UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
-------------------- ------------------------.
COMMISSION FILE NUMBER 000-27579
COORSTEK, INC.
(Exact name of registrant as specified in its charter)
COLORADO 84-0178380
(State of incorporation) (IRS Employer Identification No.)
16000 TABLE MOUNTAIN PARKWAY, GOLDEN, COLORADO 80403
(Address of principal executive offices) (Zip Code)
(303) 277-4000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
NONE
Name of each exchange on which registered
NONE
Securities registered pursuant to Section 12(g) of the Act:
$.01 PAR VALUE COMMON STOCK
(Title of class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of March 1, 2000, there were 7,141,984 shares of common stock
outstanding. As of such date, the aggregate market value of such shares, other
than shares held by persons who may be deemed affiliates of the Registrant, was
$127,147,202.
<PAGE>
PART I
THE CORPORATION
CoorsTek, Inc., together with its subsidiaries, is hereinafter sometimes
referred to as "CoorsTek" or as the "Company."
Certain statements in this document constitute "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Act of 1934. In general, such forward-looking statements are
characterized by terms such as "believe," "expect," "anticipate," "could,"
"will," "intend," "estimate," "continue" and the like. The projections and
statements contained in these forward-looking statements involve known or
unknown risks, uncertainties and other factors that may cause the actual
results, performance, or achievements of CoorsTek to be materially different
from any future results, performance, or achievements expressed or implied by
the forward-looking statements. Factors that could cause actual results to
differ materially are included, but are not limited to, those identified in
"Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations-Factors that May Affect Future Results."
ITEM I. BUSINESS
GENERAL
Established in 1911, CoorsTek develops, manufactures and sells engineered
solutions for a multitude of industrial and commercial applications that
incorporate advanced materials such as technical ceramics, engineered plastics
and precision machined metals into components, assemblies and systems. Advanced
technical ceramics, also known as engineered ceramics, are materials that
exhibit superior mechanical properties, corrosion/oxidation resistance and
thermal, electrical, optical and magnetic properties. Recent acquisitions of
companies offering plastics and metals fabrication, and assembly capabilities,
have expanded CoorsTek's ability to meet increasing market demand, particularly
in the semiconductor industry, for a broader spectrum of products and services.
Prior to January 1, 2000, CoorsTek was a wholly owned subsidiary of ACX
Technologies, Inc. ("ACX"). At the close of business on December 31, 1999, ACX
distributed 100% of the shares of CoorsTek to ACX shareholders. Each shareholder
of ACX received one share of CoorsTek's common stock for every four shares of
ACX common stock. Immediately after the spin-off, CoorsTek had approximately
2,500 shareholders of record and approximately 7,140,000 shares outstanding.
FINANCIAL INFORMATION ABOUT INDUSTRY SEGMENTS, FOREIGN OPERATIONS, AND FOREIGN
SALES
Certain financial information for the Company's business segments is
included in the following summary (in thousands):
Depreciation
Net Gross and Capital
Sales Margin Amortization Assets Expenditures
-------- ------- ------------ -------- ------------
1999
- ----
Semiconductor $111,099 $ 31,953 $ 2,494 $ 79,845 $ 4,043
Advanced ceramics 253,962 58,710 20,217 247,645 10,518
-------- -------- -------- -------- --------
Consolidated total $365,061 $ 90,663 $ 22,711 $327,490 $ 14,561
======== ======== ======== ======== ========
1998
- ----
Semiconductor $ 17,061 $ 4,976 $ 1,337 $ 20,626 $ 1,015
Advanced ceramics 279,553 68,732 18,640 257,733 25,875
-------- -------- ------- -------- --------
Consolidated total $296,614 $ 73,708 $19,977 $278,359 $ 26,890
======== ======== ======= ======== ========
1997
- ----
Semiconductor $ 19,199 $6,928 $ 1,527 $ 19,279 $ 1,032
Advanced ceramics 285,625 78,075 17,137 243,408 27,780
-------- ------ ------- -------- --------
Consolidated total $304,824 $85,003 $18,664 $262,687 $ 28,812
======== ======= ======= ======== ========
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Certain financial information regarding the Company's domestic and foreign
sales is included in the following summary (in thousands):
DECEMBER 31,
1999 1998 1997
--------- --------- ---------
United States $ 304,599 $ 224,295 $ 224,272
Europe 35,896 39,338 41,815
Asia 20,507 19,975 23,497
Canada 8,995 8,446 8,886
Other foreign 7,279 6,696 8,161
Less: discounts and allowances (12,215) (2,136) (1,807)
--------- --------- ---------
Total $ 365,061 $ 296,614 $ 304,824
========= ========= =========
DECEMBER 31,
1999 1998 1997
--------- --------- ---------
Long-lived assets, in thousands:
United States $ 174,947 $ 151,636 $ 155,796
Europe 3,486 3,486 3,101
Asia 4,066 -- --
--------- -------- ---------
Total $ 182,499 $ 155,122 $ 158,897
========= ========= =========
MARKETS AND PRODUCTS
CoorsTek provides components and sub-assemblies to most of the commonly
recognized industrial markets. Using its core competencies of design,
engineering and manufacturing, CoorsTek offers customers in these diverse
markets engineered solutions. The solutions are enabling technologies that allow
components to function efficiently in adverse environments, such as extreme heat
or pressure.
The Semiconductor segment, which accounted for 30% of 1999 sales, is
expected to grow 20% to 30% in 2000. The Advanced Ceramics segment, which
accounted for 70% of CoorsTek's 1999 revenue, consisted of the following four
broad product groupings: Electronics, Advanced Products, Paper and Precision,
and Power Generation and Mining. CoorsTek believes that revenues from this
segment will grow 5% to 7% in 2000.
