessor or licensor, as the case may be,
does not prohibit the granting of a Lien by the Borrower or any of its
Subsidiaries pursuant to the Mortgages in the real property covered by such
lease or pursuant to the Security Agreement in the personal property
covered by such lease or license, as the case may be;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the
extent not in violation of Section 8.08;
(c) the advances, investments and loans permitted pursuant to Section
8.05;
(d) the Borrower and its Subsidiaries may sell or discount, in each
case without recourse, accounts receivables arising in the ordinary course
of business, but only in connection with the compromise or collection
thereof;
(e) the Borrower and its Subsidiaries may sell or exchange specific
items of equipment, so long as the purpose of each such sale or exchange is
to acquire (and results within 180 days of such sale or exchange in the
acquisition of) replacement items of equipment which are, in the reasonable
business judgment of the Borrower and its Subsidiaries, the functional
equivalent of the item of equipment so sold or exchanged;
(f) the Borrower and its Subsidiaries may, in the ordinary course of
business, license as licensee or licensor patents, trademarks, copyrights
and know-how to or from third Persons and to one another so long as any
such license by the Borrower or any of its Subsidiaries in its capacity as
licensor is permitted to be assigned pursuant to the Security Agreement (to
the extent that a security interest in such patents, trademarks, copyrights
and know-how is granted thereunder) and does not otherwise prohibit the
granting of a Lien by the Borrower or any of its Subsidiaries pursuant to
the Security Agreement in the intellectual property covered by such
license;
(g) any Foreign Subsidiary may be merged with and into, or be
dissolved or liquidated into, or transfer any of its assets to, any Wholly-
Owned Foreign Subsidiary so long as (i) such Wholly-Owned Foreign
Subsidiary is the surviving corporation of any such merger, dissolution or
liquidation and (ii) in each case at
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least 65% of the total combined voting power of all classes of capital
stock of all first-tier Foreign Subsidiaries are pledged pursuant to the
Pledge Agreement;
(h) the assets of any Foreign Subsidiary may be transferred to the
Borrower or any of its Wholly-Owned Domestic Subsidiaries, and any Foreign
Subsidiary may be merged with and into, or be dissolved or liquidated into,
the Borrower or any of its Wholly-Owned Domestic Subsidiaries so long as
the Borrower or such Wholly-Owned Domestic Subsidiary is the surviving
corporation of any such merger, dissolution or liquidation;
(i) the Borrower or any of its Wholly-Owned Domestic Subsidiaries may
transfer to one or more Wholly-Owned Foreign Subsidiaries those assets
theretofore transferred to the Borrower or such Wholly-Owned Domestic
Subsidiary by a Foreign Subsidiary (whether by merger, liquidation,
dissolution or otherwise) pursuant to clause (h) of this Section 8.02;
(j) the Borrower and its Subsidiaries may sell or otherwise transfer
inventory to their respective Subsidiaries for resale by such Subsidiaries,
and Subsidiaries of the Borrower may sell or otherwise transfer inventory
to the Borrower for resale by the Borrower so long as the security interest
granted to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Security Agreement in the inventory so transferred (or the
proceeds thereof, in the case of a transfer to a Foreign Subsidiary) shall
remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such transfer);
(k) the Borrower may contribute cash to one or more Wholly-Owned
Domestic Subsidiaries formed after the Initial Borrowing Date in accordance
with Section 8.14, so long as the aggregate amount of such cash so
contributed to all such Domestic Subsidiaries does not exceed $3,000,000;
(l) the Borrower and its Domestic Subsidiaries may transfer assets
(other than inventory) to Wholly-Owned Foreign Subsidiaries so long as the
aggregate fair market value of all such assets so transferred (determined
in good faith by the Board of Directors or senior management of the
Borrower) to all such Foreign Subsidiaries, when added to (x) the aggregate
outstanding principal amount of Intercompany Loans made to Foreign
Subsidiaries under Section 8.05(g) and (y) the aggregate amount of
contributions, capitalizations and forgiveness theretofore made pursuant to
Section 8.05(l), does not exceed S10,000,000;
(m) assets of the Borrower and its Domestic Subsidiaries constituting
non-U.S. operations may be transferred to Wholly-Owned Foreign Subsidiaries
of the Borrower;
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(n) each of the Borrower and its Subsidiaries may sell assets,
provided that (x) the aggregate sale of proceeds from all assets subject to
--------
such sales pursuant to this clause (n) shall not exceed $3,000,000 in any
fiscal year of the Borrower, (y) any such asset sale is for at least 80% in
cash and at fair market value (as determined in good faith by the Board of
Directors or senior management of the Borrower) and (z) the Net Proceeds
therefrom have either resulted in a permanent reduction to the Total
Revolving Loan Commitment as provided in section 3.03(c) or are reinvested
to the extent permitted by section 3.03(c).
(o) each of the Borrower and its Subsidiaries may sell other assets,
provided that the aggregate sale proceeds from all assets subject to such
--------
sales pursuant to this clause (o) shall not exceed $250,000 in any fiscal
year of the Borrower;
(p) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower and its Subsidiaries may acquire assets or
the capital stock of any Person (any such acquisition permitted by this
clause (p), a "Permitted Acquisition"), provided, that (i) such Person (or
--------
the assets so acquired) was, immediately prior to such acquisition, engaged
(or used) primarily in the businesses permitted pursuant to section
8.01(a), (ii) if such acquisition is structured as a stock acquisition,
then either (A) the Person so acquired becomes a Wholly-Owned Subsidiary of
the Borrower or (B) such Person is merged with and into the Borrower or a
Wholly-Owned Subsidiary of the Borrower (with the Borrower or such Wholly-
Owned Subsidiary being the surviving corporation of such merger), and in
any case, all of the provisions of section 8.14 have been complied with in
respect of such Person, (iii) any Liens or Indebtedness assumed or issued
in connection with such acquisition are otherwise permitted under Section
8.03 or 8.04, as the case may be, (iv) the only consideration paid in
connection with such Permitted Acquisition consists of cash (including cash
constituting the proceeds of Revolving Loans hereunder), Holdings Common
Stock (valued based on the then current trading price for such Holdings
Common Stock), Permitted Holdings PIK Securities (valued at the aggregate
liquidation preference thereof in the case of preferred stock and the
aggregate face amount thereof in the case of indebtedness) and/or
additional Indebtedness incurred pursuant to section 8.04(p), and (v) (x)
any such Permitted Acquisition (or series of related Permitted
Acquisitions) involving an expenditure (with the consideration valued as
set forth in clause (iv) above) in excess of $15,000,000 and less than or
equal to $25,000,000 (with both of the foregoing amounts to be increased,
as of any date, by the Cumulative Income and Equity Amount as determined as
of such date (after giving effect to any other transactions that have
occurred on such date that would reduce the Cumulative Income and Equity
Amount)) shall not be consummated without the prior written consent of the
Required Banks unless the Pro Forma Leverage Ratio on the date of such
acquisition is less than 2.50:1.00 and (y) any such Permitted Acquisition
(or
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<PAGE>
series of related Permitted Acquisitions) involving an expenditure (with
the consideration valued as set forth in clause (iv) above) in excess of
$25,000,000 (plus, as of any date, the Cumulative Income and Equity Amount
as determined as of such date (after giving effect to any other
transactions that have occurred on such date that would reduce the
Cumulative Income and Equity Amount)) shall not be consummated without the
prior written consent of the Required Banks;
(q) any Domestic Subsidiary of the Borrower may transfer assets
(other than inventory) to the Borrower or to any other Wholly-Owned
Domestic Subsidiary of the Borrower so long as the security interests
granted to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Security Documents in the assets so transferred shall
remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such transfer);
(r) any Wholly-Owned Domestic Subsidiary of the Borrower may merge
with and into, or be dissolved or liquidated into, the Borrower so long as
(i) the Borrower is the surviving corporation of such merger, dissolution
or liquidation and (ii) the security interests granted to the Collateral
Agent for the benefit of the Secured Creditors pursuant to the Security
Documents in the assets of such Wholly-Owned Domestic Subsidiary shall
remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such merger);
(s) any Domestic Subsidiary of the Borrower may merge with and into,
or be dissolved or liquidated into, any other Wholly-Owned Domestic
Subsidiary of the Borrower so long as (i) such Wholly-Owned Domestic
Subsidiary of the Borrower is the surviving corporation of such merger,
dissolution or liquidation and (ii) the security interests granted to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the assets of such Domestic Subsidiary shall remain
in full force and effect and perfected (to at least the same extent as in
effect immediately prior to such merger, dissolution or liquidation);
(t) the Borrower and its Subsidiaries may, in the ordinary course of
business, sell, transfer or otherwise dispose of assets (including, without
limitation, patents, trademarks, copyrights and know-how) which, in the
reasonable judgment of the Borrower or such Subsidiary, are determined to
be uneconomical, negligible or obsolete in the conduct of its business;
(u) the Borrower and its Subsidiaries may, in the ordinary course of
business, engage in vehicle sale-leaseback transactions so long as the
aggregate amount of sales thereunder does not exceed $200,000;
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(v) the Borrower and its Subsidiaries may effect the Designated Real
Property Sale, provided that the Designated Real Property Sale is at fair
--------
market value, as determined in good faith by the Board of Directors or
senior management of the Borrower;
To the extent the Required Banks waive the provisions of this Section 8.02
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or disposed of as permitted by this Section 8.02 (and such
Collateral is permitted to be released from the Liens created by the respective
Security Document), such Collateral in each case shall be sold or otherwise
disposed of free and clear of the Liens created by the Security Documents and
the Agent shall take such actions (including, without limitation, directing the
Collateral Agent to take such actions) as are appropriate in connection
therewith.
8.03 Liens. Holdings will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of Holdings or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to
Holdings or any of its Subsidiaries) or assign any right to receive income,
except for the following (collectively, the "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes, assessments or governmental charges
or levies being contested in good faith by appropriate proceedings and for
which adequate reserves have been established in accordance with GAAP;
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business and which have not arisen to secure Indebtedness for borrowed
money, such as carriers', warehousemen's and mechanics' Liens, statutory
landlord's Liens, and other similar Liens arising in the ordinary course of
business, and which either (x) do not in the aggregate materially detract
from the value of such property or assets or materially impair the use
thereof in the operation of the business of the Borrower or any of its
Subsidiaries or (y) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the Security
Documents;
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<PAGE>
(d) Liens in existence on the Effective Date which are listed, and
the property subject thereto described, in Annex VIII, without giving
effect to any extensions or renewals thereof;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09;
(f) Liens incurred or deposits made (x) in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money); and (y) to
secure the performance of leases of Real Property, to the extent incurred
or made in the ordinary course of business consistent with past practices;
(g) licenses, leases or subleases granted to third Persons not
interfering in any material respect with the business of the Borrower or
any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases permitted by this Agreement;
(j) any interest or title of a licensor, lessor or sublessor under
any lease permitted by this Agreement;
(k) Permitted Encumbrances;
(1) Liens arising pursuant to purchase money mortgages, Capital
Leases or security interests securing Indebtedness representing the
purchase price (or financing of the purchase price within 90 days after the
respective purchase) of assets acquired after the Effective Date, provided
--------
that (i) any such Liens attach only to the assets so purchased, (ii) the
Indebtedness secured by any such Lien does not exceed 100%, nor is less
than 70%, of the lesser of the fair market value or the purchase price of
the property being purchased at the time of the incurrence of such
Indebtedness and (iii) the Indebtedness secured thereby is permitted to be
incurred pursuant to Section 8.04(d);
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<PAGE>
(m) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, provided that (i) any Indebtedness that is secured by such
--------
Liens is permitted to exist under Section 8.04(j), and (ii) such Liens are
not incurred in contemplation of such Permitted Acquisition and do not
attach to any other asset of the Borrower or any of its Subsidiaries;
(n) Liens securing Indebtedness permitted pursuant to, and subject to
the limitations set forth in, clause (x) of Section 8.04(h), so long as any
such Lien attaches only to the assets of the respective Foreign Subsidiary
which is the obligor under such Indebtedness; and
(n) additional Liens incurred by the Borrower and its Subsidiaries so
long as the value of the property subject to such Liens, and the
Indebtedness and other obligations secured thereby, do not exceed $500,000.
