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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1998
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission File Number 333-43089
The GSI Group, Inc.
(Exact name of registrant as specified in its charter)
Delaware 37-0856587
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1004 E. Illinois Street, Assumption, Illinois 62510
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (217) 226-4421
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 or Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this form 10-K or any amendment to this
Form 10-K. [X]
Aggregate market value of the voting and non-voting common equity held by
non-affiliates of the registrant. $0
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date. Common stock, par
value $0.01 per share, 2,000,000 shares outstanding as of March 29, 1999.
Documents Incorporated by Reference: None
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TABLE OF CONTENTS
Page
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PART I
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Item 1. Business......................................................... 3
Item 2. Properties....................................................... 9
Item 3. Legal Proceedings................................................ 10
Item 4. Submission of Matters to a Vote of Security Holders.............. 10
PART II
Item 5. Market for the Registrant's Common Equity and Related
Stockholder Matters.............................................. 11
Item 6. Selected Financial Data.......................................... 12
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations........................................ 13
Item 7A. Quantative and Qualitative Disclosure About Market Risk.......... 18
Item 8. Financial Statements and Supplementary Data...................... 19
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure......................................... 44
PART III
Item 10. Directors and Executive Officers of the Registrant............... 44
Item 11. Executive Compensation........................................... 45
Item 12. Security Ownership of Certain Beneficial Owners
and Management................................................... 47
Item 13. Certain Relationships and Related Transactions................... 47
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on
Form 8-K......................................................... 48
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PART I
ITEM 1. BUSINESS.
Note on Forward-Looking Statements
This report contains certain forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. Forward-looking statements are
statements other than historical information or statements of current condition.
Some forward-looking statements may be identified by use of terms such as
"believes," "anticipates," "intends" or "expects." These forward-looking
statements relate to the plans, objectives and expectations of The GSI Group,
Inc. (the "Company") for future operations. In light of the risks and
uncertainties inherent in all future projections, the inclusion of forward-
looking statements in this report should not be regarded as a representation by
the Company or any other person that the objectives, plans or expectations of
the Company will be achieved. The Company's plans, objectives and expectations
are difficult to forecast and could differ materially from those projected in
the forward-looking statements.
General
The Company is a leading manufacturer and supplier of agricultural equipment
and services worldwide. The Company believes that it is the largest global
provider of both (i) grain storage bins and related drying and handling systems
and (ii) swine feed storage, feed delivery, confinement and ventilation systems.
The Company is also one of the largest global providers of poultry feed storage,
feed delivery, watering, ventilation, nesting, egg-handling and hatching
systems. The Company markets its agricultural products in approximately 75
countries through a network of over 1,650 independent dealers to grain, swine
and poultry producers primarily under its GSI(R), AP/TM/ and Cumberland(R) brand
names. The Company's current market position in the industry reflects both the
strong, long-term relationships the Company has developed with its customers as
well as the quality and reliability of its products.
The primary users of the Company's grain storage, drying and handling
products are farm operators or commercial businesses, such as the
Archer-Daniels-Midland Company and Cargill, Inc., that operate feed mills, grain
elevators, port storage facilities and commercial grain processing facilities.
The Company believes that its grain storage, drying and handling equipment is
superior to that of its principal competitors on the basis of strength,
durability, reliability, design efficiency and breadth of product offering. The
Company's feeding and ventilation systems are used primarily by growers that
raise swine and poultry, typically on a contract basis for large integrators
such as Murphy Family Farms, Perdue Farms Incorporated and Tyson Foods, Inc.
Because swine and poultry growers are partially compensated by integrators based
on the efficiency with which they convert feed to meat (the "feed-to-meat
ratio"), they seek to purchase systems which minimize the feed-to-meat ratio. As
a result of its proprietary designs, the Company believes that its swine and
poultry systems are the most effective in the industry in serving this customer
objective.
The industry in which the Company operates is characterized both domestically
and internationally by a few large companies with broad product offerings and
numerous small manufacturers of niche product lines. Domestically, the Company
intends to build on its established presence in the grain, swine and poultry
markets. Internationally, the Company intends to capitalize on opportunities
arising from still-developing agricultural industries. The Company believes that
less functionally sophisticated and efficient grain storage systems used by
facilities located outside the U.S. and Western Europe, which experience
relatively high levels of grain spoilage and loss, are likely to be replaced by
more modern systems. The Company also believes that the population growth
occurring in the Company's international markets will result in consumers
devoting larger portions of their income to improved and higher-protein diets,
stimulating demand for poultry, and to a lesser extent, pork. The Company
believes that it is well-positioned to capture increases in worldwide demand for
its products resulting from these industry trends because of its leading brand
names, broad and diversified product lines, strong distribution network and
high-quality product. The economic uncertainty experienced by the international
markets in the past 18 months has led to a slowdown in these industry trends.
The Company was incorporated in Delaware on April 30, 1964. The Company's
principal executive office is located at 1004 East Illinois Street, Assumption,
Illinois 62510 and its telephone number is (217) 226-4421.
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Company Strengths
Market Leader. The Company believes that it is the largest global provider of
both (i) grain storage bins and related drying and handling systems and (ii)
swine feed storage, feed delivery, confinement and ventilation systems. The
Company is also one of the largest global providers of poultry feed storage,
feed delivery, watering, ventilation, nesting, egg-handling and hatching
systems.
Provider of Fully-Integrated Systems. The Company offers a broad range of
products that permits customers to purchase all of their grain, swine and
poultry production needs from one supplier. The Company believes that providing
fully-integrated systems significantly lowers total production costs and
enhances producer productivity by offering compatible products designed to
promote synergies and achieve maximum operating results. Dealers who purchase
fully-integrated systems also benefit from lower administrative and shipping
costs and the ease of dealing with a single supplier. The Company intends to
maintain its position as a provider of fully-integrated systems by continuing to
offer the most complete line of products available within its markets and by
developing and introducing new products within its existing lines.
Brand Name Recognition and Reputation for Quality Products and Service.
Through its manufacturing expertise and experience, the Company has established
recognition in its markets for the GSI(R), AP/TM/ and Cumberland(R) brand names.
The Company seeks to protect the reputation for high quality, reliability and
specialized services that are associated with such brand names through quality
control and customer feedback programs. The Company believes that its reputation
and recognized brand names, along with its extensive distribution network, will
assist it in its efforts to further penetrate both the domestic and
international markets in which the Company operates.
Effective and Established Distribution Network. The Company believes that its
development of a highly effective and established distribution network affords
it significant competitive advantages. The Company's distribution network
consists of over 1,650 independent dealers that market the Company's products in
approximately 75 countries throughout the world. The breadth and scope of the
Company's distribution network makes its products readily available in each of
the Company's markets and lowers transportation costs for its customers. Dealers
are carefully selected and trained to ensure high levels of customer service. In
addition, the Company has experienced a very low turn-over rate of its dealers
since the Company's inception, which promotes consistency and stability to
customers.
Long-Term Alliances with Customers. The Company has a history of developing
long-term alliances with customers who are market leaders in both the industries
and the geographic markets they serve. The Company works closely with customers
through all stages of product development in order to tailor products and
systems to meet each customer's unique needs, making substitutions with
competitor products more difficult. The Company's commitment to product quality,
dedication to customer service and responsiveness to changing customer needs
have enabled the Company to develop and strengthen long-term alliances with its
customers.
Flexible Manufacturing Facilities. The Company's facilities are designed to
be easily reconfigured to adapt to demand changes for any or all of the
Company's products. The Company's primary manufacturing facility, located in
Assumption, Illinois, consists of approximately 675,000 square feet and operates
on a 24-hour basis during peak production periods. The Company's facilities
employ state-of-the-art machines that have enhanced production efficiency.
Company Operated and Owned by Experienced Management Team. The Company is led
by an experienced management team, the members of which have each worked in the
agricultural products industry for an average of 16 years. Craig Sloan, a
founder and the Chief Executive Officer of the Company, and each of the other
members of the Company's senior management team have invested in the Company and
together own all of its voting common stock. The Company believes that the
agricultural expertise of its management team, coupled with the corporate
culture promoted by a management-owned company, permit it to establish strong
customer relationships and respond quickly to market opportunities.
Business Strategy
The Company's objective is to capitalize on its strengths through the
implementation of its business strategy, which includes the following principal
elements:
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Capitalize on Opportunities in International Markets. The Company intends to
continue to leverage its worldwide brand name recognition, leading market
positions and international distribution network to capture the demand for its
products that exists in the international marketplace. The Company believes that
increasing the diversity of both its customer base and geographic coverage by
expanding its international operations will mitigate the effect of future
reductions in demand within any of its individual product lines, or within a
particular geographic selling region.
Continue Development of Proprietary Product Innovations. The Company's
research and development efforts focus on the development of new and
technologically advanced products to respond to customer demands, changes in the
marketplace and new technology. The Company employs a strategy of working
closely with its customers and capitalizing on existing technology to improve
existing products and develop new value-added products. The Company intends to
continue to actively develop product improvements and innovations to more
effectively serve its customers.
Trim Expenses and Improve Profitability. The Company intends to focus on
improving its financial performance by reducing non-strategic expenses and
streamlining the processes at all levels of the organization.
Acquisition of Business
On June 30, 1998, the Company acquired all of the capital stock of Avemarau
Equipamentos Agricolas Ltda. ("Avemarau"), South America's largest manufacturer
and supplier of poultry feeding equipment.
The acquisition of Avemarau will expand the Company's international presence
by making GSI the leading manufacturer and supplier of poultry equipment in
South America. The Company intends to manufacture and sell its Cumberland(R)
product line, including its HI-LO(R) poultry feeding systems, its
Cumberland/Clark drinkers and its bulk feed tanks, in South America through
Avemarau. Avemarau's manufacturing capabilities and distribution network will
also provide the Company with access to the expanding hog equipment market in
Brazil.
Industry Overview
Demand for the Company's products is driven by the overall worldwide level of
grain, swine and poultry production as well as the increasing focus both
domestically and internationally on improving productivity in these industries.
These markets are driven by a number of factors, including consumption trends
affected by economic and population growth and government policies.
Demand for grain and the required infrastructure for grain storage, drying
and handling is driven by several factors, including the need for grain for
worldwide production of swine, poultry and beef. The Company believes that less
functionally sophisticated and efficient grain storage facilities located
outside the U.S. and Western Europe, which experience higher levels of grain
spoilage and loss, are over time likely to be replaced by more modern equipment.
The Company also believes that these dynamics will continue to support domestic
and international demand for the Company's grain storage, drying and handling
systems. However, the recent economic weakness experienced by many international
markets is currently depressing demand in those markets.
Demand for the Company's swine and poultry feeding equipment and feed storage
and delivery systems is impacted by the rate of economic and population growth
occurring in international markets. As disposable incomes increase in these
international markets, consumers have in the past and should in the future
devote larger portions of their income to improved and higher protein-based
diets. In the past, this trend has stimulated stronger demand for meat,
specifically poultry and, to a lesser extent, pork, as these meats provide more
cost-effective sources of animal protein than beef. The recent economic weakness
experienced by many international markets and the impact of environmental
regulations in the U.S. has led to a dramatic decrease in the demand for the
Company's hog equipment.
The Company's sales of grain equipment have historically been affected by
feed and grain prices, acreage planted, crop yields, demand, government
policies, government subsidies and other factors beyond the Company's control.
Weather conditions also can adversely impact the agricultural industry and delay
planned construction activity, resulting in fluctuating demand for the Company's
grain equipment and delayed or lost revenues. Increases in feed and grain prices
have in the past resulted in a decline in sales of feeding, watering and
ventilation systems.
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The Company's sales of swine and poultry equipment historically have been
affected by the level of construction activity by swine and poultry producers,
which is affected by feed prices, environmental regulations and domestic and
international demand for pork and poultry.
Products
The Company manufactures and markets (i) grain storage bins and related
drying and handling equipment systems, (ii) swine feed storage, feed delivery,
confinement and ventilation systems and (iii) poultry feed storage, feed
delivery, watering, ventilation, nesting, egg-handling and hatching systems. The
Company offers a broad range of products that permits customers to purchase
their grain, swine and poultry production equipment needs from one supplier. The
Company believes that its ability to offer integrated systems provides it with a
competitive advantage by enabling producers to purchase complete, integrated
production systems from a single distributor who can offer high-quality
installation and service.
Grain Product Line
The Company's grain equipment consists of the following products:
Grain Storage Bins. The Company manufactures and markets a complete line of
over 1,000 models of both flat and hopper bottomed grain storage bins with
capacities of up to 650,000 bushels. The Company markets its bins to both farm
and commercial end users under its GSI(R) brand name. The Company's grain
storage bins are manufactured using high-yield, high tensile, galvanized steel
and are assembled with high strength, galvanized bolts and anchor brackets. The
Company's grain storage bins offer efficient design enhancements, including
patented walk-in doors and a roof design that provides specialized vents for
increased efficiency, extruded lips for protection against leakage, large and
accessible eave and peak openings for ease of access, and reinforced supportive
bends to increase rigidity. The Company believes that its grain storage bins are
the most reliable and durable in the industry.
Grain Drying Equipment. To meet the need to dry grain for storage, the
Company manufactures and markets a complete line of over 100 models of grain
drying devices with capacities of up to 10,000 bushels per hour. The Company
markets its grain drying equipment to both farm and commercial end users under
its GSI(R) and Airstream(R) brand names. The Company's drying equipment, which
includes fans, heaters, top dryers, portable dryers, stack dryers and tower
dryers, are manufactured using galvanized steel and high-grade electrical
components and utilize patented control systems, which offer computerized
control of all dryer functions from one panel.
Grain Handling Equipment. The Company manufactures and markets a complete
line of grain handling equipment to complement its grain storage and drying
product offerings. The Company markets its grain handling equipment, which
includes bucket elevators, conveyors and augers, to both farm and commercial end
users under its GSI(R) and Grain King(R) brand names. The Company's grain
handling equipment offers ease of integration into Company or competitor systems
and enables the Company to offer a fully-integrated product line to grain
producers.
Swine Product Line
The Company's swine equipment consists of the following products:
Feeding Systems. The Company manufactures and markets its swine feeding
products under its AP/TM/ brand name. The Company designs and implements custom
swine feeding systems to fit both the general industry needs of the different
types of swine producers and the specialized needs of individual swine
producers. The Company's swine feeding systems generally consist of a feed
storage bin located outside of the swine building and a feed delivery system,
which conveys the feed to and through the building to drop feed dispensers
suspended within the building. The drop feed dispensers provide individualized
feeding through automatic times. The Company's swine feed storage bins are
manufactured with precision die-cut, high tensile corrugated steel and assembled
with an exclusive water tight sealing system and specially die-formed eaves, and
include the Auto-Lok/TM/ access system, which allows for efficient systems
monitoring. The Company's swine feed delivery systems consist of the Flex-
Flo/TM/ System and the Chain Disk System. The Flex-Flo/TM/ System uses high-
quality tensile steel augers and precision control devices to reach all drop
feeders within a system. The Chain Disk System handles high capacities of feed
at long distances with multiple turns. The Company believes that its swine drop
feeders are superior to its
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competitors' products due to their ease of installation and maintenance, ability
to handle high volumes of feed, accurate eye-level scales and strong, durable
all-plastic construction that eliminates corrosion.
Ventilation Systems. The Company manufactures and markets ventilation systems
for swine buildings under its AP/TM/ and Airstream(R) brand names. These systems
consist of fans, heating and evaporative cooling systems, winches, inlets and
other accessories (including computer based automated control devices) that
regulate temperature and air flow. Proper ventilation systems are crucial for
minimizing the feed-to-meat conversion ratio by reducing stress caused by
extreme temperature fluctuation, allowing for higher density production and
providing optimum swine health through disease prevention. The Company's swine
ventilation systems produce high levels of air output at low levels of power
consumption, adapt to a wide array of specialty fans and other accessories,
operate with little maintenance or cleaning and provide precision monitoring of
environmental control.
Poultry Product Line
The Company's poultry equipment consists of the following products:
Feeding Systems. The Company manufactures and markets its poultry feeding
systems under its Cumberland(R) brand name. The Company manufactures feeding
systems that are custom tailored to both the general industry needs of different
types of poultry producers and to the specialized needs of individual poultry
producers. The Company's poultry feeding systems consist of a feed storage bin
located outside the poultry house, a feed delivery system that delivers the feed
from the feed storage bin into the house and an internal feed distribution
system that delivers feed to the birds. The Company's poultry feed storage bins
contain a number of patented features designed to maximize capacity, manage the
quality of stored feed, prevent rain and condensation from entering feed storage
bins and provide first-in, first-out material flow, thereby keeping feed fresh
to prevent spoilage, and blended to provide uniform quality rations. The
Company's poultry feed delivery systems use non-corrosive plastic and galvanized
steel parts specially engineered for durability and reliable operations and
specialized tubing and auguring or chain components that allow feed to be
conveyed up, down and around corners. The Company believes that its patented
HI-LO(R) pan feeder is superior to competitor products due to its unique ability
to adjust from floor feeding for young chicks to regulated feed levels for other
birds.
Watering Systems. The Company manufactures and markets nipple watering
systems for poultry producers under its Cumberland(R) brand name. The ability of
a bird to obtain water easily and rapidly is an essential factor in facilitating
weight gain. The Company's poultry watering system consists of pipes that
distribute water throughout the house to drinking units supported by winches,
cables and other components. The water is delivered through a regulator designed
to provide differential water pressure according to demand. The Company's
poultry watering systems are distinguished by their toggle action nipples, which
transmit water from nipple to beak without causing undue stress on the bird or
excess water to be splashed onto the floor. The watering nipples produced by the
Company also are designed to allow large water droplets to form on the cavity of
the nipple, thereby attracting young birds to drink, which ultimately promotes
weight gain.
Ventilation Systems. The Company manufactures and markets ventilation systems
for poultry producers under its Cumberland(R) brand name. Equipment utilized in
such systems include fiberglass and galvanized fans, the Komfort Kooler
evaporative cooling systems, manual and automated curtain coolers, heating
systems and automated controls for complete ventilation, cooling and heating
management. The Company believes its poultry ventilation products are reliable
and easy to assemble in the field, permit energy-efficient airflow management
and are well-suited for international sales because they ship compactly and
inexpensively and assemble with little hardware and few tools.
Nesting and Egg-Handling Systems. The Company manufactures and markets
nesting and egg-handling systems for poultry producers under its Cumberland(R)
brand name. These systems consist of mechanical nests and egg collection tables.
The Company's nesting and egg-handling systems are manufactured using high-
yield, high tensile galvanized steel and are designed to promote comfort for
nesting birds and efficiency for production personnel. The Company believes that
its nesting and egg-handling systems are among the most reliable and cost-
effective in the poultry industry.
Hatching Systems. The Company manufactures and markets commercial incubation
systems for the poultry industry, with capacities of up to 115,200 eggs, under
its Cumberland(R) brand name. The Company provides incubation systems for
producers that grow each of the following types of poultry: breeders (chickens
grown to lay
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eggs); broilers (chickens grown for human consumption); and turkey. The Company
believes that its incubation products are distinguished by their efficient use
of space, reliable control panels, effective airflow mechanisms, versatility and
durability, ease of access and sophistication of tracking devices.
In 1998, 1997 and 1996, no single class of the Company's products accounted
for 10% or more of the Company's net sales.
Product Distribution
The Company distributes its products primarily through a network of U.S. and
international independent dealers who offer targeted geographic coverage in key
grain, swine and poultry producing markets throughout the world. The Company's
dealers sell products to grain, swine and poultry producers, agricultural
companies and various other farm and commercial end-users. The Company believes
that its distribution network is one of the strongest in the industry, providing
its customers with high levels of service. Since its inception, the Company has
experienced a very low turn-over rate of its dealers. The Company believes this
has resulted in a reputation of consistency in its products and stability with
its customers. The Company further believes that the high-level of commitment
its dealers have to the Company is evidenced by the fact that many of the
Company's dealers choose not to sell products of the Company's competitors.
The Company also maintains a sales force to provide oversight services for
the Company's distribution network, interact with integrators and end users,
recruit additional dealers for the Company's products, and educate the dealers
on the uses and functions of the Company's products. The Company further
supports and markets its products with a technical service and support team,
which provides training and advice to dealers and end users regarding
installation, operation and service of products and, when necessary, on-site
service.
Competition
The market for the Company's products is competitive. Domestically and
internationally, the Company competes with a variety of manufacturers and
suppliers that offer only a limited number of the products offered by the
Company. The Company believes that only one of its competitors, CTB
International Corp., offers products across most of the Company's product lines.
Competition is based on the price, value, reputation, quality and design of
the products offered and the customer service provided by distributors, dealers
and manufacturers of the products. The Company believes that its leading brand
names, diversified product lines, strong distribution network and high quality
products enable it to compete effectively. The Company further believes that its
ability to offer integrated systems to grain, swine and poultry producers, which
significantly lowers total production costs and enhances producer productivity,
provides it with a competitive advantage. Integrated equipment systems offer
significant benefits to dealers, including lower administrative and shipping
costs and the ease of dealing with a single supplier for all of their customer
needs. In addition, the Company's dealers provide producers with high quality
service, installation and repair.
New Product Development
The Company has a product development and design engineering staff, most of
whom are located in Assumption, Illinois. Expenditures by the Company for
product research and development were approximately $2.7 million, $1.6 million
and $1.2 million for the years ended December 31, 1998, 1997 and 1996,
respectively. The Company charges research and development costs to operations
as incurred.
Raw Materials
The primary raw materials used by the Company to manufacture its products are
steel and polymer materials, including PVC pipe, polypropylene and polyethylene.
The Company also purchases various component parts that are integrated into the
Company's products. The Company is not dependent on any one of its suppliers and
in the past has not experienced difficulty in obtaining materials or components.
In addition, materials and components purchased by the Company are readily
available from alternative suppliers. The Company has no long-term supply
contracts for materials or components.
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Regulatory and Environmental Matters
Like other manufacturers, the Company is subject to a broad range of federal,
state, local and foreign laws and requirements, including those governing
discharges to the air and water, the handling and disposal of solid and
hazardous substances and wastes, the remediation of contamination associated
with releases of hazardous substances at the Company's facilities and offsite
disposal locations, workplace safety and equal employment opportunities.
Expenditures made by the Company to comply with such laws and requirements
historically have not been material.
Backlog
Backlog is not a significant factor in the Company's business because most of
the Company's products are delivered within a few weeks of their order. The
Company's backlog at December 31, 1998 was $24.6 million compared to $29.4
million at December 31, 1997. The Company believes that all such backlog will be
filled by the end of 1999.
Patents and Trademarks
The Company protects its technological and proprietary developments. The
Company currently has several active U.S. and foreign patents, trademarks and
various licenses for other intellectual property. While the Company believes its
patents, trademarks and licensed information have significant value, the Company
does not believe that its competitive position or that its operations are
dependent on any individual patent or trademark or group of related patents or
trademarks.
Employees
As of December 31, 1998, the Company had 1,799 employees, of which 1,666 were
permanent and 133 were seasonal. The Company's employees are not represented by
a union. Management believes that its relationships with the Company's employees
are good.
ITEM 2. PROPERTIES.
The principal properties of The GSI Group as of March 12, 1999, were as
follows:
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Location Description of Property
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Assumption, Illinois........................................... Manufacturing/Sales
Paris, Illinois................................................ Manufacturing/Assembly
Newton, Illinois............................................... Manufacturing/Assembly
Vandalia, Illinois............................................. Assembly
DuQuoin, Illinois.............................................. Manufacturing/Assembly
Marau, Brazil.................................................. Manufacturing/Sales
Geneva, Indiana................................................ Sales/Warehouse
Penang, Malaysia............................................... Manufacturing/Sales/Warehouse
Fourways, South Africa......................................... Sales/Warehouse
Sioux City, Iowa............................................... Sales/Warehouse
Sambeek, The Netherlands....................................... Sales/Warehouse
Queretero, Mexico.............................................. Sales/Warehouse
Mason City, Iowa............................................... Manufacturing/Sales
Watertown, South Dakota........................................ Sales/Warehouse
Garrett, Indiana............................................... Sales/Warehouse
Oakland, Illinois.............................................. Sales/Warehouse
West Memphis, Arkansas......................................... Sales/Warehouse
Hampton, Nebraska.............................................. Sales/Warehouse
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The corporate headquarters for the Company is located in Assumption, Illinois.
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The Company moved out of its Mt. Carmel, Illinois facility in 1998 as a result
of a reduced need for manufacturing capacity.
The Company's owned facilities are subject to mortgages. The Company's leased
facilities are leased through operating lease agreements with varying expiration
dates. For information on operating leases, see Note 12 to the Consolidated
Financial Statements included in Item 8 hereof.
The Company believes that its facilities are suitable for their present and
intended purposes and have adequate capacity for the Company's current levels of
operation.
ITEM 3. LEGAL PROCEEDINGS.
There are no legal proceedings pending against the Company which, in the
opinion of management, would have a material adverse affect on the Company's
business, financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matters were submitted to a vote of security holders of the Company during
the fourth quarter of the fiscal year ended December 31, 1998.
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PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS.
There is no established public trading market for any class of the Company's
Common Stock. As of March 29, 1999 the Company has 16 holders of its Common
Stock. See Item 12, "Security Ownership of Certain Beneficial Owners and
Management".
The Company generally has not paid dividends in the past, and does not intend
to pay dividends in the future, except to enable its stockholders to pay taxes
resulting from the Company's status as a subchapter S corporation. During the
years ended December 31, 1998, and 1997, the Company declared dividends totaling
$1.1 million and $16.1 million, respectively. The Company is subject to certain
restrictions on the payment of dividends contained in the indenture governing
the Company's 10 1/4 % Senior Subordinated Notes due 2007 (the "Notes") and in
the Company's credit facility with LaSalle National Bank (the "Credit
Facility"). Future dividends, if any, will be at the discretion of the Board of
Directors and will depend upon, among other things, the Company's operations,
capital requirements, surplus, general financial condition, contractual
restrictions and such other factors as the Board of Directors may deem relevant.
11
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA.
Set forth below is certain selected historical consolidated financial data for
the Company as of and for the years ended December 31, 1994, 1995, 1996, 1997
and 1998. The selected historical consolidated financial data for the years
indicated were derived from the consolidated financial statements of the
Company, which were audited by Arthur Andersen LLP. The information set forth
below should be read in conjunction with Item 7, "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the Consolidated
Financial Statements and notes thereto included in Item 8 hereof.
<TABLE>
<CAPTION>
Years Ended December 31,
---------------------------------------------------------------------
1994(1) 1995 1996 1997 1998
----------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Income Statement:
Net sales.......................................... $130,852 $141,191 $178,537 $220,758 $259,998
Cost of sales...................................... 106,037 115,004 135,696 164,607 197,907
-------- -------- -------- -------- --------
Gross profit....................................... 24,815 26,187 42,841 56,151 62,091
Selling, general and administrative expenses....... 19,497 22,176 28,787 35,189 50,245
-------- -------- -------- -------- --------
Operating income................................... 5,318 4,011 14,054 20,962 11,846
Interest expense................................... (1,934) (2,894) (3,590) (6,174) (12,946)
Write-off of affiliate receivable (2).............. -- (3,423) -- -- --
Other income (expense), net........................ 461 548 674 943 1,117
-------- -------- -------- -------- --------
Income (loss) from continuing operations........... 3,845 (1,758) 11,138 15,731 17
Income (loss) from discontinued operations......... (554) 280 (482) -- --
Extraordinary gain (loss) on extinguishment
of debt........................................... (279) -- -- 2,119 --
Provision for income taxes......................... -- -- (157) (288) 260
-------- -------- -------- -------- --------
Net income (loss)................................. $ 3,012 $ (1,478) $ 10,499 $ 17,562 $ 277
======== ======== ======== ======== ========
Basic and Diluted Earnings Per Share:
Continuing operations.............................. $ 2.14 $ (0.98) $ 5.78 $ 7.72 $ 0.14
Discontinued operations............................ (0.31) 0.16 (0.25) -- --
Extraordinary item................................. (0.16) -- -- 1.06 --
-------- -------- -------- -------- --------
Net income (loss)................................. $ 1.67 $ (0.82) $ 5.53 $ 8.78 $ 0.14
======== ======== ======== ======== ========
</TABLE>
(1) The Company signed an agreement to sell the working capital and fixed
assets of its Heritage Vinyl Division in December 1995 and completed the
sale in January 1996. The Company's 1994 and prior year financial
statements were restated to reflect this discontinued operation. See Note 6
to Consolidated Financial Statements included in Item 8 hereof.
(2) The write-off of the affiliate receivable resulted from a significant
customer, who is an affiliate of the Company, ceasing distribution
operations and selling its only division in December 1995. The write-off of
the affiliate receivable represents the portion of the remaining receivable
due that was not collectible. See Note 14 to Consolidated Financial
Statements included in Item 8 hereof.
12
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
The following discussion of the financial condition and results of
operations of the Company should be read in conjunction with the Consolidated
Financial Statements and the notes included in Item 8 hereof.
General
The Company is a leading manufacturer and supplier of agricultural
equipment and services worldwide. The Company's grain, swine and poultry
products are used by producers and purchasers of grain, and by producers of
swine and poultry. Fluctuations in grain and feed prices directly impact sales
of the Company's grain equipment. Because the primary cost of producing swine
and poultry is the cost of the feed grain consumed by animals, fluctuations in
the supply and cost of grain to users of the Company's products in the past has
impacted sales of the Company's swine and poultry equipment. The Company
believes, however, that its diversified product offerings mitigate some of the
effects of fluctuations in the price of grain since the demand for grain
storage, drying and handling equipment tends to increase during periods of
higher grain prices, which somewhat offsets the reduction in demand during such
periods for the Company's products by producers of swine and poultry. However,
the Company believes that low swine prices and environmental regulations will
for the foreseeable future continue to effect negatively the sales of its swine
equipment, and, therefore, its overall results of operations and financial
condition.
Sales of agricultural equipment are seasonal, with farmers traditionally
purchasing grain storage bins and grain drying and handling equipment in the
summer and fall in conjunction with the harvesting season, and swine and poultry
producers purchasing equipment during prime construction periods in the spring,
summer and fall. The Company's net sales and net income have historically been
lower during the first and fourth fiscal quarters as compared to the second and
third quarters.
Although the Company's sales are primarily denominated in U.S. dollars and
are not generally affected by currency fluctuations (except for the Company's
Brazilian operation), the production costs, profit margins and competitive
position of the Company are affected by the strength of the U.S. dollar relative
to the strength of the currencies in countries where its products are sold.
The Company's international sales have historically comprised a significant
portion of net sales. In 1998 and 1997, the Company's international sales
accounted for 32.8% and 26.4% of net sales, respectively. During 1997, the
Company opened manufacturing and sales facilities in Malaysia, South Africa,
Brazil and Mexico to promote international expansion. The cost of establishing
these facilities has been significant and has had an adverse effect on the
Company's results of operations. In June 1998, the Company acquired a
manufacturer and supplier of poultry feeding equipment in Brazil. Subsequent to
year-end, the Brazilian Real experienced a devaluation (1.2098 Brazilian
Reals/U.S. Dollar at December 31, 1998 as compared to 1.7525 Brazilian
Reals/U.S. Dollar at March 29, 1999). The effect of the devaluation is a
reduction in the Company's equity and results of operations. While the
devaluation has not adversely affected shipments from the Company's Brazilian
operation, further deterioration in the Brazilian economy could have this
effect.
International operations generally are subject to various risks that are not
present in domestic operations, including restrictions on dividends,
restrictions on repatriation of funds, unexpected changes in tariffs and other
trade barriers, difficulties in staffing and managing foreign operations,
political instability, fluctuations in currency exchange rates, reduced
protection for intellectual property rights in some countries, seasonal
reductions in business activity and potentially adverse tax consequences, any of
which could adversely impact the Company's international operations. For
example, the recent financial crises in many countries in Southeast Asia and in
Brazil have caused some agricultural producers to cancel orders or have led to
the inability of such producers to secure necessary lines of credit to buy
agricultural commodities and/or equipment. While this trend has not led to
material cancellations of orders by the Company's customers, the Company
believes that it has contributed to a decline in the number of new orders that
the Company has received from customers located in such region.
The primary raw materials used by the Company to manufacture its products
are steel and polymers. Fluctuations in the prices of steel and, to a lesser
extent, polymer materials can impact the Company's cost of sales. During 1998,
the Company continued to benefit from modest price decreases in steel and
polymers. There can be no assurances that these price decreases will continue or
that prices for these materials will not increase in the future.
The Company currently operates as a subchapter S corporation and,
accordingly, is not subject to federal income taxation for the periods for which
financial information has been presented herein. Because the Company's
13
<PAGE>
stockholders are subject to tax liabilities based on their pro rata shares of
the Company's income, the Company's policy is to make periodic distributions to
its stockholders in amounts equal to such tax liabilities.
For the first quarter of 1999, the financial results of the Company will
significantly underperform the results from prior first quarters due to a
dramatic reduction in sales of its domestic hog equipment without corresponding
cost reductions. Management is currently in the process of significantly
reducing non-strategic costs throughout the Company.
Results of Operations
Year Ended December 31, 1998 Compared to Year Ended December 31, 1997
Net sales increased 17.8% or $39.2 million to $260.0 million in 1998 compared
to $220.8 million in 1997. The increase resulted from the acquisition of David
Manufacturing Company ("DMC") and Avemarau and increased sales of grain storage
products, offset by lost sales from the shut down of the Company's North
Carolina retail stores and the reduced demand for swine equipment caused by
historically low swine prices and environmental regulations. The acquisitions of
DMC and Avemarau increased sales by $24.5 million and $13.8 million,
respectively. International sales increased $27.0 million to $85.2 million in
1998 from $58.2 million in 1997.
Gross profit increased to $62.1 million in 1998 or 23.9% of net sales from
$56.2 million or 25.4% of net sales in 1997. This decrease in the gross profit
percentage of net sales reflected the impact of cost inefficiencies associated
with the introduction of two new product lines and an increase in fixed overhead
costs.
Selling, general and administrative expenses increased 42.8% or $15.1 million
to $50.2 million in 1998 from $35.2 million in 1997. This increase resulted from
the acquisition of DMC and Avemarau and increases in international operations
staffing. As a percentage of net sales, selling, general and administrative
expenses increased to 19.3% in 1998 from 15.9% in 1997.
Operating income decreased to $11.8 million in 1998 from $21.0 million in
1997. Operating income margins decreased to 4.6% of net sales in 1998 from 9.5%
in 1997. This decrease was attributable to the increased selling, general and
administrative expenses and reduced margins. The impact of the increased sales
volume was offset by the start-up costs associated with the introduction of two
new product lines.
Interest expense increased $6.8 million for 1998. This increase was primarily
due to interest expense on the Company's Senior Subordinated Notes, due 2007,
issued in November 1997.
Net income decreased 98.4% or $17.3 million to $0.3 million for 1998 from
$17.6 million in 1997.
Year Ended December 31, 1997 Compared to Year Ended December 31, 1996
Net sales increased 23.6% or $42.2 million to $220.8 million in 1997 compared
to $178.5 million 1996. Of this 23.6% increase, 5.5% was a result of increased
sales of grain storage products resulting primarily from historically high
domestic grain prices in 1996 and 13.0% was a result of increased domestic sales
of swine and poultry equipment attributable to continuing strong construction
demand for larger swine facilities. International sales of $58.2 million in 1997
were essentially flat compared to sales of $55.5 million in 1996. Sales in
Europe and Canada increased by $6.5 million and $3.7 million, respectively, due
to stronger market penetration. These increases were offset by decreased
Mideastern and Asian sales of $4.5 million and $5.0 million, respectively,
primarily due to the completion of turn-key grain storage projects in 1996.