In the Semiconductor segment, the Company manufactures, assembles and
integrates ceramic, plastic and metal components for use in semiconductor
processing equipment. This industry is CoorsTek's fastest growing market
segment. The following factors are fueling the industry's demand for the
Company's components and assemblies: increased use and application of
semiconductor chips; the retooling of semiconductor chip manufacturing machinery
to process the 300 millimeter wafer in addition to the 200 millimeter; increased
outsourcing of parts manufacturing and machine assembly by the original
equipment manufacturers; and, a shrinking supplier base. Given CoorsTek's metal
machining capabilities, cleanroom facilities, and relationships with
semiconductor equipment manufacturers, management believes that CoorsTek is
strategically positioned to increase its market share in this market segment.
Products from the Electronics group include a wide range of applications in
the aerospace, automotive, computer, defense, power generation and distribution,
and telecommunications industries. Materials used include high purity ceramics
often combined with metal components and precious metals plating. Management
believes that the current strength in the automotive and telecommunications
markets will drive future growth opportunities in the electronics market.
CoorsTek's Advanced Products group offers a diverse group of products and
serves the aerospace, automotive, chemical and material processing, computer,
defense, electrical, fluid handling, mechanical, medical, paper and petroleum
industries. CoorsTek utilizes engineered ceramics, plastics and metals in this
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product group. Materials and processes offer specialized solutions for severe
use applications. Management believes that performance in this group will be
stable during 2000 given the wide range of industry end users.
In the Paper and Precision group, CoorsTek manufactures wear and corrosion
resistant components for the paper and pulp processing industry. Ceramics are
often in a composite form with plastics and/or metals. This group also includes
precision ceramic beams used in coordinate measuring machines. Management
believes that the precision machinery industry is expanding as more
manufacturers are moving measuring equipment to the manufacturing floor, which,
given the uncontrolled environment, requires the thermal stability that ceramics
provides.
Products offered by the Power Generation and Mining group include products
used in chemical and material processing, mining, paper and other mechanical
applications. These industries use a wide selection of wear resistant ceramics.
Contract, on site installation service is often provided. Management believes
that performance in this category will track general economic conditions.
MATERIALS AND SERVICES
Ceramic products can be nearly as hard as diamond, can withstand extreme
temperatures and have excellent electrical properties. As a result, ceramic
products are ideal materials for a variety of industrial applications. Typically
more expensive than products made from competing materials, such as plastics and
metals, ceramic products provide higher value by contributing to longer product
life and enabling customers to enhance their technologies.
While advanced technical ceramics constitute the majority of CoorsTek's
business, we believe there is a large potential to expand existing business
through products that incorporate other materials such as metals and plastics.
Two facilities are directly involved in the precision machining of metals such
as stainless steel and aluminum for applications in the semiconductor and the
aerospace industries. CoorsTek is capable of performing customer specified
cleanroom assembly and packaging processes which integrate ceramic products and
metal at both of these manufacturing sites acquired in 1999.
CoorsTek also manufactures fluoropolymer sealing system plastics used in
the aerospace and industrial hydraulic equipment, fluid handling systems and
transportation industries.
STRATEGY
CoorsTek seeks to grow its business by devoting resources to new product
and material development, internally and through acquisitions, particularly in
industries that show the most growth potential. In pursuit of this strategy, the
Company purchased Precision Technologies and Edwards Enterprises in early 1999.
CoorsTek believes these acquisitions have strengthened its service offerings,
particularly in the semiconductor industry, by broadening CoorsTek's material
offerings to include machined aluminum and assembly services.
The Company believes its reputation for expert custom product design,
product quality and customer service is a valuable asset for achieving its
strategy. CoorsTek works with key customers in diverse industries to develop
value added, engineered products. CoorsTek continuously evaluates new materials
and product offerings, often with customers, in order to anticipate and satisfy
customers' future needs and to offer a greater range of products with improved
performance characteristics.
MANUFACTURING AND RAW MATERIALS
Ceramic manufacturing involves several steps. From raw material preparation
to completion of the finished product, a typical component will be formed, fired
and, if necessary, machined, then inspected, packaged and shipped. The extent to
which a part is processed is dependent on the specifications placed on the
finished product by the customer. Limitations of the material and manufacturing
process determine whether the part will be processed through secondary finishing
steps to meet the final specification.
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The raw materials CoorsTek uses in its operations, primarily alumina and
aluminum, are readily available from diverse sources. CoorsTek has long-term
relationships with suppliers that ensures consistent and ongoing supply of raw
materials.
CoorsTek owns or leases approximately 2.3 million square feet of
manufacturing space in the United States and abroad. During 1999, CoorsTek
operated at approximately 76% of available capacity. While capacity utilization
is not currently a significant constraint in CoorsTek's Advanced Ceramics
segment, capacity has become a limiting factor in the Semiconductor segment.
Management believes the Company has adequate financial resources to address
production capacity issues and intends to acquire capacity in the Semiconductor
segment.
SALES AND DISTRIBUTION
CoorsTek sells products primarily to manufacturers, including original
equipment manufacturers, for incorporation into industrial applications and
consumer products. CoorsTek generates sales through direct sales employees
located throughout the United States, Asia and Europe and manufacturers'
representatives. CoorsTek's sales personnel, many with engineering expertise,
receive substantial technical assistance and engineering support from CoorsTek
because of the highly technical nature of its products.
International sales, primarily in Western European and Far Eastern markets,
constituted approximately 19%, 25%, and 27% of total product sales in 1999,
1998, and 1997, respectively.
No single product line accounted for more than 10% of CoorsTek's
consolidated net revenue, although sales to various segment and industry groups
such as the Semiconductor segment, the Electronic Components group, the Advanced
Products group and the Power Generation and Mining group comprised 30%, 26%,
25%, and 13%, respectively, of CoorsTek's 1999 consolidated net revenue.