8.04 Indebtedness. Holdings will not, and will not permit any of its
------------
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Existing Indebtedness outstanding on the Effective Date and
listed on Annex VII, without giving effect to any subsequent extension,
renewal or refinancing thereof;
(c) Indebtedness under Interest Rate Protection Agreements entered
into to protect the Borrower against fluctuations in interest rates in
respect of the Obligations;
(d) Capitalized Lease Obligations and Indebtedness of the Borrower
and its Subsidiaries incurred pursuant to purchase money Liens, provided,
--------
that (x) all such Capitalized Lease Obligations are permitted under Section
8.08 and (y) the sum of (i) the aggregate Capitalized Lease Obligations
plus (ii) the aggregate principal amount of such purchase money
Indebtedness outstanding at any time during any fiscal year of the Borrower
set forth below shall not exceed the amount set forth opposite such fiscal
year as set forth below:
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Fiscal Year Ending Amount
------------------ ------
September 30, 1998 $4,000,000
September 30, 1999 $4,000,000
Thereafter $5,000,000
(e) Indebtedness constituting Intercompany Loans to the extent
permitted by Section 8.05(g);
(f) Indebtedness of Holdings under the Shareholder Subordinated
Notes;
(g) Indebtedness under Other Hedging Agreements providing protection
against fluctuations in currency values in connection with the Borrower's
or any of its Subsidiaries' operations so long as management of the
Borrower or such Subsidiary, as the case may be, has determined that the
entering into of such Other Hedging Agreements are bona fide hedging
---- ----
activities;
(h) Indebtedness (x) of Foreign Subsidiaries under lines of credit
extended by third Persons to any such Foreign Subsidiary the proceeds of
which Indebtedness are used for such Foreign Subsidiary's working capital
purposes, provided that the aggregate principal amount of all such
--------
Indebtedness outstanding at any time for all Foreign Subsidiaries shall not
exceed $3,000,000 (the "Foreign Subsidiary Working Capital Indebtedness),
and (y) consisting of guaranties or similar credit support by the Borrower
or any Foreign Subsidiary of any such Foreign Subsidiary Working Capital
Indebtedness (including, without limitation, Letters of Credit issued for
the account of the Borrower or any such Foreign Subsidiary in favor of
lenders in respect of any such Foreign Subsidiary Working Capital
Indebtedness);
(i) Indebtedness of Foreign Subsidiaries to the Borrower and its
Domestic Subsidiaries as a result of any investment made pursuant to
section 8.05(o);
(j) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition
of an asset securing such Indebtedness), provided that (i) such
--------
Indebtedness was not incurred in connection with or in anticipation of such
Permitted Acquisition, (ii) such Indebtedness does not constitute debt for
borrowed money (other than debt for borrowed money incurred in connection
with industrial revenue or industrial development bond financings), it
being understood and agreed that Capitalized Lease Obligations and purchase
money Indebtedness shall not constitute debt for borrowed money for
purposes of this clause (ii), and (iii) at the time of such Permitted
Acquisition such Indebtedness does not exceed 10% of the total value of the
assets of the Subsidiary so acquired, or of the asset so acquired, as the
case may be;
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(k) Indebtedness consisting of guaranties (x) by the Borrower of
Indebtedness, leases and other obligations permitted to be incurred by
Domestic Wholly-Owned Subsidiaries, (y) by Domestic Subsidiaries of
Indebtedness, leases and other obligations permitted to be incurred by the
Borrower or other Domestic Wholly-Owned Subsidiaries and (z) by Foreign
Subsidiaries of Indebtedness, leases and other obligations permitted to be
incurred by other Foreign Wholly-Owned Subsidiaries;
(l) Indebtedness of the Borrower constituting Borrower Subordinated
Loans to the extent permitted by Section 8.05(r);
(m) Indebtedness of Holdings incurred under Permitted Holdings PIK
Securities issued as consideration in connection with a Permitted
Acquisition, provided that the aggregate outstanding principal amount of
--------
Permitted Holding PIK Securities constituting Indebtedness shall not exceed
$10,000,000 plus the amount of interest on such Permitted Holdings PIK
Securities paid in kind or through accretion;
(n) Indebtedness consisting of take-or-pay supply agreements entered
into by the Borrower and its Subsidiaries in the ordinary course of
business, consistent with past practices, so long as the aggregate
obligations thereunder do not exceed $2,000,000 at any one time;
(o) Indebtedness of the Borrower or any of its Domestic Subsidiaries
consisting of industrial revenue bond obligations incurred to finance the
New Facility, so long as the aggregate principal amount of such
Indebtedness does not exceed $6,000,000; and
(p) additional Indebtedness of Holdings, the Borrower and the
Borrower's Domestic Subsidiaries not otherwise permitted hereunder not
exceeding $3,000,000 in aggregate principal amount at any time outstanding.
8.05 Advances, Investments and Loans. Holdings will not, and will not
-------------------------------
permit any of its Subsidiaries to, lend money or credit or make advances to any
Person, or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any Person, or purchase
or own a futures contract or otherwise become liable for the purchase or sale of
currency or other commodities at a future date in the nature of a futures
contract, or hold any cash, Cash Equivalents or Foreign Cash Equivalents,
except:
(a) the Borrower and its Subsidiaries may invest in cash and Cash
Equivalents;
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(b) the Borrower and its Subsidiaries may acquire and hold receivables
owing to it, if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms of the
Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in good faith settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(d) Interest Rate Protection Agreements entered into in compliance
with Section 8.04(c) shall be permitted;
(e) Holdings may acquire and hold obligations of one or more officers
or other employees of Holdings or its Subsidiaries in connection with such
officers' or employees' acquisition of shares of Holdings Common Stock so
long as no cash is paid by Holdings or any of its Subsidiaries in
connection with the acquisition of any such obligations;
(f) deposits made in the ordinary course of business consistent with
past practices to secure the performance of leases shall be permitted;
(g) the Borrower may make intercompany loans and advances to any of
its Subsidiaries and any Subsidiary of the Borrower may make intercompany
loans and advances to the Borrower or any other Subsidiary of the Borrower
(collectively, "Intercompany Loans"), provided, that (w) at no time shall
--------
the aggregate out standing principal amount of Intercompany Loans made
pursuant to this clause (g) by the Borrower and its Domestic Subsidiaries
to Foreign Subsidiaries, when added to the sum of (i) the aggregate fair
market value of all assets transferred to Wholly-Owned Foreign Subsidiaries
pursuant to Section 8.02(1) and (ii) the amount of contributions,
capitalizations and forgiveness theretofore made pursuant to Section
8.05(1), exceed S10,000,000 (determined without regard to any write-downs
or write-offs of such loans and advances), (x) each Intercompany Loan made
by a Foreign Subsidiary to the Borrower or a Domestic Subsidiary shall
contain the subordination provisions set forth on Exhibit L, (y) each
Intercompany Loan shall be evidenced by an Intercompany Note and (z) each
such Intercompany Note (other than (1) Intercompany Notes issued by Foreign
Subsidiaries to the Borrower or Domestic Subsidiaries and (2) Intercompany
Notes held by Foreign Subsidiaries) shall be pledged to the Collateral
Agent pursuant to the Pledge Agreement;
(h) loans and advances by the Borrower and its Subsidiaries to
employees of Holdings and its Subsidiaries for moving and travel expenses
and other similar
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expenses, in each case incurred in the ordinary course of business, in an
aggregate outstanding principal amount not to exceed $1,500,000 at any time
(determined without regard to any write-down or write-offs of such loans
and advances) shall be permitted;
(i) Holdings may make equity contributions to the capital of the
Borrower;
(j) Foreign Subsidiaries may invest in Foreign Cash Equivalents;
(k) Other Hedging Agreements may be entered into in compliance with
Section 8.04(g);
(l) the Borrower and its Domestic Subsidiaries may make cash capital
contributions to Foreign Subsidiaries, and may capitalize or forgive any
Indebtedness owed to them by a Foreign Subsidiary and outstanding under
clause (g) of this Section 8.05, provided that the aggregate amount of such
--------
contributions, capitalizations and forgiveness made pursuant to this clause
(1), when added to the sum of (i) the aggregate fair market value of all
assets transferred to Wholly-Owned Foreign Subsidiaries pursuant to Section
8.02(1) and (ii) the aggregate outstanding principal amount of Intercompany
Loans made to Foreign Subsidiaries under Section 8.05(g) (determined
without regard to any write-downs or write-offs thereof) shall not exceed
an amount equal to $10,000,000;
(m) Permitted Acquisitions shall be permitted;
(n) the Borrower and its Subsidiaries may make investments in their
respective Subsidiaries in connection with the transfers of those assets
permitted to be transferred pursuant to Sections 8.02(h), (i) and (j), it
being understood that the Borrower and its Subsidiaries may convert any
investment initially made as an equity investment to intercompany
Indebtedness held by the Borrower or such Subsidiary;
(o) the Borrower and its Domestic Subsidiaries may make and hold
investments in their respective Foreign Subsidiaries to the extent that
such investments arise from the sale of inventory in the ordinary course of
business by the Borrower or such Domestic Subsidiary to such Foreign
Subsidiaries for resale by such Foreign Subsidiaries (including any such
investments resulting from the extension of the payment terms with respect
to such sales);
(p) the Borrower and its Subsidiaries may capitalize one or more
foreign sales corporations created in accordance with Section 8.14 with
cash contributions in an aggregate amount not to exceed $100,000 for all
such foreign sales corporations;
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(q) the Borrower and its Subsidiaries may make transfers of assets to
their respective Subsidiaries in accordance with Section 8.02(h), (i), (j),
(k), (1), (m) and (q);
(r) Holdings may make intercompany loans to the Borrower on a
subordinated basis (collectively, "Borrower Subordinated Loans") so long as
all such Borrower Subordinated Loans are evidenced by a Borrower
Subordinated Note and the funds used to make such Borrower Subordinated
Loans consist of the net proceeds received by Holdings from equity
issuances by or capital contributions to Holdings;
(s) advances, loans and investments in existence on the Effective Date
and listed on Annex X shall be permitted, without giving effect to any
additions thereto or replacements thereof (except those additions or
replacements which are existing obligations as of the Effective Date);
(t) the Borrower and its Subsidiaries may acquire and hold debt and/or
equity securities as consideration for a sale of assets pursuant to Section
8.02(n), (o) or (v), to the extent permitted by any such Section;
(u) the Borrower and its Subsidiaries may make additional investments
in the Permitted Joint Ventures (as additional capital contributions or in
exchange for securities issued by such Permitted Joint Ventures), so long
as (i) the aggregate additional investments in the Permitted Joint Venture
referred to in clause (a) of the definition thereof do not exceed
$1,000,000_ and (ii) the aggregate additional investments in the Permitted
Joint Venture referred to in clause (b) of the definition thereof do not
exceed $500,000;
(v) Holdings may repurchase shares of the Holdings Common Stock as and
to the extent permitted under Section 8.06; and
(w) in addition to investments permitted above in this Section 8.05,
so long as no Default or Event of Default then exists or would result
therefrom, the Borrower and its Subsidiaries may make additional loans,
advances and investments to or in a Person so long as the amount of any
such loan, advance or investment (at the time of the making thereof) does
not exceed an amount equal to the sum of (A) $4,000,000 less the aggregate
amount of such $4,000,000 previously used to make loans, advances and
investments pursuant to this clause (u) to the extent same are then still
outstanding (determined without regard to any write-downs or write-offs
thereof and net of cash repayments of principal in the case of loans and
cash equity returns (whether as a dividend or redemption) in the case of
equity investments) plus (B) an amount equal to the Cumulative Income and
Equity Amount at such time; provided, that (1) any loan, advance or
--------
investment made with the Cumulative
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Income and Equity Amount shall be in or to a Person of which the Borrower
owns (directly or indirectly) at least a majority economic and voting
interest (including the interest purchased or to be purchased with the
respective investment) and (2) neither the Borrower nor any of its
Subsidiaries may make or own any investment in Margin Stock.
8.06 Dividends, etc. Holdings will not, and will not permit any
---------------
of its Subsidiaries to, declare or pay any dividends (other than dividends
payable solely in common stock of Holdings or any such Subsidiary, as the case
may be) or return any capital to, its stockholders or authorize or make any
other distribution, payment or delivery of property or cash to its stockholders
as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital stock,
now or hereafter outstanding (or any warrants for or options or stock
appreciation rights in respect of any of such shares), or set aside any funds
for any of the foregoing purposes, and Holdings will not permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of Holdings or any other Subsidiary, as the case
may be, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock)
(all of the fore going "Dividends"), except that:
(i) the Transaction shall be permitted;
(ii) any Subsidiary of the Borrower may pay Dividends to the
Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) (a) Holdings may redeem or purchase shares of Holdings
Common Stock or options to purchase Holdings Common Stock, held by former
employees of Holdings or any of its Subsidiaries following the termination
of their employment, provided that (w) the only consideration paid by
--------
Holdings in respect of such redemptions and/or purchases shall be cash and
Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount
paid by Holdings in cash in respect of all such redemptions and/or
purchases plus (B) the aggregate amount of all principal and interest
payments made on Shareholder Subordinated Notes, shall not exceed
$2,000,000 in any fiscal year of Holdings, provided that such amount shall
--------
be increased by an amount equal to the proceeds received by Holdings after
the Effective Date from the sale or issuance of Holdings Common Stock to
management of Holdings or any of its Subsidiaries and (y) at the time of
any cash payment permitted to be made pursuant to this Section 8.06(iii),
no Default or Event of Default shall then exist or result therefrom; and
(b) so long as no Default or Event of Default then exists or would result
therefrom, the Borrower may pay cash Dividends to Holdings so long as
Holdings promptly uses such proceeds for the purposes described in clause
(iii)(a) of this Section 8.06;
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(iv) the Borrower may pay cash Dividends to Holdings so long as the
proceeds thereof are promptly used by Holdings to (x) pay operating
expenses in the ordinary course of business (including, without limitation,
professional fees and expenses) and other similar corporate overhead costs
and expenses or (y) pay salaries or other compensation of employees who
perform services for Holdings and the Borrower;
(v) the Borrower may pay cash Dividends to Holdings in the amounts
and at the times of any payment by Holdings in respect of taxes, provided
--------
that (x) the amount of cash Dividends paid pursuant to this clause (v) to
enable Holdings to pay federal income taxes at any time shall not exceed
the lesser of (A) the amount of such federal income taxes owing by Holdings
at such time for the respective period and (B) the amount of such federal
income taxes that would be owing by the Borrower and its Subsidiaries on a
consolidated basis for such period if determined without regard to
Holdings' ownership of the Borrower and (y) any refunds shall promptly be
returned by Holdings to the Borrower;
(vi) Holdings may pay regularly scheduled Dividends on the Permitted
Holdings PIK Securities (to the extent issued as preferred stock) pursuant
to the terms thereof solely through the issuance of additional shares of
such Permitted Holdings PIK Securities, provided that in lieu of issuing
--------
additional shares of such Permitted Holdings PIK Securities as Dividends,
Holdings may increase the liquidation preference of the shares of Permitted
Holdings PIK Securities in respect of which such Dividends have accrued;
and
(vii) (a) Holdings may pay cash Dividends in addition to those
permitted above in this Section 8.06 in an amount not to exceed $1,000,000
in any fiscal year, plus the Cumulative Income and Equity Amount at the
time of the payment of any such Dividend, so long as no Default or Event of
Default then exists or would result therefrom, and (b) so long as no
Default or Event of Default then exists or would result therefrom, the
Borrower may pay cash Dividends to Holdings so long as the cash proceeds
thereof are promptly used by Holdings for the purpose described in clause
(vii)(a) of this Section 8.06.