Gross profit increased to $56.2 million in 1997 or 25.4% of net sales compared
to $42.8 million or 24.0% of net sales in 1996. This increase reflected the
impact of increased sales, as well as the benefit of price increases in the
grain drying and farm storage equipment product lines. These positive impacts
were offset by a change in sales mix towards lower margin products within the
swine product line.
Selling, general and administrative expenses increased 22.2% or $6.4 million
to $35.2 million in 1997 from $28.8 million in 1996. This increase was primarily
due to a $4.3 million increase in selling, general and administrative
compensation attributable to increased staffing and an increase in bad debt
reserve of $1.2 million. As a percentage of net sales, selling, general and
administrative expenses decreased to 15.9% in 1997 compared to 16.1% in 1996.
14
<PAGE>
Operating income increased 49.2% or $6.9 million to $21.0 million in 1997
compared to $14.1 million in 1996. Operating income margins increased to 9.5% of
net sales in 1997 from 7.9% in 1996. These increases were attributable to the
23.6% increase in sales and were offset by increased selling, general and
administrative expenses.
Interest expense increased $2.6 million for 1997, reflecting borrowings
used to fund the Company's redemption of certain shares of its voting common
stock in June 1996 as well as interest expense on the Notes. See Item 13,
"Certain Relationships and Related Transactions-Management Buyout."
Net income increased 67.3% or $7.1 million to $17.6 million for 1997
compared to $10.5 million in 1996. This increase was due to increased net sales
and gross profit margin partially offset by increased interest expense.
Year Ended December 31, 1996 Compared to Year Ended December 31, 1995
Net sales increased 26.4% or $37.3 million to $178.5 million in 1996 compared
to $141.2 million in 1995. Of this 26.4% increase, 4.7% was a result of
increased sales of grain storage products resulting primarily from historically
high domestic grain prices, 8.5% was a result of increased sales of swine
equipment resulting primarily from strong construction demand for larger swine
facilities, and 13.2% was a result of increased international sales of swine,
poultry and grain storage equipment resulting primarily from regional market
penetration in Canada of $7.6 million and successful bids on turn-key grain
storage projects in the Mideast of $7.5 million.
Gross profits increased to $42.8 million in 1996 or 24.0% of net sales
compared to $26.2 million in 1995 or 18.5% of net sales. The increase in gross
profit reflected the impact of increased sales, together with operating
efficiencies and the return of certain raw material prices to levels more
consistent with recent historical levels. The operating efficiencies were
attributable to the implementation of a gain share program for the Company's
production associates, which the Company believes led to the development of more
efficient labor processes. The positive impacts of the above items were
partially offset by a change in sales mix towards newly-introduced, lower margin
products within the swine product line.
Selling, general and administrative expenses increased 29.8% or $6.6
million to $28.8 million in 1996 from $22.2 million in 1995. As a percentage of
net sales, selling, general and administrative expenses increased to 16.1% in
1996 from 15.7% in 1995. These increases were primarily a result of the
introduction of a two-year employee bonus incentive program driven by total
company profitability and increased staffing in the international
sales/engineering functions, partially offset by the elimination of certain non-
essential positions in corporate functions and an increase in distribution
expense.
Operating income increased 250.4% or $10.0 million to $14.1 million for
1995 compared to $4.0 million for 1995. Operating income margins increased in
1996 to 7.9% of net sales in 1996 from 2.8% in 1995. These increases were
attributable to the 26.4% increase in net sales and improved gross margins and
were offset by increased selling, general and administrative expenses.
Interest expense increased $0.7 million for 1996, reflecting additional
borrowings used to fund the Company's redemption of certain shares of its voting
common stock in June 1996. See Item 13, "Certain Relationships and Related
Transactions-Management Buyout." Interest income was essentially flat in 1996
compared to 1995.
Net income increased $12.0 million to $10.5 million in 1996 compared to a
loss of $1.5 million in 1995. This increase was due to increased operating
income and the negative impact in 1995 of the $3.4 million write-off of an
affiliate receivable. There was no write-off of an affiliate receivable in 1996.
Liquidity and Capital Resources
The Company has historically funded capital expenditures, working capital
requirements, debt service, stockholder dividends and stock repurchases from
cash flow from its operations, augmented by borrowings made under various credit
agreements and the sale of the Company's 10 1/4% Senior Subordinated Notes.
The Company's working capital requirements for its operations are seasonal,
with investments in working capital typically building in the second and third
quarters and then declining in the first and fourth quarters. As of December 31,
1998, the Company had $49.3 million of working capital, an increase of $0.2
million from working capital as of December 31, 1997. This slight increase in
working capital was primarily due to increased accounts
15
<PAGE>
receivable of $13.8 million primarily due to the shipment of two major projects
near year-end. This increase was offset by decreases in other current assets and
increases in accounts payable and accrued expenses.
Operating activities generated $3.4 million and $1.7 million in cash in 1998
and 1996, respectively, and used $3.6 million in cash in 1997. The increase in
cash flow from operating activities from 1997 to 1998 of $7.0 million was
primarily the result of a decrease in inventories and other current assets of
$32.0 million, offset by decreases of net income of $17.3 million and increases
of accounts receivable of $11.6 million, compared to 1997. The decrease in cash
flow from operating activities from 1996 to 1997 of $5.3 million was primarily
the result of an increase in inventories and vendor deposits of $22.6 million,
offset by increases in accounts payable and net income of $5.3 million and $7.1
million, respectively, compared to 1996. In addition, changes in accounts
receivable decreased $5.2 million compared to 1996.
The Company's capital expenditures totaled $18.0 million, $9.7 million and
$3.8 million in 1998, 1997 and 1996, respectively. Capital expenditures have
primarily been for machinery and equipment and the purchase and expansion of
facilities. The increase in 1998 and 1997 reflects the Company's continued
expansion and the conversion of leased to purchased assets. In 1998, other
investing activity that resulted in significant cash used was the acquisition of
Avemarau and the related non-compete agreement for $12.8 million. In 1997, other
investing activity that resulted in significant cash used was the acquisition of
DMC for $17.9 million, net of $0.2 million cash acquired. In 1996, other
investing activities that resulted in significant cash flow included $8.0
million in proceeds from the sale of net assets of a discontinued business, $2.1
million in payments received on notes receivable, and $1.4 million in proceeds
from sales of fixed assets.
Cash provided by financing activities in 1998 consisted primarily of $35.0
million from the term note with LaSalle National Bank (see Item 8, "Financial
Statements and Supplementary Data, Notes to Consolidated Financial Statements-
Note 8) partially offset by $18.7 million in repayment of former shareholder
loans and long term-debt and $6.4 million of dividends. Cash provided by
financing activities in 1997 consisted primarily of $94.8 million from the
offering of the Notes partially offset by $29.3 million in repayment of long-
term debt and borrowing under the line of credit and $16.3 million of dividends.
Cash used in financing activities in 1996 consisted primarily of $25.5 million
for the acquisition of treasury stock partially offset by $17.5 million in
proceeds from former stockholder loans and $2.3 million in proceeds from the
issuance of common stock.
The Company believes that existing cash, cash flow from operations and
available borrowings under the amended Credit Facility will be sufficient to
support its working capital, capital expenditures and debt service requirements
for the foreseeable future.
Year 2000 Issues
The year 2000 issue is the result of computer programs using two digits rather
than four to define the applicable year. Such software may recognize a date
using "00" as the year 1900 rather than the year 2000. This could result in
system failures or miscalculations leading to disruptions in the Company's
operations (the "year 2000" or "Y2K" issue). If the Company or its significant
suppliers or customers fail to make necessary modifications, conversions and
contingency plans on a timely basis, the year 2000 issue could have a material
adverse effect on the Company's business, operations, cash flow and financial
condition. However, the effect cannot be quantified at this time because the
Company cannot accurately estimate the magnitude, duration or ultimate impact of
noncompliance by suppliers, customers and third parties that have no direct
relationship to the Company. The Company believes that its competitors face a
similar risk.
In 1997, the Company began identifying non-compliant software and identified
three categories of software and systems that require attention:
(1) information technology ("IT") systems, such as mainframes, PCs, networks
and production control systems
(2) non-IT systems, such as equipment, machinery, climate control and
security systems, which may contain microcontrollers with embedded
technology, and
(3) supplier and customer IT and non-IT systems
The Company intends to fix or replace non-compliant IT and non-IT software and
systems. The failure to address these systems issues on a timely basis may
result in a disruption of the manufacturing process and the Company's ability to
efficiently conduct business. Currently, the Company's compliance projects are
at different phases of completion. Domestic IT system projects are approximately
85% complete and domestic non-IT system
16
<PAGE>
projects are approximately 50% complete. All IT and non-IT system projects for
the Company's international subsidiaries are 100% complete. The Company's
current target is to complete its domestic IT and non-IT system projects by June
30, 1999. The Company has not fully assessed the cost associated with these
compliance projects. However, based upon current information, the Company
expects these costs to range from $0.2 to $0.5 million.
The Company is also assessing the compliance of its major customers and
suppliers. The Company is in the process of conducting formal communications
with its significant suppliers and customers to determine the extent to which it
may be affected by those third parties' Y2K compliance plans. The Company
believes that customers and suppliers present the area of greatest risk in part
because of the Company's limited ability to influence actions of third parties
and in part because of the Company's inability to estimate the level and impact
of noncompliance by these third parties. Issues with a significant portion of
the Company's customers in processing and paying invoices could impact the
Company's cash flows and financial liquidity. A prolonged interruption in the
supply of essential services or products could adversely effect the Company's
operations and ability to generate revenues. In the event that the Company
identifies potential problems with a service provider or supplier, it will
attempt to obtain services and products from other available sources.
Finally, the Company is developing contingency plans that assume some
estimated level of noncompliance by, or business disruption to, suppliers and
customers. The contingency plans will include development of the capabilities to
process critical transactions manually. The Company intends to have contingency
plans finalized by the third quarter of 1999.
Inflation
The Company believes that inflation has not had a material effect on its
results of operations or financial condition during recent periods.
17
<PAGE>
ITEM 7A. QUANTITATIVE AND QUALITATAIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
18
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS OF THE GSI GROUP, INC. AND
SUBSIDIARIES
<TABLE>
<CAPTION>
Page
-----
<S> <C>
Report of Independent Public Accountants............................................................ 20
Consolidated Balance Sheets as of December 31, 1998 and 1997........................................ 21
Consolidated Statements of Operations for the years ended December 31, 1998, 1997 and 1996.......... 22
Consolidated Statements of Stockholders' Equity for the years ended December 31, 1996, 1997 and
1998............................................................................................. 23
Consolidated Statements of Cash Flows for the years ended December 31, 1998, 1997 and 1996.......... 24
Notes to Consolidated Financial Statements.......................................................... 25
</TABLE>
19
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
The GSI Group, Inc.
We have audited the accompanying consolidated balance sheets of The GSI Group,
Inc. and subsidiaries as of December 31, 1998 and 1997, and the related
consolidated statements of income, stockholders' equity and cash flows for each
of the three years in the period ended December 31, 1998. These consolidated
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of The GSI
Group, Inc. and subsidiaries as of December 31, 1998 and 1997, and the results
of their operations and their cash flows for each of the three years in the
period ended December 31, 1998, in conformity with generally accepted accounting
principles.
ARTHUR ANDERSEN LLP
Chicago, Illinois
February 24, 1999
20
<PAGE>
PART I - FINANCIAL INFORMATION
THE GSI GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
December 31, 1998 and 1997
(In thousands, except share and per share data)
<TABLE>
<CAPTION>
Assets 1998 1997
------ ---- ----
<S> <C> <C>
Current Assets:
Cash and cash equivalents............................................ $ 1,192 $ 18,572
Accounts receivable, net............................................. 36,969 23,214
Inventories, net..................................................... 49,219 46,882
Prepaids............................................................. 2,820 8,165
Other................................................................ 4,773 3,155
-------- --------
Total current assets............................................... 94,973 99,988
-------- --------
Notes Receivable...................................................... 1,084 1,084
-------- --------
Long-Term Retainage................................................... 3,570 579
-------- --------
Property, Plant and Equipment, net.................................... 50,257 36,143
-------- --------
Other Assets:
Goodwill, net........................................................ 12,646 7,991
Other intangible assets, net......................................... 7,541 564
Deferred financing costs, net........................................ 4,063 3,514
Other................................................................ 514 246
-------- --------
Total other assets................................................. 24,764 12,315
-------- --------
Total assets....................................................... $174,648 $150,109
======== ========
Liabilities and Stockholders' Equity
-------------------------------------
Current Liabilities:
Accounts payable..................................................... $ 14,459 $ 11,948
Dividend payable..................................................... -- 5,300
Payroll and payroll related expenses................................. 4,950 3,843
Deferred income taxes................................................ 1,049 1,234
Billings in excess of costs.......................................... 4,983 485
Accrued warranty..................................................... 2,527 1,992
Other accrued expenses............................................... 7,549 6,590
Customer deposits.................................................... 5,631 4,883
Current maturities of long-term debt................................. 4,572 14,663
-------- --------
Total current liabilities.......................................... 45,720 50,938
-------- --------
Long-Term Debt, less current maturities............................... 134,216 101,868
-------- --------
Deferred Income Taxes................................................. 1,678 2,087
-------- --------
Commitments and Contingencies
Stockholders' Deficit:
Common stock, $.01 par value, voting (authorized 6,900,000 shares;
issued 6,633,652 shares; outstanding 1,800,000 shares).............. 18 18
Common stock, $.01 par value, nonvoting (authorized 1,100,000 shares;
issued 1,059,316 shares; outstanding 200,000 shares)................ 2 2
Paid-in capital...................................................... 2,473 2,473
Accumulated other comprehensive loss................................. (2,203) (869)
Retained earnings.................................................... 18,277 19,125
Treasury stock, at cost, voting (4,833,652 shares)................... (25,524) (25,524)
Treasury stock, at cost, nonvoting (859,316 shares).................. (9) (9)
-------- --------
Total stockholders' deficit........................................ $ (6,966) $ (4,784)
-------- --------
Total liabilities and stockholders' equity......................... $174,648 $150,109
======== ========
</TABLE>
The accompanying notes to financial statements are an integral part of these
balance sheets.
21
<PAGE>
THE GSI GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Years Ended December 31, 1998, 1997 and 1996
(In thousands, except share and per share data)
<TABLE>
<CAPTION>
1998 1997 1996
---------- ----------- -----------
<S> <C> <C> <C>
Net Sales............................................................. $ 259,998 $ 220,758 $ 178,537
Cost of Sales......................................................... 197,907 164,607 135,696
---------- ---------- ----------
Gross profit.......................................................... 62,091 56,151 42,841
Selling, General and Administrative Expenses.......................... 50,245 35,189 28,787
---------- ---------- ----------
Operating income.................................................... 11,846 20,962 14,054
Other Income (Expense):
Interest expense.................................................... (12,946) (6,174) (3,590)
Interest income..................................................... 409 654 264
Gain on sale of fixed assets........................................ 384 17 349
Foreign currency exchange gain (loss)............................... 203 (132) --
Other, net.......................................................... 121 404 61
---------- ---------- ----------
Income before income taxes, discontinued operation and
extraordinary item................................................ 17 15,731 11,138
---------- ---------- ----------
Income Tax Expense (Benefit).......................................... (260) 288 157
---------- ---------- ----------
Income before discontinued operation and
extraordinary item................................................ 277 15,443 10,981
---------- ---------- ----------
Discontinued Operation:
Loss on sale of discontinued business............................... -- -- (482)
---------- ---------- ----------
Income before extraordinary item.................................. 277 15,433 10,499
---------- ---------- ----------
Extraordinary Item:
Gain on early extinguishment of debt................................ -- 2,119 --
---------- ---------- ----------
Net income........................................................ $ 277 $ 17,562 $ 10,499
---------- ---------- ----------
Basic and Diluted Earnings Per Share:
Continuing operations............................................... $0.14 $7.72 $ 5.78
Discontinued operation.............................................. -- -- (0.25)
Extraordinary item.................................................. -- 1.06 --
---------- ---------- ----------
Net income........................................................ $0.14 $8.78 $ 5.53
---------- ---------- ----------
Weighted Average Common Shares Outstanding............................ 2,000,000 2,000,000 1,900,000
========== ========== ==========
</TABLE>
The accompanying notes to financial statements are an integral part of these
statements.
22
<PAGE>
THE GSI GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
For the Years Ended December 31, 1996, 1997 and 1998
----------------------------------------------------
(In thousands, except share data)
<TABLE>
<CAPTION>
Common Stock
---------------------------------------------
Voting Nonvoting Accumulated
--------------------------------------------- Other
Additional Comprehensive
Shares Shares Paid-In Income
Issued Amount Issued Amount Capital (Loss)
----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1995............. 1,800,000 $ 18 - $- $ 182 $ -
Treasury stock purchased.......... (1,460,158) (15) - - 15 -
Stock split -
Voting common stock.................. 785,158 8 - - 26 -
Nonvoting common stock............... - - 200,000 2 7 -
Stock sold pursuant to four
purchase agreements.................. 675,000 7 - - 2,243 -
Net income............................ - - - - - -
Dividends............................. - - - - - -
Balance, December 31, 1996............. 1,800,000 18 200,000 2 2,473 -
------------ ---- ------- -- ------ -------
Net income............................ - - - - - -
Other comprehensive - - - - - -
income (loss)-foreign currency
translation adjustments.............. - - - - - (869)
Dividends............................. - - - - - -
------------ ---- ------- -- ------ -------
Balance, December 31, 1997............. 1,800,000 18 200,000 2 2,473 (869)
Net income............................ - - - - - -
Other comprehensive
income (loss)-foreign currency
translation adjustments.............. - - - - - (1,334)
Dividends............................. - - - - - -
------------ ---- ------- -- ------ -------
Balance, December 31, 1998............. 1,800,000 $ 18 200,000 $2 $2,473 $(2,203)
============ ==== ======= == ====== =======
</TABLE>
<TABLE>
<CAPTION>
Treasury Stock
-------------------------------------------------
Voting Nonvoting
-------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Total Comprehensive
Retained Stockholders' Income
Earnings Shares Amount Shares Amount Equity (Loss)
-----------------------------------------------------------------------------------------------
Balance, December 31, 1995........ $ 12,687 - $ - - $ - $ 12,887
Treasury stock purchased..... - 1,460,158 (25,490) - - (25,490)
Stock split -
Voting common stock............. - 3,373,494 (34) - - -
Nonvoting common stock.......... - - - 859,316 (9) -
Stock sold pursuant to four
purchase agreements............. - - - - - 2,250
Net income....................... 10,499 - - - - 10,499 10,499
-------
Comprehensive income............. $10,499
=======
Dividends........................ (5,527) - - - - (5,527)
---------- --------- -------- ------- --- --------
Balance, December 31, 1996........ 17,659 4,833,652 (25,524) 859,316 (9) (5,381)
Net income....................... 17,562 - - - - 17,562 17,562
Other comprehensive
income (loss)-foreign currency
translation adjustments......... - - - - - (869) (869)
-------
Comprehensive income............. $16,693
=======
Dividends........................ (16,096) - - - - (16,096)
---------- --------- -------- ------- --- --------
Balance, December 31, 1997........ 19,125 4,833,652 (25,524) 859,316 (9) (4,784)
Net income....................... 277 - - - - 277 277
Other comprehensive
income (loss)-foreign currency
translation adjustments......... - - - - - (1,334) (1,334)
-------
Comprehensive loss............... $(1,057)
=======
Dividends........................ (1,125) - - - - (1,125)
---------- --------- -------- ------- --- --------
Balance, December 31, 1998........ $ 18,277 4,833,652 $(25,524) 859,316 $(9) $ (6,966)
========== ========= ======== ======= === ========
</TABLE>
23
<PAGE>
THE GSI GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended December 31, 1998, 1997 and 1996
(In thousands)
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
Cash Flows From Operating Activities:
<S> <C> <C> <C>
Net Income.............................................................. $ 277 $ 17,562 $ 10,499
Adjustments to reconcile net income to cash provided
by operating activities:
Depreciation and amortization......................................... 5,944 3,499 3,153
Amortization of deferred financing costs.............................. 623 137 --
Gain on sale of assets................................................ (384) (17) (349)
Gain on early retirement of debt--noncash portion..................... -- (2,299) --
Deferred taxes........................................................ (594) -- --
Loss on sale of discontinued business................................. -- -- 482
Changes in assets and liabilities, net of acquisitions:
Accounts receivable................................................. (13,489) (1,893) (7,056)
Inventories......................................................... 303 (19,429) (2,010)
Other current assets................................................ 4,139 (8,091) (2,924)
Accounts payable.................................................... 838 3,120 (2,178)
Accrued expenses and payroll and payroll related expenses........... 5,036 2,925 3,669
Customer deposits................................................... 748 -- --
Other............................................................... -- 908 (1,575)
-------- -------- --------
Net cash flows provided by (used in) operating activities.......... 3,441 (3,578) 1,711
-------- -------- --------
Cash Flows From Investing Activities:
Capital expenditures.................................................... (17,964) (9,655) (3,834)
Proceeds from sale of discontinued business............................. -- -- 7,982
Proceeds from sale of fixed assets...................................... 1,837 -- --
Payments received on notes receivable................................... -- 261 2,130
Acquisition of Clark Products, Inc., net of cash acquired............... -- (866) --
Acquisition of David Manufacturing Co., net of cash acquired............ -- (17,684) --
Acquisition of Avemarau Equipamentos Agricolas Ltda., net of
cash acquired.......................................................... (5,220) -- --
Payment for noncompete agreement with former stockholders of
Avemarau Equipamentos Agricolas Ltda................................... (7,590) -- --
Other................................................................... (754) (145) 1,998
-------- -------- --------
Net cash flows provided by (used in) investing activities.......... (29,691) (28,089) 8,276
-------- -------- --------
Cash Flows From Financing Activities:
Proceeds from former shareholder loans.................................. -- -- 17,490
Payments on former shareholder loans.................................... (14,312) -- --
Proceeds from issuance of long-term debt................................ 35,495 99,231 4,000
Payments on long-term debt.............................................. (4,388) (13,019) (2,511)
Deferred financing costs................................................ (762) (4,458) --
Net payments under line-of-credit agreement............................. (1,125) (16,299) (4,773)
Proceeds from issuance of common stock.................................. -- -- 2,250
Purchase of treasury stock.............................................. -- -- (25,490)
Dividends............................................................... (6,426) (16,322) --
Other................................................................... 388 (384) (401)
-------- -------- --------
Net cash flows provided by (used in) financing activities.......... 8,870 48,749 (9,435)
-------- -------- --------
Increase (Decrease) In Cash and Cash Equivalents......................... $(17,380) $ 17,082 $ 552
Cash and Cash Equivalents, beginning of period........................... 18,572 1,490 938
-------- -------- --------
Cash and Cash Equivalents, end of period................................. $ 1,192 $ 18,572 $ 1,490
======== ======== ========
</TABLE>
The accompanying notes to financial statements are an integral part of these
statements
24
<PAGE>
THE GSI GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Nature of Operations
The GSI Group, Inc., a Delaware corporation, and its subsidiaries (the
"Company") manufacture and sell equipment for the agricultural industry. The
Company's product lines include: grain storage bins and related drying and
handling equipment systems and swine and poultry feed storage and delivery,
ventilation, and watering systems. The Company's headquarters and main
manufacturing facility is in Assumption, Illinois, with other manufacturing
facilities in Illinois and Iowa. In addition, the Company has manufacturing and
assembly operations in Brazil, Malaysia and Canada and selling and distribution
operations in South Africa, The Netherlands and Mexico.
2. Summary of Significant Accounting Policies
Basis of Consolidation
The accompanying financial statements reflect the consolidated results of
The GSI Group, Inc. and its subsidiaries. All intercompany transactions and
balances have been eliminated.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenue and expenses during the reporting
period. Actual results could differ from those estimates.
Cash and Cash Equivalents
The Company considers all short-term investments with original maturities
of three months or less to be cash equivalents.
Concentration of Credit Risk
The carrying value for current assets and current liabilities reasonably
approximates fair value due to the short maturity of these items.
The Company's financial instruments that are exposed to concentrations of
credit risk consist primarily of cash and cash equivalents and trade accounts
receivable. The Company places its cash and temporary investments with high
quality financial institutions. At times, such investments may be in excess of
the FDIC insurance limit. Temporary investments are valued at the lower of cost
or market and at the balance sheet dates approximate fair market value. The
Company primarily serves customers in the agricultural industry. This risk
exposure is limited due to the large number of customers comprising the
Company's customer base and its dispersion across many geographic areas. The
Company grants unsecured credit to its customers. In doing so, the Company
reviews a customer's credit history before extending credit. In addition, the
Company routinely assesses the financial strength of its customers, and, as a
consequence, believes that its trade accounts receivable risk is limited.
Inventories
Inventories are stated at the lower of cost or market. Cost includes the
cost of materials, labor and factory overhead. The cost of domestic inventories
was determined using the last-in, first-out link-chain method and the cost of
international inventories was determined using the first-in, first-out method.
Had the domestic inventories been determined using the first-in, first-out
method at December 31, 1998 and 1997, the reported value of such inventories
would have been increased by approximately $1.3 million and $2.5 million,
respectively. Inventories and cost of sales are based in part on accounting
estimates relating to differences resulting from periodic physical inventories.
25
<PAGE>
Property, Plant and Equipment
Property, plant and equipment are stated at cost less accumulated
depreciation. The cost of property, plant and equipment acquired as part of a
business acquisition represents the estimated fair market value of such assets
at the acquisition date. Depreciation is provided using the straight-line
method over the following estimated useful lives.
<TABLE>
<CAPTION>
Years
------------
<S> <C>
Building and Improvements........................ 7-39
Machinery and Equipment.......................... 3-20
Office Equipment and Furniture................... 3-10
</TABLE>
Repairs and maintenance are charged to expense as incurred. Gains or losses
resulting from sales or retirements are recorded as incurred, at which time
related costs and accumulated depreciation are removed from accounts.
Property, plant and equipment under capital leases are amortized over the
shorter of the estimated useful life of the asset or the term of the lease.
Research and Development
Costs associated with research and development are expensed as incurred.
Such costs incurred were $2.7 million, $1.6 million and $1.2 million for the
years ended December 31, 1998, 1997 and 1996, respectively.
Intangible Assets
The excess of purchase costs over amounts allocated to identifiable assets
and liabilities of businesses acquired ("goodwill") is amortized on the
straight-line basis over periods ranging from 15 to 40 years. Goodwill is
recorded net of accumulated amortization. Should events or circumstances occur
subsequent to the acquisition of a business which bring into question the
realizable value or impairment of the related goodwill, the Company will
evaluate the remaining useful life and balance of goodwill and make appropriate
adjustments. The Company's principal considerations in determining impairment
include the strategic benefit to the Company of the particular business as
measured by undiscounted current and expected future operating cash flows of
that particular business cash flows. Should an impairment be identified, a loss
would be reported to the extent that the carrying value of the related goodwill
exceeds the fair value of that goodwill as determined by valuation techniques
available in the circumstances. Other intangible assets, which consist of
patents and non-compete agreements are recorded net of accumulated amortization
and are being amortized on a straight-line basis over periods ranging from 3 to
17 years.
Deferred Financing Costs
Costs incurred in connection with obtaining financing are capitalized and
amortized over the maturity period of the debt.
Revenue Recognition
Revenue is recorded when products are shipped. Provisions are made at that
time, when applicable, for installation and warranty costs to be incurred.
Revenues on long term fixed price contracts are recognized using the
percentage of completion method. Percentage of completion is determined by
relating the actual costs incurred to date to the total estimated cost for each
contract. If the estimate indicates a loss on a particular contract, a provision
is made for the entire estimated loss without reference to the percentage of
completion. Retainages are included as current and noncurrent assets in the
accompanying consolidated balance sheets. Revenue earned in excess of billings
is comprised of revenue recognized on certain contracts in excess of contractual
billings on such contracts. Billings in excess of costs are classified as a
current liability.
26
<PAGE>
Translation of Foreign Currency
The Company translates the financial statements of its foreign subsidiaries
in accordance with Statement of Financial Accounting Standards ("SFAS") No. 52,
"Foreign Currency Translation." The Company's foreign operations are reported
in the local currency and translated to U.S. dollars, except for Mexico which is
in a highly inflationary environment and therefore utilize the U.S. dollar as
the functional currency. The balance sheets of the Company's foreign
operations, excluding Mexico, are translated at the exchange rate in effect at
the end of the periods presented. The revenues and expenses of the Company's
foreign operations, excluding Mexico, are translated at the average rates in
effect during the period.
Reclassification
Certain reclassifications have been made to prior-year amounts to conform to
the current-year presentation.
Financial Information About Industry Segments
The Company operates in primarily one industry segment, which includes the
design, manufacture and sale of agricultural equipment.
Comprehensive Income
During the first quarter of 1998, the Company adopted Statement of Financial
Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS No. 130"),
which requires companies to report all changes in equity during a period, except
those resulting from investment by owners and distributions to owners, in a
financial statement for the period in which they are recognized. The Company
has chosen to disclose Comprehensive Income, which encompasses net income and
foreign currency translation adjustments, as part of the Consolidated Statements
of Stockholders' Equity.
Thirteen Week Fiscal Periods
Beginning with the first quarter of 1998, the Company adopted thirteen week
fiscal quarter periods for operational and financial reporting purposes. The
Company's year end will continue to be December 31.
3. Trade Receivables Allowance
The following summarizes trade receivables allowance activity for the years
ended December 31, 1996, 1997 and 1998 (in thousands):
<TABLE>
<CAPTION>
Amount
------
<S> <C>
December 31, 1995.............................................. $ 620
Increase to operating expense.............................. 816
Charge to allowance........................................ (793)
------
December 31, 1996.............................................. 643
Increase to operating expense.............................. 1,712
Charge to allowance........................................ (519)
------
December 31, 1997.............................................. 1,836
Increase to operating expense.............................. 601
Charge to allowance........................................ (642)
------
December 31, 1998.............................................. $1,795
======
</TABLE>
4. Business Segment
In January 1998, the Company adopted SFAS No. 131, "Disclosure About
Segments of an Enterprise and Related Information." The Company has no
separately reportable segments in accordance with this standard. Under the
enterprise wide disclosure requirements of SAFS 131, the Company reports net
sales, in thousands, by each
27
<PAGE>
group of product lines. Amounts for the years ended December 31, 1998, 1997 and
1996 are as shown in the table below (in thousands).
<TABLE>
<CAPTION>
December 31,
1998 1997 1996
------------- ------------- -------------
<S> <C> <C> <C>
Grain product line $131,230 $ 88,555 $ 85,324
Swine product line 75,102 88,511 57,348
Poultry product line 53,666 43,692 35,865
-------- -------- --------
Net sales $259,998 $220,758 $178,537
======== ======== ========
</TABLE>
For the years ended December 31, 1998, 1997 and 1996, sales in Brazil were
$15.9, $0.1 and $0.1 million, respectively. Long-lived assets in Brazil
were $4.6 and $0.2 million at December 31, 1998 and 1997, respectively.
5. Risks and Uncertainties
The Company believes that historically low swine prices will effect
negatively the sales of its swine equipment, and, therefore, its results of
operations and financial condition.
International operations generally are subject to various risks that are not
present in domestic operations, including restrictions on dividends,
restrictions on repatriation of funds, unexpected changes in tariffs and other
trade barriers, difficulties in staffing and managing foreign operations,
political instability, fluctuations in currency exchange rates, reduced
protection for intellectual property rights in some countries, seasonal
reductions in business activity and potentially adverse tax consequences, any of
which could adversely impact the Company's international operations. For
example, the recent financial crises in many countries in Southeast Asia has
caused some agricultural producers to cancel orders or have led to the inability
of such producers to secure necessary lines of credit to buy agricultural
commodities and/or equipment. While this trend has not led to material
cancellations of orders by the Company's customers, the Company believes that it
has contributed to a decline in the number of new orders that the Company has
received from customers located in such region.
Subsequent to year-end the Brazilian Real experienced a devaluation (1.2098
Brazilian Reals/U.S. Dollar at December 31, 1998 as compared to 2.0099 Brazilian
Reals/U.S. Dollar at February 24, 1999). The effect on the Brazilian
subsidiary is as follows (in thousands):
<TABLE>
<CAPTION>
December 31, 1998 February 24, 1999
----------------- -----------------
<S> <C> <C>
Net working capital................ $ 4,482 $ 2,698
Net loss........................... (869) (601)
</TABLE>
Any further deterioration in Brazil's economy could have an adverse effect on
the Company's results of operations and financial conditions.
6. Discontinued Operations
In 1995, in order to concentrate on its core businesses, the Company made a
decision to sell its Heritage Vinyl Products Division ("Division"). The
agreement to sell the Division was signed in December 1995 and the sale of the
Division closed on January 11, 1996. The sale of the net assets of the Division
resulted in net proceeds to the Company of $8.0 million. The gain on the sale
was $2.8 million. A charge of $482,000 was recorded in 1996 to adjust certain
retained assets to net realizable value.
7. Detail Of Certain Assets
<TABLE>
<CAPTION>
As of December 31,
-------------------------------
1998 1997
------------ -------------
Accounts Receivable (In thousands)
-------------------------------
<S> <C> <C> <C>
Trade receivables............................ $ 38,764 $ 25,050
Allowance for doubtful accounts.............. (1,795) (1,836)
----------- --------------
Total...................................... $ 36,969 $ 23,214
=========== ==============
Inventories
Raw materials................................ $ 11,817 $ 8,883
Work-in-process.............................. 14,330 12,464
Finished goods............................... 23,072 25,535
----------- --------------
</TABLE>
28
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Total...................................... $ 49,219 $ 46,882
============= ==============
Property, Plant and Equipment
Land......................................... $ 865 $ 895
Buildings and improvements................... 18,866 18,799
Machinery and equipment...................... 41,237 34,897
Office equipment and furniture............... 5,322 4,514
Construction-in-progress..................... 10,104 1,364
------------- --------------
76,394 60,469
Accumulated depreciation..................... (26,137) (24,326)
------------- --------------
Property, plant and equipment, net........... $ 50,257 $ 36,143
============= ==============
Intangible Assets
Goodwill..................................... $ 13,286 $ 8,182
Accumulated amortization..................... (640) (191)
------------- --------------
Total...................................... $ 12,646 $ 7,991
============= ==============
Non-compete agreements....................... $ 8,227 $ 1,525
Accumulated amortization..................... (991) (1,324)
------------- --------------
Total...................................... $ 7,236 $ 201
============= ==============
Patents and other intangible assets.......... $ 453 $ 438
Accumulated amortization..................... (148) (75)
------------- --------------
Total...................................... $ 305 $ 363
============= ==============
Deferred Financing Costs
Deferred financing costs..................... $ 4,612 $ 3,728
Accumulated amortization..................... (549) (214)
------------- --------------
Total...................................... $ 4,063 $ 3,514
============= ==============
</TABLE>
8. Supplemental Cash Flow Information
The Company paid approximately $13.0, $5.2 and $2.8 million in interest during
the years ended December 31, 1998, 1997 and 1996, respectively. The Company
paid income taxes of $1,340,358, $237,745 and $4,567 during the years ended
December 31, 1998, 1997 and 1996, respectively. In connection with the purchase
of Avemarau Equipamentos Agricolas Ltda., a note of $7.0 million was issued and
cash of $12.8 million was paid in exchange for the purchase of stock and
non-compete agreements.