CoorsTek's 10 largest customers accounted for approximately 39% of net
sales for 1999, with one customer, Applied Materials, Inc., representing 22% of
1999 net sales. CoorsTek's dependence on Applied Materials may increase as the
Company further develops its strategic supplier relationship. Any disruption in
this relationship, including a downturn in Applied Materials' business in the
industries in which it operates, would have a material adverse effect on sales.
Commitment to consistent high quality and customer service has earned CoorsTek
sole supplier status with several major U.S. manufacturers and a leading
position with several other major customers.
As of December 31, 1999, CoorsTek had backlog orders of approximately
$101.2 million, as compared with $79.5 million as of December 31, 1998.
Approximately $78.0 million of the backlog at December 31, 1999 had been shipped
as of March 1, 2000. Customers may place annual orders, with shipments scheduled
over a twelve-month period. Backlog orders may be higher for certain industrial
product segments due to longer time periods between order and delivery dates
under purchase orders. Sales are not seasonal but can be sensitive to overall
economic conditions that affect the users of advanced ceramic and semiconductor
manufacturing equipment. Backlog is not necessarily indicative of past or future
operating results.
COMPETITION
Competition in the advanced ceramics industry is vigorous and comes
primarily from Kyocera Corporation (Japan), Morgan Crucible Co. (United
Kingdom), NGK Insulators, Ltd. (Japan), CeramTec AG (Germany) and Saint Gobain
(France). Principal competitive factors in the worldwide market are price
(including the impact of currency fluctuations), quality, and delivery
schedules. CoorsTek believes that it is a significant competitor in most of the
markets it serves and it holds a prominent position in many product lines. It
has maintained long standing relationships with major corporations by providing
consistent high product quality and customer service.
The Company also faces competition in the precision metal machining
business and in the fluoropolymer materials business from a multitude of
relatively small domestic companies. CoorsTek believes there is an opportunity
for the Company to compete successfully in these markets.
Ceramic materials offer advantages over conventional materials for
applications in which certain properties such as high electrical resistance,
hardness, high-temperature strength, wear and abrasion resistance, and precise
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machinability are important. Ceramic products, however, face competition from
metals and other materials. For example, plastics are being used instead of
ceramics in certain computer and telecommunications applications because of
plastics' lower cost and lighter weight. CoorsTek believes that the overall
value of ceramic products continues to be attractive to customers.
RESEARCH AND DEVELOPMENT
CoorsTek's ability to commercialize its technologies and compete
effectively in various markets depends significantly on continued and timely
development of innovative technology, materials, products and processes using
advanced and cost-efficient manufacturing processes. While innovation is a
significant element of CoorsTek's business, it does not have separate, material
research and development expenses. Instead, innovations are generally made as
part of product development on a case-by-case basis in response to customer
orders or needs.
PATENTS, PROPRIETARY RIGHTS AND LICENSES
CoorsTek holds a number of patents and pending patent applications in the
U.S. and in foreign countries. The Company's policy generally is to pursue
patent protection that is considered necessary or advisable for the patentable
inventions and technological improvements of the business. CoorsTek also relies
significantly on trade secrets, technical expertise and know-how, continuing
technological innovations and other means, such as confidentiality agreements
with employees, consultants and customers, to protect and enhance its
competitive position.
CoorsTek considers the name "Coors" and the goodwill associated with it to
be important to its customer recognition. The Company has received certain
licensing rights to use the Coors name.
CoorsTek believes that the Company and its subsidiaries own or have the
right to use the proprietary technology and other intellectual property
necessary to its operations. Except as noted above, the Company does not believe
that its success is materially dependent on the existence or duration of any
individual patent, trademark or license or related group of patents, trademarks
or licenses.
ENVIRONMENTAL MATTERS
CoorsTek's operations are subject to federal, state and local
environmental, health and safety laws and regulations and, in a few instances,
foreign laws, that regulate health and safety matters and the discharge of
materials into air, land and water, and govern the handling and disposal of
solid and hazardous wastes. The Company believes it is in substantial compliance
with applicable environmental and health and safety laws and regulations and
does not believe that costs of compliance with these laws and regulations will
have a material effect on our capital expenditures, earnings or competitive
position.
CoorsTek has received a demand for payment arising out of contamination of
a semiconductor manufacturing facility formerly owned by a subsidiary of
CoorsTek, Coors Components, Inc. Colorado State environmental authorities are
seeking clean up of soil and ground water contamination from a subsequent owner.
Although CoorsTek does not believe it is responsible for the contamination or
the cleanup, the parties agreed to a remediation plan. CoorsTek will manage the
remediation and is responsible for payment of 10% to 15% of the remediation
costs in excess of $500,000. There is no firm estimate of potential clean up
costs, however management does not currently believe it will be material.
CoorsTek has received a Unilateral Administrative Order issued by the EPA
relating to the Rocky Flats Industrial Park (RFIP) Site, and is participating
with the RFIP group to perform an Engineering Evaluation/Cost Analysis on the
property, including investigation and sampling. The EPA has not selected a
remedy but management does not expect costs to exceed reserved amounts.
CoorsTek and some of its facilities have been notified that they may be or
have been named as potentially responsible parties ("PRPs") under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 or
similar state laws with respect to the remediation of certain sites where
hazardous substances have been released into the environment. CoorsTek cannot
predict with certainty the total costs of remediation, its share of the total
costs, the extent to which contributions will be available from other parties,
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the amount of time necessary to complete the remediation, or the availability of
insurance. However, based on investigations to date, CoorsTek believes that any
liability with respect to these sites would not be material to the financial
condition or results of operations of CoorsTek, without consideration for
insurance recoveries. There can be no certainty, however, that CoorsTek will not
be named as a PRP at additional sites or be subject to other environmental
matters in the future or that the costs associated with those additional sites
or matters would not be material.