8.07 Transactions with Affiliates. Holdings will not, and will not
-----------------------------
permit any of its Subsidiaries to, enter into any transaction or series of
transactions with any Affiliate other than in the ordinary course of business
and on terms and conditions substantially as favorable to Holdings or such
Subsidiary as would be obtainable by Holdings or such Subsidiary at the time in
a comparable arm's-length transaction with a Person other than an Affiliate;
provided, that the following shall in any event be permitted: (i) the
- --------
Transaction; (ii) the payment of reasonable out-of-pocket expenses incurred by
Bain Capital and/or Related Parties in providing services to the Borrower; and
(iii) the payment by the Borrower, in connection with any acquisition,
divestiture or financing transaction that is
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<PAGE>
consummated, of a transaction fee to Bain Capital and/or the Bain Affiliates in
an aggregate amount (for all such Persons taken together) not to exceed 1% of
the aggregate value of any such transaction.
8.08 Capital Expenditures. (a) Holdings will not, and will not permit
--------------------
any of its Subsidiaries to, make any Capital Expenditures, except that during
any fiscal year the Borrower and its Subsidiaries may make Capital Expenditures
so long as the aggregate amount of such Capital Expenditures does not exceed
$6,000,000.
(b) Notwithstanding the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a) above in any period (before giving effect to any increase
in such permitted expenditure amount pursuant to this clause (b)) is greater
than the amount of such Capital Expenditures made by the Borrower and its
Subsidiaries during such period, such excess (the "Rollover Amount") may be
carried forward and utilized to make Capital Expenditures in succeeding fiscal
years, provided that in no event shall the aggregate amount of Capital
Expenditures made by the Borrower and its Subsidiaries during any fiscal year
pursuant to Section 8.08(a) and this Section 8.08(b) exceed 125% of the amount
permitted to be made in such fiscal year pursuant to Section 8.08(a).
(c) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) with the proceeds of Asset
Sales to the extent such proceeds have not resulted in a reduction to the Total
Revolving Loan Commitment pursuant to Section 3.03(c).
(d) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) with the insurance proceeds
received by the Borrower or any of its Subsidiaries from any Recovery Event so
long as such Capital Expenditures are to replace or restore any properties or
assets in respect of which such proceeds were paid within one year following the
date of the receipt of such insurance proceeds to the extent such insurance
proceeds have not resulted in a reduction to the Total Revolving Loan Commitment
pursuant to Section 3.03(e).
(e) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures at any time in an aggregate amount equal to the
Cumulative Income and Equity Amount at such time (which Capital Expenditures
will not be included in any determination under the foregoing clause (a)).
(f) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) consisting of the
establishment of and
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relocation the New Operating Facility, provided that the aggregate amount of
--------
Capital Expenditures made pursuant to this Section 8.08(f) shall not exceed
$7,500,000.
(g) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) consisting of the
establishment of and relocation to the New Distribution Center, provided that
--------
the aggregate amount of Capital Expenditures made pursuant to this Section
8.08(g) shall not exceed $2,500,000.
8.09 Minimum Consolidated EBITDA. The Borrower will not permit
---------------------------
Consolidated EBITDA for any Test Period ending on a date set forth below to be
less than the amount set forth opposite such date:
Minimum Consolidated
Date EBITDA
---- --------------------
March 31, 1998 $ 15,700,000
June 30, 1998 15,700,000
September 30, 1998 15,700,000
December 31, 1998 16,400,000
March 31, 1999 16,400,000
June 30, 1999 16,400,000
September 30, 1999 16,400,000
December 31, 1999 17,100,000
March 31, 2000 17,100,000
June 30, 2000 17,100,000
September 30, 2000 17,100,000
December 31, 2000 17,800,000
March 31, 2001 17,800,000
June 30, 2001 17,800,000
September 30, 2001 17,800,000
December 31, 2001 18,500,000
March 31, 2002 18,500,000
June 30, 2002 18,500,000
September 30, 2002 18,500,000
December 31, 2002 19,800,000
March 31, 2003 19,800,000
8.10 Interest Coverage Ratio. The Borrower will not permit the
-----------------------
Interest Coverage Ratio for any Test Period to be less than 3.5:1.0.
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<PAGE>
8.11 Leverage Ratio. The Borrower will not permit the Leverage Ratio
--------------
at any time to be more than 3.5.1.0.
8.12 Modifications of Certificate of Incorporation, By-Laws and
----------------------------------------------------------
Certain Other Agreements; Issuance of Capital Stock; etc. Holdings will not, and
- ---------------------------------------------------------
will not permit any of its Subsidiaries to:
(a) amend, modify or change in any way adverse to the interests of
the Banks, any Management Agreement, its Certificate of Incorporation
(including, without limitation, by the filing or modification of any
certificate of designation) or By-Laws, or any agreement entered into by
it, with respect to its capital stock (including any Shareholders'
Agreement), or enter into any new agreement with respect to its capital
stock which would be adverse to the interests of the Banks; or
(b) issue any class of capital stock other than (x) in the case of
the Borrower and its Subsidiaries, non-redeemable common stock and (y) in
the case of Holdings, (1) the issuance of Holdings Common Stock in
connection with the IPO, (2) issuances of Permitted Holdings PIK Securities
and (3) issuances of Holdings Common Stock where, after giving effect to
such issuance, no Event of Default will exist under Section 9.10 and to the
extent the proceeds thereof are applied in accordance with Section 7.14.
8.13 Limitation on Certain Restrictions on Subsidiaries. Holdings will
--------------------------------------------------
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any such Subsidiary to (a) pay dividends or
make any other distributions on its capital stock or any other interest or
participation in its profits owned by Holdings or any Subsidiary of Holdings,
or pay any Indebtedness owed to Holdings or a Subsidiary of Holdings, (b) make
loans or advances to Holdings or any of Holdings' Subsidiaries or (c) transfer
any of its properties or assets to Holdings or any of Holdings' Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii)
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest of the Borrower or a Subsidiary of the Borrower, (iv)
customary provisions restricting assignment of any licensing agreement entered
into by the Borrower or a Subsidiary of the Borrower in the ordinary course of
business, (v) customary provisions restricting the transfer of assets subject to
Liens permitted under Sections 8.03(1) and (m) and (vi) any document or
instrument evidencing Foreign Subsidiary Working Capital Indebtedness so long as
such encumbrance or restriction only applies to the Foreign Subsidiary incurring
such Indebtedness.
8.14 Limitation on the Creation of Subsidiaries. Notwithstanding
------------------------------------------
anything to the contrary contained in this Agreement, Holdings will not, and
will not permit any of its Subsidiaries to, establish, create or acquire after
the Effective Date any Subsidiary;
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<PAGE>
provided that the Borrower and its Wholly-Owned Subsidiaries shall be permitted
- --------
to establish or create (x) Subsidiaries as a result of investments made pursuant
to Section 8.05 and (y) Wholly-Owned Subsidiaries so long as (i) at least 30
days' prior written notice thereof (or such lesser notice as is acceptable to
the Agent) is given to the Agent, (ii) the capital stock of such new Subsidiary
is pledged pursuant to, and to the extent required by, this Agreement and the
Pledge Agreement and the certificates, if any, representing such stock, together
with stock powers duly executed in blank, are delivered to the Collateral Agent,
(iii) such new Subsidiary (other than a Foreign Subsidiary except to the extent
otherwise required pursuant to Section 7.13) executes a counterpart of the
Subsidiary Guaranty, the Pledge Agreement and the Security Agreement, and (iv)
to the extent requested by the Agent or the Required Banks, takes all actions
required pursuant to Section 7.11. In addition, each new Wholly-Owned Subsidiary
that is required to execute any Credit Document shall execute and deliver, or
cause to be executed and delivered, all other relevant documentation of the type
described in Section 5 as such new Subsidiary would have had to deliver if such
new Subsidiary were a Credit Party on the Effective Date.
SECTION 9. Events of Default. Upon the occurrence of any of the
-----------------
following specified events (each, an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment when due
--------
of any principal of the Loans or (ii) default, and such default shall continue
for three or more days, in the payment when due of any Unpaid Drawing, any
interest on the Loans or any Fees or any other amounts owing hereunder or under
any other Credit Document; or
9.02 Representations. etc. Any representation, warranty or statement
---------------------
made by Holdings, the Borrower or any other Credit Party herein or in any other
Credit Document or in any statement or certificate delivered pursuant hereto or
thereto shall prove to be untrue in any material respect on the date as of which
made or deemed made; or
9.03 Covenants. Any Credit Party shall (a) default in the due
---------
performance or observance by it of any term, covenant or agreement contained in
Sections 7.11, 7.14 or 8, or (b) default in the due performance or observance by
it of any term, covenant or agreement (other than those referred to in Section
9.01, 9.02 or clause (a) of this Section 9.03) contained in this Agreement and
such default shall continue unremedied for a period of at least 30 days after
notice to the defaulting party by the Agent or the Required Banks; or
9.04 Default Under Other Agreements. (a) Holdings or any of its
-----------------------------
Subsidiaries shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which Indebtedness was created or (ii) default in
the observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or
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condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause any such Indebtedness to
become due prior to its stated maturity; or (b) any Indebtedness (other than the
Obligations) of Holdings or any of its Subsidiaries shall be declared to be due
and payable, or shall be required to be prepaid other than by a regularly
scheduled required prepayment or as a mandatory prepayment (unless such required
prepayment or mandatory prepayment results from a default thereunder or an event
of the type that constitute an Event of Default), prior to the stated maturity
thereof; provided, that it shall not constitute an Event of Default pursuant to
--------
clause (a) or (b) of this Section 9.04 unless the principal amount of any one
issue of such Indebtedness, or the aggregate amount of all such Indebtedness
referred to in clauses (a) and (b) above, exceeds $1,500,000 at any one time; or
9.05 Bankruptcy. etc. Holdings or any of its Subsidiaries shall
-----------------
commence a voluntary case concerning itself under Title 11 of the United States
Code entitied "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Holdings or any of its Subsidiaries and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of Holdings or any of its
Subsidiaries; or Holdings or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Holdings or any of
its Subsidiaries; or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or Holdings or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Holdings or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or
Holdings or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by Holdings or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
-------
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code, any Plan shall have had or is likely to have a trustee appointed to
administer such Plan, any Plan is, shall have been or is likely to be terminated
or the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made to a Plan or a
Foreign Pension Plan has not been timely made, Holdings or any Subsidiary of
Holdings or any ERISA Affiliate has incurred or is likely to incur a liability
to or on account of a Plan under Section 409, 502(i), 502(1), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975
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or 4980 of the Code, or Holdings or any Subsidiary of Holdings has incurred or
is likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) which provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or employee pension benefit plans (as defined in Section 3(2) of ERISA)
or Foreign Pension Plans; (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a liability or
a material risk of incurring a liability; and (c) which lien, security interest
or liability which arises from such event or events will have a Material Adverse
Effect; or
9.07 Security Documents. (a) Except in each case to the extent
------------------
resulting from the failure of the Collateral Agent to retain possession of the
applicable Pledged Securities, any Security Document shall cease to be in full
force and effect, or shall cease to give the Collateral Agent the Liens, rights,
powers and privileges purported to be created thereby in favor of the Collateral
Agent, or (b) any Credit Party shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any such Security Document and such default shall continue
beyond any cure or grace period specifically applicable thereto pursuant to the
terms of such Security Document; or
9.08 Guaranties. The Guaranties or any provision thereof shall cease
----------
to be in full force and effect, or any Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under any Guaranty or any Guarantor shall default in the due performance or
observance of any material term, covenant or agreement on its part to be
performed or observed pursuant to any Guaranty; or
9.09 Judgments. One or more judgments or decrees shall be entered
---------
against Holdings or any of its Subsidiaries involving a liability (not paid or
not fully covered by insurance) in excess of S1,500,000 for all such judgments
and decrees and all such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 60 days from the entry
thereof; or
9.10 Ownership. A Change of Control Event shall have occurred; then,
---------
and in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Agent shall, upon the written request of the Required
Banks, by written notice to the Borrower, take any or all of the following
actions, without prejudice to the rights of the Agent or any Bank to enforce its
claims against any Guarantor or the Borrower, except as otherwise specifically
provided for in this Agreement (provided, that if an Event of Default specified
--------
in Section 9.05 shall occur with respect to the Borrower, the result which would
occur upon the giving of written notice by the Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Revolving Loan Commitment terminated, whereupon the
Revolving Loan Commitment of each Bank shall forthwith terminate immediately and
any
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Commitment Fees shall forthwith become due and payable without any other notice
of any kind; (ii) declare the principal of and any accrued interest in respect
of all Loans and all Obligations owing hereunder (including Unpaid Drawings) to
be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (iii) enforce, as Collateral Agent (or direct the
Collateral Agent to enforce), any or all of the Liens and security interests
created pursuant to the Security Documents; (iv) terminate any Letter of Credit
which may be terminated in accordance with its terms; and (v) direct the
Borrower to pay (and the Borrower hereby agrees upon receipt of such notice, or
upon the occurrence of any Event of Default specified in Section 9.05, to pay)
to the Collateral Agent at the Payment Office such additional amounts of cash,
to be held as security for the Borrower's reimbursement obligations in respect
of Letters of Credit then outstanding, equal to the aggregate Stated Amount of
all Letters of Credit then outstanding.
SECTION 10. Definitions. As used herein, the following terms shall
-----------
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquired Entity or Business" shall have the meaning set forth in the
definition of "Consolidated Net Income."
"Additional Security Documents" shall have the meaning provided in
Section 7.11.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 5% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Agent appointed pursuant to
Section 11.10.
"Agreement" shall mean this Credit Agreement, as the same may be from
time to time modified, amended and/or supplemented.
"Applicable Base Rate Margin" shall mean, during any Applicable
Period, the respective percentage per annum set forth in clause (A), (B), (C),
(D) or (E) below if,
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but only if, as of the Test Date with respect to such Applicable Period the
condition set forth in clause (A), (B), (C), (D) or (E) as the case may be,
below is met:
(A) 1.000% if, as of the Test Date the Leverage Ratio for the Test
Period ended on such Test Date shall be 3.25:1.00 or greater;
(B) 0.750% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 3.25:1.00
and none of the condition set forth in clauses (C), (D) and (E) below are
satisfied;
(C) 0.500% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 3.00:1.00
and neither of the conditions set forth in clauses (D) or (E) below is
satisfied;
(D) 0.250% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 2.50:1.00
and the condition set forth in clause (E) below is not satisfied; or
(E) 0% if, but only if, as of the Test Date the Leverage Ratio for
the Test Period ended on such Test Date shall be less than 2.25:1.00.