9. Long-Term Debt
Long-term debt at December 31, 1998 and 1997 consisted of the following (in
thousands):
<TABLE>
<CAPTION>
1998 1997
---------- -------
<S> <C> <C>
Citizens National Bank IRB with variable interest at 6.5% until March, 2000,
at which time rate is subject to periodic adjustments based on U.S. Treasury
Note rates, due $14 monthly plus interest with unpaid principal balance due
April, 2010, secured by certain real estate and improvements in Paris,
Illinois.................................................................... $ 1,875 $ 2,042
Various noncompete, license and patent agreement payable,
noninterest-bearing and payable in varying amounts through 2003............. 65 78
Notes to former stockholders payable in varying amounts each May and
November through November, 2006, with interest at 8%........................ -- 14,312
LaSalle National Bank revolving line of credit................................ -- --
LaSalle National Bank term note............................................... 32,500 --
Clark Products, Inc. promissory note bearing interest at 10%; due $14
monthly through June, 2001, secured by certain equipment and intangibles.... 429 600
10.25% senior subordinated notes payable, principal due November, 2007, net
of unamortized debt discounts of $1,467; amortization of debt discounts was
$159 and $15 for the years ended December 31, 1998 and 1997, respectively;
interest is payable semi-annually in May and November....................... 98,533 98,374
</TABLE>
29
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Note payable to the former shareholders of Avemarau Equipamentos Agricolas
Ltda., noninterest-bearing and payable in four equal annual installments
beginning December 1998 through December 2001; interest imputed at 8%,
face amount of note is 8.0 million Brazilian Reals 3,900 --
Various notes payable, bearing interest at rates ranging from 14.63% to
19.63% and payable in varying amounts through 2002 991 --
City of Assumption promissory note bearing interest at 5%; due $9 monthly
through December, 2003, secured by a $495 letter of credit 495 --
Norwest Bank Iowa revolving line of credit whereby outstanding borrowings
may not exceed the lessor of the borrowing base defined as a percentage of
eligible accounts receivable and inventory or $6,250 ($6,250 at December 31,
1997); interest was payable monthly at the bank's base rate (8.5% at
December 31, 1997) and was secured by all assets of DMC and the personal
guarantees of certain members of management up to $150 each, plus interest
and all costs of collection; at December 31, 1997 DMC has $250 of letters
of credit reducing the overall availability of the line to $6,000; matured
on March 31, 1998 -- 1,125
----------- -------------
Total............................................................. 138,788 116,531
Less -
Current maturities................................................ (4,572) (14,663)
----------- -------------
Total long-term debt.............................................. $134,216 $101,868
=========== =============
</TABLE>
Maturities of long-term debt during the next five years and thereafter are as
follows (in thousands):
<TABLE>
<S> <C>
1999.............................................................. $ 4,572
2000.............................................................. 4,348
2001.............................................................. 4,251
2002.............................................................. 25,752
2003.............................................................. 289
Thereafter........................................................ 99,576
--------
Total........................................................... $138,788
========
</TABLE>
In October 1997, the former stockholders and the Company entered into an
agreement to modify the terms of the former stockholder debt. Accordingly,
during the fourth quarter of 1997, the Company recorded an extraordinary gain of
approximately $2.1 million related to the early extinguishment of debt. The
extraordinary gain resulted primarily from a discount on the notes. Of the
$53.2 million of indebtedness repaid, $14.3 million due former stockholders was
paid in January 1998. Associated with the early retirement of the above
referenced debt was $143,595 of deferred financing costs that have been written
off.
In November 1997, the Company issued $100 million of Senior Subordinated Notes
("Notes") which are due in 2007. The Notes represent unsecured senior
subordinated obligations of the Company. Upon occurrence of a change in control
(as defined), the Company is required to repurchase the Notes at a price equal
to 101% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase. The net proceeds to the Company from the offering
of the Notes were $94.8 million, after deducting the initial purchasers'
discount and other related expenses. The Company used the net proceeds of the
Offering to repay certain notes and other indebtedness of $53.2 million,
purchase 100% of the capital stock of David Manufacturing Co. ("DMC") for
approximately $17.9 million, purchase leased facilities in Mt. Olive and Warsaw,
North Carolina for $1.5 million, pay a dividend to holders of the Company's
capital stock of $7.0 million and used $15.2 million for general corporate
purposes. The indenture governing the Notes provides for certain restrictive
financial and non-financial covenants. The more significant of the covenants
restrict the ability of the Company to dispose of assets, incur additional
indebtedness, pay dividends or make distributions and other payments affecting
subsidiaries. The Company was in compliance with all covenants as of December
31, 1998.
At December 31, 1997, the Company's revolving line of credit with LaSalle
National Bank had a maximum borrowing level of $40.0 million. Borrowings bore
interest at a floating rate per annum equal to (at the Company's option) 0.55%
to 1.45% over LIBOR based on certain ratios of the Company or the prime rate and
were secured by substantially all assets of the Company. The overall level of
borrowings available under this revolving line of credit were reduced by
outstanding letters of credit, DMC revolving credit loans outstanding and debt
of FarmPRO, Inc. guaranteed by the Company. At December 31, 1997, the Company
had $5.0 million of standby letters of credit, $1.1
30
<PAGE>
million of DMC revolving credit loans and $6.0 million of guaranteed FarmPRO
debt reducing the overall availability of the line to $27.9 million. This
revolving line of credit terminates on October 31, 2000.
In March 1998, LaSalle National Bank committed to refinance the Norwest Bank
Iowa revolving line of credit with a new revolving line providing for borrowings
up to $5.0 million, which reduces availability under the Company's existing
revolving line by the outstanding amounts borrowed. The new revolving line bore
interest at a floating rate per annum equal to (at the Company's option) 0.55%
to 1.45% over LIBOR based on certain ratios of the Company or the prime rate.
The new revolving line was secured by substantially all of the assets of the
Company and will terminate on February 1, 2002. Accordingly, borrowings of
approximately $1.1 million at December 31, 1997 were classified as long-term
debt. This revolving line of credit was refinanced with the August 19, 1998
amendment of the Company's credit facility.
On August 19, 1998, LaSalle National Bank amended the existing credit facility
by providing for revolving credit borrowings up to a maximum of $55 million
(limited based on a borrowing base which includes accounts receivable and
inventory) and a $35 million term loan. Borrowings bear interest at a floating
rate per annum equal to (at the Company's option) 0.75% to 1.75% over LIBOR
based on certain ratios of the Company or the prime rate. At December 31, 1998,
the term loan and revolving line of credit bore interest at rates ranging from
7.06% to 7.19%. The term loan was payable in quarterly principal installments
of $1.3 million plus interest over five years with a seven year amortization
schedule. The amended credit facility required the Company to maintain certain
financial covenants including debt to EBITDA ratio, debt service coverage ratio
and certain levels of EBITDA. Borrowings under the facility are secured by
substantially all of the assets of the Company including the capital stock of
any existing or future subsidiaries. The overall level of borrowings available
under the revolving line of credit are reduced by outstanding letters of credit,
DMC revolving credit loans outstanding and debt of FarmPRO, Inc. guaranteed by
the Company. On October 30, 1998, LaSalle and the Company amended the credit
facility to reduce the maximum borrowing under the revolving line to $25
million. At December 31, 1998, the Company had $5.8 million of standby letters
of credit, no DMC revolving credit loans and $6.0 million of guaranteed
available FarmPRO debt reducing the overall availability of the line to $13.2
million. The credit facility terminates on August 1, 2003.
On February 4, 1999, LaSalle National Bank amended the existing credit
facility to provide for revolving loans up to a maximum of $27.5 million
(limited based on a borrowing base which includes accounts receivable, inventory
and principal reductions of the LaSalle National Bank term loan) and a $32.5
million term loan. The borrowings bear interest at a floating rate per annum
equal to (at the Company's option) 1.75% to 3.00% over LIBOR or 0.25% to 0.50%
over the banks floating rate based on the Senior Debt to EBITDA ratio of the
Company. The term loan is payable in quarterly principal installments of $0.6
million plus interest over three years and matures on February 1, 2002. As the
principal amount outstanding on the term loan is reduced, the availability on
the revolving loans is increased maintaining a total commitment of $60.0 million
under this facility. The amended credit facility agreement requires the Company
to maintain a certain Senior Debt to EBITDA ratio, Tangible Net Worth and
certain levels of capital expenditures. These covenants are retroactive and were
reset in February 1999 to December 31, 1998. Borrowings under the new facility
are secured by substantially all of the assets of the Company including the
capital stock of any existing or future subsidiaries. The credit facility
expires on February 1, 2002. The Company was in compliance with or obtained
waivers for all covenants at December 31, 1998.
The fair value of long-term debt approximates carrying value based on the
borrowing rate currently available to the Company for borrowing with similar
terms and maturities.
10. Employee Benefit Plans
The Company has a defined contribution plan covering virtually all full-time
employees. Under the plan, Company contributions are discretionary. During
1998 and 1997, the Company provided a 25% matching contribution up to 1% of the
employees' compensation. Employer contributions to this plan were $205,183,
$79,000 and zero during 1998, 1997 and 1996, respectively.
11. Income Tax Matters
The GSI Group, Inc. ("GSI") has elected to be treated as an S corporation for
income tax purposes. Accordingly, no provision for federal income taxes related
to GSI has been recorded. Earnings or losses of GSI are
31
<PAGE>
reported on the personal income tax returns of the stockholders. At December 31,
1998 all of the Company's foreign subsidiaries are eligible foreign entities
which have elected to be classified as a partnership or disregarded as a
separate entity under U.S. Treasury Regulation Section 301.7701. As a result,
earnings or losses of the foreign subsidiaries are not subject to U.S. tax
except as reported on the personal income tax returns of the stockholders. Prior
to 1998, certain foreign subsidiaries were not eligible foreign entities.
Dividends sufficient to pay the resulting income taxes of the owners are
declared and paid as needed. A wholly owned subsidiary of GSI, DMC, is taxed
pursuant to the C Corporation provisions of the Internal Revenue Code.
Accordingly, provisions for federal taxes related to DMC have been recorded.
Both GSI and DMC are subject to certain state taxes.
The income tax provision differs from the amount of income tax determined
by applying the U.S. Federal income tax rate to pretax income for the years
ended December 31, 1998, 1997 and 1996 (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
<S> <C> <C> <C>
U.S. Federal statutory rate...................................... $ 6 $ 5,349 $ 3,787
Increase (decrease) in income taxes resulting from:
Non-taxable S Corporation (income) losses...................... 10 (5,833) (3,703)
Foreign rate differences and losses with no tax
benefits...................................................... -- 426 (84)
Tax differences resulting from acquisition of DMC.............. (609) -- --
Nondeductible goodwill amortization............................ 37 -- --
Effective tax rate differences................................. (5) -- --
State and other income taxes................................... 301 346 157
-------------- -------------- --------------
$(260) $ 288 $ 157
============== ============== ==============
</TABLE>
The following is a summary of the Company's provision for income taxes (in
thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------
1998 1997 1996
-------- ------- -------
<S> <C> <C> <C>
Current
Federal................................................ $ 10 $ -- $ --
State and local........................................ 324 288 157
-------- ------- -------
334 288 157
-------- ------- -------
Deferred
Federal............................................... (405) -- --
State and local....................................... (189) -- --
-------- ------- -------
(594) -- --
-------- ------- -------
Total provision.................................. $ (260) $ 288 $ 157
-------- ------- -------
</TABLE>
The Company accounts for income taxes in accordance with Statement of
Financial Accounting Standards No. 109, "Accounting for Income Taxes". Such
approach results in the recognition of deferred tax assets and liabilities for
the expected future tax consequences of temporary differences between the book
carrying amounts and the tax basis of assets and liabilities.
The components of deferred tax assets and liabilities at December 31, 1998
and 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997
------------ ------------
Deferred tax assets:
<S> <C> <C>
Tax loss carryforwards............................................................ $ 52 $ 84
Allowance for doubtful accounts................................................... 11 20
Inventory reserves................................................................ 6 40
Estimated product liability....................................................... 22 37
Accrued vacations................................................................. 38 54
------------ ------------
$ 129 $ 235
============ ============
Deferred tax liabilities:
Property and equipment............................................................ 1,671 2,087
Inventory......................................................................... 1,185 1,469
------------ ------------
$2,856 $3,556
------------ ------------
Net Deferred tax liability.......................................................... $2,727 $3,321
============ ============
</TABLE>
DMC has tax loss carryforwards of $52, which begin to expire in the year
2018. These deferred tax assets and liabilities relate primarily to the book and
tax differences pertaining to DMC, which was acquired during 1997.
12. Commitments and Contingencies
The Company is involved in various legal matters arising in the normal
course of business which, in the opinion of management, will not have a material
effect of the Company's financial position or results of operations.
The Company has month to month leases for several buildings and paid
rentals in 1998, 1997 and 1996 of $852,634, $811,245 and $592,000, respectively.
The Company also leases equipment and vehicles under operating lease
arrangements. Total lease expense related to the equipment and vehicle leases
for the years ended December 31, 1998, 1997 and 1996 was $2.0 million, $2.7
million and $2.1 million, respectively.
Operating lease commitments for the next five years and thereafter are as
follows (in thousands):
32
<PAGE>
<TABLE>
<S> <C>
1999............................................................. $1,515
2000............................................................. 1,261
2001............................................................. 1,104
2002............................................................. 952
2003............................................................. 763
Thereafter....................................................... 328
------------
Total............................................................ $5,923
============
</TABLE>
The Company has two contracts with the Syrian government and one with the
Yemen Company for Industrial Development to manufacture and supervise the
assembly of grain handling systems. Other current and long-term assets include
$5.9 million of retainage withheld until completion of the projects and the
meeting of certain performance criteria. These assets are secured by letters of
credit totaling $5.9 million and are expected to be collected by the year 2000.
At December 31, 1998, the Company anticipated that certain contracts would
result in losses that were estimated to be $0.6 million. These losses have been
accrued in the accompanying financial statements.
The Company has entered into employment agreements with certain executives
that provide for minimum aggregate annual payments of $715,000. The agreements
terminate as of the earliest of : (i) June 6, 2001; (ii) the last day of the
month in which the executive's death occurs; or (iii) ninety days after the date
the Company gives the executive notice of termination. If employment is
terminated due to permanent disability, the executives will continue to receive
annual salary and other benefits until such time that the executive sells his
stock. If employment is terminated without cause after December 6, 1999 the
executive will at a minimum, immediately upon such termination, receive a
severance payment equal to the greater of: (i) eighteen months of salary at the
executive's then current rate or (ii) in the case of certain stockholders, a
range from $375,000 to $594,682. There is no provision for severance payments if
the executive is terminated without cause prior to December 6, 1999.
In December 1997, the Company entered into a Cooperative Agreement
("Agreement") with Usina Mecanica Carioca S.A. ("Usimeca") which provides for
Usimeca to transfer to the Company (i) all Usimeca's rights, title and interest
in and to a certain technology, (ii) a non-exclusive license to use this
technology in Brazil and (iii) Usimeca's distribution network and customer base.
Payments due to Usimeca are as follows: (i) $200,000 due on closing of the
agreement, (ii) $50,000 minimum royalty payment per year for five years, and
(iii) a royalty payment of 2.5% of annual gross sales, as defined, in excess of
$2 million for five years and 2.5% of annual gross sales, as defined, for years
six and seven, if renewed. The Agreement provides for a limit on aggregate
royalty payments of $1.0 million. The initial term of the Agreement is five
years, which is renewable for an additional two-year period if the $1.0 million
limit has not been met. If the Company decides to cease its activities in Brazil
before the end of the initial term, the Company shall pay Usimeca the difference
between the total amount of royalties already paid and a guaranteed minimum of
$450,000. The Agreement also provides for Usimeca to provide marketing and
technical assistance (management services) to the Company for a six-month
period, which is then renewable on a month-to-month basis. The fee for these
management services is $10,000 per month. The Company did not renew these
services subsequent to the initial six-month period. In addition, the Agreement
provides for Usimeca to supply its products, as defined, to the Company for a
period of two years at a firm price, as defined.
13. Regional Information
The Company is engaged in the manufacture and sale of equipment for the
agricultural industry. The Company's product lines include: grain storage bins
and related drying and handling equipment systems and swine and poultry feed
storage and delivery, ventilation, watering and confinement systems. The
Company's products are sold primarily to independent dealers and distributors
and are marketed through the Company's sales personnel and network of
independent dealers. Users of the Company's products include farmers, feed
mills, grain elevators, grain processing plants and poultry/swine integrators.
Net sales by each major geographic region are as follows (in millions):
<TABLE>
<CAPTION>
1998 1997 1996
-------------- -------------- --------------
<S> <C> <C> <C>
United States................................................... $174.8 $162.6 $123.0
Asia............................................................ 4.3 13.7 18.7
Canada.......................................................... 19.2 16.9 13.2
Latin America................................................... 31.5 10.9 10.2
Mideast......................................................... 21.7 5.7 10.2
Europe.......................................................... 7.0 9.0 2.5
All other....................................................... 1.5 2.0 0.7
</TABLE>
33
<PAGE>
<TABLE>
<S> <C> <C> <C>
-------------- -------------- --------------
$260.0 $220.8 $178.5
============== ============== ==============
</TABLE>
14. Related-Party Transactions
The Company makes sales in the ordinary course of business to Sloan
Implement Company, Inc., a supplier of agricultural equipment that is owned by
certain family members of a shareholder of the Company. Such transactions
generally consist of sales of grain equipment and amounted to $131,495, $173,192
and $129,009 for 1998, 1997 and 1996, respectively.
The Company has made payments to Sloan Transport, Inc., a company formerly
owned by a stockholder of the Company and certain members of his family, for the
use of a private plane. There were no payments made in 1998 and 1997. Payments
in the amount of $76,854 were made for the year ended 1996. In 1996, Sloan
Transport, Inc. sold all of its assets and was dissolved.
A significant customer and an affiliate of the Company, Carolina Agri-
Systems, Inc. ("CASI"), ceased distribution operations in North Carolina and
sold its only other operation, Farmer Boy Ag, Inc. ("FBA") in December 1995. As
a result of this event, the Company received from CASI the proceeds from the
sale and inventory the Company previously sold to CASI. The remaining receivable
due from CASI of $3.4 million was written off in the year ended December 31,
1995. In connection with this transaction, the Company entered into an agreement
to lease two facilities that were owned by CASI. Lease payments to CASI during
1996 and 1997 were $204,000 and $153,000, respectively. During 1997, the Company
purchased these leased facilities for $1.5 million. The Company believes this
transaction was negotiated at arm's-length in the normal course of business.
CASI was dissolved in January 1998.
After the sale of FBA noted above, FBA's name was changed to FarmPRO, Inc.
("FarmPRO"). As part of the proceeds of the sale, CASI received a note of $1.4
million from the purchasers of FarmPRO, which was subsequently assigned to the
Company. The note receivable is a 10 year note with quarterly interest payments
calculated at a rate of 9%. The note provides for principal payments equal to 5%
of the outstanding principal amount commencing on the last day of the first
calendar quarter in which the balance sheet deficit of FarmPRO is reduced to
zero. The balance of this note receivable and accounts receivable from FarmPRO
was $1.9 million and $3.9 million as of December 31, 1998 and 1997,
respectively. Also in 1995, the Company and FarmPRO entered into a long-term
supply agreement pursuant to which FarmPRO agreed to purchase 90% of its
equipment requirements from the Company. During 1997, the long-term supply
agreement was amended. As a result of this amendment the Company agreed to (i)
guarantee FarmPRO borrowings under a line of credit agreement limited to amounts
borrowed up to $6.0 million and (ii) provide administrative services to FarmPRO
for two years at no charge. In connection with such guarantee, the Company
received an option to purchase up to 60% of the common stock of FarmPRO at a
formula price which approximates fair market value. The amount of the guaranteed
borrowings at December 31, 1998 and 1997 were $2.5 million and $4.4 million,
respectively. Sales to FarmPRO were $8.1 million, $16.5 million and $12.8
million in 1998, 1997 and 1996, respectively.
The Company and its stockholders entered into certain agreements relating
to the rights of the stockholders with respect to their ownership of the
Company's shares (the "Stockholder Agreements"). These agreements generally (i)
provide that the holders of a majority of the stock may sell all of their shares
at any time if the other stockholders are entitled to participate in such sale
on the same terms and conditions, and that the holders of a majority of the
stock may require the other stockholders to sell all their stock at the same
time on the same terms and conditions, (ii) establish that the stockholders are
restricted in their ability to sell, pledge or transfer such shares, (iii) grant
rights of first refusal, first to the Company and then to all non-transferring
stockholders, with respect to the transfer of any share, (iv) require that an
affirmative vote by a majority of the Company's voting stockholders is required
to approve certain corporate matters and (v) establish procedures for the
optional purchase of shares by the Company (subject to compliance with the terms
of the Indenture) or any remaining voting stockholders upon the death, permanent
disability or termination of employment of any stockholder. Each of the
stockholders is covered by life insurance policies, the proceeds of which
generally will be used to fund the purchase of shares from the estate of a
deceased stockholder. The Stockholder Agreements also (i) provide that the
holders of a majority of the Company's shares may cause the Company to register
their shares in an underwritten public offering and (ii) grant piggy-back
registration rights to the stockholders in the event of an underwritten public
offering.
15. Unaudited Quarterly Information
34
<PAGE>
<TABLE>
<CAPTION>
First Second Third Fourth
Quarter Quarter Quarter Quarter
-------------- -------------- -------------- --------------
(In thousands, except per share date)
1998:
<S> <C> <C> <C> <C>
Net Sales...................................... $52,161 $64,386 $86,043 $57,408
Gross profit................................... 12,007 15,351 19,090 15,643
Net income (loss).............................. (921) 1,479 1,584 (1,865)
Basic and diluted net income (loss)
per share................................... (.46) .74 .79 (.93)
============== ============== ============== ==============
1997:
Net Sales...................................... $33,603 $58,558 $79,804 $48,793
Gross profit................................... 7,006 15,344 19,648 14,153
Net income (loss).............................. (985) 5,674 8,435 4,438
Basic and diluted net income (loss)
per share................................... (.49) 2.84 4.21 2.22
============== ============== ============== ==============
1996:
Net Sales...................................... $26,051 $46,500 $64,929 $41,057
Gross profit................................... 6,473 11,257 14,260 9,851
Net income (loss).............................. (978) 3,745 6,039 1,693
Basic and diluted net income (loss)
per share................................... (.54) 2.08 3.02 .85
============== ============== ============== ==============
</TABLE>
16. Acquisitions
In February 1997, the Company completed the acquisition of certain assets
and liabilities of Clark Products, Inc. This acquisition complements the
Company's poultry equipment product line and was accounted for as a purchase.
Accordingly, the purchased assets and assumed liabilities have been recorded at
their estimated fair market values at the date of the acquisition, resulting in
goodwill of $1.6 million.
On November 5, 1997, the Company acquired all of the capital stock of David
Manufacturing Co. ("DMC") for approximately $17.9 million in cash. DMC is a
manufacturer and supplier of grain drying and handling equipment. The
acquisition was recorded in accordance with the purchase method of accounting
and accordingly, the acquired assets and assumed liabilities have been recorded
at their estimated fair market values at the date of acquisition. The purchase
price exceeded the fair market value of net assets acquired resulting in
goodwill of approximately $6.4 million.
The following summarized unaudited pro forma financial information assumes
the DMC acquisition had occurred on January 1, 1996:
<TABLE>
<CAPTION>
1997 1996
------------------- -------------------
(Unaudited)
(In thousands, except per share data)
<S> <C> <C>
Net sales............................................ $248,919 $203,321
Net income........................................... 15,234 4,600
Basic and diluted earnings per share................. 7.62 2.42
</TABLE>
These amounts include DMC's actual results for 1996 and for the first ten
months of 1997 prior to the acquisition. Results for the two months after the
acquisition are included in the Company's results of operations. The pro forma
results do not necessarily represent results that would have occurred had the
acquisition taken place on the basis assumed above, nor are they indicative of
the results of future operations.
On June 30, 1998, the Company acquired all of the capital stock of Avemarau
Equipamentos Agricolas Ltda. ("Avemarau"), a Brazilian manufacturer and supplier
of poultry feeding equipment. The purchase price for Avemarau stock consisted of
a cash down payment of $5.4 million and deferred payments of approximately $5.8
35
<PAGE>
million payable through December 31, 2001. The stock purchase agreement also
calls for aggregate contingent payments to the former stockholders of up to $5.3
million (based on net profit as defined), however, management believes the
probability of any contingent payments is remote. Further the Company paid
approximately $7.6 million to the former stockholders of Avemarau for covenants
not to compete. The noncompete agreements have a five year term which commences
on the employees' termination date. The Company also agreed to provide a minimum
of $5.2 million for capital equipment over the next four years. The acquisition
was recorded in accordance with the purchase method of accounting and
accordingly, the acquired assets and assumed liabilities have been recorded at
their estimated fair market values at the date of acquisition. The purchase
price exceeded the fair market value of net assets acquired resulting in
goodwill of approximately $6.9 million which is being amortized over 15 years.
The purchase price was based on preliminary estimates and will be adjusted for
any overstated assets or unrecorded liabilities in excess of $125,000. The
results of operations have been included in the Company's consolidated results
of operations since the date of acquisition.
On May 1, 1998, the Company entered into a joint venture with Resintech
Engineering SDN BHD ("RE") to form Resintech-GSI International, SDN BHD
("Resintech"), a partnership, to sell, fabricate structural steel systems for
and install grain storage projects in Southeast Asia. The Company made an
initial capital contribution of $491,283 resulting in 40% ownership. The Company
is also required to pay to RE $150,000 within one year of the formation of
Resintech and 20% of Resintech's after-tax profit each year beginning in 1998
and until a total of $400,000 is paid. The $491,283 has been recorded as an
investment in a joint venture and is included in Other Assets in the Company's
consolidated balance sheets. The Company accounts for its investment in
Resintech under the equity method. Concurrent with the formation of the joint
venture, the Company entered into an Asset Purchase Agreement ("Asset
Agreement") with Resintech and RE and a Supply Agreement with Resintech. The
Asset Agreement calls for the purchase of RE's assets, as defined, by Resintech.
The Supply Agreement is by and between the Company and Resintech pursuant to
which, Resintech will purchase directly from the Company 100% of Resintech's
equipment requirements at a specified price, as defined. The term of the Supply
Agreement is from the date of the formation of the joint venture through the
effective date of the termination and dissolution of Resintech, as defined.
36
<PAGE>
17. Guarantor Subsidiaries
The Company's payment obligation under the Notes are fully and unconditionally
guaranteed on a joint and several basis by DMC, GSI/Cumberland de Mexico S. de
R.L. de C.V., GSI/Cumberland BV, GSI/Cumberland SA (Pty) Ltd., GSI/Cumberland
Sdn. Bhd., Cumberland do Brazil Ltda. and Avemarau ( the "Guarantor
Subsidiaries"). The Guarantor Subsidiaries are direct wholly-owned subsidiaries
of the Company. The obligations of the Guarantor Subsidiaries under their
guarantees are subordinated to such subsidiaries' obligations under their
guarantee of the LaSalle National Bank credit facility.
Presented below is unaudited condensed consolidating financial information for
The GSI Group, Inc. ("Parent Company") and the Guarantor Subsidiaries. In the
Company's opinion, separate financial statements and other disclosures
concerning the Guarantor Subsidiaries would not provide additional information
that is material to investors.
Investments in subsidiaries are accounted for by the Parent Company using the
equity method of accounting. Earnings of subsidiaries are, therefore, reflected
in the Parent Company's investments in and advances to/from subsidiaries account
and earnings. The elimination entries eliminate investments in subsidiaries and
intercompany balances and transactions.
37
<PAGE>
17. Guarantor Subsidiaries (Continued)
<TABLE>
<CAPTION>
SUPPLEMENTAL CONDENSED CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1998
(In thousands)
Parent Guarantor
Company Subsidiaries Eliminations Consolidated
------- ------------ ------------ ------------
ASSETS
<S> <C> <C> <C> <C>
Current assets:
Cash and cash equivalents................ $ 379 $ 813 $ -- $ 1,192
Accounts receivable, net.................. 34,208 11,017 (8,256) 36,969
Inventories, net.......................... 29,285 20,934 (1,000) 49,219
Other current assets...................... 8,102 2,021 (2,530) 7,593
-------- -------- -------- --------
Total current assets...................... 71,974 34,785 (11,786) 94,973
Property, plant and equipment, net........... 36,387 13,870 -- 50,257
Goodwill..................................... 1,625 11,021 -- 12,646
Investment in and advances to/from
subsidiaries.............................. 48,969 (17,645) (31,324) --
Other long-term assets....................... 9,192 7,580 -- 16,772
-------- --------- -------- --------
Total assets.............................. $168,147 $ 49,611 $(43,110) $174,648
======== ======== ======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt......... $ 2,840 $ 1,732 $ -- $ 4,572
Accounts payable.......................... 9,713 20,300 (15,554) 14,459
Accrued liabilities....................... 23,669 3,020 -- 26,689
-------- -------- -------- --------
Total current liabilities................. 36,222 25,052 (15,554) 45,720
Long-term debt............................... 129,602 4,614 -- 134,216
Other long-term liabilities.................. -- 1,678 -- 1,678
-------- -------- -------- --------
Total liabilities......................... 165,824 31,344 (15,554) 181,614
Stockholders' equity:
Common stock.............................. 20 15,922 (15,922) 20
Additional paid-in capital................ 2,473 -- -- 2,473
Accumulated other comprehensive income.... -- (2,203) -- (2,203)
Retained earnings (deficit)............... 25,363 4,548 (11,634) 18,277
Treasury stock, at cost................... (25,533) -- -- (25,533)
-------- -------- -------- --------
Total stockholders' equity (deficit)...... 2,323 18,267 (27,556) (6,966)
-------- -------- -------- --------
Total liabilities and stockholders' equity... $168,147 $ 49,611 $(43,110) $174,648
======== ======== ======== ========
</TABLE>
38
<PAGE>
17. Guarantor Subsidiaries (Continued)
<TABLE>
<CAPTION>
SUPPLEMENTAL CONDENSED CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1997
(In thousands)
Parent Guarantor
Company Subsidiaries Eliminations Consolidated
------- ------------ ------------ ------------
ASSETS
------
<S> <C> <C> <C> <C>
Current assets:
Cash and cash equivalents................. $ 18,177 $ 395 $ -- $ 18,572
Accounts receivable, net.................. 24,734 2,950 (4,470) 23,214
Inventories, net.......................... 34,105 13,345 (568) 46,882
Other current assets...................... 10,738 582 -- 11,320
-------- ------- -------- --------
Total current assets...................... 87,754 17,272 (5,038) 99,988
Property, plant and equipment, net........... 27,479 8,664 -- 36,143
Goodwill..................................... 1,657 6,334 -- 7,991
Investment in and advances to/from
subsidiaries.............................. 21,183 (8,581) (12,602) --
Other long-term assets....................... 5,871 116 -- 5,987
-------- ------- ------- --------
Total assets.............................. $143,944 $23,805 $(17,640) $150,109
======== ======= ======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt......... $ 14,663 $ -- $ -- $ 14,663
Accounts payable.......................... 11,123 5,295 (4,470) 11,948
Accrued liabilities....................... 20,232 4,095 -- 24,327
-------- ------- -------- --------
Total current liabilities................. 46,018 9,390 (4,470) 50,938
Long-term debt............................... 100,743 1,125 -- 101,868
Other long-term liabilities.................. -- 2,087 -- 2,087
-------- ------- -------- --------
Total liabilities......................... 146,761 12,602 (4,470) 154,893
Stockholders' equity:
Common stock.............................. 20 1,536 (1,536) 20
Additional paid-in capital................ 2,473 -- -- 2,473
Accumulated other comprehensive income.... -- (869) -- (869)
Retained earnings (deficit)............... 20,223 10,536 (11,634) 19,125
Treasury stock, at cost................... (25,533) -- -- (25,533)
-------- ------- -------- --------
Total stockholders' equity (deficit)...... (2,817) 11,203 (13,170) (4,784)
-------- ------- -------- --------
Total liabilities and stockholders' equity.. $143,944 $23,805 $(17,640) $150,109
======== ======= ======== ========
</TABLE>
39
<PAGE>
17. Guarantor Subsidiaries (Continued)
SUPPLEMENTAL CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1998
(In thousands)
<TABLE>
<CAPTION>
Parent Guarantor
Company Subsidiaries Eliminations Consolidated
-------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net sales................... $222,057 $48,121 $(10,180) $259,998
Cost of sales............... 166,985 38,978 (8,056) 197,907
-------- ------- -------- --------
Gross profit.............. 55,072 9,143 (2,124) 62,091
Selling, general and
administrative expenses.... 36,086 14,159 -- 50,245
-------- ------- -------- --------
Operating income (loss)... 18,986 (5,016) (2,124) 11,846
Interest expense............ (11,371) (1,575) -- (12,946)
Other income (expense)...... 1,054 63 -- 1,117
-------- ------- -------- --------
Income (loss) before income
taxes...................... 8,669 (6,528) (2,124) 17
Provision (benefit) for
income taxes............... 280 (540) -- (260)
-------- ------- -------- --------
Income (loss) before equity
in income of consolidated
subsidiaries............... 8,389 (5,988) (2,124) 277
Equity in income of
consolidated subsidiaries.. (5,988) -- 5,988 --
-------- ------- -------- --------
Net income (loss)........... $ 2,401 $(5,988) $ 3,864 $ 277
======== ======= ======== ========
</TABLE>
40
<PAGE>
17. Guarantor Subsidiaries (Continued)
SUPPLEMENTAL CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1997
(In thousands)
<TABLE>
<CAPTION>
Parent Guarantor
Company Subsidiaries Eliminations Consolidated
-------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net sales................... $220,096 $ 6,372 $(5,710) $220,758
Cost of sales............... 164,495 5,258 (5,146) 164,607
-------- ------- ------- --------
Gross profit.............. 55,601 1,114 (564) 56,151
Selling, general and
administrative expenses.... 32,814 2,375 -- 35,189
-------- ------- ------- --------
Operating income (loss)... 22,787 (1,261) (564) 20,962
Interest expense............ (6,159) (15) -- (6,174)
Other income (expense)...... 1,074 (131) -- 943
-------- ------- ------- --------
Income (loss) before income
taxes...................... 17,702 (1,407) (564) 15,731
Provision (benefit) for
income taxes............... 357 (69) -- 288
-------- ------- ------- --------
Income (loss) before
extraordinary item and
equity in income of
consolidated subsidiaries.. 17,345 (1,338) (564) 15,443
Gain on early extingushment
of debt.................... 2,119 -- -- 2,119
-------- ------- ------- --------
Income (loss) before equity
in income of consolidated
subsidiaries............... 19,464 (1,338) (564) 17,562
Equity in income of
consolidated subsidiaries.. (1,338) -- 1,338 --
-------- ------- ------- --------
Net income (loss)........... $ 18,126 $(1,338) $ 774 $ 17,562
======== ======= ======= ========
</TABLE>
41
<PAGE>
17. Guarantor Subsidiaries (Continued)
SUPPLEMENTAL CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1998
(In thousands)
<TABLE>
<CAPTION>
Parent Guarantor
Company Subsidiaries Eliminations Consolidated
-------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Cash flows from operating activities.................... $ 6,493 $ (3,052) $ -- $ 3,441
-------- -------- --------- --------
Cash flows from investing activities:
Capital expenditures................................ (12,974) (4,990) -- (17,964)
Other............................................... 1,682 (13,409) -- (11,727)
-------- -------- --------- --------
Net cash provided by (used in) investing
activities.......................................... (11,292) (18,399) -- (29,691)
-------- -------- --------- --------
Cash flows from financing activities:
Advances (to) from affiliates....................... (24,531) 24,531 -- --
Net borrowings (payments) on debt................... 18,332 (2,662) -- 15,670
Dividends........................................... (6,426) -- -- (6,426)
Other............................................... (374) -- -- (374)
-------- -------- -------- --------
Net cash provided by (used in) financing
activities.......................................... (12,999) 21,869 -- 8,870
-------- -------- -------- --------
Change in cash and cash equivalents..................... (17,798) 418 -- (17,380)
Cash and cash equivalents, beginning of period.......... 18,177 395 -- 18,572
-------- -------- -------- --------
Cash and cash equivalents, end of period................ $ 379 $ 813 -- $ 1,192
======== ======== ======== ========
</TABLE>
42
<PAGE>
17. Guarantor Subsidiaries (Continued)
SUPPLEMENTAL CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1997
(In thousands)
<TABLE>
<CAPTION>
Parent Guarantor
Company Subsidiaries Eliminations Consolidated
------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Cash flows from operating activities................. $ (283) $ (3,295) $ -- $ (3,578)
------- -------- ---------- ---------
Cash flows from investing activities:
Capital expenditures.............................. (8,766) (889) -- (9,655)
Other............................................. (18,434) -- -- (18,434)
------- -------- ---------- ---------
Net cash provided by (used in)
investing activities.............................. (27,200) (889) -- (28,089)
------- -------- ---------- ---------
Cash flows from financing activities:
Advances (to) from affiliates..................... (4,459) 4,459 -- --
Net borrowings (payments) on debt................. 69,913 -- -- 69,913
Dividends......................................... (16,322) -- -- (16,322)
Other............................................. (4,842) -- -- (4,842)
-------- -------- ---------- ---------
Net cash provided by (used in) financing
activities........................................ 44,290 4,459 -- 48,749
------- -------- ---------- ---------
Change in cash and cash equivalents.................. 16,807 275 -- 17,082
Cash and cash equivalents, beginning of period....... 1,370 120 -- 1,490
------- -------- ---------- ---------
Cash and cash equivalents, end of period............. $18,177 $ 395 -- $18,572
======= ======== ========== =========
</TABLE>
43
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The following table sets forth certain information concerning the executive
officers and directors of the Company:
<TABLE>
<CAPTION>
Name Age Office
---- --- ------
<S> <C> <C>
Craig Sloan....................................... 48 Chief Executive Officer and Director
Jorge Andrade..................................... 47 President, Chief Operating Officer and Director
John W. Funk...................................... 39 Executive Vice President, Chief Financial Officer,
General Counsel, Secretary and Director
Howard G. Buffett................................. 44 Chairman of the Board of Directors
Eugene A. Wiseman................................. 49 President of GSI Division
David L. Vettel................................... 40 President of GSI International Division
Allen A. Deutsch.................................. 48 President of AP Division
Christopher V. van Rossem......................... 43 President of GSI/Cumberland International and
Cumberland Hatchery Systems Divisions
Tom Huls.......................................... 45 President of Cumberland Division
Russell C. Mello.................................. 37 Vice President, Finance, Assistant Secretary and
Assistant Treasurer
</TABLE>
Craig Sloan joined the Company in November 1971. Mr. Sloan has been Chief
Executive Officer since December 1993. From December 1974 to December 1993, he
served as President of Grain Systems, Inc., a former subsidiary of the Company.