In addition, CoorsTek has received demands or requests for information
relating to alleged contamination of various properties currently or formerly
owned by CoorsTek or to which CoorsTek allegedly shipped waste. In management's
opinion, none of these claims will result in liability that would materially
affect CoorsTek's financial position or results of operations.
EMPLOYEES
As of December 31, 1999, CoorsTek had approximately 3,500 full-time
employees. None of the employees is subject to a collective bargaining
agreement. Management considers its employee relations to be good.
ITEM 2. PROPERTIES
CoorsTek believes that its facilities are well maintained and suitable for
their respective operations. The majority of operating facilities of CoorsTek
are not constrained by capacity issues. However, certain facilities that service
the semiconductor industry are currently experiencing capacity constraints. The
table below lists CoorsTek's plants and most other physical properties and their
locations and character. Unless noted, CoorsTek owns all of the following
facilities:
Location Type of Facility Character
-------- ---------------- ---------
Benton, Arkansas(1) Manufacturing Ceramic Products
Grand Junction, Colorado Manufacturing Ceramic Products
Chattanooga, Tennessee Manufacturing Ceramic Products
Hillsboro, Oregon Manufacturing Ceramic Products
Lawrence, Pennsylvania(2) Manufacturing Ceramic Products
Norman, Oklahoma Manufacturing Ceramic Products
Oklahoma City, Oklahoma(3) Manufacturing Ceramic Products
Glenrothes, Scotland Manufacturing Ceramic Products
Golden, Colorado(4) Manufacturing and Ceramic Products
Company Offices
Kyungbook, South Korea Manufacturing Ceramic Products
Odessa, Texas Manufacturing and Ceramic Products
Distribution Office
Oak Ridge, Tennessee(5) Manufacturing Ceramic Products
Austin, Texas(6) Manufacturing Ceramic Products and
Assembly Operations
Newark, California Manufacturing Metal Machining and
Assembly Operations
Livermore, California(6) Manufacturing Metal Machining and
Assembly Operations
El Segundo, California(2) Manufacturing Fluoropolymer Products
----------
(1) Three facilities.
(2) Leased facility.
(3) Two facilities, one of which is leased.
(4) Five facilities, one of which is leased.
(5) Three facilities, one of which is leased.
(6) Three facilities, all of which are leased.
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ITEM 3. LEGAL PROCEEDINGS
In the ordinary course of business, CoorsTek and its subsidiaries are
subject to various pending claims, lawsuits and contingent liabilities. In each
of these cases, CoorsTek is vigorously defending itself. CoorsTek does not
believe that disposition of these matters will have a material adverse effect on
CoorsTek's consolidated financial position or results of operations. On August
12, 1999, five current and former employees sued one of CoorsTek's subsidiaries
in the U.S. District Court for the Eastern District of Arkansas claiming gender
discrimination, sexual harassment and retaliation. The plaintiffs are seeking
class certification, which the Company is resisting based on the distinctions
among their respective claims. CoorsTek's preliminary evaluation indicates the
case is largely without merit, however, the Company does not have sufficient
information to determine the ultimate outcome or any potential liability related
to these claims. Specific information regarding environmental legal proceedings
is discussed under the caption "Environmental Matters."
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
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PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
CoorsTek's common stock is currently quoted on the National Market System
(NMS) of the National Association of Securities Dealers Automated Quotation
System (NASDAQ) under the symbol "CRTK." The Company commenced trading on
January 4, 2000.
ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
(IN THOUSANDS, EXCEPT PER SHARE DATA)
CONSOLIDATED INCOME STATEMENT DATA:
Net sales $365,061 $296,614 $304,824 $276,352 $270,877
Gross profit 90,663 73,708 85,003 76,132 80,166
Selling, general and
administrative expenses 53,202 37,758 41,754 35,928 36,613
Asset impairment charges -- 11,814 -- -- 438
Operating income 37,461 24,136 43,249 40,204 43,115
Interest and other income
(expense)- net (4,981) (3,524) (68) (6) 393
Income tax expense 12,425 7,682 16,192 14,996 14,545
Net income 20,055 12,930 26,989 25,202 28,963
Net income per share of
common Stock (a)
$ 2.81 $ 1.81 $ 3.78 $ 3.53 $ 4.06
YEAR ENDED DECEMBER 31,
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
(IN THOUSANDS)
Consolidated Balance Sheet Data:
Total Assets $327,490 $278,359 $262,687 $216,635 $189,191
Working capital 83,674 89,295 71,649 62,480 47,567
Long-term debt (b) 191,600 50,000 -- -- --
Total shareholders' equity 59,388 165,825 203,155 163,463 130,381
</TABLE>
(a) Per share computations for current and historical financial information
have been calculated using the actual number of shares outstanding on
December 31, 1999 as CoorsTek's historical capital structure for those
years was not indicative of the current structure.
(b) Long-term debt was to ACX, the parent company of CoorsTek prior to the
spin-off.
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Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
GENERAL OVERVIEW
The following discussion and analysis is based on the separate historical
financial statements of CoorsTek, which was formerly named Coors Porcelain
Company and operated its business as Coors Ceramics Company.
CoorsTek develops, manufactures and sells engineered solutions for a
multitude of industrial and commercial applications that incorporate advanced
materials such as technical ceramics, engineered plastics and precision machined
metals into components, assemblies and systems.