Notwithstanding anything to the contrary contained above in this definition, (i)
except as provided in clause (ii) below, the Applicable Base Rate Margin shall
be 0% until the first Start Date to occur after July 31, 1998, and (ii) the
Applicable Base Rate Margin shall be 1.000% at any time when (x) an Event of
Default shall exist or (y) financial statements have not been delivered when
required pursuant to Section 7.01(b) or (c), as the case may be.
"Applicable Commitment Fee Percentage" shall mean, during any
Applicable Period, the respective percentage per annum set forth in clause (A),
(B), (C), (D), (E) or (F) below if, but only if, as of the Test Date with
respect to such Applicable Period the condition set forth in clause (A), (B),
(C), (D), (E) or (F) below, as the case may be, is met:
(A) 0.500% if, as of the Test Date the Leverage Ratio for the Test
Period ended on such Test Date shall be 3.00:1.00 or greater;
(B) 0.375% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 3.00:1.00
and none of the conditions set forth in clause (C), (D), (E) or (F) below
are satisfied;
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(C) 0.350% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 2.25:1.00
and none of the conditions set forth in clause (D), (E) or (F) below are
satisfied;
(D) 0.300% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 2.00:1.00
and neither of the conditions set forth in clause (E) or (F) below is
satisfied;
(E) 0.250% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 1.75:1.00
and the condition set forth in clause (F) below is not satisfied;
(F) 0.200% if, but only if, as of the Test Date the Leverage ratio
for the Test Period ended on such Test Date shall be less than 1.50:1.00.
Notwithstanding anything to the contrary contained above in this definition, (i)
except as provided in clause (ii) below, the Applicable Commitment Fee
Percentage shall be 0.300% until the first Start Date to occur after July 31,
1998, and (ii) the Applicable Commitment Fee Percentage shall be 0.500% at all
times when (x) an Event of Default shall exist or (y) financial statements have
not been delivered when required pursuant to Section 7.01(b) or (c), as the case
may be.
"Applicable Eurodollar Margin" shall mean, during any Applicable
Period, the respective percentage per annum set forth in clause (A), (B), (C),
(D), (E), (E:), (G) or (H) below if, but only if, as of the Test Date with
respect to such Applicable Period the condition set forth in clause (A), (B),
(C), (D), (E), (F), (G) or (H) as the case may be, below is met:
(A) 2.000% if, as of the Test Date the Leverage Ratio for the Test
Period ended on such Test Date shall be 3.25:1.00 or greater;
(B) 1.750% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 3.25:1.00
and none of the conditions set forth in clause (C), (D), (E), (F), (G) or
(H) below are satisfied;
(C) 1.500% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 3.00:1.00
and none of the conditions set forth in clause (D), (E), (F), (G) or (H)
below are satisfied;
(D) 1.250% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 2.50:1.00
and none of the conditions set forth in clause (E), (E:), (G) or (H) below
are satisfied;
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(E) 1.000% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 2.25:1.00
and none of the conditions set forth in clause (F), (G), or (H) below are
satisfied;
(F) 0.875% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 2.00: 1.00
and neither of the conditions set forth in clause (G) or (H) below is
satisfied;
(G) 0.750% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 1.75:1.00
and the condition set forth in clause (H) below is not satisfied;
(H) 0.500% if, but only if, as of the Test Date the Leverage Ratio
for the Test Period ended on such Test Date shall be less than 1.50: 1.00.
Notwithstanding anything to the contrary contained above in this definition, (i)
except as provided in clause (ii) below, the Applicable Eurodollar Margin shall
be 0.875% until the first Start Date to occur after July 31, 1998, and (iii) the
Applicable Eurodollar Margin shall be 2.000% at any time when (x) an Event of
Default shall exist or (y) financial statements have not been delivered when
required pursuant to Section 7.01(b) or (c), as the case may be.
"Applicable Period" shall mean each period which shall commence on a
date on which the financial statements are delivered pursuant to Section 7.01(b)
or (c), as the case may be, and which shall end on the earlier of (i) the date
of actual delivery of the next financial statements pursuant to Section 7.01(b)
or (c), as the case may be, and (ii) the latest date on which the next financial
statements are required to be delivered pursuant to Section 7.01(b) or (c), as
the case may be.
"Asset Sale" shall mean any sale, transfer or other disposition by
Holdings or any of its Subsidiaries to any Person other than the Borrower or any
Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities of another Person, but
excluding the sale by such Person of its own capital stock) of Holdings or such
Subsidiary other than (i) sales, transfers or other dispositions of inventory
made in the ordinary course of business and (ii) sales, transfers or other
dispositions of assets pursuant to Section 8.02(d), (e), (f), (o), (t), (u) or
(v) or Section 8.05(u).
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit I (appropriately
completed).
"Authorized Officer" shall mean the Chief Executive Officer,
President, Chief Financial Officer, Treasurer, Controller or Secretary or any
other senior officer of
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Holdings or the Borrower designated as such in writing to the Agent by Holdings
or the Borrower, in each case to the extent reasonably acceptable to the Agent.
"Bain Affiliates" shall mean any Affiliate of Bain Capital, provided
that for purposes of the definition of "Change of Control Event", the term Bain
Affiliate shall not include (x) any portfolio company of either Bain Capital or
any Affiliate of Bain Capital or (y) any officer or director of Holdings or any
of its Subsidiaries that is not also a partner or stockholder of Bain Capital.
"Bain Capital" shall mean Bain Capital, Inc. a Delaware corporation.
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.04(c) or (ii) a Bank
having notified the Agent and/or the Borrower that it does not intend to comply
with the obligations under Section 1.01(a), 1.01(c) or 2.04(c), in the case of
either clause (i) or (ii) above as a result of the appointment of a receiver or
conservator with respect to such Bank at the direction or request of any
regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1% in excess of the Federal Funds Rate and (y) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower Subordinated Loans" shall have the meaning provided in
Section 8.05(r).
"Borrower Subordinated Note" shall mean an unsecured junior
subordinated note issued by the Borrower (and not guaranteed or supported in any
way by any Subsidiary of the Borrower) in the form of Exhibit M, as amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.
"Borrowing" shall mean (i) the incurrence of Swingline Loans from BTCo
on a given date and (ii) the incurrence of one Type of Revolving Loan by the
Borrower
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from all of the Banks 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; provided, that Base Rate Loans incurred pursuant to Section
--------
1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(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 U.S. dollar deposits in the interbank Eurodollar market.
"Capital Expenditures" shall mean, with respect to any Person, without
duplication, all expenditures by such Person which should be capitalized in
accordance with GAAP, including, without duplication, all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
GAAP), and the amount of all Capitalized Lease Obligations incurred by such
Person.
"Capital Lease," as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided, that the full faith and credit of the United
--------
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (ii) U.S. dollar denominated
time deposits, certificates of deposit and bankers acceptances of (x) any Bank
or (y) any bank whose short-term commercial paper rating from Standard & Poor's
Corporation ("S&P") is at least A-1 or the equivalent thereof or from Moody's
Investors Service, Inc. ("Moody's") is at least P-1 or the equivalent thereof
(any such bank or Bank, an "Approved Bank"), in each case with maturities of not
more than twelve months from the date of acquisition, (iii) commercial paper
issued by any Approved Bank or by the parent company of any Approved Bank and
commercial paper issued by, or guaranteed by, any industrial or financial
company with a short-term commer-
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cial paper rating of at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Moody's, or guaranteed by any industrial
company with a long term unsecured debt rating of at least A or A2, or the
equivalent of each thereof, from S&P or Moody's, as the case may be, and in each
case maturing within twelve months after the date of acquisition, (iv)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within twelve months from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's and (v) investments in
money market funds substantially all the assets of which are comprised of
securities of the types described in clauses (i) through (iv) above.
"Change of Control Event" shall mean (a) Holdings shall cease to own
directly 100% on a fully diluted basis of the economic and voting interest in
the Borrower's capital stock, (b) any Person or "group" (within the meaning of
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as in effect on
the Effective Date), other than Bain Capital and/or the Bain Affiliates, shall
(i) have acquired beneficial ownership of 30% or more on a fully diluted basis
of the voting and/or economic interest in Holdings' capital stock or (ii)
obtained the power (whether or not exercised) to elect a majority of Holdings'
directors or (c) the Board of Directors of Holdings shall cease to consist of a
majority of Continuing Directors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
"Collateral Agent" shall mean the Agent acting as collateral agent for
the Secured Creditors.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 5.14(b).
"Commitment Fee" shall have the meaning provided in Section 3.01(a).
"Consolidated Debt" shall mean, at any time, all Indebtedness of the
Borrower and its Subsidiaries determined on a consolidated basis, provided that
--------
for purposes of this definition, (i) the amount of Indebtedness in respect of
Interest Rate Protection Agreements shall be at any time the unrealized net
loss portion, if any, of the Borrower and/or its Subsidiaries thereunder on a
marked-to-market basis determined no
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more than one month prior to such time and (ii) to the extent that any Foreign
Subsidiary Working Capital Indebtedness is supported by a Letter of Credit, the
amount of such arrangement that shall constitute Consolidated Debt shall be the
greater of the outstanding principal amount of such Indebtedness and the stated
amount of such Letter of Credit.
"Consolidated EBIT" shall mean, for any period, Consolidated Net
Income, before (i) total interest expense (inclusive of amortization of deferred
financing fees, premiums on Interest Rate Protection Agreements and any other
original issue discount) of the Borrower and its Subsidiaries determined on a
consolidated basis, (ii) the write-off of inventory step-up and in-process
research and development costs in accordance with purchase accounting, (iii) any
non-cash charges deducted in determining Consolidated Net Income for such period
and related to the issuance by Holdings of stock, warrants or options to
management (or any exercise of any such warrants or options), (iv) a one-time
payment of $1,700,000 to Frank W. Gay, II, Chief Executive Officer of the
Borrower, in connection with and at the time of the consummation of the IPO, (v)
provisions for taxes based on income and foreign withholding taxes, (vi) giving
effect to any extraordinary gains or losses but with giving effect to gains or
losses from sales of assets sold in the ordinary course of business, (vii) any
non-cash charges related to the write-up of samples in accordance with purchase
accounting, (viii) any management fees paid to Bain Capital or any Bain
Affiliates on or prior to the Initial Borrowing Date (including, without
limitation, up to an aggregate amount of $1,000,000 paid to Bain Capital and the
Bain Affiliates in connection with the termination of the Borrower's management
agreement with Bain Capital and the provision of advisory services to the
Borrower) and (ix) Restructuring Expenditures to the extent deducted in
determining Consolidated Net Income for such period, provided that the aggregate
amount of Restructuring Expenditures added back pursuant to this clause (ix) for
all periods shall not exceed $1,000,000.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all depreciation expense and
amortization expense that were deducted in determining Consolidated EBIT for
such period.
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including that attributable to Capital Leases in accordance
with GAAP) of the Borrower and its Subsidiaries determined on a consolidated
basis with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs or benefits under Interest Rate Protection
Agreements, but excluding, however, amortization of any payments made to obtain
any Interest Rate Protection Agreements and deferred financing costs and any
interest expense on deferred compensation arrangements to the extent included in
total interest expense.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss), after provision for taxes, of the Borrower and its Subsidiaries on a
consolidated basis
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for such period taken as a single accounting period but excluding any unrealized
losses and gains for such period resulting from mark-to-market of Other Hedging
Agreements; provided that (x) for purposes of Section 8.11 and the definitions
--------
of Applicable Base Rate Margin, Applicable Commitment Fee Percentage and
Applicable Eurodollar Margin there shall be included (to the extent not already
included) in determining Consolidated Net Income for any period the net income
(or loss) of any Person, business, property or asset acquired during such period
pursuant to Section 8.02(p) and not subsequently sold or otherwise disposed of
by the Borrower or one of its Subsidiaries during such period (each such Person,
business, property or asset acquired and not subsequently disposed of during
such period, an "Acquired Entity or Business"), in each case based on the actual
net income (or loss) of such Acquired Entity or Business for the entire period
(including the portion thereof occurring prior to such acquisition) and (y) for
purposes of calculating Consolidated Net Income for any period, Consolidated Net
Income shall be adjusted for factually supportable and identifiable pro forma
cost savings for such period determined in accordance with GAAP and concurred in
by the Borrower's independent accountants that are directly attributable to the
acquisition of an Acquired Entity or Business pursuant to a Permitted
Acquisition.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof; provided, however, that
-------- -------
the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities (including without
limitation indemnities entered into in connection with the IPO Documents)
entered into, in each case in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of Holdings on the
Effective Date and each other director if such director's nomination for the
election to the Board of Directors of Holdings is recommended by a majority of
the then Continuing Directors.
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"Credit Documents" shall mean this Agreement, the Notes, the
Guaranties and each Security Document.
"Credit Event" shall mean the making of a Loan (other than a Revolving
Loan made pursuant to a Mandatory Borrowing) or the issuance of a Letter of
Credit.
"Credit Party" shall mean Holdings, the Borrower and each Subsidiary
Guarantor.
"Cumulative Consolidated Net Income" shall mean, at any time for the
determination thereof, Consolidated Net Income for the period (taken as one
accounting period) commencing on January 1, 1998 and ending on the last day of
the Borrower's fiscal quarter then last ended.
"Cumulative Income and Equity Amount" shall mean, at any time for the
determination thereof:
(A) the product of (i) 0.25 multiplied by (ii) Cumulative Consolidated
Net Income at such time, plus
(B) the net proceeds received by Holdings after the Initial Borrowing
Date from any issuance of Holdings Common Stock (other than proceeds
received from the IPO), to the extent contributed to the Borrower in
accordance with Section 7.14, minus
(C) (1) the aggregate amount theretofore expended for Permitted
Acquisitions in reliance on the parenthetical in clause (v)(x) of Section
8.02(p), (11) the aggregate amount of Capital Expenditures theretofore made
by the Borrower and its Subsidiaries pursuant to Section 8.08(e), (111) the
aggregate amount of investments made pursuant to Section 8.05(w) in excess
of $4,000,000, and (IV) the aggregate amount of cash Dividends theretofore
paid pursuant to Section 8.06(vii) in excess of $1,000,000 in any fiscal
year of the Borrower, it being understood that the Cumulative Income and
Equity Amount shall be reduced at the time of, and after giving effect to,
any of the events described in preceding clauses (1), (II), (III) and (IV).