Mr. Sloan has been a Director of the Company since December 1972.
Jorge Andrade joined the Company in April 1993. Mr. Andrade has been Chief
Operating Officer since January 1995. Mr. Andrade also has been President since
April 1996. From April 1993 to December 1994, he served as President of the
Cumberland Division. From March 1987 to March 1993, he served as Executive Vice
President of Chick Master Incubator Company, an international manufacturer of
high-capacity incubators for poultry. Mr. Andrade has been a Director of the
Company since April 1996.
John W. Funk joined the Company in December 1995 and has been General
Counsel since that time. Mr. Funk also has been Executive Vice President, Chief
Financial Officer and Secretary since April 1996. From May 1994 to December
1995, he served as Chief Operating Officer of Behnke & Company, Inc., a
commercial insurance agency. From October 1988 to January 1994, he served as In-
House Counsel to A. E. Staley Manufacturing Company, a grain processing company.
From September 1985 to October 1988, he was an associate at the New York law
firm of Brown & Wood. Mr. Funk has been a Director of the Company since April
1996.
Howard G. Buffett joined the Company in September 1995. Mr. Buffett has
been Chairman of the Board since June 1996. From September 1995 to June 1996, he
served as President of International Operations. From February 1992 to July
1995, he served as Corporate Vice President and Assistant to the Chairman of the
Archer-Daniels-Midland Company, a processor of agricultural products. Mr.
Buffett has been a Director of the Company since September 1995. Mr. Buffett
also is a Director of Berkshire Hathaway, Inc., Coca-Cola Enterprises, Inc.,
Lindsay manufacturing Company, and Vision Solutions, Inc.
Eugene A. Wiseman joined the Company in October 1978. Mr. Wiseman has been
President of the GSI Division since December 1996. From December 1994 to
December 1996, he served as Vice President of the GSI
44
<PAGE>
Division. From March 1990 to December 1994, he served as Division Manager of the
GSI Division. Prior thereto, Mr. Wiseman held various sales and management
positions.
David L. Vettel joined the Company in November 1993. Mr. Vettel has been
President of the GSI International Division since December 1995. From November
1993 to December 1995, he served as Vice President of the GSI International
Division. From November 1991 to November 1993, he served as International Sales
Manager of Chief Industries, Inc., a manufacturer of steel buildings and grain
storage bins.
Allen A. Deutsch joined the Company in January 1993. Mr. Deutsch has been
President of the AP Division since June 1996. From April 1995 to June 1996, he
served as Vice President of the AP Division. From January 1993 to April 1995,
he served as National Sales Manager of the AP Division. From August 1983 to
January 1993, he served as Sales Manager of AAA Associates, Incorporated, a
manufacturer and marketer of livestock ventilation systems, which business was
acquired by the Company in January 1993.
Christopher V. van Rossem joined the Company in October 1993 and has been
President of the GSI/Cumberland International Division since that time. Mr. van
Rossem also has been President of the Cumberland Hatchery Systems Division since
August 1997. From June 1989 to October 1993, he served as Sales Manager of
Chick Master Incubator Co., an international manufacturer of high-capacity
incubators for poultry, where he managed the company's United States and
Canadian sales department.
Thomas Huls joined the Company in 1992. Mr. Huls has been President of the
Cumberland Division since April of 1998. From July of 1992 to April of 1998, he
served as a District Manager for the Cumberland Division. From October of 1989
to July 1992, he was Sales Manager for Cumberland's largest distributor. From
January of 1985 to October of 1989, he served as a District Manager for Big
Dutchman, Inc., a manufacturer of poultry feeding equipment.
Russell C. Mello joined the Company in March 1995. Mr. Mello has been Vice
President, Finance and Assistant Secretary and Assistant Treasurer since
September 1996. From March 1995 to September 1996, he served as the Controller
of the GSI Division. From December 1993 to March 1995, he served as Manager of
Business Planning of Emerson Hermetic Motor Division, a division of Emerson
Electric Company, a manufacturer of commercial and industrial motors. From
March 1990 to December 1993, he served as Controller of Copeland Electric, Inc.,
a subsidiary of Emerson Electric Company.
The Company's bylaws provide that the number of directors shall be four.
Each director is elected to serve until the next annual meeting and until his or
her successor has been elected and qualified or until his or her earlier
resignation or removal. Executive officers are elected by the Board of
Directors and serve until their successors have been elected and qualified or
until their earlier resignation or removal.
ITEM 11. EXECUTIVE COMPENSATION.
The following table sets forth in summary form all compensation for all
services rendered in all capacities to the Company for the year ended December
31, 1998 of the Company's Chief Executive Officer and the other four most highly
compensated executive officers of the Company (the "Named Executives").
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
All Other
Name & Principal Position Year Annual Compensation Compensation(1)
------------------------- ------------ --------------------------------- ---------------------
Salary Bonus
------------- ---------------
<S> <C> <C> <C> <C>
Craig Sloan.......................................... 1998 $170,000 $ - $1,616
Chief Executive Officer and Director
Jorge Andrade........................................ 1998 $160,000 $45,000 $1,651
President, Chief Operating Officer and Director
John W. Funk......................................... 1998 $150,000 $16,250 $1,543
Chief Financial Officer, General Counsel, Secretary
</TABLE>
45
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
and Director
Howard G. Buffett....................................... 1998 $235,000 $100,000 $ -
Chairman of the Board
Christopher van Rossem.................................. 1998 $127,692 $ 19,572 $958
President of GSI/Cumberland International Division
</TABLE>
(1) Consists of matching contributions by the Company to Company sponsored
401(k) plans.
Employment Agreements
The Company has entered into employment agreements with Messrs. Sloan,
Andrade, Funk and Buffett (each, and "Executive"). The terms of each
Executive's employment agreement are substantially the same. Each agreement
provides for a specified minimum annual base salary, subject to increases
determined by the Company's Board of Directors, and participation in any profit
sharing, retirement, insurance or other benefit plans maintained by the Company.
The employment agreement of each Executive will terminate as of the earliest
of: (i) June 6, 2001; (ii) the last day of the month in which the Executive's
death occurs; or (iii) ninety days after the date the Company gives the
Executive's notice of termination if such termination is for "cause", due to the
Executive being "permanently disabled" (as such terms are defined in the
employment agreement). The Company may not terminate an Executive, with or
without cause, unless such termination has been authorized by a resolution
adopted by the Board at a meeting duly called and held, and where the Executive
is given prior written notice of the basis for his termination and an
opportunity to be heard by the Board at such meeting. In addition, the
Executive may not be terminated for cause unless: (i) the Company has followed
the foregoing procedures and (ii) the Executive is given an opportunity to cure
any of the actions or omissions which form the basis for his termination within
30 days of the adoption of the Board resolution described above. If employment
is terminated due to permanent disability, the Executive will continue to
receive an annual salary (less any benefits paid during the period of his
disability, under the Company's disability insurance programs) and other
benefits until such time that the Executive sells his stock to the Company
pursuant to the terms of certain stockholder agreements among the holders of the
Company's voting stock. See "Certain Relationships and Related Transactions-
Management Buyout-Stockholder Agreements." If employment is terminated without
cause after December 6, 1999, the Executive will receive at a minimum,
immediately upon such termination, a severance payment equal to the greater of:
(i) eighteen months salary at the Executive's then current rate; or (ii) in the
case of Mr. Sloan, $594,682; in the case of Messrs. Andrade and Buffett,
$450,000; and in the case of Mr. Funk, $375,000. There is no provision for
severance payments if employment is terminated without cause prior to December
6, 1999.
Each employment agreement also provides that during the Executive's employment
with the Company, and for two years thereafter, the Executive will not be
employed by or otherwise engage in any business that is in competition with the
Company, except that the Executive may; (i) invest in such business where the
stock of such business is traded on a national securities exchange and the
Executive owns less that 1% of the equity of such business; (ii) serve on the
board of directors of any corporation on which the Executive is serving as of
the date of his termination. If the Executive is terminated by the Company
without cause, the foregoing covenant not to compete is null and void.
Compensation Committee Interlocks and Insider Participation
The Company did not have a Compensation Committee during 1998. All members of
the Company's Board of Directors participated in deliberations regarding
executive officer compensation during 1998. See "Certain Relationships and
Related Transactions." During 1998, no member of the Company's Board of
Directors served as a director or a member of the compensation committee of any
other company of which any executive officer served as a member of the Company's
Board of Directors.
46
<PAGE>
Director Compensation
Each director of the Company will receive an annual fee of $10,000 plus a fee
or $5,000 for each Board of Directors meeting attended, with such attendance
fees being capped at $40,000, in the aggregate, per year. The Directors have
agreed to waive these fees in 1999.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth certain information as of March 29, 1999 with
respect to the shares of the Company's voting common stock and non-voting common
stock beneficially owned by (i) each person or group that is known by the
Company to beneficially own more that 5% of the outstanding Common Stock, (ii)
each director of the Company, (iii) each Named Executive and (iv) all directors
and executive officers of the Company as a group.
<TABLE>
<CAPTION>
Non-Voting
Voting Common Stock Common Stock
------------------------------ ------------------------------
Number of Percentage of Number of Percentage of
Name and Address of Beneficial Owner Shares Voting Shares Non-Voting
------------------------------------ --------------- -------------- ------------- --------------
<S> <C> <C> <C> <C>
Craig Sloan (1)...................................... 1,175,000 65.28% 54,100 27.05%
Jorge Andrade (1).................................... 300,000 16.67% -- --
John W. Funk (1)..................................... 225,000 12.50% -- --
Howard G. Buffett (1)................................ 100,000 5.55% -- --
Christopher van Rossem (1)........................... 15,773 7.89%
Directors and executive officers as a group
(10 persons in group)............................. 1,800,000 100.00% 129,020 64.51%
</TABLE>
(1) The address of each stockholder is c/o The GSI Group, Inc., 1004 East
Illinois Street, Assumption, Illinois 62510, (217) 226-4421.
(2) The Company has 200,000 shares of non-voting common stock outstanding.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The Company and the holders of the Company's voting common stock ("voting
stockholders") have entered into a Stock Restriction and Buy-Sell Agreement and
the stockholders have entered into a Stock Restriction and Cross Purchase
Agreement (the "Stockholder Agreements"). The Stockholder Agreements define the
rights of the voting stockholders with respect to their ownership of the
Company's shares. These agreements generally (i) provide that the holders of a
majority of the stock may sell all of their shares at any time if the other
stockholders are entitled to participate in such sale on the same terms and
conditions, and that the holders of a majority of the stock may require the
other voting Stockholders to sell all their stock at the same time on the same
terms and conditions, (ii) establish that the voting Stockholders are restricted
in their ability to sell, pledge or transfer such shares, (iii) grant rights of
first refusal, first to the Company and then to all non-transferring
stockholders, with respect to the transfer of any shares, (iv) require that an
affirmative vote by a majority of the Company's voting stock is required to
approve certain corporate matters and (v) establish procedures for the optional
purchase of shares by the Company (subject to compliance with the terms of the
Indenture) or any remaining voting Stockholders upon the death, permanent
disability or termination of employment of any voting Stockholder. Each of the
voting Stockholders is covered by life insurance policies, the proceeds of which
generally will be used to fund the purchase of shares from the estate of a
deceased voting Stockholder. The Stockholder Agreements also (i) provide that
the holders of a majority of the Company's shares may cause the Company to
register their shares in an underwritten public offering and (ii) grant piggy-
back registration rights to the voting Stockholders in the event of an
underwritten public offering.
In addition, the Company, the voting Stockholders and each of the holders of
the Company's non-voting common stock have entered into an agreement that (i)
provides that the holders of non-voting common stock are
47
<PAGE>
entitled to sell their shares on the same terms and conditions in the event the
voting Stockholders transfer a majority of the voting stock, (ii) provides that
the holders of the non-voting common stock must under certain circumstances
agree to sell their shares on the terms and conditions approved by the Company's
Board of Directors, (iii) established that the holders of the non-voting common
stock are restricted in their ability to sell, pledge or transfer such shares,
(iv) grants rights of first refusal, first to Craig Sloan and then to the other
voting Stockholders, with respect to the transfer of any non-voting common stock
to other non-voting stockholders and (v) establishes procedures for the optional
purchase of shares by Mr. Sloan, the other voting Stockholders and the Company
(subject to compliance with the terms of the Indenture) upon the death,
permanent disability or termination of employment of any holder of non-voting
common stock. The agreement also grants piggy-back registration rights to the
holders of non-voting common stock in the event of an underwritten public
offering.
The Company makes sales in the ordinary course of business to Sloan Implement
Company, Inc., a supplier of agricultural equipment that is owned by certain
family members of Craig Sloan. Such transactions generally consist of sales of
grain equipment and amounted to $131,495 for 1998. The Company believes that
these transactions were, and future transactions with Sloan Implement Company,
Inc. will be, on terms no less favorable to the Company than could have been
obtained from an independent third party in arm's length transactions.
From time to time the Company extends demand loans to its officers and
directors for the payment of taxes incurred as a result of the Company's
subchapter S status. The annual interest rate on such loans is based on the
prime rate. No such loans were outstanding during 1998.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a)(1) Financial Statements:
See "Index to Financial Statements of The GSI Group, Inc. and Subsidiaries"
set forth in Item 8 hereof.
(a)(2) Financial Statement Schedules:
Schedules not listed above have been omitted because they are inapplicable or
the information required to be set forth therein is provided in the Consolidated
Financial Statements or the notes thereto.
(a)(3) Exhibits:
A list of the exhibits included as part of this Form 10-K is set forth in the
Index to Exhibits that immediately precedes such exhibits, which is incorporated
herein by reference.
(b) Reports on Form 8-K:
The GSI Group, Inc. did not file any Current Reports on Form 8-K during its
fiscal quarter ended December 31, 1998.
48
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) the Securities Exchange
Act of 1934, The GSI Group, Inc. has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized, in Assumption, Illinois on
March 29, 1999.
The GSI Group, Inc.
By: /s/ Craig Sloan
-----------------------------------
Craig Sloan
Director and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of Registrant in
the capacities indicated on March 29, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<C> <S>
/s/ Craig Sloan Director and Chief Executive Officer (Principal
- ------------------------------------------------------- Executive Officer)
Craig Sloan
/s/ John W. Funk Director, Chief Financial Officer, Secretary and
- ------------------------------------------------------- General Counsel (Principal Financial Officer)
John W. Funk
/s/ Jorge Andrade Director and Chief Operating Officer
- -------------------------------------------------------
Jorge Andrade
/s/ Howard G. Buffett Chairman of the Board of Directors
- -------------------------------------------------------
Howard G. Buffett
/s/ Russell C. Mello Vice President, Finance, Assistant Secretary and
- ------------------------------------------------------- Assistant Treasurer (Principal Accounting
Russell C. Mello Officer)
</TABLE>
49
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Document Description
- ---------- ---------------------------------------------------------------------------------------------
<C> <S>
2.1** Stock Purchase Agreement, dated June 30, 1998, by and among Cumberland do Brasil Ltda.,
Avemarau Equipamentos Agricolas Ltda. and the stockholders of Avemarau Equipamentos
Agricolas Ltda.
2.2** Agreement for Non-Competition, dated June 30, 1998, by and among the stockholders of
Avemarau Equipamentos Agricolas Ltda. and The GSI Group, Inc.
3.1* Amended and Restated Articles of Incorporation of The GSI Group, Inc., as amended as of
October 23, 1997
3.2* By-Laws of The GSI Group, Inc.
3.3* Restated Articles of Incorporation of David Manufacturing Co., as amended as of February 17,
1987
3.4* By-Laws of David Manufacturing Co.
4.1* Indenture, dated November 1, 1997, between The GSI Group, Inc. and LaSalle national Bank, as
Trustee, including forms of the Old Notes and the New Notes issued pursuant to such
Indenture.
4.2* First Supplemental Indenture, dated December 19, 1997, between The GSI Group, Inc. and
LaSalle National Bank, as Trustee, amending Indenture dated November 1, 1997, between The
GSI Group, Inc. and LaSalle National Bank, as Trustee, to qualify such Indenture under the
Trust Indenture Act of 1939.
4.3* Second Supplemental Indenture dated December 19, 1997, executed by David Manufacturing Co.,
amending Indenture dated November 1, 1997, between The GSI Group, Inc. and LaSalle National
Bank, as Trustee, to add David Manufacturing Co. as a Guarantor under such Indenture.
4.4* Registration Rights Agreement, dated November 1, 1997, among The GSI Group, Inc., David
Manufacturing Co., Merrill Lynch, Pierce Fenner & Smith Incorporated and Morgan Stanley &
Co. Incorporated.
4.5* Agreement of The GSI Group, Inc. to furnish the Securities and Exchange Commission with a
copy of certain instruments relating to long-term debt of The GSI Group, Inc. upon request.
10.1 Fourth Amended and Restated Loan and Security Agreement dated February 4, 1999 between The
GSI Group, Inc., as borrower, and LaSalle National Bank, as lender.
10.10* Amended and Restated Employment Agreement, dated as of January 1, 1997, between The GSI
Group, Inc. and John C. Sloan.
10.11* Amended and Restated Employment Agreement, dated as January 1, 1997, between The GSI Group,
Inc. and Jorge Andrade.
10.12* Amended and Restated Employment Agreement, dated as of January 1, 1997, between The GSI
Group, Inc. and John Funk.
10.13* Amended and Restated Employment Agreement, dated as of January 1, 1997, between The GSI
Group, Inc. and Howard Buffett.
10.14* Stock Restriction and Buy-Sell Agreement, dated June 6, 1996, between The GSI Group, Inc.
and John C. Sloan, Jorge Andrade, John Funk and Howard Buffett.
10.15* First Amendment to Stock Restriction and Buy-Sell Agreement, dated July 15, 1996, between
The GSI Group, Inc. and John C. Sloan, Jorge Andrade, John Funk and Howard Buffett.
</TABLE>
50
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Document Description
- ---------- --------------------
<S> <C>
10.16* Second Amendment to Stock Restriction and Buy-Sell Agreement, dated October 2, 1997, between
The GSI Group, Inc. and John C. Sloan, Jorge Andrade, John Funk and Howard Buffett.
10.17* Stock Restriction and Buy-Sell Agreement, dated January 1, 1997, between The GSI Group,
Inc., John C. Sloan, Jorge Andrade, John Funk and Howard Buffett and the Non Voting
Shareholders.
10.18* First Amendment to Stock Restriction and Buy-Sell Agreement, dated as of November 5, 1997,
between The GSI Group, Inc., John C. Sloan, Jorge Andrade, John Funk and Howard Buffett and
the Non Voting Shareholders.
10.19* Stock Restriction and Cross-Purchase Agreement, dated Jun 6, 1996, among John C. Sloan,
Jorge Andrade, John Funk and Howard Buffett.
10.2* Guaranty, dated November 26, 1997, executed by The GSI Group, Inc. in favor of Mercantile
Bank National Association.
10.20* First Amendment to Stock Restriction and Cross-Purchase Agreement, dated July 15, 1996,
among John C. Sloan, Jorge Andrade, John Funk and Howard Buffett.
10.21* Second Amendment to Stock Restriction and Cross-Purchase Agreement, dated as of October 2,
1997, among John C. Sloan, Jorge Andrade, John Funk and Howard Buffett.
10.22*** Third Amended and Restated Loan and Security Agreement, dated August 19, 1998 between The
GSI Group, Inc., as borrower, and LaSalle National Bank, as lender.
10.23*** First Amendment to Third Amended and Restated Loan and Security Agreement dated October 30,
1998 between The GSI Group, Inc., as borrower, and LaSalle National Bank, as lender.
10.3* Stock Purchase Agreement, dated November 5, 1997, between and among The GSI Group, Inc.,
David Manufacturing Company, David Service Company, the Stockholders of David Manufacturing
Company and the Stockholders of David Service Company.
10.4* Lease, dated April 29, 1997, between The GSI Group, Inc. and Richard and Priscilla Perry
relating to property located in Mt. Carmel, Illinois.
10.5* Lease with Option to Purchase, dated July 12, 1996, between The GSI Group, Inc. and Edgar
County Bank & Trust Company, as Trustee for Trust No. 455-232 relating to property located
in Paris, Illinois.
10.6* Letter, dated September 15, 1997, from Luis F. Pacheco of Trench, Rossi e Watanabe,
attorneys at law, to Ricardo S. Santana of Cumberland do Brasil Ltda. summarizing the terms
of the lease, dated September 1, 1997, between Cumberland do Brasil Ltda. and Cruzeiro do
Sul relating to property leased by The GSI Group, Inc. in Nova Odessa, Brazil.
10.7* Agreement, dated April 9, 1997, between GSI/Cmberland Sdn. Bhd. and Ban Leng Fibre Sdn. Bhd.
relating to property located in Penang, Malaysia.
10.8* Lease Agreement, dated November 1, 1996, between The GSI Group, Inc., successor by
acquisition to Clark Products, Inc. and Riddle Valley Industrial Park related to property
located in Lenni, Pennsylvania.
10.9* Asset Purchase Agreement, dated December 20, 1995, by and among The GSI Group, Inc.,
Jannock, Inc. and Heritage Vinyl Products Inc.
</TABLE>
51
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Document Description
- ---------- --------------------
<C> <S>
12.1 Computation of Ratio of Earnings to Fixed Charges.
21.1 List of Subsidiaries of The GSI Group, Inc.
27.1 Financial Data Schedule
</TABLE>
____________
* Incorporated by reference from the Company's Registration Statement of Form
S-4 (Reg. No. 333-43089) filed with the Commission pursuant to the Securities
Act of 1933, as amended.
** Incorporated by reference from the Company's Form 8-K filed with the
Commission pursuant to the Securities Act of 1934, as amended.
*** Incorporated by reference from the Company's Form 10-Q filed with the
Commission pursuant to the Securities Act of 1934.
52
<PAGE>
SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED PURSUANT TO
SECTION 15(D) OF THE ACT BY REGISTRANT WHICH HAVE NOT REGISTERED SECURITIES
PURSUANT TO SECTION 12 OF THE ACT.
The Company did not send an annual report or proxy statement to security
holders covering 1998.
53
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Exhibit 10.24
FOURTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this
"Agreement") is dated as of February 4, 1999 by and among THE GSI GROUP, INC., a
Delaware corporation ("Borrower"), the several financial institutions which are
or may from time to time become parties to this Agreement (each a "Bank" and
collectively, the "Banks") and LASALLE NATIONAL BANK, as Agent (as defined
below) for the Banks.
Recitals
A. Borrower and Agent entered into a Loan and Security Agreement dated as
of April 26, 1995 (as amended and restated from time to time through and
including a Third Amended and Restated Loan and Security Agreement dated as of
August 19, 1998 among Borrower, Agent and the Banks, as amended by a First
Amendment thereto dated as of October 30, 1998, the "Original Loan Agreement").
B. Borrower, the Banks and Agent desire to further amend and restate the
Original Loan Agreement as set forth herein effective as of the date hereof,
except for the financial covenants set forth in Article VIII hereof, all of
which are amended and restated effective as of December 31, 1998 in order to
reflect Borrower's actual performance for the year then ended and for all
periods thereafter.
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
amend and restate the Original Loan Agreement in its entirety as follows:
ARTICLE I. DEFINITIONS.
1.01 Certain Defined Terms. The following words and phrases, as used
herein, shall have the following respective meanings:
"Accounts" shall mean any accounts, contract rights, notes, drafts, chattel
paper, instruments, documents and general intangibles consisting of rights to
payment (all as defined in the UCC).
"Account Debtor" shall mean any party who is obligated on any Account.
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"Acquisition" shall mean any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (A) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (B) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (C) a merger or
consolidation or any other business combination with another Person (other than
a Person that is a Subsidiary).
"Adjusted LIBOR Rate" shall mean a rate per annum determined pursuant to
the following formula:
LIBOR
Adjusted LIBOR Rate = -------------------------
100% - Reserve Percentage
The Adjusted LIBOR Rate shall be adjusted automatically as to all Euro-
Dollar Loans then outstanding as of the effective date of any change in the
Reserve Percentage.
"Affiliate" shall mean any Person which, directly or indirectly, owns or
controls, on an aggregate basis, including all beneficial ownership and
ownership or control as a trustee, guardian or other fiduciary, Stock having
ordinary voting power to elect a majority of the board of directors
(irrespective of whether, at the time, Stock of any other class or classes of
such corporation have or might have voting power by reason of the happening of
any contingency) of Borrower, or which controls, is controlled by or is under
common control with Borrower or any stockholders of Borrower.
"Agent" shall mean LaSalle National Bank in its capacity as agent for the
Banks and any successor agent pursuant to Section 10.09.
"Agent-Related Persons" shall mean LNB and any successor agent arising
under Section 10.09 together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agent's Payment Office" shall mean the address for payments set forth on
Schedule 6 or such other address as Agent may from time to time specify.
"Applicable Margin" shall mean with respect to Euro-Dollar Loans and the
Non-Use Fee, the rate per annum determined as set forth below:
[SEE CHART ON NEXT PAGE]
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<TABLE>
<CAPTION>
Senior Debt to EBITDA Applicable Applicable Applicable
Ratio Margin Margin for Margin for
for Euro- Non-Use Fee Floating
Dollar Loans Rate Loans
- -----------------------------------------------------------------------
Greater Than And Less
or Equal to Than
- -----------------------------------------------------------------------
<S> <C> <C> <C> <C>
2.50 to 1 3.00% .375% .50%
2.25 to 1 2.50 to 1 2.75% .50% .50%
2.00 to 1 2.25 to 1 2.50% .25% .25%
1.75 to 1 2.00 to 1 2.25% .25% 0
1.50 to 1 1.75 to 1 2.00% .20% 0
1.50 to 1 1.75% .20% 0
</TABLE>
Any change in the Applicable Margin due to a change in the Senior Debt to EBITDA
Ratio shall take place upon receipt by Agent of the Compliance Certificate
pursuant to Section 7.01(E) indicating such change in the Senior Debt to EBITDA
Ratio.
"Assignee" shall have the meaning specified in Section 11.18(A).
"Assignment and Acceptance" shall have the meaning specified in Section
11.18(A).
"Attorney Costs" shall mean and include all reasonable fees and
disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services and all disbursements of internal
counsel.
"Authorized Borrower Representative" shall mean any officer of Borrower
designated as such by resolution of the Board of Directors of Borrower from time
to time, a certified copy of which resolution shall be delivered to the Bank.
"Available RCL Amount" shall mean, with respect to any quarter in
Borrower's fiscal year, (i) $27,500,000 plus (ii) the aggregate amount of
principal payments received by Agent from and after the date hereof in respect
of the Term Loan through the end of the immediately preceding quarter.
"Available TLC Amount" shall mean an amount equal to (i) $9,573,000 (which
represents 75% of the orderly liquidation value of Borrower's Equipment as of
the date hereof) plus (ii) the lesser of (i) $7,013,000 (which represents 75% of
the fair market value of all of Borrower's Facilities) and (ii) 75% of the fair
market value of Borrower's Facilities in which Agent has a valid, perfected,
first-priority lien.
"Avemarau" shall mean Avemarau Equipamentos Agricolas Ltda., a Brazilian
company.
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<PAGE>
"Bank" shall have the meaning specified in the introductory clause hereto.
"Borrower" shall have the meaning specified in the preamble hereto.
"Borrowing Base" shall mean at any time the sum of (i) 80% of the unpaid
amount of Eligible Accounts plus (ii) the lesser of (A) 50% of the value of
Eligible Inventory, valued at the lower of cost or market and (B) $30,000,000
minus (iii) [$32,500,000 minus the Available TLC Amount].
"Borrower's Facilities" shall mean the parcels of land owned by Borrower or
DMC, as applicable, that are legally described on Schedule 10, together with all
improvements thereon.
"Business Day" shall mean any day, other than a Saturday or Sunday, on
which commercial banks are open for domestic business in Chicago, Illinois.
"Capital Expenditures" shall mean, for the period of four consecutive
fiscal quarters most recently ended on or prior to the date of determination,
Borrower's capital expenditures (including capital lease expense), net of
dispositions, determined in accordance with GAAP.
"Cash Equivalent Investments" shall mean, as of any date, (A) any evidence
of Debt, maturing not more than one year after such date, issued or guaranteed
by the United States Government or any agency thereof, (B) commercial paper,
maturing not more than one year from the date of issue, or corporate demand
notes, in each case (unless issued by a Bank or its holding company) rated at
least A-1 by Standard & Poor's Rating Group or P-1 by Moody's Investors Service,
Inc., (C) any certificate of deposit (or time deposit represented by such
certificates of deposit) or banker's acceptance, maturing not more than one year
after such time, or overnight Federal Funds transactions that are issued or sold
by any Bank or its holding company or by a commercial banking institution that
is a member of the Federal Reserve System and has a combined capital surplus and
undivided profits of not less than $500,000,000.00, (D) any repurchase agreement
entered into with any Bank (or other commercial banking institution of the
stature referred to in clause (C)) which (i) is secured by a fully perfected
security interest in any obligation of the type described in any of clauses (A)
through (C) and (ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of such Bank (or
other commercial banking institution) thereunder and (E) shares in money market
funds registered with the Securities and Exchange Commission under Rule 2a-7 of
the Investment Company Act of 1940.
"Closing" shall have the meaning specified in Section 3.01.
"Collateral" shall have the meaning specified in Section 4.01.
"Commitment" shall mean each Bank's Pro Rata Share of the Revolving Credit
Loan Commitment and the Term Loan as designated on Schedule 6.
"Compliance Certificate" shall mean a certificate substantially in the form
of Exhibit C.
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<PAGE>
"Debt" shall mean, with respect to the subject Person, all items of
indebtedness, obligation or liability, whether matured or unmatured, liquidated
or unliquidated, direct or indirect, or joint or several, including:
(A) All Obligations of such Person;
(B) All indebtedness in effect guaranteed, directly or indirectly, in any
manner, or endorsed (other than for collection or deposit in the ordinary course
of business) or discounted with recourse;
(C) All indebtedness in effect guaranteed, directly or indirectly through
agreements, contingent or otherwise: (1) to purchase such indebtedness, or (2)
to purchase, sell or lease (as lessee or lessor) property, products, materials
or supplies or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such indebtedness or to assure the owner
of the indebtedness against loss, or (3) to supply funds to or in any other
manner invest in any Person;
(D) All indebtedness secured (or for which the holder of such indebtedness
has a right, contingent or otherwise, to be secured) by any mortgage, trust
deed, deed of trust, pledge, lien, security interest or other charge or
encumbrance upon property owned or acquired subject thereto, whether or not the
liabilities secured thereby have been assumed; and
(E) All indebtedness incurred as the lessee of goods or services under
leases that, in accordance with GAAP, are or should be reflected on the lessee's
balance sheet as a capital lease.
"DMC" shall mean David Manufacturing Co., an Iowa corporation whose
headquarters is located in Mason City, Iowa.
"Documents" shall mean this Agreement, the Notes and any other documents,
instruments or certificates to be executed and delivered hereunder or in
connection herewith by or on behalf of Borrower or any of its Affiliates.
"Domestic Account Debtor" shall mean an Account Debtor which is a resident
or citizen of, and is located in, the United States.
"EBITDA" shall mean, for the period of four consecutive fiscal quarters
most recently ended on or prior to the date of determination, Borrower's
earnings before interest, taxes, depreciation and amortization, and
notwithstanding any non-cash charge for increase in value of stock appreciation
rights (or similar rights), but accounting for same as a charge against earnings
when paid, determined in accordance with GAAP. Prior to the first anniversary
of the consummation of an Acquisition, the historical financial results of the
acquired Person or assets for the relevant period will be included for purposes
of calculating EBITDA (but without any adjustment to such historical results for
cost savings or other synergies).