In December, 1999, CoorsTek acquired all of the outstanding shares of Doo
Young Semitek Co., Ltd. for approximately $3.6 million. The name of Doo Young
Semitek Co., Ltd. was subsequently changed to CoorsTek Korea Co., Ltd ("CoorsTek
Korea"). The acquisition has been accounted for under the purchase method of
accounting and goodwill of approximately $2.5 million is being amortized over 15
years. CoorsTek Korea, located in Kyungbook, South Korea, manufactures technical
ceramic parts for the semiconductor industry.
On March 12, 1999, CoorsTek acquired the net assets of Precision
Technologies for approximately $22.0 million in cash and 300,000 warrants to
purchase shares of ACX common stock at an exercise price equal to the fair
market value at the date of closing. In connection with the spin-off, the ACX
warrants were converted into 168,767 warrants to purchase CoorsTek common stock.
The acquisition has been accounted for under the purchase method of accounting
and goodwill of approximately $20.2 million is being amortized over 20 years.
Precision Technologies, located in Livermore, California, manufactures
precision-machined parts for the semiconductor, medical, and aircraft
industries.
On March 1, 1999, CoorsTek acquired all of the outstanding shares of
Edwards Enterprises for approximately $18 million in cash. The acquisition has
been accounted for under the purchase method of accounting and goodwill of
approximately $4.2 million is being amortized over 20 years. Edwards
Enterprises, located in Newark, California, manufactures precision-machined
parts for the semiconductor and aircraft industries.
During 1999, CoorsTek was a wholly owned subsidiary of ACX Technologies,
Inc. ("ACX"). At the close of business on December 31, 1999, ACX distributed
100% of the shares of CoorsTek to ACX shareholders. Each shareholder of ACX
received one share of CoorsTek's common stock for every four shares of ACX
common stock. Immediately after the spin-off, CoorsTek had approximately 2,500
shareholders of record and approximately 7,140,000 shares outstanding.
ACX provided general management, legal, treasury, tax, internal audit,
financial reporting, and environmental services to CoorsTek. These ACX costs
were allocated to CoorsTek in the form of an annual management fee. ACX also
provided centralized cash management and allocated interest income or interest
expense to CoorsTek based on cash balances. CoorsTek no longer incurs these fees
but the Company will experience costs in 2000 to administer similar functions as
a stand alone public company.
RESULTS OF OPERATIONS
Year Ended December 31, 1999 to Year Ended December 31, 1998
Net sales for 1999 were $365.1 million, an increase of $68.5 million or
23.1% from 1998 net sales of $296.6 million. The acquisitions of Edwards
Enterprises and Precision Technologies in March, 1999 accounted for an increase
in net sales of $71.1 million. Excluding these acquisitions, net sales decreased
$2.6 million for the year ended December 31, 1999 compared with 1998. This
decrease is mostly attributable to decreased sales in the Paper and Precision
and Electronics product groups as a result of price competition and weakened
demand primarily experienced in the first half of 1999. The Advanced Ceramics
segment sales strengthened in the second half of 1999 as demand and pricing
improved in these markets.
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As a result of the Edwards and Precision acquisitions and strong demand in
the semiconductor industry, approximately 30% of 1999 sales were to the
semiconductor industry, including approximately 22% to one customer. The other
major sales categories for 1999 in the Advanced Ceramics segment were the
Electronics group, the Advanced Products group, the Power Generation and Mining
group, and the Paper and Precision group, which accounted for approximately 26%,
25%, 13%, and 6% of 1999 sales, respectively.
The Company expects gradual sales improvement in the Advanced Ceramics
segment and strong sales demand to continue in the Semiconductor segment. In
addition, at the end of January, 2000, the Company began to provide cleanroom
assembly services for a major semiconductor market customer. The assembly work
involves assembling various components, some of which are manufactured by
CoorsTek, for inclusion in the customer's final product. This assembly
initiative supports the Company's objective of being a leading strategic
supplier for the major customers in the markets that CoorsTek serves. CoorsTek
expects the assembly business to result in $25 million to $35 million of
additional sales to the semiconductor industry in 2000.
Gross profit was $90.7 million in 1999, an increase of $17.0 or 23.0% from
$73.7 million in 1998. The increase is attributed to the acquisitions of Edwards
Enterprises and Precision Technologies, which contributed $18.2 million to gross
profit. Gross margin remained a constant 24.8% from 1998 to 1999. Gross margin
for 2000 may experience some downward pressure due to the cleanroom assembly
business discussed above. Although the assembly business has low capital
requirements, margins are projected to be lower than the existing semiconductor
business.
Operating income for 1999 was $37.5 million, an increase of $13.4 million
or 55.6% from 1998 operating income of $24.1 million. Again, the acquisitions of
Edwards Enterprises and Precision Technologies contributed to the increase in
operating income. This increase was partially offset by $2.1 million of
nonrecurring costs related to CoorsTek's spin-off from ACX. In addition, $11.8
million in asset impairment charges negatively impacted operating income in
1998. In the first quarter of 1998, CoorsTek recorded $6.2 million in asset
impairment charges in conjunction with the cancellation of the C-4 technology
agreement with IBM. Changes in the market for C-4 applications extended the time
frame for achieving commercial sales beyond original expectations. This lack of
near term commercial sales opportunities, combined with increasing overhead
costs, prompted CoorsTek to negotiate the termination of the agreement with IBM.
In the third quarter of 1998, CoorsTek recorded an additional $5.6 million asset
impairment charge related to the Chattanooga, Tennessee operation. Strong
offshore competition in the electronic package market made it uneconomical to
have a manufacturing facility dedicated to this product line. Consequently, the
long-lived assets of Chattanooga were written down to their estimated fair value
using the asset held for use model.
CoorsTek's 1999 operating margin was 10.3% compared to 12.1% for 1998,
excluding the impact of asset impairment charges. The decrease in margin is
primarily attributable to nonrecurring costs associated with the spin-off from
ACX. In 2000, the Company expects operating margin to improve slightly from the
1999 margin.