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
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"Designated Real Property Sale" shall mean sale by the Borrower and/or
any of its Subsidiaries of the Real Property owned by them as of the Initial
Borrowing Date and located in Ogden, Utah.
"Dividends shall have the meaning provided in Section 8.06.
"Documents" shall mean the Credit Documents, the IPO Documents and the
Refinancing Documents.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower which
is not a Foreign Subsidiary.
"Effective Date" shall have the meaning provided in Section 12.10.
"Eligible Transferee" shall mean and include a commercial bank,
investment company, financial institution or other "accredited investor" (as
defined in Regulation D of the Securities Act).
"Employment Agreements" shall have the meaning provided in Section
5.14(f).
"End Date" shall mean the last day of any Applicable Period.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any violation (or alleged violation) by Holdings or any of its
Subsidiaries under any Environmental Law (hereafter "Claims") or any permit
issued to Holdings or any of its Subsidiaries under any such law, including,
without limitation, (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (b) any and
all Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
"Environmental Law" shall mean any federal, state or local statute,
law, rule, regulation, ordinance, code, policy or rule of common law now or
hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment (for purposes of this definition
(collectively, "Laws")), relating to the environment or Hazardous Materials or
health and safety to the extent health and safety issues arise under the
Occupational Safety and Health Act of 1970, as amended, or any such similar
Laws.
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"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and the
rulings issued thereunder. Section references to ERISA are to ERISA as in
effect at the date of this Agreement and any subsequent provisions of ERISA
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Holdings or any Subsidiary of Holdings would be
deemed to be a "single employer" within the meaning of Section 414(b), (c), (m)
or (o) of the Code.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean, with respect to each Interest Period for
a Eurodollar Loan, (i) the arithmetic average (rounded to the nearest 1/100 of
1%) of the offered quotation to first-class banks in the interbank Eurodollar
market by the Agent for U.S. dollar deposits of amounts in same day funds
comparable to the outstanding principal amount of the Eurodollar Loan of the
Agent for which an interest rate is then being deter mined with maturities
comparable to the Interest Period to be applicable to such Eurodollar Loan,
determined as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period divided (and rounded
upward to the next whole multiple of 1/16 of 1 %) by (ii) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of Eurocurrency liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Existing Credit Agreement" shall mean the Revolving Credit and Term
Loan Agreement, dated as of January 31, 1995, among Holdings, the Borrower,
various Subsidiaries of the Borrower and Jackson National Life Insurance
Company, as amended, modified or supplemented prior to the Effective Date.
"Existing Indebtedness" shall have the meaning provided in Section
6.12.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.14(c).
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight
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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, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Agent from three Federal Funds brokers of recognized standing
selected by the Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"Foreign Cash Equivalents" shall mean certificates of deposit or
bankers acceptances of any bank organized under the laws of Canada, Japan or any
country that is a member of the European Economic Community whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody's is at least P-1 or the equivalent thereof, in each case with
maturities of not more than twelve months from the date of acquisition.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by Holdings or any one or more
of its Subsidiaries primarily for the benefit of employees of Holdings or such
Subsidiaries residing outside the United States of America, which plan, fund or
other similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower that
is incorporated under the laws of any jurisdiction other than the United States
of America, any State thereof, or any territory thereof.
"Foreign Subsidiary Working Capital Indebtedness" shall have the
meaning provided in Section 8.04(h).
"GAAP" shall mean generally accepted accounting principles in the
United States of America, as promulgated by the American Institute of Certified
Public Accountants and its committees, as in effect from time to time; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject (to the
extent provided therein) to Section 12.07(a).
"Guaranteed Creditors" shall mean and include each of the Agent, the
Collateral Agent, the Banks and each Person (other than any Credit Party) party
to an Interest Rate Protection Agreement or Other Hedging Agreement to the
extent such party constitutes a Secured Creditor under the Security Documents.
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"Guaranteed Obligations" shall mean (i) the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of the
principal and interest on each Note issued by the Borrower to each Bank, and
Loans made, under this Agreement and all reimbursement obligations and Unpaid
Drawings with respect to Letters of Credit, together with all the other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, fees and interest thereon) of the
Borrower to such Bank now existing or hereafter incurred under, arising out of
or in connection with this Agreement or any other Credit Document and the due
performance and compliance with all the terms, conditions and agreements
contained in the Credit Documents by the Borrower and (ii) the full and prompt
payment when due (whether by acceleration or otherwise) of all obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) of the Borrower owing under any such
Interest Rate Protection Agreement or Other Hedging Agreement entered into by
the Borrower or any of its Subsidiaries with any Bank or any affiliate thereof
(even if such Bank subsequently ceases to be a Bank under this Agreement for any
reason) so long as such Bank or affiliate participates in such Interest Rate
Protection Agreement or Other Hedging Agreement, and their subsequent assigns,
if any, whether now in existence or hereafter arising, and the due performance
and compliance with all terms, conditions and agreements contained therein.
"Guarantor" shall mean Holdings and each Subsidiary Guarantor.
"Guaranty" shall mean and include each of the Holdings Guaranty and
the Subsidiary Guaranty.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect.
"Holdings" shall have the meaning provided in the first paragraph of
this Agreement.
"Holdings Common Stock" shall have the meaning provided in Section
6.16.
"Holdings Guaranty" shall mean the guaranty of Holdings pursuant to
Section 13.
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"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services payable to the sellers thereof or any of such seller's
assignees which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person but excluding deferred rent as determined in
accordance with GAAP, (iii) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all unpaid drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any
property owned by such first Person, whether or not such Indebtedness has been
assumed, (v) all Capitalized Lease Obligations of such Person, (vi) all
obligations of such Person to pay a specified purchase price for goods or
services whether or not delivered or accepted, i.e., take-or-pay and similar
----
obligations, (vii) all obligations under Interest Rate Protection Agreements and
Other Hedging Agreements and (viii) all Contingent Obligations of such Person,
provided, that Indebtedness shall not include trade payables and accrued
- --------
expenses, in each case arising in the ordinary course of business.
"Initial Borrowing Date" shall mean the date on which the initial
Loans are incurred hereunder.
"Intercompany Loan" shall have the meaning provided in Section
8.05(g).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit J, evidencing Intercompany Loans.
"Interest Coverage Ratio" shall mean, for any period, the ratio of
Consolidated EBITDA to Consolidated Interest Expense for such period; provided
--------
that for purposes of Section 8.10, Consolidated Interest Expense for each Test
Period ending prior to June 30, 1999 shall mean the product of (x) Consolidated
Interest Expense from the Initial Borrowing Date to, and including the last day
of such Test Period and (y) a fraction, the numerator of which is 365 and the
denominator of which is the number of days elapsed from the Initial Borrowing
Date to and including the last day of such Test Period.
"Interest Period," with respect to any Eurodollar Loan, shall mean the
interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"IPO" shall have the meaning provided in Section 5.09.
"IPO Documents" shall mean the Registration Statement relating to the
registration of the Holdings Common Stock, and all other documents or agreements
related
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to the consummation of the IPO, including, without limitation, all underwriting
or similar agreements and all documents filed with the SEC.
"L/C Supportable Indebtedness" shall mean (i) Foreign Subsidiary
Working Capital Indebtedness, (ii) obligations of the Borrower or its
Subsidiaries incurred in the ordinary course of business with respect to
insurance obligations and workers' compensation, surety bonds and other similar
statutory obligations and (iii) such other obligations of the Borrower or any of
its Subsidiaries as are reasonably acceptable to the Agent and the respective
Letter of Credit Issuer and otherwise permitted to exist pursuant to the terms
of this Agreement.
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo, and any Bank which at the
request of the Borrower and with the consent of the Agent agrees, in such Bank's
sole discretion, to become a Letter of Credit Issuer for the purpose of issuing
Letters of Credit pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"Leverage Ratio" shall mean, at any time, the ratio of Consolidated
Debt at such time to Consolidated EBITDA for the Test Period then last ended.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute, and any lease having substantially the same effect
as the foregoing).
"Loan" shall mean each and every Loan made by any Bank hereunder,
including Revolving Loans or Swingline Loans.
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"Management Agreements" shall have the meaning provided in Section
5.14(e).
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, assets, liabilities, condition (financial or otherwise)
or prospects of the Borrower, Holdings and its Subsidiaries taken as a whole or
the Borrower and its Subsidiaries taken as a whole.
"Material Contracts" shall have the meaning provided in Section
5.14(h).
"Maturity Date" shall mean January 31, 2003.
"Maximum Swingline Amount" shall mean $5,000,000.
"Minimum Borrowing Amount" shall mean (i) for Base Rate Loans (other
than Swingline Loans), $250,000; (ii) for Eurodollar Loans, $500,000; and (iii)
for Swingline Loans, $100,000.
"Mortgage" shall have the meaning provided in Section 5.13(a).
"Mortgage Policies" shall have the meaning provided in Section
5.13(b).
"Mortgaged Properties" shall mean and include (i) all Real Properties
owned and leased by Holdings and its Domestic Subsidiaries to the extent
designated as such on Annex 111 and (ii) each Real Property subjected to a
mortgage in favor of the Collateral-Agent for the benefit of the Secured
Creditors pursuant to Section 7.11.
"NAIC" shall have the meaning provided in Section 1.10(c).
"Net Proceeds" shall mean, with respect to any Asset Sale, the
Proceeds resulting therefrom net of (a) cash expenses of sale (including
brokerage fees, if any, transfer taxes and payment of principal, premium and
interest of Indebtedness other than the Loans required to be repaid as a result
of such Asset Sale) and (b) incremental income taxes paid or payable as a result
thereof.
"New Distribution Center" shall mean a central distribution center to
be established by the Borrower after the Effective Date.
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"New Operating Facility" shall mean an operating facility to be
constructed by the Borrower after the Effective Date which operating facility
shall replace certain other operating facilities maintained by the Borrower and
its Subsidiaries as of the Effective Date.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Note" shall mean each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Agent located at One
Bankers Trust Plaza, New York, New York 10006 or such other office as the Agent
may designate to Holdings, the Borrower and the Banks from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Agent, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.04(a).
"Payment Office" shall mean the office of the Agent located at One
Bankers Trust Plaza, New York, New York 10006 or such other office as the Agent
may designate to Holdings, the Borrower and the Banks from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Pension Plan Refund" shall mean any cash payments (net of reasonable
costs associated therewith, including income, excise and other taxes payable
thereon) received by Holdings and/or any of its Subsidiaries from any return of
any surplus assets from any single Plan or Foreign Pension Plan, other than any
return of amounts representing overestimates of any amounts due under any single
Plan or Foreign Pension Plan.
"Percentage" shall mean at any time for each Bank, the percentage
obtained by dividing such Bank's Revolving Loan Commitment at such time by the
Total Revolving
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Loan Commitment at such time; provided, that if the Total Revolving Loan
--------
Commitment has been terminated, the Percentage of each Bank shall be determined
by dividing such Bank's Revolving Loan Commitment immediately prior to such
termination by the Total Revolving Loan Commitment immediately prior to such
termination.
"Permitted Acquisition" shall have the meaning provided in Section
8.02(p).
"Permitted Covenant" shall mean (i) any periodic reporting covenant,
(ii) any covenant restricting payments by Holdings with respect to any
securities of Holdings which are junior to the Permitted Holdings PIK
Securities, (iii) any covenant the default of which can only result in an
increase in the amount of any redemption price, repayment amount, dividend rate
or interest rate, (iv) any covenant the default of which gives rise only to
rights or remedies which are subject to subordination terms reasonably
acceptable to the Agent, (v) any covenant providing board observance rights with
respect to Holdings' board of directors and (vi) any other covenant that does
not adversely affect the interests of the Banks (as reasonably determined by the
Agent).
"Permitted Encumbrances" shall mean (i) those liens, encumbrances and
other matters affecting title to any Mortgaged Property listed in the mortgage
title insurance policies in respect thereof and found, on the date of delivery
of such mortgage title insurance policies to the Agent in accordance with the
terms hereof, reasonably acceptable by the Agent, (ii) as to any particular
Mortgaged Property at any time, such easements, encroachments, covenants, rights
of way, minor defects, irregularities or encumbrances on title which do not, in
the reasonable opinion of the Agent, materially impair such Mortgaged Property
for the purpose for which it is held by the mortgagor thereof, or the lien held
by the Collateral Agent, (iii) municipal and zoning ordinances which are not
violated in any material respect by the existing improvements and the present
use made by the mortgagor thereof of the Premises (as defined in the respective
Mortgage), (iv) general real estate taxes and assessments not yet delinquent,
and (v) such other items with respect to Real Property as the Agent may consent
to (such consent not to be unreasonably withheld).
"Permitted Holdings PIK Securities" shall mean any preferred stock or
subordinated promissory note of Holdings (or any security of Holdings that is
convertible or exchangeable into any preferred stock or subordinated promissory
note of Holdings), so long as the terms of any such preferred stock,
subordinated promissory note or security of Holdings (i) do not provide any
collateral security, (ii) do not provide any guaranty or other support by the
Borrower or any Subsidiaries of the Borrower, (iii) do not contain any mandatory
put, redemption, repayment, sinking fund or other similar provision occurring
before the sixth anniversary of the Effective Date, (iv) do not require the cash
payment of dividends or interest before the sixth anniversary of the Effective
Date, (v) do not contain any covenants other than any Permitted Covenant, (vi)
do not grant the holders thereof any voting rights except for (x) voting rights
required to be granted to such holders under
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applicable law and (y) limited customary voting rights on fundamental matters
such as mergers, consolidations, sales of substantial assets, or liquidations
involving Holdings, and (vii) are otherwise reasonably satisfactory to the
Agent.