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"Eligible Account" shall mean an Account owing to Borrower or any
Subsidiary of Borrower which meets and continues to meet at all times the
following requirements:
(A) it is genuine and in all respects what it purports to be;
(B) it is owned by Borrower or such Subsidiary of Borrower and either (i)
the Agent has a valid, perfected, first-lien security interest in it or (ii) it
is secured by a letter of credit or credit insurance; provided however, upon the
occurrence of an Event of Default and during the continuation thereof, any such
letters of credit shall be assigned to or endorsed for the benefit of Agent in
such form as Agent shall deem necessary or desirable, and the original thereof
shall be delivered to Agent;
(C) it arises from (i) the performance of services by Borrower or such
Subsidiary of Borrower and such services have been fully performed and
acknowledged and accepted by the Account Debtor thereunder; or (ii) the sale or
lease of Inventory by Borrower or such Subsidiary of Borrower, and such
Inventory has been completed in accordance with the Account Debtor's
specifications (if any) and delivered to and accepted by the Account Debtor,
such Account Debtor has not refused to accept and has not returned or offered to
return any of the Inventory, or has not refused to accept any of the services,
which are the subject of such Account, and Borrower or such Subsidiary has
possession of, or has delivered to Agent at Agent's reasonable request, shipping
and delivery receipts evidencing delivery of such Inventory;
(D) it is evidenced by the initial invoice rendered to the Account Debtor
thereunder, and (i) is due and payable within 30 days after the date of the
invoice and does not remain unpaid 60 days past the due date thereof, or (ii)
with respect to Accounts aggregating in face amount not more than the lesser of
(x) $2,000,000.00 and (y) 10% of all Eligible Accounts, is due and payable
within 90 days after the date of such invoice and does not remain unpaid past
the due date thereof; provided, however, that if more than 25% of the aggregate
dollar amount of invoices owing by a particular Account Debtor (excluding Hog
Slat, Inc. and FarmPro, Inc.) remain unpaid 90 days past the due dates thereof,
then all Accounts owing by that Account Debtor shall be deemed ineligible;
(E) it is not subject to any prior assignment, claim, lien, security
interest or encumbrance whatsoever, other than Permitted Liens and the security
interest granted to Agent hereunder;
(F) it is a valid, legally enforceable and unconditional obligation of the
Account Debtor thereunder, and is not subject to setoff, counterclaim, credit,
allowance or adjustment by such Account Debtor, or to any claim by such Account
Debtor denying liability thereunder in whole or in part;
(G) it does not arise out of a contract or order which fails in any
material respect to comply with the requirements of applicable Law;
(H) the Account Debtor thereunder is not a director, officer, employee or
agent of Borrower or such Subsidiary of Borrower, or Affiliate or Subsidiary of
Borrower or such Subsidiary,
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<PAGE>
unless the Accounts due from such Account Debtor
are approved in writing by Agent as Eligible Accounts;
(I) it is not an Account with respect to which the Account Debtor is the
United States of America or any department, agency or instrumentality thereof,
unless Borrower or such Subsidiary of Borrower, as applicable, assigns its right
to payment of such Account to Agent pursuant to, and in full compliance with the
Assignment of Claims Act of 1940, as amended;
(J) with respect to a Domestic Account Debtor, it is not an Account with
respect to which the Account Debtor is located in a state which requires
Borrower or such Subsidiary of Borrower, as a precondition to commencing or
maintaining an action in the courts of that state, either to (i) receive a
certificate of authority to do business and be in good standing in such state,
or (ii) file a notice of business activities report or similar report with such
state's taxing authority, unless (x) Borrower or such Subsidiary, as applicable,
has taken one of the actions described in clause (i) or (ii), as appropriate,
(y) the failure to take one of the actions described in either clauses (i) or
(ii) may be cured retroactively by Borrower or such Subsidiary at its election
so as to permit such action to be commenced or maintained, or (z) Borrower or
such Subsidiary has proven, to Agent's satisfaction, that it is exempt from any
such requirements under any such state's laws;
(K) it is an Account which arises out of a sale or services made or
provided in the ordinary course of the business of Borrower or such Subsidiary
of Borrower;
(L) it is not an Account with respect to which the Account Debtor's
obligation to pay is conditional upon the Account Debtor's approval of the goods
or services or is otherwise subject to any repurchase obligation or return
right, as with sales made on a bill-and-hold, guaranteed sale, sale on approval,
sale or return or consignment basis;
(M) it is not an Account (i) with respect to which any representation or
warranty contained in this Agreement is untrue or (ii) which violates any of the
covenants of Borrower or such Subsidiary of Borrower contained in this Agreement
or any other Document; and
(N) it is not an Account with respect to which the prospect of payment or
performance by the Account Debtor is or will be impaired, as reasonably
determined by Agent.
"Eligible Assignee" shall mean (A) any time an Event of Default shall have
occurred and be continuing, any commercial bank or other Person as to whom Agent
gives its consent, and (B) any other time, any commercial bank or other Person
as to whom Agent and Borrower each gives its consent; provided, however, in the
case of Borrower, such consent shall not be unreasonably withheld or delayed.
"Eligible Inventory" shall mean Inventory of Borrower or any Subsidiary of
Borrower which meets and continues to meet, the following requirements:
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<PAGE>
(A) it is owned by Borrower or such Subsidiary of Borrower and, other than
Inventory of the type described in clause (B)(ii) of this definition, the Agent
has a valid, perfected, first-lien security interest in it;
(B) it is either located at (i) one of the premises listed on Schedule 2 or
in any written notice to Agent pursuant to Section 4.08(C) and is not in transit
except to any other location set forth on Schedule 2 or in any written notice to
Agent pursuant to Section 4.08(C) or (ii) at any location other than those
specified in clause (i), provided that value of such Inventory does not exceed
the sum of $6,000,000 in the aggregate (valued at the lower of cost or market)
as of any date;
(C) it is not subject to any prior assignment, claim, lien, security
interest or encumbrance whatsoever, other than Permitted Liens and the security
interest granted to Agent hereunder;
(D) it is raw materials, work-in-process or finished goods which is of
good, merchantable and first-grade quality, which is not materially damaged,
second-grade, second hand, out-of-style, discontinued or reconditioned, and
meets all standards imposed by any governmental agency, or department or
division thereof having regulatory authority over such materials or goods, its
use or sale; and is currently salable in the ordinary course of business;
(E) it is not stored with a bailee, consignee, warehouseman, processor or
similar party, or on premises leased by Borrower or such Subsidiary of Borrower,
unless: (i) set forth on Schedule 2 or Agent has given its written approval
(which shall not be unreasonably withheld, delayed or conditioned); and (ii) (w)
if the Inventory is on consignment, Borrower or such Subsidiary of Borrower, as
applicable, has made the appropriate consignment filing(s) as prescribed by the
Uniform Commercial Code, (x) if the Inventory is located on premises leased by
Borrower or such Subsidiary of Borrower, Borrower or such Subsidiary, as
applicable, shall have delivered to Agent the landlord's lien waiver agreement
in form reasonably satisfactory to Agent; (y) if the Inventory is in the
possession of a processor or a public warehouseman, Borrower or such Subsidiary
of Borrower, as applicable, shall have delivered to such processor or
warehouseman a notice of Agent's security interest in form reasonably
satisfactory to Agent, or (z) in the case of any other bailment of Inventory,
Borrower or such Subsidiary of Borrower has caused the bailee to issue and
deliver to Agent such documents as Agent shall reasonably require;
(F) it is not Inventory (A) with respect to which any of the
representations and warranties contained in this Agreement are untrue or (B)
which violates any of the covenants of Borrower or such Subsidiary of Borrower
contained in this Agreement; and
(G) it is accounted for by Borrower or such Subsidiary of Borrower on a
last-in, first-out basis under generally accepted accounting principles applied
on a consistent basis.
"Environmental Laws" shall mean any federal, state or local law, statute,
ordinance, order, decree, rule or regulation relating to releases, discharges,
emissions or disposals to air, water, land or groundwater; to the withdrawal or
use of groundwater; to the use, handling or disposal of polychlorinated
biphenyls, asbestos or urea formaldehyde; to the treatment, storage, disposal or
8
<PAGE>
management of Hazardous Substances, to exposure to toxic, hazardous or other
controlled, prohibited or regulated substances; and to the transportation,
storage, disposal, management or release of gaseous or other liquid substances,
including the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 USC (S)9601 et seq., the Resource, Conservation and Recovery Act of
1976, as amended by the Hazardous Solid Waste Amendments of 1984, 42 USC (S)6901
et seq., the Toxic Substances Control Act, 15 USC (S)2601 et seq., the
Occupational Safety and Health Act of 1970, 29 USC (S)651 et seq., the Clean Air
Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 USC (S)7401
et seq., and the Federal Water Pollution Control Act, as amended by the Clean
Water Act of 1977, 33 USC (S)1251 et seq., and all rules, regulations and
guidance documents promulgated pursuant thereto or published thereunder.
"Equipment" shall mean all equipment, machinery, fixtures and supplies and
any parts, accessories, attachments, fittings, special tools, additions and
accessories thereto and any renewals, substitutions or replacements thereof,
including licensed vehicles, plant trucks, furniture, office equipment and minor
plant equipment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" shall mean (A) any corporation which is now, or was at
any time, a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Internal Revenue Code) as Borrower or any
predecessor thereof; (B) any partnership, trade or business (whether or not
incorporated) which is now, or was at any time, under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with Borrower or any
predecessor thereof; and (C) any entity, which is now, or was at any time, a
member of the same affiliated service group (within the meaning of Section
414(m) of the Internal Revenue Code) as either Borrower or any predecessor
thereof, or any corporation described in clause (A) or any partnership, trade or
business described in clause (B).
"Euro-Dollar Business Day" shall mean any day on which commercial banks are
open for domestic and international business (including dealing in dollar
deposits) in London and Chicago.
"Euro-Dollar Lending Office" shall mean as to each Bank such branch or
affiliate of the Bank as it may designate from time to time as its Euro-Dollar
Lending Office.
"Euro-Dollar Loans" shall mean Loans which bear interest at a Euro-Dollar
Rate.
"Euro-Dollar Rate" shall mean, at the time of determination, the Adjusted
LIBOR Rate then in effect plus the Applicable Margin.
"Event of Default" shall have the meaning specified in Section 9.01.
"FRB" shall mean the Board of Governors of the Federal Reserve System or
any successor thereto.
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"Federal Funds Rate" shall mean, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by Agent of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that
day by each of three leading brokers of Federal funds transactions in New York
City selected by Agent.
"Financial Statements" shall mean, at any time, the audited financial
statements of Borrower for its most recently ended fiscal year and the unaudited
financial statements for the most recently ended accounting period of Borrower.
"Floating Rate" shall mean, at the time of determination, a floating
per-annum rate equal to the greater of (A) Prime Rate then in effect plus the
Application Margin or (B) the Federal Funds Rate plus the Applicable Margin.
"Floating Rate Loan" shall mean a Loan which is not a Euro-Dollar Loan.
"GAAP" shall mean generally accepted accounting principles consistently
applied throughout the period involved.
"General Intangibles" shall mean all general intangibles, including choses
in action, designs, patents, trademarks, service marks, trade names, good will,
applications for registration, registrations, licenses, franchises, customer
lists, and all other intangible property of every nature (other than Accounts).
"Governmental Authority" shall mean the United States of America, any
state, territory or district thereof, and any other political subdivision or
body politic created pursuant to any applicable Law, and any court, agency,
department, commission, board, bureau or instrumentality of any of the
foregoing.
"Grain King, Inc." a Delaware corporation whose headquarters is located in
Assumption, Illinois.
"Hazardous Substances" shall mean (A) any hazardous or toxic substance,
chemical or waste, or any pollutant or contaminant defined as such in any now or
hereafter existing Environmental Law, (B) asbestos, (C) radon, (D) petroleum,
crude oil or any fraction thereof which is not otherwise specifically listed or
designated as a hazardous substance under any Environmental Laws, (E)
polychlorinated biphenyls, (F) explosives and/or (G) radioactive materials.
"Indemnification Liabilities" shall have the meaning specified in Section
11.05.
"Indemnified Person" shall have the meaning specified in Section 11.05.
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"Indenture" shall mean the Indenture dated as of November 5, 1997 between
Borrower and LaSalle National Trust, N.A., as trustee, relating to the
Subordinated Notes.
"Interest Period" shall mean with respect to each Euro-Dollar Loan:
(A) initially, the period commencing on the date of such Euro-Dollar Loan
and ending one, two, three or six months thereafter, as Borrower may elect; and
(B) thereafter, each period commencing on the last day of the next
preceding Interest Period for such Euro-Dollar Loan and ending one, two, three
or six months thereafter, as Borrower may elect;
provided that:
(i) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day, unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar Business Day;
(ii) any Interest Period which begins on the last Euro-Dollar Business
Day, of the calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (iii) below, end on the last
Euro-Dollar Business Day of a calendar month;
(iii) any Interest Period in respect of a Revolving Credit Loan which
begins prior to the Revolving Credit Loan Termination Date and would
otherwise end after the Revolving Credit Loan Termination Date shall
end on such date.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Inventory" shall mean all inventory, goods, merchandise and other personal
property held for sale or lease, or furnished or to be furnished under any
contract of service, or held as raw materials, work in process or material used
or consumed, or to be used or consumed, in business.
"Issuing Bank" shall mean LNB in its capacity as the issuer of Letters of
Credit hereunder and its successors and assigns in such capacity.
"Laws" shall mean any federal, state or local law, statute, ordinance,
order, decree, rule or regulation.
"Letter of Credit" shall mean a commercial or stand-by letter of credit
issued pursuant to the Revolving Credit Loan Commitment.
"Letter of Credit Obligations" shall have the meaning specified in Section
2.01(C).
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"Loans" shall mean the Revolving Credit Loans and the Term Loan.
"London Interbank Offered Rate" or "LIBOR Rate" shall mean, with respect to
any Interest Period, the rate per annum (rounded upward, if necessary, to the
nearest 1/16 of 1%) as set by Agent as the rate of interest at which deposits in
dollars are offered by the Euro-Dollar Lending Office of Agent to other prime
banks in the London interbank market at approximately 11:00 a.m. two Euro-
Dollar Business Days prior to the first day of such Interest Period in an amount
approximately equal to the aggregate principal amount of the Euro-Dollar Loan to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"LNB" shall mean LaSalle National Bank in its individual capacity.
"Majority Banks" shall mean, as of any date, Banks holding at least 60% of
the aggregate Commitments as described on Schedule 6 as of such date.
"Multiemployer Plan" shall have the meaning ascribed to it in Section
4001(a)(3) of ERISA.
"Net Income" shall mean the net income (or loss) of the Borrower and its
Subsidiaries on a consolidated basis, determined in accordance with GAAP.
"Non-Use Fee" shall have the meaning specified in Section 2.06(B).
"Note" or "Notes" shall mean the Revolving Credit Notes, the Subsidiary
Borrower Revolving Credit Notes, and/or the Term Notes, or any of them.
"Notice of Revolving Credit Borrowing" shall have the meaning specified in
Section 2.01(B).
"Obligations" shall mean, with respect to any Person, all of such Person's
liabilities, obligations and indebtedness to any Bank or Agent of any and every
kind and nature, including the Loans, such Person's other liabilities and
obligations to any Bank or Agent under this Agreement, such Person's
reimbursement obligations in respect of letters of credit issued for the account
of such Person, and such Person's liabilities and obligations to any Bank or
Agent under any other agreement, document or instrument, (including any guaranty
of another Person's Obligations), whether heretofore, now or hereafter owing,
arising, due or payable by or from such Person to any Bank or Agent, howsoever
evidenced, created, incurred, acquired or owing, and whether joint, several,
primary, secondary, direct, contingent, fixed or otherwise.
"Originator" shall have the meaning specified in Section 11.18(D).
"Participant" shall have the meaning specified in Section 11.18(D).
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"Payment Date" shall mean (A) the last day of an Interest Period in the
case of any Interest Period other than an Interest Period as to which Borrower
has elected a six-month Interest Period and (B) as to an Interest Period as to
which Borrower has elected a six-month Interest Period, the last day of each of
the third and sixth months of such Interest Period.
"Payment Office" shall mean, with respect to any Bank, the address for
payments set forth for such Bank on Schedule 6 or such other address as such
Bank may from time to time specify in accordance with Section 11.07.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Permitted Liens" shall mean:
(A) liens for taxes, assessments or other governmental charges for the then
current year which are not yet due or delinquent;
(B) liens for taxes, assessments or other governmental charges already due,
but the validity of which is being contested at the time in good faith by
appropriate proceedings and for which adequate reserve is maintained in
accordance with GAAP, and as to which no notice or claim of lien has been filed;
(C) statutory liens in favor of landlords, carriers, warehousemen and other
suppliers of services or materials for sums incurred in the ordinary course of
business, provided such sums are not delinquent and do not exceed the sum of
$250,000.00 in the aggregate at any time, and other liens of such type which
have been improperly asserted and which Borrower is contesting in good faith;
(D) liens for worker's compensation awards not due or delinquent, and other
liens of such type which have been improperly asserted and which Borrower is
contesting in good faith;
(E) pledges or deposits to secure obligations under worker's compensation
laws or similar legislation;
(F) deposits to secure public, statutory or insurance-related obligations
of the Person whose assets are subject to such liens;
(G) liens securing purchase money financing for Equipment acquired by
Borrower after the date hereof, provided that (i) each such lien secures only
the purchase price of the Equipment so encumbered thereby and (ii) the aggregate
amount of new financing secured thereby and incurred after the date of this
Agreement does not exceed $2,500,000.00 in any calendar year.
(H) mortgages, pledges, encumbrances, security interests, assignments and
liens listed on Schedule 1, or approved in writing by Agent subsequent to the
date hereof,;
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(I) mortgages, pledges, encumbrances, security interests, assignments or
liens in favor of Agent; and
(J) mortgages, pledges, encumbrances, security interests, assignments or
liens securing any Debt of Borrower or any Subsidiary of the type described in
Section 6.14(G).
"Permitted Holders" shall mean J. Craig Sloan, Jorge Andrade, John W. Funk
and Howard G. Buffett or their successors and assigns who are Affiliates of the
Permitted Holders, members of their families and their heirs or executors.
"Person" shall mean any individual, corporation, partnership, association,
limited liability company, joint-stock company, trust, unincorporated
association, joint venture, Governmental Authority, or any other similar entity.
"Plan" shall mean any employee benefit plan or other plan for any employees
of Borrower or any employees of any Subsidiary of Borrower or any ERISA
Affiliate.
"Post-Term L/Cs" shall have the meaning specified in Section 2.01(C).
"Prime Rate" shall mean the rate of interest referred to by Agent from time
to time as its prime rate, as fixed by the management of Agent for the guidance
of its loan officers, whether or not such rate is otherwise published, with each
change in such prime rate to take effect on the same day as the determination of
each change by Agent. Such rate is not necessarily the most favorable rate
offered by Agent to its borrowers.
"Replacement Bank" shall have the meaning specified in Section 2.02(M).
"Pro Rata Share" shall mean as to any Bank at any time, the percentage
equivalent (expressed as a decimal rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the combined Commitments of all Banks.
"Reportable Event" shall mean any of the events described in Section 4043
of ERISA, excluding subsections 4043(b)(2) and (b)(3) thereof.
"Reserve Percentage" shall mean, for the purpose of computing the Adjusted
LIBOR Rate the reserve requirement imposed by the FRB under Regulation D on
Eurocurrency liabilities (as such term is defined in Regulation D) for the
applicable Interest Period as of the first day of such Interest Period, but
subject to any amendments of such reserve requirement by such Board or its
successor, and taking into account any transitional adjustments thereto becoming
effective during such Interest Period. For purposes of this definition, Euro-
Dollar Loans shall be deemed to be Eurocurrency liabilities as defined in
Regulation D without benefit of or credit for prorations, exemptions or offsets
under Regulation D.
"Revolving Credit Loan" shall have the meaning specified in Section
2.01(A).
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"Revolving Credit Loan Commitment" shall have the meaning specified in
Section 2.01(A).
"Revolving Credit Loan Termination Date" shall have the meaning specified
in Section 2.01(A).
"Revolving Credit Note" shall have the meaning specified in Section
2.01(E).
"Senior Debt" shall mean all interest bearing Debt of Borrower and its
Subsidiaries, determined on a consolidated basis, other than Subordinated Debt.
For purposes of determining such interest bearing Debt with respect to Borrower,
there shall be included the average usage by Borrower under the Revolving Credit
Loan Commitment for the four calendar quarters immediately preceding
determination, as determined in the sole discretion of Agent.
"Senior Debt to EBITDA Ratio" shall mean the ratio of (x) all Senior Debt
to (y) EBITDA.
"Special Collateral" shall have the meaning specified in Section 4.06.
"Stock" shall mean all shares, options, interests, participations or other
equivalents, howsoever designated, of or in a corporation, partnership or
similar entity, whether voting or nonvoting, including common stock, warrants,
preferred stock, convertible debentures, partnership interests and all
agreements, instruments and documents convertible, in whole or in part, into any
one or more of the foregoing.
"Stockholder Agreements" shall mean each of the Stock Restriction and Buy-
Sell Agreements, made as of June 6, 1996 by and between each of the Permitted
Holders of Borrower with respect to Borrower's voting Stock, as amended, and the
Stock Restriction and Buy-Sell Agreement made as of January 1, 1997 among
Borrower, the Permitted Holders and other persons named therein with respect to
Borrower's non-voting Stock, as amended.
"Stockholders" shall mean those parties named as the stockholders of
Borrower on Schedule 5.
"Subordinated Debt" shall mean any Debt of Borrower which is expressly
subordinated to the Obligations of Borrower pursuant to the terms of a written
agreement among Borrower, the Person to whom such Debt is owed and the Bank, the
terms of which are satisfactory to the Bank in all respects; including the Debt
evidenced by the Subordinated Notes.
"Subordinated Notes" shall mean the $100,000,000 aggregate principal amount
of 10.25% Senior Subordinated Notes due 2007 issued under the Indenture.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership or similar entity of which fifty percent (50%) or more of the
outstanding Stock having ordinary voting power is at the time, directly or
indirectly, owned by such Person and/or one or more of such Person's
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Subsidiaries (irrespective of whether, at the time, Stock of any other class or
classes of such entity shall have or might have voting power by reason of the
happening of any contingency).
"Subsidiary Borrowers" shall mean DMC and Grain King.
"Subsidiary Borrower Revolving Credit Note" shall mean the revolving credit
note of DMC and/or Grain King delivered in accordance with Section 2.01.
"Subsidiary Borrower Revolving Credit Loans" shall mean Revolving Credit
Loans advanced to DMC and Grain King pursuant to Section 2.01.
"Supplemental Documentation" shall mean all agreements, instruments,
documents, financing statements, warehouse receipts, schedules of accounts
assigned, mortgages, certificates of title and other written matter necessary or
requested by Agent to create, evidence, enforce, perfect or maintain perfected
the Banks' security interest in the Collateral and to consummate the
transactions contemplated in or by this Agreement and the other Documents.
"Tangible Net Worth" means the shareholders' equity of Borrower, excluding
the cumulative translation adjustment, all as determined in accordance with
GAAP, less all intangible assets, including goodwill, franchises, licenses,
patents, trademarks and copyrights.
"Term Loan" shall have the meaning specified in Section 2.01(F).
"Term Loan Termination Date" shall have the meaning specified in Section
2.01(G).
"Term Note" shall have the meaning specified in Section 2.01(G).
"Tranche" shall have the meaning specified in Section 2.01(I).
"UCC" shall mean the Uniform Commercial Code as in effect in Illinois.
"Year 2000 Problem" shall mean the risk that computer applications and
embedded microchips in non-computing devices may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to and
any date on or after December 31, 1999)
1.02 Other Interpretative Provisions. Words and phrases not defined
herein shall be construed according to their ordinary meanings as the context
requires. The following words and phrases shall be construed as follows: (i)
"at any time" shall be construed as "at any time or from time to time"; (ii)
"any" shall be construed as "any and all"; (iii) "include" and "including" shall
each be construed as "including but not limited to"; (iv) "will" and "shall"
shall each be construed as mandatory; (v) "control," "controlling" and
"controlled" shall be construed as the possession, directly or indirectly, of
the power to direct or cause the direction of management and policies, whether
through the ownership of voting securities, by contract or otherwise; and (vi)
"may" shall be construed as meaning that a party "may, but shall not be
obligated to," perform an act or do anything.
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Except as otherwise specifically indicated, all references to Article or Section
numbers and letters shall refer to Articles and Sections of this Agreement. The
words "hereby," "hereof," "hereto," "herein," and "hereunder" and any similar
terms shall refer to this Agreement as a whole and not to any particular Article
or Section. Words of the masculine, feminine, or neuter gender shall mean and
include the corresponding words of other genders, and words implying the
singular number shall mean and include the plural number and vice versa. The
Article and Section headings are inserted in this Agreement for convenience only
and are not intended, and shall not be construed, to limit, enlarge, or affect
the scope or intent of this Agreement or the meaning of any provision hereof.
All references to any agreement or instrument (including this Agreement) shall
be to such agreement or instrument as in effect from time to time, including any
amendments, replacements, restatements and/or modifications thereof and/or
supplements thereto.
1.03 Accounting Principles. Any accounting terms used in this Agreement
which are not specifically defined shall have the meaning customarily given them
in accordance with GAAP; provided, however, that, in the event that changes in
generally accepted accounting principles shall be mandated by the Financial
Accounting Standards Board, or any similar accounting body of comparable
standing, or shall be recommended by Borrower's certified public accountants, to
the extent that such changes would modify such accounting terms or the
interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after such date as Borrower and the
Banks shall have amended this Agreement to the extent necessary to reflect any
such changes in the financial covenants and other terms and conditions of this
Agreement.
1.04 UCC Governs. All other terms contained in this Agreement shall, when
the context so indicates, have the meanings provided for by the UCC to the
extent the same are used or defined therein.
ARTICLE II. THE LOANS.
2.01 Revolving Credit Loans and Term Loans. (A) Subject to the terms and
conditions of this Agreement, the Banks will make available to Borrower a
revolving credit facility in an aggregate amount not to exceed the lesser of (x)
the Available RCL Amount or (y) the Borrowing Base (the "Revolving Credit Loan
Commitment"), pursuant to which each Bank may from time to time: (i) make
revolving credit advances to Borrower or (ii) make revolving credit advances to
the Subsidiary Borrowers (a "Subsidiary Borrower Revolving Credit Loan"), but in
the aggregate, not to exceed the amount set forth on Schedule 6 (together with
the Term Loan Commitment shown on Schedule 6, and as the same may be reduced by
one or more assignments under Section 11.18, such Bank's "Commitment"). Any
revolving credit advance made pursuant to the Revolving Credit Loan Commitment
as described in clauses (i) or (ii) of the immediately preceding sentence is
referred to herein as a "Revolving Credit Loan." The amount otherwise available
for borrowing under the Revolving Credit Loan Commitment shall be reduced by:
(i) the aggregate face amounts of all Letters of Credit issued by the Issuing
Bank for the account of Borrower and outstanding or drawn but unreimbursed from
time to time, which shall in no event exceed $20,000,000 at any time, (ii) the
amount of Subsidiary Borrower Revolving Credit Loans outstanding, which in no
event shall exceed (x) $5,000,000 in the case of DMC and $3,000,000 in the case
of Grain King or (y) $8,000,000 in
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the aggregate at any time, (iii) $6,000,000 of Debt of FarmPro, Inc. guaranteed
by Borrower and (iv) the amount of Revolving Credit Loans outstanding.
The face amount of all Letters of Credit issued by the Issuing Bank for the
account of Borrower under the Original Loan Agreement that are outstanding or
drawn but unreimbursed as of the date hereof shall be deemed Letters of Credit
issued pursuant to, and subject to the terms, conditions and limitations of,
this Agreement. The Revolving Credit Loan Commitment shall terminate on
February 1, 2002 (the "Revolving Credit Loan Termination Date"). The Revolving
Credit Loans made by each Bank shall be evidenced by one or more loan accounts
or records maintained by such Bank in the ordinary course of business. The loan
accounts or records maintained by Agent and each Bank shall be conclusive and
binding evidence of the amount of the Revolving Credit Loans made by the Banks
to Borrower and the interest and payments thereon, absent manifest error. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the Obligations of Borrower hereunder to pay any amount owing
with respect to the Loans or Letter of Credit Obligations.
(B) Borrower may, from time to time, request whether for its own account
or for the Subsidiary Borrowers, by giving notice ("Notice of Revolving Credit
Borrowing") to Agent prior to 11:00 a.m., that Revolving Credit Loans be made in
an aggregate amount specified, in a form specified (cash disbursement or
continuation of outstanding Loan) and on the Business Day specified in such
request (which as to Euro-Dollar Loans must also be a Euro-Dollar Business Day).
Floating Rate Loans may be disbursed on the date requested. If Borrower elects
whether for its own account or for the Subsidiary Borrowers to pay interest on
any Revolving Credit Loan based on a Euro-Dollar Rate, notice must be given to
Agent at least three Euro-Dollar Business days prior to the requested
disbursement date. Any such notice must also specify the Interest Period
selected by Borrower for each Loan based on a Euro-Dollar Rate and each request
for a Euro-Dollar Loan and Interest Period with respect thereto shall be
irrevocable once given. Not later than 1:00 p.m., Chicago time, on the date
specified in such request, the Bank shall make the Revolving Credit Loan(s) to
Borrower or to the Subsidiary Borrowers in the aggregate amount specified in
such request, or convert or continue the outstanding Loan, as the case may be.
Agent will promptly notify each Bank of its receipt of any Notice of Revolving
Credit Borrowing, conversion or continuation of an outstanding Loan, of the name
of the applicable Borrower and of the amount of such Bank's Pro Rata Share of
that borrowing. Each Bank will make the amount of its Pro Rata Share of each
borrowing available to Agent for the account of the applicable Borrower at
Agent's Payment Office by 11:00 a.m. (Chicago time) on the borrowing date
requested by Borrower in funds immediately available to Agent. The proceeds of
all Revolving Credit Loans will then be made available to Borrower by Agent by
wire transfer in accordance with written instructions provided to Agent by such
Borrower.
After giving effect to any Revolving Credit Loan borrowings, unless Agent
shall otherwise consent, there may not be more than ten different Interest
Periods in effect in respect of all Loans together then outstanding.
(C) The proceeds of Revolving Credit Loans shall be disbursed by deposit
to Borrower's account maintained at LNB or otherwise in accordance with the
written instructions of Borrower or
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the other provisions of this Agreement. Revolving Credit Loans shall be used by
Borrower solely for its working capital and general corporate purposes, Letters
of Credit for Borrower or for the Subsidiary Borrowers' working capital and
general corporate purposes. The Issuing Bank may from time to time issue one or
more Letters of Credit at the request and for the account of Borrower, provided:
(i) the aggregate amount of Letters of Credit outstanding including those being
requested (a) plus amounts drawn under Letters of Credit but not repaid to the
Bank plus (b) the principal sum of advances of Revolving Credit Loans
outstanding plus (c) the amount of Subsidiary Borrower Revolving Credit Loans
outstanding plus (d) $6,000,000 of Debt of Farm Pro, Inc. guaranteed by
Borrower, does not exceed the lesser of (x) the Available RCL Amount or (y) the
Borrowing Base; (ii) Borrower pays to the Issuing Bank a Letter of Credit
issuance fee equal to Agent's standard issuance fee in effect from time to time;
(iii) Borrower executes and delivers to the Issuing Bank a Letter of Credit
Application in the form of Exhibit G, including a LaSalle L/C Connection
Agreement in the form of Exhibit H; (iv) the Issuing Bank is not restricted or
prohibited from issuing such Letter of Credit by any Law, regulation or policy
of any Governmental Authority or by any policy of the Issuing Bank, and (v) the
aggregate amount of Letters of Credit outstanding including those being
requested plus amounts drawn under Letter of Credit but not repaid to the
Issuing Bank does not exceed the lesser of (x) $20,000,000 or (y) the Borrowing
Base. Borrower's Obligations under this Agreement shall include reimbursement
obligations regarding Letters of Credit ("Letter of Credit Obligations") and
shall be secured by the Collateral in accordance with Article IV and any other
collateral pledged to secure such Obligations pursuant to any of the Documents.
Borrower agrees to reimburse the Issuing Bank on demand for each payment
made by the Issuing Bank under or pursuant to any Letter of Credit or any draft
drawn on the Issuing Bank pursuant to a Letter of Credit. The Issuing Bank may,
in its sole discretion, provide for such reimbursement by advancing the amount
thereof to Borrower as a Revolving Credit Loan. In the event the Issuing Bank
does not, in accordance with the terms and conditions hereof, make a Revolving
Credit Loan for reimbursement, Borrower agrees to reimburse the Issuing Bank in
the amount of such payment and shall also pay to the Issuing Bank, on demand,
interest at the rate provided in Section 2.02(B) on any amount paid by the
Issuing Bank under or pursuant to any Letter of Credit or any draft drawn on the
Issuing Bank pursuant to a Letter of Credit from the date of payment until the
date of reimbursement to the Issuing Bank.
Notwithstanding anything to the contrary herein or in any Letter of Credit
application of Borrower or other Document, upon the occurrence of an Event of
Default, an amount equal to the aggregate amount of the outstanding Letters of
Credit and all drawn but unreimbursed Letters of Credit shall, at the Issuing
Bank's option and without demand upon or further notice to Borrower, be deemed
(as between the Issuing Bank and Borrower) to have been paid or disbursed by the
Issuing Bank under the Letters of Credit (notwithstanding that such amounts may
not in fact have been so paid or disbursed), and a Revolving Credit Loan to
Borrower in the amount of such Letter of Credit Obligations to have been made
and accepted, which Revolving Credit Loan shall be immediately due and payable.
In lieu of the foregoing, at the election of the Issuing Bank at any time after
an Event of Default, Borrower shall, upon the Issuing Bank's demand, deliver to
the Issuing Bank cash, or other collateral of a type satisfactory to the Issuing
Bank, having a value, as determined by the Issuing Bank in its reasonable
judgment, equal to the aggregate Letter of Credit Obligations. Any
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such collateral and/or any amounts received by Issuing Bank in payment of the
Revolving Credit Loan made pursuant to this subparagraph shall be held by
Issuing Bank in a separate account appropriately designated as a cash collateral
account in relation to this Agreement and the Letters of Credit and retained by
the Issuing Bank as collateral security for Borrower's Obligations in respect of
this Agreement and each of the Letters of Credit. Such amounts shall not be used
by the Issuing Bank to pay any amounts drawn or paid under or pursuant to any
Letter of Credit, but may be applied to reimburse the Issuing Bank for drawings
or payments under or pursuant to any Letter of Credit which the Issuing Bank has
paid, or if no such reimbursement is required, any cash collateral account
established pursuant to this paragraph following payment in full of all of the
Obligations, which are not (as determined by the Issuing Bank) to be applied to
reimburse Bank for amounts actually paid by the Issuing Bank in respect of
Letter of Credit, shall be returned to Borrower (after deduction of the Issuing
Bank's reasonable expenses).
Each Bank hereby purchases and takes from the Issuing Bank an undivided
participation and interest in and to each Letter of Credit, including any
existing Letters of Credit, ratably according to such Bank's Pro Rata Share,
with a corresponding interest in and to any guaranty relating to such Letter of
Credit and all collateral to which such Letter of Credit is entitled; provided,
however, that no Bank other than the Issuing Bank shall purchase or take any
undivided participation interest in and to any Letter of Credit issued by the
Issuing Bank that has an expiration date later than the Revolving Credit Loan
Termination Date.
This Agreement and any Letter of Credit application or other Document
regarding Letters of Credit shall be interpreted as supplemental to each other.
However, in the event of an express conflict in terms, the terms of this
Agreement shall govern.
No Letter of Credit shall (i) be issued after the Revolving Credit Loan
Termination Date and (ii) have an expiration date later than the Revolving
Credit Loan Termination Date.