Included in selling, general and administrative expenses for 1999 were $5.0
million in management fees paid to ACX. For 1998, management fees were $4.7
million. While CoorsTek will not incur these management fees going forward, the
Company will experience costs to administer the corporate functions required of
a public company. CoorsTek believes these fees are a reasonable approximation of
the costs the Company will incur in 2000 as a result of being a stand-alone,
public company.
Interest expense for 1999 was $5.0 million compared with $4.1 million in
1998. Interest expense for both periods is a result of an allocation of debt
from ACX. In conjunction with the spin-off, CoorsTek paid ACX $200 million for
intercompany obligations and a one-time dividend. This payment was funded
through borrowings under the Company's $270 million credit Facility. See the
"Liquidity and Capital Resources" section for further discussion regarding the
Company's Credit Facility. Accordingly, interest expense will be significantly
higher in 2000.
The consolidated effective tax rate was 38.3% for 1999 compared with 37.3%
in 1998.
11
<PAGE>
Year Ended December 31, 1998 to Year Ended December 31, 1997
Net sales for 1998 were $296.6 million, a decline of $8.2 million or 2.7%,
from 1997 net sales of $304.8 million. The lower net sales in 1998 reflect
downturns resulting from pricing pressures in the pulp and paper and
telecommunication industries and volume declines in the semiconductor industry
and the petrochemical industry.
Gross profit was $73.7 million in 1998, a decrease of $11.3 million or
13.3% from $85.0 million in 1997. The decrease is attributed to increased price
competition, particularly in international markets due to the strength of the
U.S. dollar compared with certain foreign currencies. Gross margins declined to
24.8% in 1998 from 27.9% in 1997 due to a decline in the industries previously
mentioned and competitive pricing pressures.
Operating income for 1998 totaled $24.1 million, a decline of $19.1 million
or 44.2%, from 1997 operating income of $43.2 million. Excluding the asset
impairment charges and the change to the estimated depreciable lives discussed
below, operating income totaled $34.0 million, a decline of $9.2 million or
21.3% from 1997. In addition to the $11.8 million asset impairment charges
discussed above, the lower operating income in 1998 reflects a downturn in sales
to customers in key market segments and the effects of currency influenced price
competition resulting from a strong U.S. dollar.
Operating margins declined in 1998 to 8.1% from 14.2% in 1997. The lower
operating margins in 1998 reflect the $11.8 million in asset impairment charges.
This decrease is offset by a $2.0 million positive impact from the change in
estimated depreciable lives discussed below, lower sales volumes in higher
margin product lines in the semiconductor segment and pulp and paper industries,
and currency influenced price competition.
In early 1998, the Company changed the estimated depreciable lives for
certain long-lived assets based on the actual lives demonstrated for similar
assets.
The allocation of long term debt from ACX resulted in an increase in
interest expense from $110,000 in 1997 to $4.1 million in 1998.
The consolidated effective tax rate was 37.3% for 1998 compared with 37.5%
in 1997.
LIQUIDITY AND CAPITAL RESOURCES
CoorsTek's liquidity is comprised of both internally and externally
generated sources and is used to fund short-term working capital needs, capital
expenditures, and acquisitions. Internally generated liquidity is measured by
net cash from operations. At December 31, 1999, CoorsTek's working capital was
$83.7 million with a current ratio of 2.51 to 1.
In conjunction with the spin-off, CoorsTek negotiated a $270 million Credit
Facility, which consists of a $95 million revolver and an $85 million Senior
Term A facility, both maturing in five years, and a $90 million Senior Term B
facility, maturing in seven years (the "Credit Facility"). The Credit Facility
is secured by the accounts receivable and inventory of the Company. Currently,
the interest rate on the Revolver and Senior Term A is LIBOR plus 2% and the
interest rate on the Senior Term B is LIBOR plus 2.75%. The interest rate
spreads on the Credit Facility vary based upon the financial performance of the
Company.
At December 31, 1999, there were no borrowings under the Credit Facility.
On January 4, 2000, CoorsTek used $200.0 million of the debt proceeds to pay ACX
for intercompany obligations and a one-time dividend. The current unused portion
of the revolver will be used to fund working capital requirements, debt issuance
costs, internal growth, acquisitions, and capital expenditures. CoorsTek
currently anticipates that no cash dividends will be paid on its common stock in
the foreseeable future in order to conserve cash for the repayment of debt,
future acquisitions and capital expenditures, and such distributions are
prohibited by the Credit Facility.
Capital expenditures for the three years ended December 31, 1999, 1998 and
1997 were $14.6 million, $26.9 million, and $28.8 million, respectively. These
capital expenditures were primarily used for the addition of production
12
<PAGE>
capacity, computerized manufacturing equipment, and enhancing existing computer
systems. CoorsTek expects capital expenditures of $25.0 million in 2000, of
which $12.0 to $15.0 million is expected to be for capacity and/or capability
additions. Operating leases may also be used to finance additional capacity.
The impact of inflation on CoorsTek's financial position and results of
operations has been minimal and is not expected to adversely affect future
results.
IMPACT OF THE YEAR 2000
The Year 2000 issue is the result of computer programs being written using
two digits rather than four to define a specific year. If not corrected, a
computer program that uses date-sensitive software may recognize a date "00" as
the year 1900 rather than the year 2000. This could result in system failures or
erroneous results to various activities and operations.
CoorsTek implemented a company-wide program to prepare financial,
manufacturing and other critical systems and applications for the Year 2000. The
program included the establishment of a task force supported by management. The
Board of Directors of ACX monitored the progress of the program. The task
force's objective was to ensure an uninterrupted transition from 1999 to 2000 by
assessing, testing, and modifying all information technology (IT) and non-IT
systems, and third parties such as suppliers and customers.