"Permitted Joint Ventures" shall mean (a) the joint venture
transaction to which the Borrower is a party on the Effective Date with Eastman
Chemical and (b) the joint venture transaction to which the Borrower intends, as
of the Effective Date, to enter into with certain Affiliates of GNC Singapore.
"Permitted Liens" shall have the meaning provided in Section 8.03.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan as defined
in Section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute of) Holdings, any of its Subsidiaries or
any ERISA Affiliate and each such plan for the five calendar year period
immediately following the latest date on which Holdings, any of its Subsidiaries
or any ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 5.11(a).
"Pledged Securities" shall mean all the Pledged Securities as defined
in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Proceeds" shall mean, with respect to any Asset Sale, the aggregate
cash payments (including any cash received by way of deferred payment pursuant
to a note receivable issued in connection with such Asset Sale, other than the
portion of such deferred payment constituting interest, but only as and when so
received) received by Holdings and/or any of its Subsidiaries from such Asset
Sale.
"Pro Forma Leverage Ratio" shall mean, at any time for the
determination thereof, the ratio of (x) Consolidated Debt at such time to (y)
Consolidated EBITDA for the Test Period then last ended, with such Pro Forma
Leverage Ratio to be determined on
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a pro forma basis as if the respective Permitted Acquisition or Asset Sale (and
--- -----
the incurrence, assumption and/or repayment of any Indebtedness in connection
with such Permitted Acquisition or Asset Sale), as the case may be, had occurred
on the first day of such Test Period (and such Indebtedness, if any, had
remained outstanding (or had not been outstanding, as the case may be)
throughout such Test Period). On the date of a Permitted Acquisition or Asset
Sale pursuant to which the Pro Forma Leverage Ratio is to be calculated, the
Borrower shall deliver to the Agent a certificate of the Borrower's chief
financial officer setting forth in reasonable detail the pro forma calculations
--- -----
required to establish the Pro Forma Leverage Ratio (with such pro forma
--- -----
calculations to be made on a basis reasonably satisfactory to the Agent and to
assume that the interest expense attributable to any Indebtedness (whether
existing or being incurred) bearing a floating interest rate shall be computed
as if the rate in effect on the date of such Permitted Acquisition or Asset Sale
(taking into account any Interest Rate Protection Agreement applicable to such
Indebtedness if such Interest Rate Protection Agreement has a remaining term in
excess of 12 months) had been the applicable rate for the entire period). In
calculating the Pro Forma Leverage Ratio in connection with any Permitted
Acquisition, it is understood that Consolidated EBITDA shall include the results
of operations of the Person or assets acquired pursuant to such Permitted
Acquisition on a pro forma basis as if such acquisition had occurred on the
--- -----
first day of the respective Test Period.
"Projections" shall have the meaning provided in Section 5.17.
"Quarterly Payment Date" shall mean the last Business Day of each
January, April, July and October.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by Holdings or any of its
Subsidiaries of any insurance or condemnation proceeds payable (i) by reason of
any theft, physical destruction or damage or any other similar event with
respect to any properties or assets of Holdings or any of its Subsidiaries, (ii)
by reason any condemnation, taking, seizing or similar event with respect to any
properties or assets of Holdings or any of its Subsidiaries and (iii) under any
policy of insurance required to be maintained under Section 7.03.
"Refinancing" shall mean the refinancing by the Borrower and the
termination by the Borrower in full of all commitments under the Existing Credit
Agreement, together with the payment of all loans, accrued interest, premiums,
fees, commissions, expenses and other amounts owing in connection with the
refinancing of the Existing Credit Agreement.
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"Refinancing Documents" shall mean each of the agreements, documents
and instruments entered into in connection with the Refinancing.
"Register" shall have the meaning provided in Section 7.12.
"Registration Statement" shall mean Holdings' Registration Statement
on Form S-1 in the form delivered to the Banks pursuant to Section 5.09 as
amended from time to time.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or any portion thereof establishing margin requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from to time in effect and any successor to all or
any portion thereof establishing margin requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or any portion thereof establishing margin requirements.
"Related Party" shall mean any Affiliate of Bain Capital on the
Effective Date, provided that for purposes of the definition of "Change of
--------
Control Event," the term Related Party shall not include (x) any portfolio
company of Bain Capital or any Affiliate of Bain Capital or (y) any officer or
director of Holdings or any of its Subsidiaries if not also a partner or
stockholder of Bain Capital on the Effective Date.
"Release" means disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
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"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan other than those events as to which the 30-day
notice period is waived under subsection .22, .23, .25, .27, or .28 of PBGC
Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks the sum of whose
Revolving Loan Commitments (or, if after the Total Revolving Loan Commitment has
been terminated, outstanding Revolving Loans and Percentages of outstanding
Swingline Loans and Letter of Credit Outstandings) constitute greater than 50%
of the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of Defaulting Banks (or, if after the Total Revolving Loan
Commitment has been terminated, the total outstanding Revolving Loans of Non-
Defaulting Banks and the aggregate Percentages of all Non-Defaulting Banks of
the total outstanding Swingline Loans and Letter of Credit Outstandings at such
time).
"Restructuring Expenditures" shall mean nonrecurring expenditures and
charges arising out of the establishment of and relocation to the New
Distribution Center and/or the New Operating Facility.
"Returns" shall have the meaning provided in Section 6.23.
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Loan Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I as the same may be reduced
from time to time pursuant to Section 3.02, 3.03 and/or 9 or otherwise modified
pursuant to Section 1.13 and/or 12.04(b).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Rollover Amount" shall have the meaning provided in Section 8.08(b).
"Schedule Commitment Reduction" shall have the meaning provided
in Section 3.03(b).
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the respective
Security Documents.
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"Security Agreement" shall have the meaning provided in Section
5.11(b).
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean and include the Security Agreement,
the Pledge Agreement, each Mortgage, each Additional Security Document, if any
and each other document or instrument entered into pursuant to Sections 5.11,
7.11 and 7.13, if any, in each case as and when executed and delivered in
accordance with the terms of this Agreement and as the same may be amended,
modified or supplemented from time to time in accordance with the terms thereof
and hereof.
"Senior Officer" shall mean Chief Executive Officer, President, Chief
Financial Officer, Treasurer, Controller or Secretary or any other senior
officer of Holdings or any of its Subsidiaries with knowledge of, or
responsibility for, the financial affairs of such Person.
"Shareholder Subordinated Note" shall mean an unsecured junior
subordinated note issued by Holdings (and not guaranteed or supported in any way
by the Borrower or any of its Subsidiaries) in the form of Exhibit L, as the
same may be amended, modified or supplemented from time to time pursuant to the
terms hereof and thereof.
"Shareholders' Agreements" shall have the meaning set forth in Section
5.14(d).
"Start Date" shall mean the first day of any Applicable Period.
"Stated Amount" of each Letter of Credit shall mean at any time the
maximum amount available to be drawn thereunder (regardless of whether any
conditions for drawing could then be met).
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean each Subsidiary of the Borrower
(other than a Foreign Subsidiary except to the extent otherwise provided in
Section 7.13).
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"Subsidiary Guaranty" shall have the meaning provided in Section 5.12.
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(b).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Date" shall mean that date upon which the Agent
determines (and notifies the Borrower and the Banks) that the primary
syndication (and resulting addition of Persons as Banks pursuant to Section
12.04(b)) has been completed.
"Tax Allocation Agreements" shall have the meaning provided in Section
5.14(g).
"Taxes" shall have the meaning provided in Section 4.04.
"Test Date" shall mean, with respect to any Applicable Period, the
last day of the most recent fiscal quarter or fiscal year, as the case may be,
ended immediately prior to the Start Date with respect to such Applicable
Period.
"Test Period" shall mean the four consecutive fiscal quarters of the
Borrower then last ended.
"Total Revolving Loan Commitment" shall mean the sum of the Revolving
Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
(i) the Total Revolving Loan Commitment at such time less (ii) the sum of the
aggregate principal amount of all Revolving Loans and Swingline Loans at such
time plus the Letter of Credit Outstandings at such time.
"Transaction" shall mean, collectively, (i) the IPO, (ii) the
Refinancing, (iii) the occurrence of Credit Events hereunder on the Initial
Borrowing Date, (iv) such other transactions as contemplated by the Documents
and (v) the payment of fees and expenses in connection with the foregoing.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.
----
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
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"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year exceeds the fair market
value of the assets allocable thereto, each determined in accordance with
Statement of Financial Accounting Standards No. 35, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan.
"Unpaid Drawing" shall have the meaning provided in Section 2.03(a).
"Unutilized Revolving Loan Commitment" with respect to any Bank at any
time shall mean such Bank's Revolving Loan Commitment at such time less the sum
----
of (x) the aggregate outstanding principal amount of all Revolving Loans made by
such Bank and (y) such Bank's Percentage of the Letter of Credit Outstandings at
such time.
"U.S. Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required to be held other than by such
Person under applicable law) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Written," "written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile device, telegraph
or cable.
SECTION 11. The Agent.
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11.01 Appointment. Each Bank hereby irrevocably designates and
-----------
appoints BTCo as Agent of such Bank (such term to include for purposes of this
Section 11, BTCo acting as Collateral Agent) to act as specified herein and in
the other Credit Documents, and each such Bank hereby irrevocably authorizes
BTCo as the Agent to take such action on its behalf under the provisions of this
Agreement and the other Credit Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. The Agent agrees to act as such upon the express
conditions contained in this Section 11. Notwithstanding any provision to the
contrary elsewhere in this Agreement or in any other Credit Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein or in the other Credit Documents, or any fiduciary relationship with any
Bank, and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement
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or otherwise exist against the Agent. The provisions of this Section 11 are
solely for the benefit of the Agent and the Banks, and neither Holdings nor any
of its Subsidiaries 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 Agent shall act solely as agent of the Banks and the Agent does
not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for Holdings or any of its Subsidiaries.
11.02 Delegation of Duties. The Agent may execute any of its duties
--------------------
under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care except to the extent otherwise required by Section 11.03.
11.03 Exculpatory Provisions. Neither the Agent nor any of its
----------------------
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person in its capacity as Agent under or in connection with this Agreement or
the other Credit Documents (except for its or such Person's own gross negligence
or willful misconduct) or (ii) responsible in any manner to any of the Banks for
any recitals, statements, representations or warranties made by Holdings, any of
its Subsidiaries or any of their respective officers contained in this Agreement
or the other Credit Documents, any other Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Document or for
any failure of Holdings or any of its Subsidiaries or any of their respective
officers to perform its obligations hereunder or thereunder. The Agent shall
not be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or the other Documents, or to inspect the properties, books
or records of Holdings or any of its Subsidiaries. The Agent shall not be
responsible to any Bank for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Agreement or any other
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by the Agent to the Banks
or by or on behalf of Holdings or any of its Subsidiaries to the Agent or any
Bank or be required to ascertain or inquire as to the performance or observance
of any of the terms, conditions, provisions, covenants or agreements contained
herein or therein or as to the use of the proceeds of the Loans or of the
existence or possible existence of any Default or Event of Default.
11.04 Reliance by Agent. The Agent shall be entitled to rely, and
-----------------
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, facsimile, telex
or teletype message, statement, order
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or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to Holdings or any of its Subsidiaries), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Credit Document
unless it shall first receive such advice or concurrence of the Required Banks
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Banks against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Credit Documents in accordance with a request of the
Required Banks (or all of the Banks, to the extent required by this Agreement),
and such request and any acting taken or failure to act pursuant thereto shall
be binding upon all the Banks.
11.05 Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has actually received notice from a Bank, Holdings or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event that
the Agent receives such a notice, the Agent shall give prompt notice thereof to
the Banks. The Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Banks;
provided, that, unless and unless the Agent shall have received such directions,
- --------
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Banks.
11.06 Non-Reliance on Agent and Other Banks. Each Bank expressly
-------------------------------------
acknowledges that neither the Agent nor any of its respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of Holdings or any of its
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Agent to any Bank. Each Bank represents to the Agent that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property,
financial and other condition, prospects and creditworthiness of Holdings and
its Subsidiaries and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, assets, operations, property, financial and
other condition, prospects and credit worthiness of Holdings and its
Subsidiaries. The Agent shall not have any duty or respon
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sibility to provide any Bank with any credit or other information concerning the
business, operations, assets, property, financial and other condition, prospects
or creditworthiness of Holdings or any of its Subsidiaries which may come into
the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
11.07 Indemnification. The Banks agree to indemnify the Agent in its
---------------
capacity as such ratably according to their respective "percentages" as used in
determining the Required Banks at such time or, if the Revolving Loan
Commitments have terminated and all Loans have been repaid in full, as
determined immediately prior to such termination and repayment (with such
"percentages" to be determined as if there are no Defaulting Banks), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Obligations) be imposed on, incurred by or
asserted against the Agent in its capacity as such in any way relating to or
arising out of this Agreement or any other Credit Document, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted to be taken by the Agent under or in connection with
any of the foregoing, but only to the extent that any of the foregoing is not
paid by Holdings or any of its Subsidiaries; provided, that no Bank shall be
--------
liable to the Agent for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting primarily from the gross negligence or
willful misconduct of the Agent. If any indemnity furnished to the Agent for any
purpose shall, in the opinion of the Agent be insufficient or become impaired
(other than as a result of the gross negligence or willful misconduct of the
Agent), the Agent may call for additional indemnity and cease, or not commence,
to do the acts indemnified against until such additional indemnity is furnished.
The agreements in this Section 11.07 shall survive the payment of all
Obligations.
11.08 Agent in its Individual Capacity. The Agent and its affiliates
--------------------------------
may make loans to, accept deposits from and generally engage in any kind of
business with Holdings and its Subsidiaries as though the Agent were not the
Agent hereunder. With respect to the Loans made by it and all Obligations owing
to it, the Agent shall have the same rights and powers under this Agreement as
any Bank and may exercise the same as though it were not the Agent and the terms
"Bank" and "Banks" shall include the Agent in its individual capacity. The Agent
and/or its affiliates may own stock of Holdings or any Subsidiary of Holdings
and may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with Holdings or any Affiliate of Holdings as
if it were not performing the duties specified herein, and may accept fees and
other consideration from any Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Banks.