Notwithstanding the above, the Issuing Bank will, upon Borrower's request,
issue for the account of Borrower Letters of Credit having terms which expire
after the expiration of the Revolving Credit Loan Termination Date ("Post-Term
L/Cs"). All security interests granted by Borrower to Agent under this
Agreement shall secure, inter alia, Letter of Credit Obligations in respect of
all Post-Term L/Cs; provided, however, that upon payment and satisfaction in
full of all Obligations of Borrower in respect of the Revolving Credit Loans,
and further provided (1) no Event of Default and no event which, with the giving
of notice, the lapse of time, or both, would constitute an Event of Default,
exists, (2) all funding obligations of the Banks to Borrower have been
terminated, and (3) Borrower has no Obligations hereunder other than those in
respect of Post-Term L/Cs, Agent will, upon request of Borrower, release the
security interests granted by Borrower pursuant to this Agreement, provided that
Agent receives replacement cash collateral in an amount, covering such Letter of
Credit Obligations, and pursuant to such documents, as Agent shall deem
necessary in its sole discretion, (iii) no Post-Term L/Cs shall have a term
which expires more than three years after the expiration of the Revolving Credit
Loan Termination Date, and (iv) the aggregate face amounts of the Post-Term L/Cs
shall not exceed $6,000,000.00.
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(D) All outstanding Revolving Credit Loans together with any accrued but
unpaid interest thereon shall be repaid in full on the Revolving Credit Loan
Termination Date. In addition, outstanding Revolving Credit Loans shall be
repaid immediately, without the necessity of any demand or notice from Agent or
any other Bank, if and to the extent that they exceed the limitations imposed by
Section 2.02(A). Borrower may repay and reborrow under the Revolving Credit
Loan Commitment subject to the terms and conditions of this Agreement.
(E) The Revolving Credit Loans shall be evidenced by notes in the form of
Exhibit A (each a "Revolving Credit Note") and Subsidiary Borrower Revolving
Credit Loans shall be evidenced by notes in the form of Exhibit F (each a
"Subsidiary Borrower Revolving Credit Note").
(F) Subject to the terms and conditions of this Agreement, the Banks shall
make to Borrower a term loan (the "Term Loan") in the aggregate principal amount
of $32,500,000.00. Each Bank's Pro Rata Share of the Term Loan is set forth on
Schedule 6. The disbursement of the Term Loan pursuant to this Section 2.01(F)
shall be made in accordance with the written instructions of Borrower on the
date hereof.
(G) The Term Loan shall be evidenced by notes, maturing on February 1,
2002, (the "Term Loan Termination Date"), in the form of Exhibit B (each a "Term
Note").
(H) The Term Loan shall be repaid by Borrower in 11 installments of
$600,000.00 each, payable on the first day of each April, July, October and
January hereafter, commencing April, 1999. Any principal outstanding under the
Term Loan, together with any interest thereon which is accrued but not paid,
shall be payable on the Term Loan Termination Date.
(I) Borrower may from time to time request that any portion of the Term
Loan (each a "Tranche") in excess of $1,000,000 (with increments of $500,000
above $1,000,000) bear interest at a Euro-Dollar Rate, upon at least three Euro-
Dollar Business Days' notice to Bank specifying the desired Interest Period to
be applicable to such Tranche in accordance with and subject to the mechanics
described in Section 2.01(B); provided, however, that in no event shall more
than six such Tranches be outstanding at any time.
2.02 Interest on Loans. (A) Except as provided in Section 2.02(B), (i)
while the Term Loan or any portion thereof is a Euro-Dollar Loan, it shall bear
interest at a per-annum rate equal to the applicable Euro-Dollar Rate, and at
other times it shall bear interest at the applicable Floating Rate and (ii)
while any Revolving Credit Loan is a Euro-Dollar Loan, it shall bear interest at
a per-annum rate equal to the applicable Euro-Dollar Rate, and at other times it
shall bear interest at the applicable Floating Rate. Interest shall be
calculated on the basis of a 360-day year, counting the actual number of days
elapsed. Interest on the Floating Rate Loans shall be paid monthly in arrears
on each commencing on March 1, 1999 and continuing on the first day of each
month thereafter. Interest on each Euro-Dollar Loan shall be paid on the
applicable Payment Date.
(B) Any Obligation of Borrower or the Subsidiary Borrowers which is not
paid when due, whether at stated maturity, by acceleration or otherwise, shall
bear interest payable on demand at the interest rate then in effect with respect
thereto plus two percent. In addition, after the occurrence of
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any Event of Default and delivery to Borrower of Agent's notice to charge post-
default interest, all Obligations of Borrower and the Subsidiary Borrowers shall
bear interest at the highest rate provided for in the immediately preceding
sentence.
(C) In the event Borrower or the Subsidiary Borrowers elect to pay interest
on any Loan based on a Euro-Dollar Rate, upon the expiry of the applicable
Interest Period, such Loan shall bear interest at the applicable rate determined
by reference to the Floating Rate unless Borrower or the Subsidiary Borrowers
repays such Loan on the Payment Date or Borrower or the Subsidiary Borrower
timely elects, in the manner provided herein, to pay interest based on a Euro-
Dollar Rate prior to such expiry.
(D) Notwithstanding any other provisions of this Agreement, if at any time
a Bank shall determine in good faith that any change in applicable law or
regulation or in the interpretation thereof makes it unlawful or unduly
burdensome for such Bank to make or continue to maintain any Euro-Dollar Loan,
then such Bank shall promptly give notice thereof to Agent and Borrower, and
such Bank's obligation to make, continue or effect by conversion such Euro-
Dollar Loan under this Agreement shall terminate until it is no longer unlawful
or unduly burdensome for such Bank to make such Euro-Dollar Loan. In such
event, Borrower and the Subsidiary Borrowers shall prepay on demand the
outstanding principal amount of the affected Euro-Dollar Loans, together with
all interest accrued thereon and all other amounts payable to such Bank under
this Agreement; provided, however, Borrower and the Subsidiary Borrowers may
then elect to borrow the principal amount of such Euro-Dollar Loans by means of
a Floating Rate Loan subject to the terms and conditions of this Agreement. If
the obligation of any Bank to make or maintain Euro-Dollar Loans has been so
terminated or suspended, Borrower may elect, by giving notice to such Bank
through Agent that all Loans which would otherwise be made by such Bank to such
Borrower as Euro-Dollar Loans shall be instead Floating Rate Loans.
(E) Notwithstanding any other provision of this Agreement to the contrary,
if prior to the commencement of any Interest Period any Bank shall determine (i)
that deposits in the amount of any Euro-Dollar Loan scheduled to be outstanding
are not available to such Bank in the relevant market or (ii) by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Adjusted LIBOR Rate, then such Bank shall
promptly give notice thereof to Agent and Borrower and the obligation of such
Bank to make or effect by conversion any such Euro-Dollar Loan in such amount
and for such Interest Period shall terminate until deposits in such amount and
for the Interest Period selected by Borrower shall again be readily available in
the relevant market and adequate and reasonable means exist for ascertaining the
Adjusted LIBOR Rate. Upon the giving of such notice, Borrower and the
Subsidiary Borrowers may elect to either (i) pay or prepay, as the case may be,
such affected Loan together with all accrued interest thereon and all other
amounts payable to such Bank under Section 2.02(H) or (ii) convert such affected
Loan to a Floating Rate Loan, subject to all the terms and conditions of this
Agreement.
(F) With respect to the Euro-Dollar Loans, if a Bank shall determine in
good faith that any change in any applicable law, treaty, regulation or
guideline (including Regulation D of the FRB)
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or any new law, treaty, regulation or guideline, or any interpretation of any of
the foregoing by any governmental authority charged with the administration
thereof or any central bank or other fiscal, monetary or other authority having
jurisdiction over the Bank or its Euro-Dollar Lending Office or the Euro-Dollar
Loans contemplated by this Agreement (whether or not having the force of law)
shall:
(i) impose, modify or deem applicable any reserve (but excluding with
respect to any Euro-Dollar Loan any reserve percentage included in
determining the applicable Adjusted LIBOR Rate), capital, special
deposit, compulsory loan, assessment or similar requirements against
assets held by, or deposits in or for the account of, or loans by, or
any other acquisition of funds or disbursements by, such Bank or an
office thereof;
(ii) subject such Bank, any Euro-Dollar Loan or the Note evidencing such
Euro-Dollar Loans to any tax (including any United States interest
equalization tax or similar tax however named applicable to the
acquisition or holding of debt obligations and any interest or
penalties with respect thereto), duty, charge, stamp tax, fee,
deduction or withholding in respect of this Agreement, any Euro-
Dollar Loan or any Note evidencing a Euro-Dollar Loan, except such
taxes as may be measured by the overall net income of such Bank or
its Euro-Dollar Lending Office and imposed by the jurisdiction, or
any political subdivision or taxing authority thereof, in which such
Bank's principal executive office or its Euro-Dollar Lending Office
is located;
(iii) change the basis of taxation of payments of principal and interest
due from Borrower to such Bank hereunder or under any Note evidencing
a Euro-Dollar Loan (other than by a change in taxation of the overall
net income of such Bank); or
(iv) impose on the Bank any penalty with respect to the foregoing or any
other condition regarding this Agreement, its disbursement, any Euro-
Dollar Loan or any Note evidencing a Euro-Dollar Loan except for any
penalty which results directly from the negligence or misconduct of
the Bank in requesting such reimbursement;
and such Bank shall determine that the result of any of the foregoing is to
increase the cost (whether by incurring a cost or adding to a cost) to such Bank
of making or maintaining any Euro-Dollar Loan hereunder or to reduce the amount
of principal or interest received by such Bank (without benefit of, or credit
for, any prorations, exemptions, credits or other offsets available under any
such laws, treaties, regulations, guidelines or interpretations thereof), then
Borrower and the Subsidiary Borrowers shall pay to such Bank on demand, from
time to time as specified by the Bank, such additional amounts as such Bank
shall determine are sufficient to compensate and indemnify such Bank for such
increased cost or reduced amount; provided that such Bank shall give prior
notice of such increased cost or reduced amount and Borrower and the Subsidiary
Borrowers may at their option, prepay such affected Euro-Dollar Loans together
with the amount payable pursuant to Section 2.03(H). If a Bank makes such a
claim for compensation, it shall provide to Borrower a certificate setting forth
such increased cost or reduced amount and the basis for such determination
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as a result of any event mentioned herein and such certificate shall in the
absence of manifest error, constitute prima facie evidence as to the amount
thereof.
(G) If prior to any Interest Period a Bank shall have determined (which
determination shall be conclusive and binding upon Borrower and the Subsidiary
Borrowers) that the method of computing the rate of interest applicable to any
Euro-Dollar Loan does not accurately reflect the cost to such Bank of making or
effecting by conversion any such Euro-Dollar Loan, then such Bank shall give
prompt telephonic, telex or telegraphic notice of such determination to Agent
and Borrower. After such notice and in the event Borrower or the Subsidiary
Borrowers desire to make or effect by conversion such Euro-Dollar Loan, during
the 30 calendar days next succeeding the giving of such notice, Borrower and the
affected Bank shall negotiate in good faith in order to arrive at a mutually
satisfactory method of computing the interest rate applicable to the Euro-Dollar
Loans hereunder, as the case may be, to be substituted for the interest rate
specified in this Agreement. If within such 30 day period Borrower and the
affected Bank shall agree in writing upon a substituted interest rate, then such
substituted interest rate shall be effective from the first day of the relevant
Interest Period for such Euro-Dollar Loan. If Borrower and the affected Bank
are unable to agree in writing upon a substituted rate within the above 30 day
period, then Borrower and the Subsidiary Borrowers shall on demand either (i)
prepay, without penalty or charge, the relevant Euro-Dollar Loans, in full, or
(ii) convert such Euro-Dollar Loans into Floating Rate Loans subject to all the
terms and conditions of this Agreement, and, in either case, shall pay interest
thereon from the date such Euro-Dollar Loan was made or effected by conversion
until such Euro-Dollar Loan is prepaid or converted, as the case may be, at the
rate per annum (rounded upward, if necessary, to the nearest whole multiple of
1/16 of 1%) which is equal to the sum of (i) 3.5% and (ii) the effective cost as
computed by the affected Bank of maintaining such Loan from deposits obtained in
the secondary market, together with all other amounts then due and payable to
the affected Bank under this Agreement. A certificate as to such effective cost
and the manner of the computation of such cost shall, in the absence of manifest
error, constitute prima facie evidence as to the amount thereof.
(H) In the event a Bank shall incur any loss, cost or expense (including
any loss of profit and any loss, cost or expense incurred by reason of the
liquidation or re-employment of deposits or other funds acquired by such Bank to
fund or maintain any Euro-Dollar Loan or the relending or reinvesting of such
deposits or amounts paid or prepaid to the Bank) as a result of:
(i) any payment (including any prepayment) of a Euro-Dollar Loan on a
date other than the last day of the then applicable Interest Period;
(ii) any failure by Borrower or the Subsidiary Borrowers to borrow a
Euro-Dollar Loan on the date specified in its notice given pursuant
to this Agreement;
(iii) any failure by Borrower or the Subsidiary Borrowers to make any
payment of principal or interest when due on any Euro-Dollar Loan,
whether at stated maturity, by acceleration or otherwise; or
(iv) the occurrence of any Event of Default;
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then, upon the demand of the Bank, Borrower and the Subsidiary Borrowers shall
pay to such Bank such amount as will reimburse such Bank for such loss, cost or
expense to the extent such loss, cost or expense is not otherwise reimbursed by
the after-maturity interest rate specified in this Agreement or reimbursed
pursuant to Section 11.03. If a Bank makes such a claim for compensation, it
shall provide to Borrower a certificate setting forth the amount of such loss,
cost or expense in reasonable detail and the manner of computation of the same
and such certificate shall constitute, in the absence of manifest error, prima
facie evidence as to the amount thereof.
(I) Any Bank may, at its option, elect to make, fund or maintain its Loans
hereunder at the branch or office specified on the signature page hereto or such
other of its branches or offices as the Bank may from time to time elect.
(J) Notwithstanding any provision of this Agreement to the contrary, such
Bank shall be entitled to fund and maintain its funding of all or any part of
the Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder as to Euro-Dollar Loans
shall be made as if the Bank had actually funded and maintained each Euro-Dollar
Loan during each Interest Period for such Euro-Dollar Loan through the purchase
of deposits in the relevant market having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the Euro-Dollar Rate for
such Interest Period.
(K) The provisions of Section 2.02 shall survive for a period of six
months following the later of the termination of this Agreement and the payment
in full of the Revolving Credit Loans.
(L) Each Bank agrees that in making calculations and determinations under
Sections 2.02(F), (G) and (H), it will do so in good faith and will make
allocations, on an equitable basis, of amounts to be charged to Borrower and to
other customers of the Bank which have arrangements for LIBOR borrowings similar
to those hereunder.
(M) Each Bank shall promptly notify Borrower and Agent of any event of
which it has knowledge which will result in, and will use reasonable commercial
efforts available to it (and not, in such Bank's sole judgment, otherwise
disadvantageous to such Bank) to mitigate or avoid, (i) any obligation by
Borrower to pay any amount pursuant to Section 2.02(G) or (ii) the occurrence of
any circumstances described in Sections 2.02(D), (E), or (F) (and, if any Bank
has given notice of any such event described in clause (i) or (ii) above and
thereafter such event ceases to exist, such Bank shall promptly so notify
Borrower and Agent). Without limiting the foregoing, each Bank will designate a
different funding office if such designation will avoid (or reduce the cost to
Borrower of) any event described in clause (i) or (ii) of the preceding sentence
and such designation will not, in such Bank's sole judgment, be otherwise
disadvantageous to such Bank.
If Borrower becomes obligated to pay additional amounts to any Bank
pursuant to Section 2.02(G), or any Bank gives notice of the occurrence of any
circumstances described in Sections 2.02(D), (E) or (F), Borrower may designate
another bank which is acceptable to Agent in its reasonable discretion (such
other bank being called a "Replacement Bank") to purchase the Loans
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of such Bank and such Bank's rights hereunder, and to assume such Bank's
Commitment and other obligations hereunder, without recourse to or warranty by,
or expense to, such Bank, for a purchase price equal to the outstanding
principal amount of the Loans payable to such Bank plus any accrued but unpaid
interest on such Loans and all accrued but unpaid fees owed to such Bank and any
other amounts payable to such Bank under this Agreement, and to assume all the
obligations of such Bank hereunder, and, upon such purchase, such Bank shall no
longer be a party hereto or have any rights hereunder (other than indemnities
and other similar rights applicable to such Bank prior to the date of such
assignment and assumption) and shall be relieved from all obligations to
Borrower hereunder, and the Replacement Bank shall succeed to the rights and
obligations of such Bank hereunder.
2.03 Maximum Rate Permitted. If, at any time, the interest rate and other
charges imposed hereunder shall be deemed by any competent Governmental
Authority to exceed the maximum rate of interest permitted by any applicable
Laws, for such time as the interest and such charges would be deemed excessive,
its application shall be suspended and there shall be charged instead the
maximum rate of interest and charges permissible under such Laws.
2.04 Prepayment. Borrower may prepay the Term Loan without penalty, premium
or additional charge (except as provided in Sections 2.02(D) through (H)) at any
time and in whole or in part (but, if in part, then in an amount not less than
$1,000,000.00 or a whole multiple thereof).
2.05 Application of Payments. All payments, which are not prepayments,
received from Borrower for payment on the Loans shall be applied by Agent first
to unpaid interest due and payable on the Term Loan, second to unpaid interest
due and payable on the Revolving Credit Loans, third to installments in respect
of the Term Loan then due or past due, fourth to the reduction of the principal
outstanding on the Revolving Credit Loans (Borrower may designate whether
payments are to be applied to other Revolving Credit Loans, and in the absence
of such designation Agent may direct the application in its discretion), and
fifth to further reduction of the principal amount of the Term Loan in inverse
order of maturity.
2.06 Fees. (A) RESERVED.
(B) Borrower shall pay Agent a fee (the "Non-Use Fee") equal to the
Applicable Margin per annum multiplied by the daily unused portion of the
Revolving Credit Loan Commitment. For purposes of calculating the Non-Use Fee as
provided in the immediately preceding sentence, any amount of Debt of FarmPro,
Inc. that is guaranteed by Borrower shall be deemed to be included as part of
the unused portion of the Revolving Credit Loan Commitment. The Non-Use Fee
shall be payable quarterly in arrears on the first day of each April, July,
October and January hereafter.
(C) Borrower shall pay an annual fee to Agent in the amount, in the
manner and at the time set forth in the fee letter dated August 6, 1998 by and
between Agent and Borrower.
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(D) On the date of issuance of each standby Letter of Credit, Borrower
shall pay a fronting fee to the Issuing Bank in an amount equal to .15% of the
face amount of such Letter of Credit.
2.07 Payments by Borrowers. (A) All payments to be made by Borrower or
Borrowing Subsidiary shall be made without set-off, recoupment or counterclaim.
Except as otherwise expressly provided herein, all payments by Borrower shall be
made to Agent for the account of the Banks at Agent's Payment Office, and shall
be made in U.S. dollars. Such payments shall be in immediately available in
funds and made no later than 11:00 a.m. (Chicago time) on the date specified
herein. Agent will promptly distribute to each Bank its Pro Rata Share (or other
applicable share as expressly provided herein) of such payment in like funds as
received. Any payment received by Agent later than the time specified above
applicable to such payment shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall continue to
accrue.
(B) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(C) Unless Agent receives notice from Borrower prior to the date on
which any payment is due to the Banks that a Borrower will not make such payment
in full as and when required, Agent may assume that such Borrower has made such
payment in full to Agent on such date in immediately available funds and Agent
may (but shall not be so required), in reliance upon such assumption, distribute
to each Bank on such due date an amount equal to the amount then due such Bank.
If and to the extent any Borrower has not made such payment in full to Agent,
each Bank shall repay to Agent on demand such amount distributed to such Bank,
together with interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Bank until the date repaid.
2.08 Payments by the Banks to Agent. (A) Unless Agent receives notice from
a Bank on or prior to the Closing with respect to such Borrower or, with respect
to any borrowing by Borrower after such Closing with respect to such Borrower,
at least one Business Day prior to the date of such borrowing, that such Bank
will not make available as and when required hereunder to Agent for the account
of Borrower the amount of that Bank's Pro Rata Share of the borrowing, Agent may
assume that each Bank has made such amount available to Agent in immediately
available funds on the borrowing date and Agent may (but shall not be so
required), in reliance upon such assumption, make available to Borrower on such
date a corresponding amount. If and to the extent any Bank shall not have made
its full amount available to Agent in immediately available funds and Agent in
such circumstances has made available to Borrower such amount, that Bank shall
on the Business Day following such borrowing date make such amount available to
Agent, together with interest at the Federal Funds Rate for each day during such
period. A notice of Agent submitted to any Bank with respect to amounts owing
under this Section 2.08(A) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to Agent shall constitute such Bank's
Loan on
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the date of borrowing for all purposes of this Agreement. If such amount is not
made available to Agent on the Business Day following the borrowing date, Agent
will notify Borrower of such failure to fund and, upon demand by Agent, Borrower
shall pay such amount to Agent for Agent's account, together with interest
thereon for each day elapsed since the date of such borrowing, at a rate per
annum equal to the interest rate applicable at the time to the Loans comprising
such borrowing.
(B) The failure of any Bank to make any Loan on any borrowing date
shall not relieve any other Bank of any obligation hereunder to make a Loan on
such borrowing date, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on any borrowing date.
2.09 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it to
any Borrower or Letter of Credit Obligations for the account of any Borrower any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Pro Rata Share (or other share
contemplated hereunder), such Bank shall immediately (a) notify Agent of such
fact, and (b) purchase from the other Banks such participations in the Loans
made by them to such Borrower or Letters of Credit issued for the account of
such Borrower as shall be necessary to cause such purchasing Bank to share the
excess payment pro rata with each of them; provided, however, that if all or any
portions of such excess payment is thereafter recovered from the purchasing
Bank, such purchase shall to that extent be rescinded and each other Bank shall
repay to the purchasing Bank the purchase price paid therefor, together with an
amount equal to such paying Bank's ratable share (according to the proportion of
(i) the amount of such paying Bank's required repayment to (ii) the total amount
so recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered.
Borrower agrees that any Bank so purchasing a participation from another Bank
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank were the direct creditor of such Borrower in the amount of such
participation. Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this Section
2.09 and will in each case notify the Banks following any such purchases or
repayments.
ARTICLE III. CONDITIONS PRECEDENT
The obligation of the Banks to make the Loans and issue Letters of Credit
is subject to the following conditions precedent:
3.01 Conditions of Initial Loans and Letters of Credit. Borrower shall
have delivered or caused to be delivered to the Bank on or before the date of,
but prior to, any disbursement of Revolving Credit Loans and the Term Loan
(hereinafter called the "Closing"), the following, each to be satisfactory to
Agent in all respects:
(A) The documents, certificates and instruments listed on Schedule 7A; and
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(B) Such other documents, certificates and evidence as Agent may request to
consummate the transactions contemplated hereby.
3.02 Conditions of Subsequent Disbursements. At the time of the Closing,
at the time of each subsequent disbursement under the Revolving Credit Loan
Commitment or issuance of a Letter of Credit, each of the following statements
shall be true; and (i) at the Closing, Borrower shall deliver to Agent a
certificate dated the date of the Closing, signed by an Authorized Borrower
Representative, to such effect, and (ii) with respect to each subsequent
Revolving Credit Loan, Borrower's or Subsidiary Borrower's request for same
shall be deemed to be Borrower's representation to such effect at and as of the
time such Revolving Credit Loan is made.
(i) The representations and warranties set forth in this Agreement are
true and correct as of such date.
(ii) No Event of Default shall have occurred and be continuing, and no
event shall have occurred and be continuing that, with the giving of notice
or passage of time or both, would be an Event of Default.
(iii) No material adverse change shall have occurred in the financial
condition of Borrower since the date of this Agreement.
(iv) All liens on Collateral granted to Agent are and remain valid first
priority liens (subject only to Permitted Liens) in full force and effect.
3.03 Conditions Regarding Real Estate Matters. On or before March 1,
1999, Borrower shall have delivered or cause to be delivered the documents,
instruments, certificates, surveys and title insurance policies described on
Schedule 7B, each to be satisfactory to Agent in all respects.
ARTICLE IV. COLLATERAL SECURITY
4.01 Collateral. The property in which a security interest is granted
pursuant to the provisions of Sections 4.02 and 4.03 is herein collectively
called the "Collateral." The Collateral, together with all of Borrower's other
property of any kind held by any Bank, shall stand as one general, continuing
collateral security for all Obligations of Borrower and may be retained by any
Bank until all such Obligations have been satisfied in full, and this Agreement
shall have been terminated.
4.02 Amounts Held by Banks. As security for the prompt satisfaction of
all Obligations of Borrower, Borrower hereby assigns, transfers and sets over to
Agent on behalf of the Banks all of its right, title and interest in and to, and
grants Agent on behalf of the Bank's a lien on and a security interest in, all
amounts that may be owing from time to time by any Bank to Borrower in any
capacity, including any balance or share belonging to Borrower of any deposit or
other account with a Bank, which lien and security interest shall be independent
of any right of set-off which a Bank may have.
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4.03 Further Collateral. As further security for the prompt satisfaction
of all Obligations of Borrower, Borrower hereby assigns, transfers and sets over
to Agent on behalf of the Bank all of its right, title and interest in and to,
and grants to Agent on behalf of the Banks a lien on and security interest in,
all of its right, title and interest in and to the following, wherever located,
whether now owned or hereafter acquired or arising, together with all
replacements therefor, proceeds, including insurance proceeds, thereof and
products thereof:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) rights as seller of goods and rights to returned, rejected or
repossessed goods;
(E) General Intangibles, including those described on Schedule 4;
(F) all Stock of any Subsidiary of Borrower, whether now existing or
hereafter formed or acquired, other than any foreign Subsidiary of
Borrower;
(G) as to any foreign Subsidiary of Borrower (whether now existing or
hereafter formed or acquired), the maximum percentage of the Stock of
such Subsidiary which may be pledged from time to time without causing
Borrower to be subject to U.S. income tax on the earnings and profits
of such Subsidiary; provided; however, that in the case of Avemarau,
Borrower shall pledge 49% of the Stock thereof to the Agent until
December 31, 2001 and thereafter, the maximum percentage of the Stock
thereof which may be pledged from time to time without causing
Borrower to be subject to U.S. income tax on the earnings and profits
of Avemarau; and
(H) all books and records pertaining to any of the foregoing.
In addition and as further security, Borrower will execute and deliver to Agent
on behalf of the Banks security agreements and such other documents, including
financing statements, in connection herewith as shall be required by Agent.
4.04 First Liens. The liens created in Sections 4.02 and 4.03 shall be
first and prior liens, subject only to Permitted Liens.
4.05 Representatives and Warranties Regarding Collateral. Borrower
represents and warrants to Agent and each Bank as follows:
(A) Borrower is the owner of the Collateral and grants the security
interest made in Sections 4.02 and 4.03 in consideration of value given by the
Banks, the sufficiency of which Borrower hereby acknowledges.
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(B) Other than the security interests granted in Sections 4.02 and 4.03,
the Collateral is free from any lien, security interest, encumbrance or other
right, title or interest of any other Person except for Permitted Liens.
(C) All Collateral is kept solely at the location or locations identified
in Schedule 2. Except as specified on Schedule 2, no Collateral is or shall be
kept, stored or maintained with a bailee, warehouseman, carrier or similar party
without Agent's prior written consent.
(D) With respect to Accounts of Borrower or any Subsidiary thereof, except
as otherwise disclosed by Borrower to Agent in writing:
(i) the Accounts are genuine, in all respects what they purport to
be and are not evidenced by a judgment;
(ii) the Accounts represent bona fide transactions completed in
accordance with the terms and provisions contained in the
invoices and other documents evidencing same;
(iii) the amounts thereof, which are shown on all such invoices and
statements evidencing same, are actually and absolutely owing
to Borrower and are not contingent for any reason;
(iv) to the best of Borrower's knowledge, there are no setoffs,
counterclaims or disputes existing or asserted with respect to
the Accounts and Borrower has not made any agreement with any
Account Debtor thereof for any deduction therefrom;
(v) to the best of Borrower's knowledge, there are no facts,
events or occurrences which in any way impair the validity or
enforceability of the Accounts or tend to reduce the amount
payable thereunder from the amount thereof;
(vi) to the best of Borrower's knowledge, all of the Account
Debtors have the capacity to contract and are solvent;
(vii) the services and/or goods sold giving rise to the Accounts
are not subject to any lien, claim, encumbrance or security
interest except that of Agent and except for Permitted Liens;
(viii) Borrower has no knowledge of any fact or circumstance which
would impair the validity or collectability of the Accounts;
(ix) to the best of Borrower's knowledge, there are no proceedings
or actions which are threatened or pending against any Account
Debtor which might
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result in a material adverse change in such Account Debtor's
financial condition; and
(x) none of the Accounts is pursuant to an invoice requiring payment
in more than 30 days, except for Accounts representing in the
aggregate not more than 5% of all Accounts.
(E) With respect to Inventory of Borrower or any Subsidiary of Borrower,
Borrower has correct and accurate records itemizing and describing the type and
quantity of Inventory, and Borrower's or such Subsidiary's cost therefor and
selling price thereof; provided, however, that it is acknowledged that Borrower
does not maintain a perpetual inventory at its manufacturing facilities, but
rather performs an annual physical inventory thereat.
4.06 Special Collateral. Immediately upon Borrower's receipt of that
portion of the Collateral, if any, which is evidenced by an instrument and/or
document, including promissory notes, documents of title, certificated
securities and warehouse receipts (collectively the "Special Collateral") for
the purpose of perfecting Agent's security interest in such Special Collateral,
Borrower shall deliver the original thereof to Agent, together with appropriate
endorsements and/or specific evidence of the assignment thereof to Agent, in
form and substance acceptable to Agent; provided, however, that unless there
shall exist an Event of Default or Agent shall have specifically requested same,
Borrower need not deliver to Agent Special Collateral representing advances to
employees.
4.07 Contracts with U.S. Government. If and to the extent that any of the
Collateral is evidenced by, or arises under, any contract with the United States
of America or any agency or instrumentality thereof, Borrower will immediately
notify Agent of same.
4.08 Contracts Regarding Collateral. Borrower covenants and agrees with
Agent and each Bank as follows:
(A) Borrower will not hereafter grant a security interest in the
Collateral, or transfer the Collateral to any other Person, except as
specifically permitted by this Agreement.
(B) Borrower will at all times defend the Collateral against any claims of
any Person adverse to the claims of Agent.
(C) All of Borrower's places of business, including Borrower's principal
office, are described on Schedule 2. All Collateral covered by this Agreement
is and will be kept only at location(s) specified on Schedule 2. Collateral
shall not be removed to, or kept at, and Borrower shall not establish a place of
business at, any other place without the prior written consent of Agent, other
than new locations within the 48 contiguous states, provided that (i) at least
60 days prior to the establishment of such new location, Borrower shall have
given Bank written notice thereof, and (ii) prior to the establishment of such
new location, Borrower shall have delivered to Agent such financing statements,
third-party lien waivers and other documentation as Agent shall require in
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connection therewith. If Collateral is at any time kept or located at locations
other than those listed, the Bank's security interest therein shall continue.
(D) During the preceding five years, neither Borrower nor any predecessor
of Borrower has been known as or used any corporate, fictitious or trade names
or trade styles, other than those disclosed on Schedule 3.
(E) All patents, trademarks, service marks and copyrights, and all
licenses, registrations and applications for registration thereof, owned, used
or to be used by Borrower in the operation of its business, are listed on
Schedule 4. Borrower will promptly notify Agent in writing of Borrower's
acquisition of any such assets hereafter occurring.
(F) The Equipment in which Agent is granted a security interest will not at
any time be affixed or attached to any real estate in such a manner that it will
become a fixture, unless Agent shall have a first priority, perfected lien on
such real estate as security for the Obligations of Borrower. The Equipment
will be used or bought for use solely for business purposes.
(G) Borrower shall permit Agent to inspect and evaluate the Collateral and
any books and records of Borrower relating thereto at all reasonable times and
to verify any Accounts by any reasonable method satisfactory to Agent, all at
the expense and risk of Borrower.
(H) By identifying Accounts on any schedule or other document delivered to
Agent or any Bank Borrower shall be deemed to be making the representations and
warranties contained in Section 4.05(D) with respect to such Accounts.
(I) With respect to Accounts, Borrower shall:
(i) promptly upon Borrower's learning thereof, inform Agent in
writing of any material delay in Borrower's performance of any
of its obligations to any Account Debtor whose outstanding
Accounts aggregate $500,000.00 or more and of any assertion of
any claims, offsets or counterclaims by any such Account Debtor
and of any extraordinary allowances, credits and/or other monies
granted by Borrower to any such Account Debtor;
(ii) not permit or agree to any material extension, compromise or
settlement or make any change or modification of any kind or
nature with respect to any material Accounts, including any of
the terms relating thereto;
(iii) promptly upon Borrower's receipt or learning thereof, inform
Agent of the commencement of bankruptcy proceedings involving
any Account Debtor whose outstanding Accounts aggregate
$500,000.00 or more; and
(iv) other than goods returned in the ordinary course of business and
having an aggregate invoice price not exceeding $500,000.00 per
year, keep all goods
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returned by any Account Debtor and all goods repossessed or
stopped in transit by Borrower from any Account Debtor
segregated from the other property of Borrower, and hold the
same as trustee for Agent until resold or otherwise directed in
writing by Agent.
(J) With respect to Inventory, Borrower shall from and after the date
hereof keep correct and accurate records reflecting Borrower's cost therefor and
the selling price thereof, all of which records shall be available at all
reasonable times, upon demand, to any of Agent's officers, employees or agent
for inspection and copying thereof.
(K) Borrower shall keep and maintain the Equipment in good operating
condition and repair and shall make all necessary replacements thereof and
renewals thereto so that the value and operating efficiency thereof shall at all
times be maintained and preserved; provided, however, that Borrower may sell
obsolete Equipment for a price which reasonably approximates its fair market
value if the proceeds thereof are paid directly to Agent for application to
Borrower's Obligations.
4.09 Insurance. Borrower shall, at its sole cost and expense, keep and
maintain the Collateral insured for the greater of the full insurable value or
the full replacement value thereof against loss or damage by fire, theft,
explosions, sprinklers and all other hazards and risks (i) covered by extended
coverage and/or (ii) ordinarily insured against by other owners or users of
properties in similar businesses. All such policies of insurance shall be in
form, with insurers and in such amounts as may be satisfactory to Agent.
Borrower shall deliver to Agent a certificate of insurance with respect to each
policy of insurance and evidence of payment of all premiums for each such
policy. Such policies of insurance shall contain a lender's loss payable
endorsement, in form and substance acceptable to Agent, showing loss payable to
Agent. Such endorsement or an independent instrument furnished to Agent shall
provide that all insurance companies shall give Agent at least thirty (30) days
prior written notice before any such policy or policies of insurance shall be
altered or canceled and that no act or default of Borrower or any other Person
shall affect the right of Agent to recover under such policy or policies of
insurance in case of loss or damage. Borrower hereby directs all insurers under
such policies of insurance to pay all proceeds payable thereunder directly to
Agent. With respect to all claims in excess of $100,000.00, and with respect to
all claims of any size at any time during the existence of an Event of Default,
Borrower irrevocably appoints Agent and all officers, employees or agents
designated by Agent as Borrower's true and lawful attorney and agent in fact for
the purpose of making, settling and adjusting claims under such policies of
insurance, endorsing the name of Borrower on any check, draft, instrument or
other item of payment for the proceeds of such policies of insurance and for
making all determinations and decisions with respect to such policies of
insurance. If Borrower at any time or times hereafter shall fail to obtain or
maintain any of the policies of insurance required above, or to pay any premium
in whole or in part relating thereto, Agent, without waiving or releasing any of
the Obligations of Borrower or any Event of Default, may at any time or times
thereafter, but shall be under no obligation to do so, obtain and maintain such
policies of insurance and pay such premiums and take any other action with
respect thereto which Agent deems necessary or advisable. All sums so disbursed
by Agent, including attorney's fees, court costs, expenses and other charges
relating thereto, shall be part of the Obligations, payable by Borrower to Agent
on demand.