As of March 1, 2000, CoorsTek has not encountered any material interruption
related to the Year 2000 transition.
Through December 31, 1999, CoorsTek spent approximately $101,000 related to
the Year 2000 issue. CoorsTek did not separately track internal costs such as
payroll related costs for its IT group and other employees working on the Year
2000 project. CoorsTek expensed all costs related to the Year 2000 project as
incurred. CoorsTek does not anticipate any future expenditures on Year 2000
compliance issues.
FACTORS THAT MAY AFFECT FUTURE RESULTS
Certain statements in this document constitute "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Exchange Act of 1934. The projections and statements contained
in these forward-looking statements involve known or unknown risks,
uncertainties and other factors that may cause the actual results, performance,
or achievements of CoorsTek to be materially different from any future results,
performance or achievements expressed or implied by the forward-looking
statements. Specifically, 1) capturing new customers, successfully increasing
sales to existing unaffiliated customers and the success of CoorsTek's future
years' revenue growth is dependent upon numerous factors, including the
continued strength of the U.S. and key foreign economies, the relative position
of the U.S. dollar related to key European and Asian currencies, the actions of
competitors and customers, CoorsTek's ability to execute its marketing plans,
and the ability of CoorsTek to maintain or increase sales to existing customers
and capture new business; 2) CoorsTek's ability to increase revenues and
operating income is dependent upon its ability to continue its track record for
new product innovation, the availability and pricing of substitute materials
such as metals and plastics, the performance of key industries such as
semiconductor, automotive, and electronics and other factors; 3) CoorsTek's
ability to successfully execute its assembly business initiative is dependent on
its ability to continue to provide quality and timely manufacturing, innovation,
and service to its customers; 4) CoorsTek's ability to absorb the costs
associated with doing business as a public company; 5) CoorsTek's net income is
sensitive to fluctuation in short-term interest rates (because CoorsTek has
substantial outstanding borrowings that base interest at variable rates based on
short-term market interest rates); 6) CoorsTek's ability to successfully
integrate and operate businesses that may be acquired in the future; 7)
CoorsTek's ability to achieve its business strategy is dependent upon securing
adequate financing; and 8) CoorsTek's compliance with the revenue ruling issued
by the IRS in connection with the spin-off of CoorsTek by ACX.
13
<PAGE>
A significant downturn in the semiconductor sector may adversely affect
revenues.
CoorsTek's greatest industry concentration is in the semiconductor
industry, which represented 30% of 1999 revenue and is expected to increase in
2000. If this market experiences a downturn, revenues will be negatively
affected. To mitigate this risk, the Company is attempting to diversify its
revenue base into other high growth industries, such as telecommunications.
Reliance on one significant customer in the semiconductor industry may hurt
growth and profitability prospects if that customer decreases its purchases from
CoorsTek or experiences a downturn in its business.
Applied Materials accounted for 22% of CoorsTek's 1999 revenue. CoorsTek
expects this percentage to increase in 2000. If CoorsTek fails to meet this
customer's quality and delivery requirements, the customer may decrease its
purchases. Similarly, if this customer loses market share, it may also reduce
its purchases from CoorsTek. While meeting its customers' needs and providing
quality products and services is a key management objective, there is no
guarantee that CoorsTek will continuously achieve this objective.
The Company is seeking to diversify its customer base to include other
semiconductor equipment manufacturers.
Increased competition from other materials and overseas suppliers may limit
CoorsTek's ability to increase market share. This competition may be intensified
depending on the value of the U.S. dollar vis-a-vis foreign currencies.
Competitive factors in the industries CoorsTek serves include price,
quality, and delivery. Materials other than ceramics, such as metals and
plastics, may also be considered as competitive alternatives to ceramics in the
Company's Advanced Ceramics segment. However, because the physical properties of
ceramics may increase the life span of certain components, ceramics are often
considered the material of choice for certain applications. In the Semiconductor
segment, CoorsTek faces competition from a multitude of relatively small
domestic companies. In the current environment, many of these companies do not
have the capital to meet the increased market demand. While CoorsTek believes it
can compete successfully in both of these segments, the Company cannot guarantee
its ability to do so.
Additionally, international sales comprised 19% of 1999 revenue. Some of
these sales are priced in local currencies. CoorsTek from time to time engages
in hedging activities against fluctuations in foreign currency prices.
Intense competitive pricing may hurt margins and therefore earnings.
At times, certain markets may experience pricing pressure. In order to
mitigate this risk, the Company has been focusing much of its efforts on
controlling costs and improving manufacturing efficiencies. The results of the
Company's efforts are not determinable at this time.
The demand for many of CoorsTek's products is sensitive to general economic
conditions. If the economy experiences a downturn, the Company's financial
performance may be impacted.
CoorsTek sells many of its products to industrial manufacturers for
incorporation into their products. Demand for the end products and therefore the
Company's products may decrease during a weak economy. The diversification of
CoorsTek's end user market may mitigate some of this cyclical risk, although the
Company cannot guarantee this will occur.
The need to comply with extensive governmental regulation may increase the
Company's operating costs.
CoorsTek is subject to numerous international and U.S. federal, state and
local environmental laws and regulations. The Company's operations are also
subject to laws and regulations relating to worker health and workplace safety.
CoorsTek believes that liabilities for current environmental conditions and the
potential cost of compliance with existing environmental or occupational health
and safety laws and regulations will not have a material adverse effect on the
Company's businesses or financial condition. However, future changes in laws and
14
<PAGE>
regulations cannot be predicted and therefore may result in increased operating
costs and reduced productivity. See "Business - Environmental Matters."
CoorsTek is party to litigation that, if adversely determined, could weaken the
Company's financial condition.