11.09 Holders. The Agent may deem and treat the payee of any Note as
-------
the owner thereof for all purposes hereof unless and until a written notice of
the assign-
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<PAGE>
ment, transfer or endorsement thereof, as the case may be, shall have been filed
with the Agent. Any request, authority or consent of any Person or entity who,
at the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or indorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
11.10 Resignation of the Agent: Successor Agent. The Agent may resign
-----------------------------------------
as the Agent upon 20 days' notice to the Banks and, unless a Default of the type
referred to in Section 9.05 has occurred and is continuing, to the Borrower.
Upon the resignation of the Agent, the Required Banks shall appoint from among
the Banks a successor Agent which is a bank or a trust company for the Banks
subject, to the extent that no payment Default or Event of Default has occurred
and is then continuing, to prior approval by the Borrower (such approval not to
be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Agent, and the term "Agent"
shall include such successor agent effective upon its appointment, and the
resigning Agent's rights, powers and duties as the Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement. If a successor Agent shall not have been so
appointed within such 20 day period after the date such notice of resignation
was given by the Agent, the Agent's resignation shall become effective and the
Banks shall thereafter perform all duties of the Agent hereunder and/or under
any other Credit Documents until such time, if any, as the Required Banks
appoint a successor Agent as provided above. After the resignation of the Agent
hereunder, the provisions of this Section 11 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 12. Miscellaneous.
-------------
12.01 Payment of Expenses. etc. The Borrower hereby agrees to: (i)
------------------------
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Agent (including, without
limitation, the reasonable fees and disbursements of White & Case and local
counsel) in connection with the negotiation, preparation, execution and delivery
of the Credit Documents and the documents and instruments referred to therein
and any amendment, waiver or consent relating thereto and in connection with the
Agent's syndication efforts with respect to this Agreement; (ii) pay all
reasonable out-of-pocket costs and expenses of the Agent and each of the Banks
in connection with the enforcement of the Credit Documents and the documents and
instruments referred to therein and, after an Event of Default shall have
occurred and be continuing, the protection of the rights of the Agent and each
of the Banks thereunder (including, without limitation, the reasonable fees and
disbursements of counsel (including in-house counsel) for the Agent and for each
of the Banks); (iii) pay and hold each of the Banks harmless from and against
any and all present and~ future stamp and other similar taxes with respect to
the foregoing matters and save each of the Banks harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other
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than to the extent attributable to such Bank) to pay such taxes; and (iv)
indemnify the Agent, the Collateral Agent and each Bank, its officers,
directors, trustees, employees, representatives and agents from and hold each of
them harmless against any and all losses, liabilities, claims, damages or
expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not the Agent, the Collateral Agent or any Bank is a
party thereto and whether or not any such investigation, litigation or other
proceeding is between or among the Agent, the Collateral Agent, any Bank, any
Credit Party or any third Person or otherwise) related to the entering into
and/or performance of this Agreement or any other Document or the use of the
proceeds of any Loans hereunder or the Transaction or the con summation of any
other transactions contemplated in any Document (but excluding any such losses,
liabilities, claims, damages or expenses to the extent incurred by reason of the
gross negligence or willful misconduct of the Person to be indemnified), or (b)
the actual or alleged presence of Hazardous Materials in the air, surface water
or groundwater or on the surface or subsurface of any Real Property or any
Environmental Claim, in each case, including, without limitation, the reasonable
fees and disbursements of counsel and independent consultants incurred in
connection with any such investigation, litigation or other proceeding.
12.02 Right of Setoff. Collateral Matters. (a) In addition to any
-----------------------------------
rights now or hereafter granted under applicable law or otherwise, and not by
way of limitation of any such rights, upon the occurrence and during the
continuance of an Event of Default, each Bank is hereby authorized at any time
or from time to time, without presentment, demand, protest or other notice of
any kind to Holdings or any of its Subsidiaries or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and apply
any and all deposits (general or special) and any other Indebtedness at any time
held or owing by such Bank (including, without limitation, by branches and
agencies of such Bank wherever located) to or for the credit or the account of
Holdings or any of its Subsidiaries against and on account of the Obligations of
Holdings or any of its Subsidiaries to such Bank under this Agreement or under
any of the other Credit Documents, including, without 1lmitadon, all interests
in Obligations of Holdings or any of its Subsidiaries purchased by such Bank
pursuant to Section 12.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any demand hereunder
and although said Obligations shall be contingent or unmatured.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE
LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN
CALIFORNIA, NO BANK SHALL EXERCISE A RIGHT OF SETOFF, BANKER'S LIEN OR
COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY
PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE THAT IS NOT
TAKEN BY THE REQUIRED BANKS OR APPROVED IN WRITING BY THE
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<PAGE>
REQUIRED BANKS IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT
TO SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE)
AFFECT OR IMPAIR THE VALIDITY, PRIORITY OR ENFORCEABILITY OF THE LIENS GRANTED
TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY
OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY
BANK OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED BANKS
SHALL BE NULL AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF
EACH OF THE BANKS HEREUNDER.
12.03 Notices. Except as otherwise expressly provided herein, all
-------
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to any Bank, at its address specified
for such Bank on Annex 11; or, at such other address as shall be designated by
any party in a written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, telecopied or cabled or
sent by overnight courier, and shall be effective when received.
12.04 Benefit of Agreement. (a) This Agreement shall be binding upon
--------------------
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, no Credit Party may assign or
-------- -------
transfer any of its rights, obligations or interest hereunder or under any other
Credit Document without the prior written consent of all of the Banks and,
provided further, that no Bank may assign or transfer all or any portion of its
- ----------------
Revolving Loan Commitment and/or its outstanding Revolving Loans except as
provided in Section 12.04(b) and, provided further, that although any Bank may
----------------
grant participations in its rights hereunder in accordance with this Section,
such Bank shall remain a ~Bank" for all purposes hereunder and the participant
shall not constitute a "Bank" hereunder and, provided further, that no Bank
----------------
shall grant any participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the
final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Maturity Date) in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with a waiver of applicability
of any post default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the Total Revolving Loan
Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Revolving Loan Commitment or Loan shall be
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<PAGE>
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together with
one or more other Banks) may (x) assign all or a portion of its Revolving Loan
Commitment (and related outstanding Obligations hereunder) to its parent company
and/or any affiliate of such Bank which is at least 50% owned by such Bank or
its parent company or to one or more Banks or (y) assign all, or if less than
all, a portion equal to at least $5,000,000 in the aggregate for the assigning
Bank or assigning Banks, of such Revolving Loan Commitments hereunder to one or
more Eligible Transferees, each of which assignees shall become a party to this
Agreement as a Bank by execution of an Assignment and Assumption Agreement,
provided that (i) at such time Annex I shall be deemed modified to reflect the
- --------
Revolving Loan Commitments of such new Bank and of the existing Banks, (ii) upon
surrender of the old Notes, new Notes will be issued, at the Borrower's expense,
to such new Bank and to the assigning Bank, such new Notes to be in conformity
with the requirements of Section 1.05 (with appropriate modifications) to the
extent needed to reflect the revised Revolving Loan Commitments, (iii) the
consent of the Agent shall be required in connection with any such assignment
pursuant to clause (y) of this Section 12.04(b) (which consent shall not be
unreasonably withheld or delayed) and (iv) the Agent shall receive at the time
of each such assignment, from the assigning or assignee Bank, the payment of a
non-refundable assignment fee of $3,500 and, provided further, that such
----------------
transfer or assignment will not be effective until recorded by the Agent on the
Register pursuant to Section 7.12 hereof. To the extent of any assignment
pursuant to this Section 12.04(b), the assigning Bank shall be relieved of its
obligations hereunder with respect to its assigned commitments. At the time of
each assignment pursuant to this Section 12.04(b) to a Person which is not
already a Bank hereunder and which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes,
the respective assignee Bank shall provide to the Borrower and the Agent the
appropriate Internal Revenue Service Forms (and, if applicable a Section
4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an
assignment of all or any portion of a Bank's Revolving Loan Commitment and
related outstanding Obligations pursuant to Section 1.13 or this Section
12.04(b) would, at the time of such assignment, result in increased costs under
Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective
assigning Bank prior to such assignment, then the Borrower shall not be
obligated to pay such increased costs (although the Borrower shall be obligated
to pay any
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<PAGE>
other increased costs of the type described above resulting from changes after
the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Bank from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank.
12.05 No Waiver: Remedies Cumulative. No failure or delay on the part
------------------------------
of the Agent or any Bank in exercising any right, power or privilege hereunder
or under any other Credit Document and no course of dealing between any Credit
Party and the Agent or any Bank shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights or remedies which the Agent or any Bank would otherwise have. No
notice to or demand on any Credit Party in any case shall entitle any Credit
Party to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of the Agent or the Banks to any other or
further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Agent agrees that promptly after its
-----------------
receipt of each payment from or on behalf of any Credit Party in respect of any
Obligations of such Credit Party, it shall, except as otherwise provided in this
Agreement, distribute such payment to the Banks (other than any Bank that has
consented in writing to waive its pro rata share of such payment) pro rata based
--- ---- --- ----
upon their respective shares, if any, of the Obligations with respect to which
such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of the respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount; provided, that if
--------
all or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
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12.07 Calculations: Computations. (a) The financial statements to be
--------------------------
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with GAAP consistently applied throughout the periods involved (except as set
forth in the notes thereto or as otherwise disclosed in writing by Holdings or
the Borrower to the Banks); provided, that except as otherwise specifically
--------
provided herein, all computations determining compliance with Sections 3.03 and
8, including definitions used therein, shall utilize accounting principles and
policies in effect at the time of the preparation of, and in conformity with
those used to prepare, the September 30, 1997 financial statements delivered to
the Banks pursuant to Section 6.10(b), but shall not give effect to (i) purchase
accounting adjustments required or permitted by APB 16 and its interpretations
(including non-cash write-ups and non-cash charges relating to inventory, fixed
assets and in-process research and development, in each case arising in
connection with any Permitted Acquisitions) and APB 17 and its interpretations
(including non-cash charges relating to intangibles and goodwill arising in
connection with any Permitted Acquisitions), (ii) those fees paid to Bain
Capital and/or Related Parties pursuant to Sections 8.07(i) and 8.07(iii) and
(iii) those fees paid on or about the Initial Borrowing Date to the Agent and
the Banks in connection with this Agreement.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
12.08 Governing Law: Submission to Jurisdiction: Venue. (a) THIS
-----------------------------------------------
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Agreement or any other Credit Document may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, each
Credit Party hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Credit Party hereby further irrevocably waives any claim that any
such courts lack jurisdiction over such Credit Party, and agrees not to plead or
claim, in any legal action or proceeding with respect to this Agreement or any
other Credit Document brought in any of the aforesaid courts, that any such
court lacks jurisdiction over such Credit Party. Each Credit Party irrevocably
consents to the service of process in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such Credit Party, at its address for notices pursuant to Section 12.03, such
service to become effective 30 days after such mailing. Each Credit Party hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Credit Document that service of process
was in any way invalid~or ineffective. Nothing herein shall affect the right of
the Agent, any Bank or the holder of any Note to serve process in
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any other manner permitted by law or to commence legal proceedings or otherwise
proceed against any Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
12.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with Holdings,
the Borrower and the Agent.
12.10 Effectiveness. This Agreement shall become effective on the date
-------------
(the "Effective Date") on which Holdings, the Borrower and each of the Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Agent at the Notice
Office or, in the case of the Banks, shall have given to the Agent telephonic
(confirmed in writing), written, telex or facsimile notice (actually received)
at such office that the same has been signed and mailed to it. The Agent will
give Holdings, the Borrower and each Bank prompt written notice of the
occurrence of the Effective Date.
12.11 Headings Descriptive. The headings of the several sections and
--------------------
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 Amendment or Waiver: etc. (a) Neither this Agreement nor any
------------------------
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
--------
shall, without the consent of each Bank (other than a Defaulting Bank) (with
Obligations being directly affected in the case of following clause (i)), (i)
extend the final scheduled maturity of any Loan or Note or extend the stated
maturity of any Letter of Credit beyond the Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon, or reduce the principal
amount thereof (it being understood that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any
rate of interest or fees for the purposes of this clause (i)), (ii) release all
or substantially~all of the Collateral (except as expressly provided in the
Security Documents) under all the Security Documents, (iii) amend, modify or
waive any provision of this Section 12.12, (iv) reduce the percentage
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<PAGE>
specified in the definition of Required Banks (it being understood that, with
the consent of the Required Banks, additional extensions of credit pursuant to
this Agreement may be included in the determination of the Required Banks on
substantially the same basis as the Revolving Loan Commitments are included on
the Effective Date) or (v) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement; provided further,
----------------
that no such change, waiver, discharge or termination shall (1) increase the
Revolving Loan Commitment of any Bank over the amount thereof then in effect
without the consent of such Bank (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Revolving Loan Commitment shall not
constitute an increase of the Revolving Loan Commitment of any Bank, and that an
increase in the available portion of any Revolving Loan Commitment of any Bank
shall not constitute an increase in the Revolving Loan Commitment of such Bank),
(2) without the consent of BTCo and each other Letter of Credit Issuer, amend,
modify or waive any provision of Section 2 or alter its rights or obligations
with respect to Letters of Credit, (3) without the consent of BTCo, alter its
rights or obligations with respect to Swingline Loans, (4) without the consent
of the Agent, amend, modify or waive any provision of Section 11 as same applies
to the Agent or any other provision as same relates to the rights or obligations
of the Agent or (5) without the consent of the Collateral Agent, amend, modify
or waive any provision relating to the rights or obligations of the Collateral
Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clause (a)(i) through (v), inclusive, of the first proviso to Section 12.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting banks whose individual
consent is required are treated as described in either clause (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks with one or more
Replacement Banks pursuant to Section 1.13 so long as at the time of such
replace ment, each such Replacement Bank consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Bank's
Revolving Loan Commitments and repay in full its outstanding Revolving Loans, in
accordance with Sections 3.02(b) and/or 4.01(b), provided that, unless the
--------
Revolving Loan Commitments terminated and Revolving Loans repaid pursuant to
preceding clause (B) are immediately replaced in full at such time through the
addition of new Banks or the increase of the Revolving Loan Commitments and/or
outstanding Revolving Loans of existing Banks (who in each case must
specifically consent thereto), then in the case of any action pursuant to
preceding clause (B) the Required Banks (determined before giving effect to the
proposed action) shall specifically consent thereto, provided further, that the
----------------
Borrower shall not have the right to replace a Bank solely as a result of the
exercise of such Bank's rights (and the withholding of any required consent by
such Bank) pursuant to the second proviso to Section 12.12(a).