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4.10 Actions by Agent. Agent may, at any time or times hereafter, in its
sole discretion, without waiving or releasing any obligation, liability or duty
of Borrower under this Agreement or the other Documents, or any Event of
Default, pay, acquire and/or accept an assignment of any security interest,
lien, claim or encumbrance asserted by any Person against the Collateral. All
sums paid by Agent in respect thereof and all costs, fees and expenses,
including attorneys' fees, court costs, expenses and other charges relating
thereto, which are incurred by Agent on account thereof, shall be payable, upon
demand, by Borrower to Agent and shall be additional Obligations of Borrower
hereunder secured by the Collateral.
4.11 Subsidiary Collateral. Simultaneous herewith, the Subsidiary
Borrowers are delivering the following: (a) the Subsidiary Borrower Revolving
Credit Note, (b) a guaranty of the Obligations of Borrower, and (c) security
agreements pledging certain assets.
4.12 Survival. Each of the representations, warranties and agreements set
forth in this Article IV shall survive the execution and delivery of this
Agreement and shall remain effective until this Agreement shall have been
terminated and all Obligations of Borrower shall have been paid and satisfied in
full.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
To induce the Banks to consummate the transactions contemplated hereby,
Borrower represents and warrants to Agent and each Bank as follows:
5.01 Corporate Existence. Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
has the lawful power and authority to own its properties and to carry on its
business as now conducted, and is qualified to do business and is in good
standing as a foreign corporation in the State of Illinois and in each other
jurisdiction wherein the nature of the business transacted or to be transacted
by it or property owned or to be owned by it makes such qualification necessary
and where the failure to be so qualified would have a material adverse effect on
its business, properties or condition, financial or otherwise and possesses all
material permits necessary to operate the business it conducts.
5.02 Corporate Authorization. Borrower is empowered to perform all acts
and things undertaken and done pursuant to this Agreement and has taken all
corporate or other action necessary to authorize the execution, delivery and
performance of the Documents. The officers of Borrower executing the Documents
have been duly elected or appointed and have been fully authorized to execute
such Documents at the time executed. The Documents, when executed and
delivered, will be the legal, valid and binding obligations of Borrower,
enforceable against it in accordance with their respective terms.
5.03 Financial Statements. The Financial Statements are complete and
accurate, fairly present the financial condition of Borrower at the respective
dates thereof and the results of operations for the respective periods covered
thereby, and (subject to normal year-end adjustments with respect to interim
Financial Statements) were prepared in accordance with GAAP. Borrower
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does not have any material liabilities or obligations (contingent or otherwise),
liability for taxes or unusual forward or long-term commitments, except as
disclosed in the Financial Statements, and except for obligations under
Stockholder Agreements.
5.04 No Changes. Since December 31, 1998, there has been no material
change in the assets, liabilities or financial condition of Borrower, other than
changes arising from transactions in the ordinary course of business and the
financing transactions contemplated by this Agreement, and none of such changes
has been materially adverse.
5.05 Litigation. Other than as set forth in Schedule 8, there are no
actions, suits or proceedings pending, or, to the best of the knowledge of
Borrower, threatened against or affecting Borrower at law or in equity or before
or by any Governmental Authority or any foreign equivalent thereof, which
involve the reasonable possibility of any material judgment or liability, or
which are, in the aggregate, material in light of the financial condition and
assets of Borrower. There are no actions, suits, investigations or proceedings
pending, or to the best of the knowledge of Borrower, threatened against
Borrower or its properties regarding Environmental Laws, the manufacture,
storage or treatment of Hazardous Substances or products liability.
5.06 No Default. Borrower is not in violation of, and the execution and
delivery of the Documents and the performance by Borrower of its obligations
under the Documents, do not and will not result in Borrower being in violation
of or in conflict with, or constitute a default under any of, Borrower's
organizational documents, any term or provision of any note, mortgage,
indenture, contract, agreement, instrument, judgment or Law applicable to
Borrower, or result in the creation or imposition of any mortgage, lien, charge
or encumbrance of any nature whatsoever (other than those in favor of Bank) upon
any of the assets of Borrower pursuant to any such term or provision. Borrower
is not in default, after the expiration of any applicable grace or cure periods,
in any respect in the performance or fulfillment of any of its obligations,
covenants or conditions contained in any agreement or instrument to which it is
a party or by which any of its properties may be bound, and Borrower does not
know of any dispute regarding any such agreement or instrument.
5.07 Use of Proceeds. Borrower's uses of the proceeds of the Loans are,
and will continue to be, legal and proper corporate uses which are consistent
with all applicable Laws, with Borrower's Certificate of Incorporation, its By-
Laws, the resolutions of its Board of Directors, and the terms of this
Agreement.
5.08 Outstanding Debt. Borrower does not have outstanding any Debt
(except to the Banks and the Subordinated Notes,) or other obligation for
borrowed money, or for the deferred purchase price of property or services and
Borrower is not obligated as guarantor, co-signer or otherwise on any Debt or
other obligation of any kind of any other Person, except and to the extent shown
on the Financial Statements at the date of this Agreement, incurred in the
ordinary course of business or pursuant to the Stockholder Agreements or as
otherwise permitted hereunder. No Person is in default under any of said
obligations.
5.09 Taxes. All tax returns and reports of Borrower required by law to be
filed, have been duly filed, and all taxes, assessments, fees and other
governmental charges (other than those
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presently payable without penalty or interest) upon Borrower or upon any of its
properties or assets, which are due and payable, have been paid. The charges,
accruals and reserves on the books of Borrower in respect of taxes are
considered adequate by Borrower, and Borrower does not know of any assessment of
a material nature against it.
5.10 Compliance. Except to the extent that failure to comply would not
materially interfere with the conduct of the business of Borrower, or affect in
any way Borrower's obligations (or Banks' rights) under the Documents, Borrower
has complied with all applicable laws with respect to: (i) any restrictions,
specifications or other requirements pertaining to products that Borrower
manufactures and sells or the services it performs, including all Environmental
Laws, (ii) the conduct of its business and (iii) the use, maintenance, and
operation of the real and personal properties owned or leased by it in the
conduct of its business.
5.11 Governmental Authorization. No authorization, consent, license or
approval of, or filing or registration with, or notification to, any
Governmental Authority is required in connection with the execution, delivery or
performance of the Documents by Borrower.
5.12 Title to Properties. Borrower has good and marketable title to all
of its assets, all subject to no security interest, encumbrance, lien or claim
of any Person excepting only Permitted Liens, and there are no financing
statements or other evidence of any such security interest, encumbrance or lien
or any claim of any Person on file in any public office other than those
evidencing Permitted Liens.
5.13 Ownership of Stock. Except as set forth on Schedule 5, Borrower does
not own, directly or indirectly, any Stock. As of the date of this Agreement,
the ownership of all of the issued and outstanding shares of Stock of Borrower
is as set forth on Schedule 5. All outstanding shares of Borrower have been
duly authorized, validly issued, fully paid and are nonassessable.
5.14 ERISA Compliance. Borrower is in full compliance with the
requirements of ERISA; no fact, including any Reportable Event, exists in
connection with any Plan which might constitute grounds for the termination of
any such Plan by the PBGC or for the appointment by the appropriate United
States district court of a trustee to administer any such Plan; none of
Borrower, its Subsidiaries and the ERISA Affiliates maintains any Plan which has
an "accumulated funding deficiency" (as defined in Section 412 of the Internal
Revenue Code) whether or not waived; none of Borrower, its Subsidiaries and the
ERISA Affiliates has incurred or is expected to incur, directly or indirectly,
any actual or contingent liabilities arising from plan termination or
withdrawal, under Title IV of ERISA; none of Borrower, its Subsidiaries and the
ERISA Affiliates has any Plan with an actuarial present value of accrued plan
benefits which exceeds the net assets available for such benefits determined as
of said Plan's most recent actuarial valuation within the last 12 months; except
as disclosed in writing to the Agent prior to the date hereof, none of Borrower,
its Subsidiaries and the ERISA Affiliates has any employees who participate in a
Multiemployer Plan, and no such Multiemployer Plan is in reorganization under
Section 4241 of ERISA or is "insolvent" (as described in Section 4245 of ERISA);
and none of Borrower, its Subsidiaries and the ERISA Affiliates nor any
fiduciary designated by any of them has engaged in a "prohibited transaction"
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within the meaning of Section 4975 of the Internal Revenue Code or Section 406
of ERISA with respect to any "employee benefit plan," as defined in Section 3(3)
of ERISA.
5.15 Solvency. Borrower retains sufficient capital for the business and
transactions in which it engages or intends to engage, no obligation incurred
hereby is beyond the ability of Borrower to pay as such obligation matures,
Borrower is not contemplating either the filing of a petition under any state or
federal bankruptcy or insolvency laws or the liquidating of all or a major
portion of any of its property, and Borrower has no knowledge of any person
contemplating the filing of any such petition against it.
5.16 Brokerage. No brokerage commissions, finder's fees or investment
banking fees will be payable to any Person engaged by or on behalf of Borrower
or any of its Affiliates in connection with the transactions contemplated by
this Agreement.
5.17 Subordinated Notes. The Subordinated Notes have been validly issued
in accordance with the terms of the Indenture. Borrower has received the
proceeds of the Subordinated Notes. No event of default or event which with the
passage of time, the giving of notice or otherwise could constitute an event of
default under the Subordinated Notes or the Indenture has occurred. The
Obligations of Borrower constitute Senior Indebtedness and Designated Senior
Indebtedness under the Indenture.
5.18 Year 2000 Compliance. Borrower and its Subsidiaries have reviewed
the areas within their business and operations which could be adversely affected
by, and have developed or are developing a program to address on a timely basis,
the Year 2000 Problem, and have made related appropriate inquiries of material
suppliers and vendors as to the effect of the Year 2000 Problem will have on
their material suppliers and customers. Based on such review, program and
inquiries, Borrower reasonably believes that the Year 2000 Problem will not have
a material adverse effect on Borrower. From time to time, at the request of
Agent, Borrower and its Subsidiaries shall provide to Agent such updated
information or documentation as is requested regarding the status of their
efforts to address the Year 2000 Problem.
5.19 Condition of Business. There exists no actual or threatened
termination, cancellation or limitation of, or any modification or change in,
the proposed business relationship of Borrower with any customer or group of
customers whose purchases individually or in the aggregate are material to the
current business of Borrower, or in the proposed business relationship of
Borrower with any material supplier, and Borrower reasonably anticipates that
all such customers and suppliers will continue a business relationship with
Borrower on a basis no less favorable to Borrower than that heretofore
conducted; and there exists no other condition or state of facts or
circumstances which would materially adversely affect the current operation of
the business of Borrower, DMC, Grain King or Avemarau after the consummation of
the transactions contemplated by this Agreement on a basis no less favorable to
Borrower than that on which it has heretofore been conducted by Borrower.
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5.20 Certain Acts and Regulations. Neither Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940; neither
Borrower nor any Subsidiary thereof 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; and Borrower is not engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying "margin stock" (as defined in Regulation U of
the FRB).
5.21 Labor Matters. Neither Borrower nor any Subsidiary thereof is
subject to any labor or collective bargaining agreement. There are no existing
or threatened strikes, lockouts or other labor disputes involving Borrower or
any Subsidiary thereof that, individually or in the aggregate, could reasonably
be expected to have a material adverse effect on the financial condition,
assets, business or business prospects of Borrower or any such Subsidiary.
Hours worked by and payment made to employees of Borrower and its Subsidiaries
are not in violation of the Fair Labor Standards Act or any other applicable
Law.
5.22 Intellectual Property. Borrower and each Subsidiary thereof owns and
possesses or has a license or other right to use all patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service mark rights and copyrights as are necessary for the conduct of the
business of Borrower and its Subsidiaries, without any infringement upon rights
of others which could reasonably be expected to have a material adverse effect
on the financial condition, assets, business or business prospects of Borrower
or any such Subsidiary.
5.23 Dissolution of David Service Company. David Service Company has
heretofore ceased to do business and was involuntarily dissolved.
5.24 No Untrue Representations. No representation or warranty by Borrower
contained herein or in any certificate or other document furnished by or on
behalf of Borrower in connection with the transactions hereunder contains any
untrue statement of material fact or omits to state a material fact necessary to
make such representation or warranty not misleading in light of the
circumstances under which it was made.
5.25 Survival of Representations. All of the representations and
warranties set forth in this Article V shall survive and continue to be true,
complete and correct until all Obligations of Borrower hereunder are paid and
satisfied in full and this Agreement shall have been terminated.
ARTICLE VI. NEGATIVE COVENANTS
Borrower covenants that until all Obligations of Borrower are paid and
satisfied in full, and the Banks obligations hereunder have terminated, Borrower
will not, nor will it permit any of its Subsidiaries to, directly or indirectly,
without the prior consent in writing of the Majority Banks:
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6.01 Negative Pledge. Create, assume, incur or suffer or permit to exist
any mortgage, pledge, encumbrance, security interest, assignment, lien or charge
of any kind or character upon any of its assets, including its inventory and
equipment, whether owned at the date hereof or hereafter acquired, excepting
only Permitted Liens.
6.02 Loans. Make any loans, or advances, whether secured or unsecured, to,
or make any guaranty of, or otherwise become obligated on behalf of any other
Person for, any such loans or advances to, any Person, except for (A) guaranties
in favor of the Banks, (B) loans to any of its Subsidiaries, provided such loans
do not exceed, when added to the capital contributions referenced in Section
6.05(C), the sum of $5,000,000 in any 12 month period and (C) advances for
business expenses made to employees in the ordinary course of business (not to
exceed $500,000 in the aggregate at any one time outstanding to any employee).
6.03 Disposition of Assets. Dispose by sale, assignment, lease, sale and
leaseback or otherwise any of the Collateral, whether now owned or hereafter
acquired and including any Accounts or Equipment, except that, unless an Event
of Default shall exist and Agent shall have required the cessation of inventory
sales, (A) such Person may sell its inventory in the ordinary course of business
as conducted by it on the date of this Agreement, for a reasonably equivalent
value and (B) such Person may sell Equipment no longer used by such Person or
which is otherwise obsolete, provided the aggregate dollar value of all such
Equipment sold does not exceed the sum of $2,500,000 in any calendar year.
6.04 [RESERVED]
6.05 Investments. Own, hold, purchase or acquire Stock, bonds, debentures
or other debt or equity securities of, or make any capital contribution to, or
make any other investment in any Person or otherwise engage in an Acquisition,
or form any Subsidiary; provided, however, (A) Borrower may make an Acquisition
or Acquisitions whose total aggregate gross purchase price do not exceed
$5,000,000, (B) Borrower may hold or form other Subsidiaries (domestic or
foreign) if (i) prior to forming a new Subsidiary after the date hereof,
Borrower gives 30 days prior written notice thereof to Agent, (ii) the total
aggregate amount of assets of all such Subsidiaries other than DMC, and Avemarau
does not exceed 10% of the total assets of Borrower and (iii) prior to forming
such Subsidiary, Borrower executes and delivers such documents and instruments
to the Agent as the Agent may require to create a perfected, first-priority
security interest in and to all of the Stock of such Subsidiary in favor of the
Banks (other than any foreign Subsidiary, as to which the percentage of the
Stock pledged shall be subject to the limitations set forth in Section 4.03(G)),
(C) Borrower may make capital contributions to Subsidiaries not to exceed, the
sum of (1) $5,000,000 in any 12 month period and (2) solely with respect to the
twelve month period ending December 31, 1999, the aggregate amount of capital
contributions set forth on Schedule 11, (D) Borrower or any Subsidiary of
Borrower may make Cash Equivalent Investments and (E) Borrower or any Subsidiary
of Borrower may make bank deposits in the ordinary course of business.
6.06 Merger, etc. Make any material change in its financial structure,
make any material change in its management (except on prior notice to Agent),
change its name (except on 90 days'
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prior notice to Agent), enter into any merger, consolidation, dissolution,
liquidation, reorganization or recapitalization, or reclassification of its
Stock, or issue any Stock or issue any warrant, right or option pertaining
thereto or other security convertible into any of the foregoing.
6.07 Change in Business. Engage in business activities or operations
substantially different from and unrelated to its business activities on the
date of this Agreement.
6.08 Dividends. Declare or pay any dividends, or redeem or repurchase any
of, or make any other payment or distribution on account of, any Stock, except
as permitted under the terms of the Indenture.
6.09 Sale - Leaseback. Enter into any sale-leaseback transaction.
6.10 Prepayment of Debt. Prepay any Debt, including the Subordinated Debt
by way of optional redemption or otherwise, except for prepayment of trade
creditors in the ordinary course of business and other prepayments expressly
permitted hereunder; or enter into or modify any agreement as a result of which
the terms of payment of any Debt are waived or modified.
6.11 Use of Proceeds. Directly or indirectly apply any part of the
proceeds of the Loans for any purpose other than as set forth herein.
6.12 Margin Stock. Directly or indirectly apply any part of the proceeds
of the Loans to the purchasing or carrying of any "margin stock" within the
meaning of Regulation U of the FRB, or any regulations, interpretations or
rulings thereunder.
6.13 ERISA. Engage in any "prohibited transaction" within the meaning of
Section 4975 of the Internal Revenue Code or Section 406 of ERISA with respect
to any "employee benefit plan," as defined in Section 3(3) of ERISA; or effect
any termination of any Plan which would result in a liability to Borrower.
6.14 Other Debt. Create, incur or assume any Debt other than (A) the
Loans, (B) the Subordinated Notes, (C) Debt disclosed on Schedule 9, (D) Debt
(other than Debt for money borrowed) incurred in the ordinary course of business
and which is not prohibited by the other provisions of this Agreement, (E) new
mortgage and Equipment financing Debt permitted pursuant to clauses (G) and (H)
of the definition of "Permitted Liens", (F) Debt in the form of the guarantee of
Debt of FarmPro, Inc., a Pennsylvania corporation in an aggregate amount not in
excess of $6,000,000 at any time outstanding; (G) Debt under Stockholder's
Agreement to the extent expressly permitted by the terms of the Indenture and
(H) Debt of any Subsidiary of Borrower that is owed to any Person other than the
Banks or, to the extent otherwise permitted under Section 6.02, Borrower or any
other Subsidiary of Borrower, provided such Debt does not exceed the sum of
$5,500,000 in the aggregate at any time.
6.15 Transactions with Affiliates. Enter into, or be a party to, any
transaction with any Affiliate, except in the ordinary course of and pursuant to
the reasonable requirements of its business
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and upon fair and reasonable terms which are fully disclosed in writing to Agent
and are no less favorable to such Person than would be obtained in a comparable
arm's length transaction with a person not an Affiliate.
6.16 Deposits. Maintain deposit accounts jointly with any Affiliate or
commingle any funds with funds of any Affiliate.
6.17 Fiscal Year. Change its fiscal year.
6.18 Subordinated Notes. Amend or modify the terms of the Subordinated
Notes or the Indenture.
ARTICLE VII. AFFIRMATIVE COVENANTS
Borrower covenants that until all Obligations of Borrower are paid and
satisfied in full, and the Banks' obligations hereunder have terminated,
Borrower will, and will cause each of its Subsidiaries to:
7.01 Financial Statements. Furnish and deliver to Agent and each Bank:
(A) as soon as practicable, and in any event within 90 days after the end
of each fiscal year, (i) a statement of cash flows of Borrower for
such year, (ii) an income statement of Borrower for such year and
(iii) a balance sheet of Borrower as of the end of such year; all in
reasonable detail, including all footnotes, and audited by certified
public accountants selected by Borrower and reasonably acceptable to
Agent and certified by such accountants to have been prepared in
accordance with GAAP, except for any inconsistencies explained in
such certificate;
(B) as soon as practicable, and in any event within 30 days after the end
of each month commencing with the month ending January 31, 1999, (i)
a statement of cash flows of Borrower for such month and the portion
of the fiscal year then ended, (ii) an income statement of Borrower
for such month and the portion of the fiscal year then ended and
(iii) a balance sheet of Borrower as of the end of such month; all in
reasonable detail and certified by an Authorized Borrower
Representative as complete and accurate in all material respects,
fairly presenting the financial condition of Borrower and prepared in
accordance with GAAP;
(C) not later than 45 days after the end of each fiscal year, a detailed
budget for the 3 fiscal years next following, containing monthly
detail for the first of such 3 years, and annual detail for the
following years, and otherwise in form reasonably satisfactory to
Agent;
(D) at the Closing, thereafter no later than 15 days after the end of
each month, and at such other times as Agent shall request, an
accounts receivable aging in form satisfactory to Agent;
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(E) with each set of calendar quarterly Financial Statements delivered
hereunder, a Compliance Certificate of an Authorized Borrower
Representative (i) calculating Borrower's compliance (or lack thereof)
with the financial covenants in Article VIII hereof, in reasonable
detail, and (ii) stating that no Event of Default has occurred and is
continuing or if an Event of Default has occurred and is continuing
setting forth a description of such event and the steps being taken to
remedy such event;
(F) immediately upon receipt thereof, copies of any management letters,
interim and supplemental reports submitted to Borrower by independent
accountants in connection with any review of the books of Borrower
made by such accountants;
(G) at the time any independent accounting firm is engaged to perform an
audit or other services for Borrower, a letter reasonably acceptable
to Agent to the effect that Bank may rely on such firm's work product;
(H) upon request by Agent, evidence satisfactory to the Bank of the
insurance coverages required under this Agreement;
(I) with reasonable promptness, such other information materially
concerning the business, properties, conditions or operations,
financial or otherwise, of Borrower, or compliance by Borrower with
any of the covenants in the Documents, as Agent may from time to time
reasonably request;
(J) promptly upon the filing or sending thereof, copies of all regular,
periodic or special reports of the Company or any Subsidiary thereof
filed with the Securities and Exchange Commission or any other
Governmental Authority succeeding to any of the principal functions
thereof; and
(K) at the Closing, thereafter no less often than monthly within 15 days
of the end of the previous month, and at such other times as Bank
shall request, a borrowing base certificate in the form of Exhibit E.
7.02 Other Information. Furnish and deliver to Agent and each Bank:
(A) immediately after the occurrence thereof, notice of any Event of
Default or of any fact, condition or event that with the giving of
notice or passage of time or both, would reasonably be expected to
become an Event of Default, or of the failure by Borrower to observe
any of its respective undertakings hereunder;
(B) immediately after the occurrence thereof, notice of any default under
any Debt, or under any indenture, mortgage or other agreement relating
thereto for which Borrower or any of its Subsidiaries is liable;
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(C) immediately after obtaining knowledge thereof, notice of any
litigation or proceeding in which Borrower or any of its Subsidiaries
is a party if Borrower reasonably estimates that an adverse decision
therein would require Borrower or any of its Subsidiaries to pay over
more than $500,000.00 or deliver assets the value of which exceeds
such sum (whether or not the claim is considered to be covered by
insurance);
(D) immediately after receipt of notice thereof, notice of the institution
of any other suit or proceeding involving Borrower or any of its
Subsidiaries that Borrower reasonably determines could materially and
adversely affect Borrower's business, properties or financial
condition; and
(E) immediately after the occurrence thereof, notice of any other matter
which has resulted in, or might result in, a materially adverse change
in the business, properties, or the financial condition of Borrower or
any of its Subsidiaries.
7.03 Taxes. Promptly pay and discharge when due all taxes, assessments and
other governmental charges imposed upon it, or upon its income, profits or
property, and all claims for labor, material or supplies which, if unpaid, might
by law become a lien or charge upon its property; provided, however, that it
shall not be required to pay any tax, assessment, charge or claim if so
permitted by law, so long as the validity thereof shall be contested in good
faith by appropriate proceedings and adequate reserves therefor in accordance
with GAAP shall be maintained on its books.
7.04 Maintenance of Property. Maintain its inventory, equipment, real
estate and other properties in good condition and repair (normal wear and tear
excepted), pay and discharge or cause to be paid and discharged when due, the
costs of repairs to or maintenance of the same, and pay or cause to be paid all
rental or mortgage payments due on the same except if it is in good faith
contesting by appropriate proceedings such amounts due and is maintaining
adequate reserves for such liability in accordance with GAAP.
7.05 Comply with Leases. Maintain and comply with leases covering real
property, if any, used by it in accordance with the respective terms thereof so
as to prevent any default thereunder which may result in the exercise or
enforcement of any landlord's or other lien against it or its property;
provided, however, that it may contest any matters in connection with such
leases in good faith and by appropriate proceedings if it makes such payments as
are required by law and maintains adequate reserves on its books in accordance
with GAAP in connection therewith.
7.06 Maintain Existence; Comply with Law. Maintain its corporate existence,
maintain all rights, privileges, franchises, permits and approvals necessary or
desirable for the continuation of its business, and comply with the requirements
of all material agreements to which it is a party or by which any of its assets
is bound, and all applicable Laws, including Environmental Laws, and orders of
any Governmental Authority, noncompliance with which would materially adversely
affect its business, properties or financial condition, or ability to repay its
Obligations.
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7.07 Books and Records. Keep adequate records and books of account and
inventory, in which complete entries will be made in accordance with its past
practices and consistent with sound business practice, reflecting all of its
financial transactions, and collect its accounts only in the ordinary course of
business.
7.08 Inspection. Permit any of Banks' representatives to examine and
inspect the Collateral, its business premises, all other of its properties and
operations, and all books of account, records, reports and other papers and to
make copies and extracts therefrom, and to discuss its affairs, finances and
accounts with its officers and employees or its independent public accountants
(and by this provision Borrower authorizes said accountants to discuss the
finances and affairs of Borrower and its Subsidiaries), all at such reasonable
times and as often as may be reasonably requested. Borrower shall pay all of
Agent's reasonable expenses incurred in connection with such examinations and
inspections.
7.09 Payment of Debt. Pay when due all of its Debt except if (with respect
to Debt other than the Obligations) it is in good faith contesting by
appropriate proceedings such amounts due and has maintained adequate reserves
for such liability in accordance with GAAP.
7.10 ERISA. At all times make prompt payment of contributions required to
meet the minimum funding standards set forth in ERISA with respect to each of
its Plans; promptly after the filing thereof, furnish to Agent copies of any
annual report required to be filed pursuant to ERISA in connection with each
Plan; notify Agent as soon as practicable of any Reportable Event and of any
additional act or condition arising in connection with any Plan which might
constitute grounds for the termination thereof by PBGC or for the appointment by
the appropriate United States district court of a trustee to administer any
Plan; and furnish to Agent, promptly upon Agent's request therefor, such
additional information concerning any "employee benefit plan," as defined in
Section 3(3) of ERISA, as may be reasonably requested by Agent.
7.11 Supplemental Documentation. At Agent's request, execute and/or
deliver to Agent, at any time or times hereafter, all Supplemental Documentation
that Agent may request, in form and substance acceptable to Agent, and pay the
costs of any recording or filing of the same. Borrower hereby irrevocably makes,
constitutes and appoints Agent (and all Persons designated by Agent for that
purpose) as Borrower's true and lawful attorney, effective immediately upon the
failure or refusal of Borrower to execute and/or deliver to Agent any
Supplemental Documentation required hereby, to sign the name of Borrower on any
of the Supplemental Documentation and to deliver any of the Supplemental
Documentation to such Persons as Agent, in its sole discretion, may elect.
Borrower agrees that a carbon, photographic, photostatic, or other reproduction
of this Agreement or of a financing statement is sufficient as a financing
statement and may be filed by Agent in any filing office.
7.12 Insurance. Maintain, in addition to the insurance on Collateral
required pursuant to Section 4.09, (A) liability insurance in form, with
insurers and in amounts as may be satisfactory to
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the Bank, showing the Bank as an additional insured, and (B) fidelity bonds and
such other insurance in form, with insurers and in amounts as may be
satisfactory to the Bank.
7.13 Accounts. Maintain its principal banking accounts with LNB.
ARTICLE VIII. FINANCIAL COVENANTS
Effective as of December 31, 1998 and for all period thereafter, Borrower
covenants that until all Obligations of Borrower have been paid and satisfied in
full, and the Banks obligations hereunder have terminated, Borrower on a
consolidated basis with its Subsidiaries will:
8.01 EBITDA. Have and maintain at all times in respect of any period of
four consecutive calendar quarters ending with a calendar quarter set forth
below EBITDA of not less than as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------
Period 1Q, 2Q, 3Q 1Q, 2Q, 3Q 1Q, 2Q, 3Q
& 4Q 99 & 4Q00 & 4Q01
- -------------------------------------------------
<S> <C> <C> <C>
- -------------------------------------------------
in 000's $15,000 $20,000 $22,000
- -------------------------------------------------
</TABLE>
8.02 Senior Debt to EBITDA. Have a Senior Debt to EBITDA Ratio of not more
than (i) 3.25 to 1.00 as of the end of any calendar quarter through and
including the calendar quarter ending June 30, 1999 and (ii) 2.75 to 1.00 as of
the end of any calendar quarter thereafter.
8.03 Capital Expenditures. Make Capital Expenditures of not more than
$8,000,000 in any Fiscal Year of Borrower.
8.04 Tangible Net Worth. Have and maintain a Tangible Net Worth plus
Subordinated Debt of at least $49,000,000 at all times during the Fiscal Year
ending December 31, 1999; and at all times during each Fiscal Year thereafter,
have a Tangible Net Worth plus Subordinated Debt of at least (x) 30% of
Borrower's Net Income for such Fiscal Year plus (y) the Tangible Net Worth plus
Subordinated Debt at the end of the immediately preceding Fiscal Year.
ARTICLE IX. EVENTS OF DEFAULT
9.01 Event of Default. The occurrence of any of the following events or
acts shall constitute an Event of Default ("Event of Default"):
(A) Borrower defaults in the payment of any of its Obligations or any part
thereof when the same shall become due and payable, either by their terms or as
otherwise herein provided, and such default continues uncured for a period of
two days.
(B) Any Financial Statement, representation or warranty made by Borrower
herein or delivered by Borrower pursuant hereto or otherwise made in writing by
Borrower in connection with this Agreement proves to have been false in any
material respect as of the date on which it was made
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or deemed made; Borrower shall default in performance of any of the covenants
set forth in Article VII of this Agreement (other than those set forth in
Sections 7.01 and 7.02), and such default shall continue uncured for a period of
30 days following the earlier of (i) notice from Agent to Borrower, or (ii) the
day on which Borrower otherwise becomes aware of same; or Borrower defaults in
the performance of any of the other covenants, conditions or agreements
contained in this Agreement.
(C) Borrower or any of its Subsidiaries suffers to exist any event of
default (other than an event of default which is wrongly asserted by the other
party and which Borrower is contesting in good faith) under any agreement
binding Borrower or any of its Subsidiaries and involving an obligation in
excess of $500,000.00, and such event of default continues beyond any applicable
grace period.
(D) Borrower or any of its Subsidiaries files a petition under any section
or chapter of the United States Bankruptcy Code or any similar federal or state
law or regulation, Borrower or any of its Subsidiaries admits its inability to
pay debts as they mature, Borrower or any of its Subsidiaries makes an
assignment for the benefit of one or more of its creditors, Borrower or any of
its Subsidiaries makes an application for the appointment of a receiver, trustee
or custodian for any of its assets, or Borrower or any of its Subsidiaries files
any case or proceeding for its reorganization, dissolution or liquidation or for
relief from creditors.
(E) Borrower or any of its Subsidiaries is enjoined, restrained or in any
way prevented by court order from conducting all or any material part of its
business affairs, a petition under any section or chapter of the United States
Bankruptcy Code or any similar federal or state law or regulation is filed
against Borrower or any of its Subsidiaries, any case or proceeding is filed
against Borrower or any of its Subsidiaries for its reorganization, dissolution
or liquidation or for creditor relief, or an application is made by any Person
other than Borrower or any of its Subsidiaries for the appointment of a
receiver, trustee, or custodian for any of Borrower's or any of its
Subsidiaries' assets, and such injunction, restraint, petition or application is
not dismissed or stayed within 30 days after the entry or filing thereof.
(F) Borrower or any of its Subsidiaries conceals or removes or permits to
be concealed or removed any part of its property with intent to hinder, delay or
defraud its creditors or any of them, or makes or suffers to be made a transfer
of any of its property that may be fraudulent under any federal or state
bankruptcy, fraudulent conveyance or similar law.
(G) Borrower or any of its Subsidiaries permits any of its assets to be
attached, seized, subjected to a writ or distress warrant, or levied upon, or to
come within the possession of any receiver, trustee, custodian or assignee for
the benefit of creditors and does not cause the same to be terminated within 30
days thereafter.
(H) Other than Permitted Liens, a notice of any charge is filed of record
with respect to all or any of Borrower's or any of its Subsidiaries' assets or
any charge becomes a lien or encumbrance upon any such assets and the same is
not released within 30 days after the same becomes a lien or encumbrance.
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(I) The occurrence of any of the following events: (i) the happening of a
Reportable Event with respect to any Plan which the Bank determines in good
faith might constitute grounds for the termination by the PBGC of such Plan or
for the appointment by the appropriate United States district court of a trustee
to administer such Plan; (ii) any Plan which is not "sufficient for benefit
liabilities" (as determined under Section 4041(d)(1) of ERISA) shall be
terminated; (iii) Borrower, any of its Subsidiaries or any ERISA Affiliate shall
effect a complete or partial withdrawal from any Multiemployer Plan without the
prior written consent of the Bank and shall have a withdrawal liability (as
determined under the Multiemployer Pension Plan Amendments Act of 1980); (iv)
Borrower, any of its Subsidiaries or any ERISA Affiliate shall, without the
prior written consent of the Bank, withdraw from a Plan under which liability
may be imposed pursuant to Section 4063 of ERISA; (v) the appointment of a
trustee by an appropriate United States district court to administer any Plan;
or (vi) the institution of any proceedings by the PBGC to terminate any Plan or
to appoint a trustee to administer any Plan.
(J) Borrower or any of its Subsidiaries suffers any final judgment for
payment of money in excess of $2,500,000 which shall not be on appeal and does
not discharge the same within a period of 30 days.
(K) A judgment creditor of Borrower obtains possession of any Collateral
by any means, including levy, distraint, replevin or self-help.
(L) The occurrence of a default or an event of default under any of the
other Documents which is not cured within the time, if any, specified therefor
in such other Document; or the actual or attempted unilateral termination,
modification or abrogation by any Person other than the Banks of any obligation
under, or of any right or remedy of Banks under, any of the Documents.
(M) John C. Sloan fails to own directly, beneficially and of record
greater than 50% of each class of the issued and outstanding voting Stock of
Borrower.
(N) The occurrence of an "Event of Default" under the Subordinated Notes,
the Indenture, or the Subsidiary Borrower Revolving Credit Note.
9.02 Remedies. Upon the occurrence of any Event of Default, and at any
times while any Event of Default shall be continuing, the Banks shall have all
rights and remedies provided by this Agreement or any other Document and by
applicable law and, without limiting the generality of the foregoing, Agent
will, at the request of the Majority Banks, or may, with the consent of the
Majority Banks, declare the Revolving Credit Loan Commitment to be terminated by
giving written notice thereof to Borrower, and upon such declaration, all
Obligations of Borrower, including the Revolving Credit Loans and the Term Loan,
shall thereupon be and become forthwith, due and payable, without any
presentment, demands, protest or other notice of any kind, all of which are
hereby expressly waived. Further, in addition to all the rights and remedies
provided in Article 9 of the UCC and any other applicable law, Agent may (but is
under no obligation to do so): take physical possession of any of the Collateral
and sell, lease or otherwise dispose of the Collateral in
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whole or in part; require Borrower to assemble the Collateral to which Borrower
has or is entitled to possession at a place designated by Agent, which is
reasonably convenient to both parties; collect any money due or to become due
and enforce in Borrower's name all rights with respect to the Collateral;
receive and open mail addressed to Borrower; and/or notify any Account Debtors
(whether or not such Account Debtors are in default) to make payments directly
to Agent. Borrower agrees to deliver to Agent promptly upon receipt thereof, in
the form in which received (together with all necessary endorsements), all
payments received by Borrower in respect of any Account. Agent may apply all
such payments against Borrower's Obligations or at Agent's option to any of
Borrower's accounts maintained at Agent.
9.03 Powers. In exercising their right to sell, lease or otherwise dispose
of the Collateral, the Banks may sell, lease or otherwise dispose of all or any
Collateral in its then condition, or after any further manufacturing or
processing thereof, at public or private sale or sales, with such notice as may
be required by law, in lots or in bulk, all as the Majority Banks, in their sole
discretion, may deem advisable; such sales may be adjourned from time to time
with or without notice. The Banks shall have the right to conduct such sales on
Borrower's premises or elsewhere and shall have the right to use Borrower's
premises without charge for such sales for such time or times as the Banks may
see fit. Agent, on behalf of the Banks, is hereby granted a license or other
right to use, without charge, Borrower's labels, patents, copyrights, rights of
use of any name, trade secrets, tradenames, trademarks, service marks and
advertising matter, or any property of a similar nature, as it pertains to the
Collateral, in advertising for sale and selling any Collateral and Borrower's
rights under all licenses and all franchise agreements shall inure to the Banks'
benefit. The Banks shall have the right to sell, lease or otherwise dispose of
the Collateral, or any part thereof, for cash, credit or any combination
thereof, and the Banks, or any of them, may purchase all or any part of the
Collateral at public or, if permitted by law, private sale and, in lieu of
actual payment of such purchase price, may set off the amount of such price
against Borrower's Obligations. The proceeds realized from the sale of any
Collateral shall be applied first to the costs, expenses and Attorney Costs and
expenses incurred by the Banks for collection and for acquisition, completion,
protection, removal, storage, sale and delivery of the Collateral; second to
interest due upon any of Borrower's Obligations; and third to the principal of
Borrower's Obligations. If any deficiency shall arise, Borrower shall remain
liable to the Banks therefor.
9.04 Valid Notice. Any notice of any sale, lease, other disposition, or
other intended action by the Banks shall be reasonable if it is given to
Borrower at least ten days in advance of the intended disposition or other
intended action.
9.05 Attorney-in-Fact. Upon and after the occurrence of an Event of
Default, Borrower irrevocably designates, makes, constitutes and appoints Agent
(and all persons designated by Agent) as Borrower's true and lawful attorney,
and Agent or its agent, may, without notice to Borrower, and at such time or
times thereafter as Agent or said agent, in its sole discretion, may determine,
in Borrower's or Agent's name: (A) demand payment of the Accounts; (B) enforce
payment of the Accounts, by legal proceedings or otherwise; (C) exercise all of
Borrower's rights and remedies with respect to the collection of the Accounts
and Special Collateral; (D) settle, adjust, compromise, extend or renew the
Accounts; (E) settle, adjust or compromise any legal proceedings brought to
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collect the Accounts or any other dispute with respect thereto; (F) if permitted
by applicable law, sell or assign the Accounts and Special Collateral upon such
terms, for such amounts and at such time or times as Agent deems advisable; (G)
discharge and release the Accounts and Special Collateral; (H) prepare, file and
sign Borrower's name on a Proof of Claim in Bankruptcy or similar document
against any Account Debtor; (I) prepare, file and sign Borrower's name on any
notice of lien, assignment or satisfaction of lien or similar document in
connection with the Accounts and Special Collateral; (J) do all acts and things
necessary, in Agent's sole discretion, to fulfill Borrower's obligations under
this Agreement; (K) endorse the name of Borrower upon any item of payment or
proceeds and deposit the same to the account of Agent on account of Borrower's
Obligations; (L) endorse the name of Borrower upon any chattel paper, document,
instrument, invoice, freight bill, bill of lading or similar document or
agreement relating to the Accounts, Inventory and Special Collateral; (M) use
Borrower's stationery and sign the name of Borrower to verifications of the
Accounts and notices thereof to Account Debtors; and (N) use the information
recorded on or contained in any data processing equipment and computer hardware
and software relating to the Accounts, Inventory and Special Collateral to which
Borrower has access.
9.06 Securities. Borrower agrees that in any sale of Collateral consisting
of securities, Agent is hereby authorized to comply with any limitation or
restriction in connection with such sale as Agent may be advised by counsel is
necessary or advisable in order to avoid any violation of applicable Law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to Persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of that portion of the Collateral consisting of securities), or in order
to obtain any required approval of the sale or of the purchaser by any
governmental regulatory authority or official, and Borrower further agrees that
such compliance shall not result in such sale being considered commercially
unreasonable, nor shall Agent be liable or accountable to Borrower for any
discount allowed by reason of the fact that Collateral was sold in compliance
with any such limitation or restriction.
ARTICLE X - AGENT
10.01 Appointment and Authorization; "Agent". Each Bank hereby irrevocably
(subject to Section 10.09) appoints, designates and authorizes Agent to take
such action on its behalf under the provisions of this Agreement and each other
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Document, together
with such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any other
Document, Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall Agent have or be deemed to have any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Document or otherwise exist against Agent. Without
limiting the generality of the foregoing sentence, the use of the term "agent"
in this Agreement with reference to Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any
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applicable law. Instead, such term is used merely as a matter of market custom
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
10.02 Delegation of Duties. Agent may execute any of its duties under this
Agreement or any other Document by or through agents, employees or attorneys-in-
fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that its selects with reasonable
care.
10.03 Liability of Agent. None of the Agent-Related Persons shall (A) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (B) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by Borrower or any Subsidiary or
Affiliate of Borrower, or any officer thereof, contained in this Agreement or in
any other Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by Agent under or in connection
with, this Agreement or any other Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Document, or for any failure of Borrower or any other party to any Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
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 condition
of, this Agreement or any other Document, or to inspect the properties, books or
records of Borrower or any of Borrower's Subsidiaries or Affiliates.
10.04 Reliance by Agent. (A) Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement 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 counsel to Borrower),
independent accountants and other experts selected by Agent. Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Document unless it shall first receive such advice or concurrence
of the Banks as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Banks against any liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Document in accordance with a
request or consent of the Banks or the Majority Banks, as applicable, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all of the Banks or the Majority Banks, as the case may be.
(B) For purposes of determining compliance with the conditions
specified in Sections 3.01 and 3.02, each Bank that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent by Agent to such Bank for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Bank.
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10.05 Notice of Default. Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
Agent for the account of the Banks, unless Agent shall have received written
notice from a Bank, Borrower or any Subsidiary Borrower referring to this
Agreement, describing such Event of Default and stating that such notice is a
"notice of default". Agent will notify the Banks of its receipt of any such
notice. Agent shall take such action with respect to such Event of Default or
Event of Default as may be requested by the Majority Banks in accordance with
Article IX; provided, however, that unless and until Agent has received any such
request, Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Event of Default as it shall deem
advisable or in the best interest of the Banks.
10.06 Credit Decision. Each Bank acknowledges that none of Agent-Related
Persons has made any representation or warranty to it, and that no act by Agent
hereinafter taken, including any review of the affairs of Borrower and its
Subsidiaries, shall be deemed to constitute any representation or warranty by
any Agent-Related Person to any Bank. Each Bank represents to Agent that is
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and credit-worthiness of Borrower and
its Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to Borrower hereunder. Each Bank also represents
that it will, independently and without reliance upon any Agent-Related Person
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 the other Documents, and to
make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
credit-worthiness of Borrower. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by Agent, Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or credit worthiness of Borrower or any of its Subsidiaries
which may come into the possession of any of Agent-Related Persons.
10.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand
Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrower
and without limiting the obligation of Borrower to do so), pro rata, from and
against any Indemnified Liabilities; provided, however, that no Bank shall be
liable for the payment to Agent-Related Persons of any portion of such
Indemnified Liabilities resulting solely from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank shall
reimburse Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including Attorney Costs) incurred by Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Document, or any document contemplated by or
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referred to herein, to the extent that Agent is not reimbursed for such expenses
by or on behalf of Borrowers. The undertaking in this Section 10.07 shall
survive the payment of all Obligations hereunder and the resignation or
replacement of Agent.
10.08 Agent in Individual Capacity. LNB and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with Borrower, any Subsidiary
of Borrower or any Subsidiary or Affiliate of any of them as though LNB were not
Agent hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, LNB or its Affiliates may receive
information regarding Borrower, the Subsidiary Borrowers or their Affiliates
(including information that may be subject to confidentiality obligations in
favor of Borrower or such Subsidiary of Borrower) and acknowledge that Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, LNB shall have the same rights and powers under this Agreement as
any other Bank and may exercise the same as though it were not Agent, and the
terms "Bank" and "Banks" include LNB in its individual capacity.
10.09 Successor Agent. Agent may, and at the request of all of the Banks
shall, resign as Agent upon 30 days' notice to the Banks. If Agent resigns
under this Agreement, the Majority Banks shall appoint from among the Banks a
successor agent for the Banks. If no successor agent is appointed prior to the
effective date of the resignation of Agent, Agent may appoint, after consulting
with the Banks and Borrower, a successor agent from among the Banks. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article X and
Sections 11.04 and 11.05 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Banks shall
perform all of the duties of Agent hereunder until such time, if any, as the
Majority Banks appoint a successor Agent as provided for above.
10.10 Withholding Tax. (A) If any Bank is a "foreign corporation,
partnership or trust" within the meaning of the Internal Revenue Code and such
Bank claims exemption from, or a reduction of, U.S. withholding tax under
Section 1441 or 1442 of the Internal Revenue Code, such Bank agrees with and in
favor of Agent, to deliver to Agent:
(i) if such Bank claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly
completed and executed copies of IRS Form 1001 before the payment of
any interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which interest
may be paid under this Agreement;
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(ii) if such Bank claims that interest paid under this Agreement is
exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Bank, two
properly completed and executed copies of IRS Form 4224 before the
payment of any interest is due in the first taxable year of such Bank
and in each succeeding taxable year of such Bank during which interest
may be paid under this Agreement; and
(iii) such other form or forms as may be required under the Internal
Revenue Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Bank agrees promptly to notify Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(B) If any Bank claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS From 1001 and such Bank
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of Borrowers to such Bank, such Bank agrees to notify Agent of
the percentage amount in which it is no longer the beneficial owner of
Obligations of Borrowers to such Bank. To the extent of such percentage amount,
Agent will treat such Bank's IRS Form 1001 as no longer valid.
(C) If any Bank claiming exemption from United States withholding tax
by filing IRS Form 4224 with Agent sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations of Borrower to such Bank,
such Bank agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Section 1441 and 1442 of the Internal
Revenue Code.
(D) If any Bank is entitled to a reduction in the applicable
withholding tax, Agent may withhold from any interest payment to such Bank an
amount equivalent to the applicable withholding tax after taking into account
such reduction. However, if the forms or other documentation required by
Section 10.10(A) are not delivered to Agent, then Agent may withhold from any
interest payment to such Bank not providing such forms or other documentation an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Internal Revenue Code, without reduction.
(E) If the Internal Revenue Service or any other Governmental
Authority of the United States or other jurisdiction asserts a claim that Agent
did not properly withhold tax from amounts paid to or for the account of any
Bank (because the appropriate form was not delivered or was not properly
executed, or because such Bank failed to notify Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Bank shall indemnify Agent fully
for all amounts paid, directly or indirectly, by Agent as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to Agent under this Section 10.10, together
with all costs and
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expenses (including Attorney Costs). The obligation of the Banks under this
Section 10.10(E) shall survive the payment of all Obligations and the
resignation or replacement of Agent.
10.11 Collateral Matters. The Banks irrevocably authorize Agent, at its
option and in its discretion, to release any lien granted to or held by Agent
under any Document (i) upon termination of the Commitments and payment in full
of all Loans and all other obligations of Borrower hereunder and the expiration
or termination of all Letter of Credit or (ii) constituting property sold or to
be sold or disposed of as part of or in connection with any disposition
permitted hereunder. Upon request by Agent at any time the Banks will confirm
in writing Agent's authority to release particular types or items of collateral
pursuant to this Section 10.11.
ARTICLE XI. MISCELLANEOUS
11.01 No Waiver. No failure or delay on the part of the Banks in
exercising any right, power or remedy hereunder or under any other Documents
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder or under any other
Document. The remedies herein provided and under any other Document are
cumulative and not exclusive of any remedies provided by law.
11.02 Entire Agreement; Amendments and Waivers. (A) This Agreement and
the other Documents constitute the entire agreement between the parties and
there are no promises expressed or implied unless contained herein and therein.
This Agreement and the other Documents supersede all prior negotiations,
understandings and agreements of the parties hereto and thereto in respect of
the transactions contemplated hereby, including those expressed in any
commitment or proposal letter.
(B) No amendment or waiver of any provision of this Agreement or any
other Document, and no consent with respect to any departure by any Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
the Majority Banks (or by Agent at the written request of the Majority Banks)
and Borrower and acknowledged by Agent, and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Banks and Borrower and
acknowledged by Agent, do any of the following:
(i) increase or extend the Commitment of any Bank;
(ii) postpone or delay any date fixed by this Agreement or any other
Document for, or reduce the amount of, any repayment or prepayment of
principal, interest, fees or other amounts due to the Banks (or any of
them) hereunder or under any other Document;
(iii) reduce the principal of, or the rate of interest specified
herein on any Loan, or any fees or other amounts payable hereunder or
under any other Document;
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(iv) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks
or any of them to take any action hereunder;
(v) amend this Section 11.02, or any provision herein providing for
consent or other action by all Banks;
(vi) change the definition of "Majority Banks"; or
(vii) release any lien granted to or held by Agent under any
Document, except and to the extent expressly permitted under Section
10.11.
and, provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by Agent in addition to all the Banks, affect the rights or
duties of Agent under this Agreement or any other Document.
11.03 Costs and Expenses. Borrower will pay any documentary, stamp or
similar taxes payable in respect of the Documents or the Collateral granted
hereby or in connection herewith. Borrower will, on demand, reimburse the Agent
for the Attorney Costs incurred by Agent in connection with the preparation of
the Documents, and the negotiation and closing of the transactions contemplated
hereby. Borrower will further, on demand, reimburse Agent for all expenses,
including Attorney Costs, incurred by Agent in connection with any amendment or
modification of the Documents, the administration of the Loans and by each of
the Banks in connection with the enforcement of the Documents and the collection
or attempted collection of the Obligations of Borrower.
11.04 Jurisdiction. (A) For the purposes of any action or proceeding
involving the Documents or any other agreement or document referred to therein,
Borrower hereby expressly submits to the jurisdiction of all federal and state
courts located in the State of Illinois and consents that any order, process,
notice of motion or other application to or by any of said courts or a judge
thereof may be served within or without such court's jurisdiction by registered
mail or by personal service, provided a reasonable time for appearance is
allowed. Borrower hereby irrevocably waives any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any other Document brought in any
federal or state court sitting in Cook County, State of Illinois, and hereby
further irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
(B) BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO
THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT, THE NOTES, ANY OTHER
OF THE DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT REFERRED TO HEREIN OR
THEREIN AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING
WITHOUT A JURY.
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11.05 Indemnification by Borrower. Whether or not the transactions
contemplated hereby are consummated, Borrower agrees to indemnify, defend and
hold Agent-Related Persons, and each Bank and each of its respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time (including at any time following repayment of the Loans
and Letter of Credit Obligations and the termination, resignation or replacement
of Agent or replacement of any Bank) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this Agreement
or any document contemplated by or referred to herein, or the transactions
contemplated hereby, or any action taken or omitted by any such Person under or
in connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any insolvency proceeding or
appellate proceeding) related to or arising out of this Agreement, the Loans,
the Letter of Credit Obligations or the use of the proceeds thereof, whether or
not any Indemnified Person is a party thereto including (i) any tender offer,
merger, purchase of stock, purchase of assets or other similar transaction
financed or proposed to be financed in whole or in part, directly or indirectly,
with the proceeds of any of the Loans, (ii) any violation or alleged violation
of, or failure or alleged failure to comply with, any federal or state
securities Laws, including the Securities Act of 1933 and/or the Securities
Exchange Act of 1934, (iii) the use, handling, release, emission, discharge,
transportation, storage, treatment or disposal of any Hazardous Substance at any
property owned or leased by Borrower or any Subsidiary, (iv) any violation of
any Environmental Laws with respect to conditions at any property owned or
leased by Borrower or any Subsidiary or the operations conducted thereon, (v)
the investigation, cleanup or remediation of offsite locations at which Borrower
or any Subsidiary or their respective predecessors are alleged to have directly
or indirectly disposed of Hazardous Substances (all the foregoing, collectively,
the "Indemnified Liabilities"); provided, that Borrower shall not have any
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful misconduct of
such Indemnified Person. The agreements in this Section 11.05 shall survive
payment of all other Obligations.
11.06 UCC 9 - 404(1). Borrower acknowledges and agrees that this
Agreement constitutes a commitment on the part of the Banks to make advances,
incur obligations and otherwise to give value to Borrower and that all financing
statements filed hereunder shall remain in full force and effect until this
Agreement shall have been terminated even if, at any time or times prior to such
termination, no Loans or other Obligations shall be outstanding hereunder.
Accordingly, Borrower waives any rights which it may have under Section 9-404(1)
of the UCC to demand the filing of termination statements with respect to the
Collateral, and agrees that the Banks shall not be required to send such
termination statements to Borrower, or to file them with any filing office,
unless and until this Agreement shall have been terminated and all Obligations
of Borrower shall have been paid in full in immediately available funds.
11.07 Notices. Any notices or consents required or permitted by this
Agreement shall be in writing and shall be delivered in person or sent by
certified mail, postage prepaid, return receipt requested, or delivered by
facsimile, or delivered by a nationally recognized overnight express
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delivery service, in any case addressed as follows, unless such address is
changed by written notice hereunder:
(i) If to Borrower:
The GSI Group, Inc.
1004 East Illinois Street
Assumption, Illinois 62510
Attention: Chief Executive Officer
telephonic facsimile number: (217) 226-4439
With a copy to:
The GSI Group, Inc.
1004 East Illinois Street
Assumption, Illinois 62510
Attention: General Counsel
telephonic facsimile number: (217) 226-4439
(ii) If to Agent:
LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Charles Schroeder
telephonic facsimile number: (312) 904-4364
With copies to:
Rooks, Pitts and Poust and the Banks as identified
10 South Wacker Drive on Schedule 6.
Suite 2300 -------------
Chicago, Illinois 60606
Attention: Jeffrey M. Dalebroux, Esq.
telephonic facsimile number: (312) 876-1155
Any such notice or communication shall be deemed to have been given either at
the time of personal delivery, or in the case of overnight express delivery, as
of the date delivery was first attempted, or in the case of facsimile, upon
receipt or in the case of certified mail, five days after delivery to the United
States Postal Service.
Any agreement of Agent and the Banks herein to receive certain notices
by telephone or facsimile is solely for the convenience and at the request of
Borrower. Agent and the Banks shall be entitled to rely on the authority of any
Person purporting to be a Person authorized by Borrower
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to give such notice and Agent and the banks shall not have any liability to such
Borrower or any other Borrower or other person on account of any action taken or
not taken by Agent or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of Borrower to repay the Loans made to it and the other
Obligations of Borrower shall not be affected in any way or to any extent by any
failure by Agent and the Banks to receive written confirmation of any telephonic
or facsimile notice or the receipt by Agent and the Banks of a confirmation
which is at variance with the terms understood by Agent and the Banks to be
contained in the telephonic or facsimile notice.
11.08 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same instrument.
11.09 Effectiveness. This Agreement shall become effective when it shall
have been executed by Borrower and the Banks, and thereafter shall be binding
upon and inure to the benefit of Borrower and the Bank and their respective
successors and assigns, except that Borrower shall not have the right to assign
its rights hereunder or any interest herein without the prior written consent of
the Bank.
11.10 Governing Law. This Agreement has been, and any other Documents
will be, delivered and accepted in and shall be deemed to be, contracts made
under and governed by the laws of the State of Illinois, and for all purposes
shall be construed in accordance with the laws of said State.
11.11 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction; wherever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable Law.
11.12 Everything Material. All covenants, agreements, representations and
warranties made by Borrower herein and any certificates and instruments
delivered by Borrower in connection herewith shall, notwithstanding any
investigation by Agent, be deemed material and relied on by the Banks and shall
survive the execution and delivery to the Banks of this Agreement, the Notes,
the other Documents, and any extension or renewal thereof.
11.13 Application to Notes. This Agreement shall secure and govern the
terms of any amendments, extensions or renewals to any or all of the Notes.
11.14 Further Information. From time to time, Borrower will execute and
deliver to Agent such additional documents and will provide such additional
information as Agent may reasonably require to carry out the terms of this
Agreement and be informed of Borrower's status and affairs.
11.15 Exhibits Incorporated. All Exhibits and Schedules attached to this
Agreement shall be deemed incorporated herein by this reference.
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11.16 Time for Performance. Whenever under the terms of this Agreement,
the time for performance of a covenant or condition falls upon a day which is
not a Business Day, such time for performance shall be extended to the next
Business Day. Unless otherwise stated, all references herein to "days" shall
mean calendar days.
11.17 Payments Set Aside. To the extent that Borrower makes a payment to
Agent or the Banks, or Agent or the Banks exercise their right of set-off, and
such payment or the proceeds of such set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by Agent or such
Bank in its discretion) to be repaid to a trustee, receiver or any other party,
in connection with any insolvency proceeding or otherwise, then to the extent of
such recovery the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such set-off had not occurred, and each Bank severally agrees
to pay to Agent upon demand its Pro Rata Share of any amount so recovered from
or repaid by Agent.
11.18 Assignments, Participations. (A) Any Bank may, with the written
consent of Agent and so long as no Event of Default exists Borrower (which
consents shall not be unreasonably delayed or withheld), at any time assign and
delegate to one or more Eligible Assignees (each an "Assignee") all, or any
ratable part of all, of the Loans, the Letters of Credit, the Commitments and
the other rights and obligations of such Bank hereunder, in a minimum amount
equal to the lesser of such Bank's then-current Commitment or $5,000,000.00;
provided, however, that Borrower and Agent may continue to deal solely and
directly with such Bank in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect the Assignee, shall
have been given to Borrower and Agent by such Bank and the Assignee; (ii) such
Bank and its Assignee shall have delivered to Borrower and Agent an Assignment
and Acceptance in the form of Exhibit D - ("Assignment and Acceptance")
together with any Note or Notes subject to such assignment and (iii) the
assignor Bank or Assignee has paid to Agent a processing fee in the amount of
$3,500.00; provided, however, that no such processing fee shall be due in
respect of any such assignment from any Bank to an Affiliate thereof.
(B) From and after the date that Agent notifies the assignor Bank
that it has received (and provided its and Borrower's consent with respect to)
an executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Bank under the Loan Documents, and (ii) the assignor Bank shall, to the extent
that rights and obligations hereunder and under the other Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Documents.
(C) Within five Business Days after its receipt of notice by Agent
and Borrower that they have received an executed Assignment and Acceptance and
payment of the processing fee, (and provided that they consent to such
assignment in accordance with Section 11.18(A)), each Borrower
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shall execute and deliver to Agent, new notes evidencing such Assignee's
assigned Loans and Commitment and, if the assignor Bank has retained a portion
of its Loans and its Commitment, replacement Notes in the principal amount of
the Loans retained by the assignor Bank (such Notes to be in exchange for, but
not in payment of, the Notes held by such Bank). Immediately upon each
Assignee's making its processing fee payment under the Assignment and
Acceptance, this Agreement shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce such Commitments of the assigning Bank
pro tanto.
(D) Any Bank may at any time sell to one or more commercial banks or
other Persons not Affiliates of any Borrower ( a "Participant") participating
interests in any Loans, the Letters of Credit, the Commitment of that Bank and
the other interests of that Bank (the "Originator") hereunder and under the loan
Documents; provided, however, that (i) the Originator's Obligations under this
Agreement shall remain unchanged, (ii) the Originator shall remain solely
responsible for the performance of such obligations, (iii) Borrower and Agent
shall continue to deal solely and directly with the Originator in connection
with the Originator's rights and obligations under this Agreement and the other
Documents, and (iv) no Bank shall transfer or grant any participating interest
under which the Participant has rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other Document, except
to the extent such amendment, consent or waiver would require unanimous consent
of the Banks as described in the first proviso to Section 11.02. In the case of
any such participation, the Participant shall be entitled to the benefit of
Sections 2.02 and 11.05 as though it were also a Bank (as the case may be)
hereunder, and if amounts outstanding under this Agreement are due and unpaid,
or shall have been declared or shall have become due and payable upon the
occurrence of an Even of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank (as the case may be) under this Agreement.
(E) Notwithstanding any other provision in this Agreement, any Bank
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Note held by it in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.
11.19 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank is authorized at any time and from time to time, without
prior notice to Borrower, any such notice being waived by Borrower to the
fullest extent permitted by law, to set off and apply any deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Bank to or for the credit or the account
of such Borrower (in its individual capacity and not as trustee) against any
Obligations of Borrower owing to such Bank, now or hereafter existing,
irrespective of whether or not Agent or such Bank shall have made demand under
this Agreement
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or any Loan Document and although such Obligations may be contingent or
unmatured. Each Bank agrees promptly to notify Borrower and Agent after any such
set-off and application made by such Bank; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application.
11.20 Automatic Debits of Fees. With respect to any arrangement fee,
agency fee, Letter of Credit fee or other fee, or any other cost or expense
(including attorney costs) due and payable by Borrower to Agent or the Issuing
Bank under the Documents, Borrower hereby irrevocably authorizes Agent to debit
any deposit account of such Borrower with LNB in an amount such that the
aggregate amount debited from all such deposit accounts does not exceed such fee
or other cost or expense. If there are insufficient funds in such deposit
accounts to cover this amount of the fee or other cost or expense then due, such
debits will be reversed (in whole or in part, in LNB's sole discretion) and such
amount not debited shall be deemed to be unpaid. No such debit under this
Section 11.20 shall be deemed a set-off.
11.21 Notification of Addresses, Lending Offices. Each Bank shall notify
Agent in writing of any changes in the address to which notices to the Bank
should be directed, of addresses of any Lending Office, of payment instructions
in respect of all payments to be made to it hereunder and of such other
administrative information as Agent shall reasonably request.
11.22 No Third Parties Benefitted. This Agreement is made and entered
into for the sole protection and legal benefit of Borrower, the Banks, Agent and
Agent-Related persons, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Loan Documents.
11.23 Guaranty. Borrower hereby unconditionally and irrevocably
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Subsidiary
Borrower Revolving Credit Note issued by the Subsidiary Borrowers pursuant to
this Agreement, and the full and punctual payment of all other amounts payable
by each of the Subsidiary Borrowers under this Agreement. Upon failure by any
Subsidiary Borrower to pay punctually any such amount, Borrower shall forthwith
on demand pay the amount not so paid at the place and in the manner specified in
this Agreement. In addition (and without limiting the foregoing), upon the
Subsidiary Borrower Revolving Credit Loan of the Subsidiary Borrowers being
declared or otherwise becoming immediately due and payable, Borrower shall
forthwith on demand pay all amounts payable under such Subsidiary Borrower
Revolving Credit Loan at the place and in the manner specified in this
Agreement.
11.24 Unconditional Obligations. The obligations of Borrower under
Section 11.23 shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
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(A) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of any Subsidiary Borrower under this Agreement or
either Subsidiary Borrower Revolving Credit Note, by operation of law or
otherwise;
(B) any modification or amendment of or supplement to this Agreement or
either Subsidiary Borrower Revolving Credit Note;
(C) any release, impairment, non-perfection or invalidity of any direct or
indirect security for any obligation of any Subsidiary Borrower under this
Agreement or any Document or either Subsidiary Borrower Revolving Credit Note;
(D) any change in the corporate existence, structure or ownership of any
Subsidiary Borrower or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Subsidiary Borrower or such Subsidiary
Borrower's assets or any resulting release or discharge of any obligation of any
Subsidiary Borrower contained in this Agreement or either Subsidiary Borrower
Revolving Credit Note;
(E) the existence of any claim, set-off or other right which Borrower may
have at any time against any Subsidiary Borrower, or any other Person, whether
in connection herewith or any unrelated transaction, provided, that nothing
herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
(F) any invalidity or unenforceability relating to or against any
Subsidiary Borrower for any reason of this Agreement or either Subsidiary
Borrower Revolving Credit Note, or any provision of applicable law or regulation
purporting to prohibit the payment by any Subsidiary Borrower of the principal
of or interest on either Subsidiary Borrower Revolving Credit Note or any other
amount payable by any Subsidiary Borrower under this Agreement or either
Subsidiary Borrower Revolving Credit Note; or
(G) any other act or omission to act or delay of any kind by any
Subsidiary Borrower or any other person or any other circumstance whatsoever
which might, but for the provisions of this paragraph, constitute a legal or
equitable discharge of Borrower's obligations as guarantor hereunder.
11.25 Survival. Borrower's obligations as guarantor hereunder shall
remain in full force and effect until the Revolving Credit Loan Commitment and
Term Loan shall have terminated and all Obligations of the Subsidiary Borrowers
under this Agreement and both of the Subsidiary Borrower Revolving Credit Notes
shall have been paid in full. If any time any payment of principal, interest or
any other amount payable by any Subsidiary Borrower under this Agreement or
either Subsidiary Borrower Revolving Credit Note is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of such Subsidiary Borrower or otherwise, Borrower's obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
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11.26 Waivers. Borrower irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against any
Subsidiary Borrower or any other Person.
11.27 No Subrogation. Notwithstanding any payment made by or for the
account of any Subsidiary Borrower pursuant to this Agreement, Borrower shall
not be subrogated to any right of the Banks until such time as the Banks shall
have received final payment in cash of the full amount of all Obligations.
11.28 Bankruptcy. If acceleration of the time for payment of any amount
payable by any Subsidiary Borrower under this Agreement or the Subsidiary
Borrower Revolving Credit Note is stayed upon the insolvency, bankruptcy or
reorganization of such Subsidiary Borrower, all such amounts otherwise subject
to acceleration under the terms of this Agreement shall nonetheless be payable
by Borrower hereunder forthwith on demand by Agent on behalf of the Banks.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE GSI GROUP, INC.
By:_______________________________
Title:____________________________
LASALLE NATIONAL BANK
By:_______________________________
Title:____________________________
MERCANTILE BANK N.A.
By: ______________________________
Title: ___________________________
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Exhibit and Schedule Index
--------------------------
<TABLE>
<CAPTION>
<S> <C>
Exhibit A - Form of Revolving Credit Notes
Exhibit B - Form of Term Notes
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Assignment Agreement
Exhibit E - Form of Borrowing Base Certificate
Exhibit F - Form of Subsidiary Borrower Revolving Credit Notes
Exhibit G - Form of Letter of Credit Application
Exhibit H - Form of L/C Connection Agreement
Schedule 1 - Certain Permitted Liens
Schedule 2 - Collateral Locations and Places of Business
Schedule 3 - Trade Names, etc.
Schedule 4 - Intellectual Property
Schedule 5 - Stock Ownership
Schedule 6 - Bank Commitments; Agent's Payment Office; Bank's Payment Office
Schedule 7 - Schedule of Closing Documents
Schedule 8 - Litigation
Schedule 9 - Certain Other Debt
Schedule 10 - Borrower's Facilities
Schedule 11 - Capital Contributions
</TABLE>
66
<PAGE>
Exhibit 12.1
THE GSI GROUP, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(UNAUDITED)
(Dollars in Thousands)
<TABLE>
<CAPTION>
Year ended December 31,
-------------------------------------------
1994(1) 1995(1) 1996 1997 1998
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Income (Loss) from continuing
operations........................ $3,845 $(1,758) $10,981 $15,731 $ 17
====== ======= ======= ======= =======
Add Fixed Charges:
Interest expense on borrowings and
amortization of deferred
financing costs................... 1,934 2,894 3,590 6,174 12,946
Interest portion of rent expense... 384 531 432 1,164 955
------ ------ ------- ------- -------
2,318 3,425 4,022 7,338 13,901
====== ======= ======= ======= =======
Adjusted Earnings.................. 6,163 1,667 15,003 23,069 13,918
====== ======= ======= ======= =======
Ratio of Earnings to Fixed Charges. 2.66x (3) 3.73x 3.14x 1.00x
</TABLE>
(1) In December 1995, the Company signed an agreement to sell the working
capital and fixed assets of its Heritage Vinyl Division. In January 1996,
the sale was closed. The Company's 1994 and prior year financial
statements were restated to reflect this discontinued operation.
(2) The ratio of earnings to fixed charges is expressed as the ratio of fixed
charges plus pretax earnings to fixed charges. Fixed charges include
interest on borrowings, amortization of deferred financing costs and the
interest portion of rent expense. Earnings were insufficient to cover
fixed charges for the year ended December 31, 1995 by $1.8 million.
54
<PAGE>
Exhibit 21.1
The GSI Group, Inc.
List of Subsidiaries
--------------------
<TABLE>
<CAPTION>
Company Name Location Type of Entity
- ------------ -------- --------------
<S> <C> <C>
GSI/Cumberland Malaysia SDN, BHD
GSI/Cumberland South Africa SA Prop Limited
GSI/Cumberland Netherlands BV
GSI/Cumberland Mexico Limitada
The GSI Group (Canada) Inc. Canada Corporation
DMC USA - Iowa C-Corporation
Cumberland-USIMECA Brazil Limited Liab. Co.
Avemarau Equipamentos
Atricolas Ltda. Brazil Limited Liab. Co.
</TABLE>
55
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND> This schedule contains summary financial information extracted from
the Consolidated Balance Sheet and Consolidated Statement of Operations and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 1,192
<SECURITIES> 0
<RECEIVABLES> 38,764
<ALLOWANCES> 1,795
<INVENTORY> 49,219
<CURRENT-ASSETS> 94,973
<PP&E> 76,394
<DEPRECIATION> 26,137
<TOTAL-ASSETS> 174,648
<CURRENT-LIABILITIES> 45,720
<BONDS> 134,216
0
0
<COMMON> 20
<OTHER-SE> (6,986)
<TOTAL-LIABILITY-AND-EQUITY> 174,648
<SALES> 259,998
<TOTAL-REVENUES> 259,998
<CGS> 197,907
<TOTAL-COSTS> 197,907
<OTHER-EXPENSES> 49,128
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12,946
<INCOME-PRETAX> 17
<INCOME-TAX> (260)
<INCOME-CONTINUING> 277
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 277
<EPS-PRIMARY> 0.14
<EPS-DILUTED> 0.14
</TABLE>