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<PAGE>
I2.13 Survival. All indemnities set forth herein including, without
--------
limitation, in Section 1.10, 1.11, 2.05, 4.04, 11.07 or 12.01, shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its Loans
-----------------
at, to or for the account of any branch office, subsidiary or affiliate of such
Bank; provided, that the Borrower shall not be responsible for costs arising
--------
under Section 1.10, 1.11, 2.05 or 4.04 resulting from any such transfer (other
than a transfer pursuant to Section 1.12) to the extent such costs would not
otherwise be applicable to such Bank in the absence of such transfer.
12.15 Confidentiality. (a) Each of the Banks agrees that it will use
---------------
its best efforts not to disclose without the prior consent of the Borrower
(other than to its employees, auditors, counsel or other professional advisors,
to affiliates or to another Bank if the Bank or such Bank's holding or parent
company in its sole discretion determines that any such party should have access
to such information) any information with respect to Holdings, the Borrower or
any of its Subsidiaries which is furnished pursuant to this Agreement;
provided, that any Bank may disclose any such information (a) as has become
- --------
generally available to the public or has become available to such Bank on a non-
confidential basis, (b) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over such Bank or to the Federal
Reserve Board, the Federal Deposit Insurance Corporation, the NAIC or similar
organizations (whether in the United States or elsewhere) or their successors,
(c) as may be required or appropriate in response to any summons or subpoena or
in connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Bank, and (e) to any prospective
transferee in connection with any contemplated transfer of any of the Notes or
any interest therein by such Bank; provided, that such prospective transferee
--------
agrees to be bound by the provisions of this Section 12.15 to the same extent as
such Bank.
(b) Each of Holdings and the Borrower hereby acknowledges and agrees
that each Bank may share with any of its affiliates any information related to
Holdings or any of its Subsidiaries (including, without limitation, any
nonpublic customer information regarding the creditworthiness of Holdings and
its Subsidiaries, provided that such Persons shall be subject to the provisions
of this Section 12.15 to the same extent as such Bank).
12.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
--------------------
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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<PAGE>
SECTION 13. Holdings Guaranty.
-----------------
13.01 The Guaranty. In order to induce the Banks to enter into this
------------
Agreement and to extend credit hereunder and in recognition of the direct
benefits to be received by Holdings from the proceeds of the Loans and the
issuance of the Letters of Credit, Holdings hereby agrees with the Banks as
follows: Holdings hereby unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, acceleration or otherwise, of any and all of the Guaranteed
Obligations of the Borrower to the Guaranteed Creditors. If any or all of the
Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due
and pay able hereunder, Holdings unconditionally promises to pay such
indebtedness to the Agent and/or the Banks, or order, on demand, together with
any and all expenses which may be incurred by the Agent or the Banks in
collecting any of the Guaranteed Obligations. If claim is ever made upon any
Guaranteed Creditor for repayment or recovery of any amount or amounts received
in payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event Holdings agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon
Holdings, notwithstanding any revocation of this Guaranty other instrument
evidencing any liability of the Borrower, and Holdings shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by any
such payee.
13.02 Bankruptcy. Additionally, Holdings unconditionally and
----------
irrevocably guarantees the payment of any and all of the Guaranteed Obligations
of the Borrower to the Guaranteed Creditors whether or not due or payable by the
Borrower upon the occurrence of any of the events specified in Section 9.05, and
unconditionally promises to pay such indebtedness to the Guaranteed Creditors,
or order, on demand, in lawful money of the United States.
13.03 Nature of Liability. The liability of Holdings hereunder is
-------------------
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of the Borrower whether executed by Holdings, any other
guarantor or by any other party, and the liability of Holdings hereunder is not
affected or impaired by (a) any direction as to application of payment by the
Borrower or by any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations of the Borrower, or (c) any payment on or in reduction of
any such other guaranty or undertaking, or (d) any dissolution, termination or
increase, decrease or change in personnel by the Borrower, or`(e) any payment
made to any Guaranteed Creditor on the Guaranteed Obligations which any such
Guaranteed Creditor repays to the Borrower pursuant to court order in any
bankruptcy, reorganization, arrange
-110-
<PAGE>
ment, moratorium or other debtor relief proceeding, and Holdings waives any
right to the deferral or modification of its obligations hereunder by reason of
any such proceeding.
13.04 Independent Obligation. The obligations of Holdings hereunder
----------------------
are independent of the obligations of any other guarantor, any other party or
the Borrower, and a separate action or actions may be brought and prosecuted
against Holdings whether or not action is brought against any other guarantor,
any other party or the Borrower and whether or not any other guarantor, any
other party or the Borrower be joined in any such action or actions. Holdings
waives, to the full extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by the Borrower or other circumstance which operates to toll any statute
of limitations as to the Borrower shall operate to toll the statute of
limitations as to any Guarantor.
13.05 Authorization. Holdings authorizes the Guaranteed Creditors
-------------
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the Guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended, renewed
or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its creditors other than
the Guaranteed Creditors;
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<PAGE>
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Guaranteed Creditors
regardless of what liability or liabilities of Holdings or the Borrower
remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement or any of the instruments or agreements referred to
herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
Holdings from its liabilities under this Guaranty.
13.06 Reliance. It is not necessary for any Guaranteed Creditor to
--------
inquire into the capacity or powers of the Borrower or the officers, directors,
partners or agents acting or purporting to act on their behalf, and any
Guaranteed Obligations made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.
13.07 Subordination. Any of the indebtedness of the Borrower relating
-------------
to the Guaranteed Obligations now or hereafter owing to Holdings is hereby
subordinated to the Guaranteed Obligations of the Borrower owing to the
Guaranteed Creditors; and if the Agent so requests at a time when an Event of
Default exists, all such indebtedness relating to the Guaranteed Obligations of
the Borrower to Holdings shall be collected, enforced and received by Holdings
for the benefit of the Guaranteed Creditors and be paid over to the Agent on
behalf of the Guaranteed Creditors on account of the Guaranteed Obligations of
the Borrower to the Guaranteed Creditors, but without affecting or impairing in
any manner the liability of Holdings under the other provisions of this
Guaranty. Prior to the transfer by Holdings of any note or negotiable instrument
evidencing any of the indebtedness relating to the Guaranteed Obligations of
the Borrower to Holdings, Holdings shall mark such note or negotiable instrument
with a legend that the same is subject to this subordination. Without limiting
the generality of the foregoing, Holdings hereby agrees with the Guaranteed
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
13.08 Waiver. (a) Holdings waives any right (except as shall be
------
required by applicable statute and cannot be waived) to require any Guaranteed
Creditor to (i) proceed against the Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from the Borrower, any
other guarantor or any other party or (iii) pursue any other remedy in any
Guaranteed Creditor's power whatsoever. Holdings waives any defense based on or
arising out of any defense of the Borrower, any other guarantor or any other
party, other than payment in full of the Guaranteed Obligations, based on or
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<PAGE>
arising out of the disability of the Borrower, any other guarantor or any other
party, or the validity, legality or unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower other than payment in full of the Guaranteed
Obligations. The Guaranteed Creditors may, at their election, foreclose on any
security held by the Agent, the Collateral Agent or any other Guaranteed
Creditor by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Guaranteed Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of Holdings
hereunder except to the extent the Guaranteed Obligations have been paid.
Holdings waives any defense arising out of any such election by the Guaranteed
Creditors, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of Holdings against the
Borrower or any other party or any security.
(b) Holdings waives all presentments, demands for performance,
protests and notices, including without limitation notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
Guaranteed Obligations. Holdings assumes all responsibility for being and
keeping itself informed of the Borrower's financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which Holdings assumes
and incurs hereunder, and agrees that the Agent and the Banks shall have no duty
to advise Holdings of information known to them regarding such circumstances or
risks.
(c) Holdings hereby acknowledges and affirms that it understands that
to the extent the Guaranteed Obligations are secured by real property located in
the State of California, Holdings shall be liable for the full amount of its
liability hereunder notwithstanding foreclosure on such real property by trustee
sale or any other reason impairing Holdings' or any secured creditor's right to
proceed against the Borrower or any other guarantor of the Guaranteed
Obligations.
(d) Holdings hereby waives, to the fullest extent permitted by
applicable law, all rights and benefits under Sections 580a, 580b, 580d and 726
of the California Code of Civil Procedure. Holdings hereby further waives, to
the fullest extent permitted by applicable law, without limiting the generality
of the foregoing or any other provision hereof, all rights and benefits which
might otherwise be available to Holdings under Sections 2787 through 2855,
inclusive, 2899 and 3433 of the California Civil Code.
(e) Holdings further understands, is aware and hereby acknowledges
that if the Guaranteed Creditors elect to nonjudicially foreclose on any real
property security located in the State of California any right of subrogation of
Holdings against any Credit Party may be impaired or extinguished and that as a
result of such impairment or extin-
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<PAGE>
guishment of subrogation rights, Holdings may have a defense to a deficiency
judgment arising out of the operation of Section 580d of the California Code of
Civil Procedure and related principles of estoppel. Holdings waives all rights
and defenses arising out of an election of remedies by the Guaranteed Creditors,
even though that election of remedies, such as a nonjudicial foreclosure with
respect to security for a Guaranteed Obligation, has destroyed the guarantor's
rights of subrogation and reimbursement against the principal by the operation
of Section 580d of the Code of Civil Procedure or otherwise.
13.09 Nature of Liability. It is the desire and intent of Holdings and
-------------------
the Guaranteed Creditors that this Guaranty shall be enforced against Holdings
to the fullest extent permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. If, however, and to the extent
that, the obligations of Holdings under this Guaranty shall be adjudicated to be
invalid or unenforceable for any reason (including, without limitation, because
of any applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations of Holdings shall be
deemed to be reduced and Holdings shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
* * *
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
- -------
1400 Kearns Boulevard NUTRACEUTICAL INTERNATIONAL
2nd Floor CORPORATION
Park City, Utah 84060
Attention: Chief Financial Officer
Telephone: (801) 655-6000 By /s/ Frank W. Gav. II
--------------------------
Telecopier: (801) 655-6080 Title: Chief Executive Officer
1400 Kearns Boulevard NUTRACEUTICAL CORPORATION
2nd Floor
Park City, Utah 84060
Attention: Chief Financial Officer
Telephone: (801) 655-6000 By /s/ Frank W. Gav. II
--------------------------
Telecopier: (801) 655-6080 Title: Chief Executive Officer
BANKERS TRUST COMPANY,
individually and as Agent
By /s/ Gina S. Thompson
---------------------------
Title: Vice President
<PAGE>
Exhibit 21.1
List of Subsidiaries of Nutraceutical International Corporation
The following is a list of the corporations that are subsidiaries of
Nutraceutical International Corporation. The common stock of all the
corporations listed below is wholly owned, directly or indirectly, by the
corporation. If indented, the corporation is a wholly-owned subsidiary of the
corporation under which it is listed unless otherwise noted.
<TABLE>
<CAPTION>
Name of Corporation Jurisdiction of Incorporation
- ------------------- -----------------------------
<S> <C>
Nutraceutical International Corporation Delaware
(f/k/a Nutraceutical Corporation)
Nutraceutical Corporation Delaware
(f/k/a Nutraceutical Newco, Inc.)
Action Labs, Inc. Delaware
Au Naturel, Inc. Delaware
Makers of KAL, B.V. Netherlands
Makers of KAL, Inc. Delaware
Monarch Nutritional Delaware
Laboratories, Inc.
NaturalMax, Inc. Delaware
NutraForce (Canada) Canada
International, Inc.
Premier One Products, Inc. Delaware
Solaray, Inc. Utah
VegLife, Inc. Delaware
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (333-49885 and 333-49887) of Nutraceutical International
Corporation of our report dated November 17, 1998 appearing on page F-2 of this
Form 10-K.
/s/ PricewaterhouseCoopers LLP
Salt Lake City, Utah
December 29, 1998
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
THE CONSOLIDATED FINANCIAL STATEMENTS OF NUTRACEUTICAL INTERNATIONAL CORPORATION
AS OF, AND FOR THE YEAR ENDED, SEPTEMBER 30, 1998 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH CONSOLIDATED FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> SEP-30-1998
<PERIOD-START> OCT-01-1997
<PERIOD-END> SEP-30-1998
<CASH> 1,967
<SECURITIES> 0
<RECEIVABLES> 10,173
<ALLOWANCES> 1,024
<INVENTORY> 23,935
<CURRENT-ASSETS> 37,801
<PP&E> 19,078
<DEPRECIATION> (8,308)
<TOTAL-ASSETS> 104,308
<CURRENT-LIABILITIES> 13,754
<BONDS> 0
0
0
<COMMON> 118
<OTHER-SE> 51,504
<TOTAL-LIABILITY-AND-EQUITY> 104,308
<SALES> 104,688
<TOTAL-REVENUES> 104,688
<CGS> 57,750
<TOTAL-COSTS> 57,750
<OTHER-EXPENSES> 33,759
<LOSS-PROVISION> 223
<INTEREST-EXPENSE> 3,971
<INCOME-PRETAX> 9,208
<INCOME-TAX> 3,509
<INCOME-CONTINUING> 5,699
<DISCONTINUED> 0
<EXTRAORDINARY> (3,129)
<CHANGES> 0
<NET-INCOME> 2,570
<EPS-PRIMARY> 0.24
<EPS-DILUTED> 0.22
</TABLE>