In the ordinary course of business, CoorsTek is subject to claims,
lawsuits, and contingent liabilities, including claims by current and former
employees. Although CoorsTek is defending against these cases, it cannot assure
that the ultimate outcome of any or all of these cases will not have a material
adverse effect on the Company's business, financial condition, or results of
operations. See "Business - Legal Proceedings."
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Changes in interest rates will impact the earnings of CoorsTek.
CoorsTek has approximately $223 million of floating interest rate debt as
of March 1, 2000. As interest rates fluctuate, CoorsTek may experience interest
increases which may materially impact financial results. For example, if
interest rates were to increase or decrease 1%, the result would be an annual
increase or decrease of interest expense of $2.2 million dollars.
Changes in the relationship between the U.S. dollar and foreign currencies may
impact the earnings of CoorsTek.
For the years ended December 31, 1999, 1998 and 1997, approximately 3%, 4%,
and 4%, respectively, of CoorsTek's revenue was generated by its operation in
Scotland. CoorsTek sells products directly through its subsidiaries in Scotland
and Korea, which was acquired in December 1999, and through domestic channels
that have end-user customers located outside the United States. CoorsTek uses
the U.S. dollar as its functional currency, except for operations in Scotland
and Korea. The assets and liabilities of these two foreign operations are
translated into U.S. dollars at an exchange rate in effect at the period end
date. Income and expense items are translated at the year-to-date average rate.
An increase in the exchange value of the United States dollar reduces the value
of revenue and profits generated by CoorsTek's international operations in
Scotland and Korea. Periodically, CoorsTek hedges the dollar against foreign
currencies used in certain markets in order to mitigate the effects of adverse
currency fluctuations when sales are made in the foreign currency. The strength
of the dollar relative to the currency of our customers or competitors may have
a material effect on CoorsTek's profit margins or sales to international
customers.
15
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
----
Report of Independent Accountants 17
Consolidated Statement of Income and Comprehensive Income for
each of the three years ended December 31, 1999 18
Consolidated Balance Sheet at December 31, 1999 and 1998 19
Consolidated Statement of Cash Flows for each of the three
years ended December 31, 1999 20
Consolidated Statement of Shareholders' Equity for each of
the three years ended December 31, 1999 21
Notes to Consolidated Financial Statements 22
Financial Statement schedule for the fiscal years ended
December 31, 1999, 1998 and 1997
Schedule II--Valuation and Qualifying Accounts 36
16
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of CoorsTek, Inc.
In our opinion, the consolidated financial statements listed in the
accompanying index present fairly, in all material respects, the financial
position of CoorsTek, Inc. and its subsidiaries at December 31, 1999 and 1998,
and the results of their operations and their cash flows for each of the three
years in the period ended December 31, 1999, in conformity with accounting
principles generally accepted in the United States. In addition, in our opinion,
the financial statement schedule listed in the accompanying index presents
fairly in all material respects, the information set forth therein when read in
conjunction with the related consolidated financial statements. These financial
statements and the financial statement schedule are the responsibility of the
Company's management; our responsibility is to express an opinion on these
financial statements and the financial statement schedule based on our audits.
We conducted our audits of these statements in accordance with auditing
standards generally accepted in the United States, which require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for the opinion expressed
above.
/s/PRICEWATERHOUSECOOPERS LLP
- -----------------------------
PRICEWATERHOUSECOOPERS LLP
Denver, Colorado
February 17, 2000
MANAGEMENT'S REPORT TO SHAREHOLDERS
Management is responsible for the preparation, integrity and objectivity of
the financial statements and all other financial information included in this
report. The financial statements have been prepared in accordance with generally
accepted accounting principles. Where necessary, the amounts may reflect
estimates based on management's best judgement. Management believes that all
material uncertainties have been appropriately accounted for and disclosed.
Management has established and maintains a system of accounting procedures
and related internal controls designed to provide reasonable assurance regarding
the safeguarding of assets against loss and the reliability of the preparation
and presentation of its financial statements.
On the recommendation of management, PricewaterhouseCoopers LLP was
selected to conduct an objective, independent audit of the consolidated
financial statements. The opinion of the independent accountants is shown above.
The Board of Directors, operating through its Audit Committee composed of
outside directors, monitors CoorsTek's accounting control systems and reviews
the results of the auditing activities. The Audit Committee meets regularly,
either separately or jointly, with representatives of management and
PricewaterhouseCoopers LLP. To ensure complete independence,
PricewaterhouseCoopers LLP has full and free access to the Audit Committee and
may meet with or without the presence of management.
/s/JOHN K. COORS /s/JOSEPH G. WARREN, JR.
- ---------------- ------------------------
JOHN K. COORS JOSEPH G. WARREN, JR.
President Chief Financial Officer
17
<PAGE>
COORSTEK, INC.
CONSOLIDATED STATEMENT OF INCOME AND COMPREHENSIVE INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
YEAR ENDED DECEMBER 31,
1999 1998 1997
--------- --------- ----------
NET SALES $ 365,061 $ 296,614 $ 304,824
Cost of goods sold 274,398 222,906 219,821
--------- --------- ---------
GROSS PROFIT 90,663 73,708 85,003
Selling, general and administrative 53,202 37,758 41,754
Asset impairment charge -- 11,814 --
--------- --------- ---------
OPERATING INCOME 37,461 24,136 43,249
Interest expense, net
4,981 3,524 28
Other expense -- -- 40
--------- --------- ---------
INCOME BEFORE INCOME TAXES 32,480 20,612 43,181
Income tax expense 12,425 7,682 16,192
--------- --------- ---------
NET INCOME $ 20,055 $ 12,930 $ 26,989
========= ========= =========
OTHER COMPREHENSIVE INCOME (EXPENSE):
Minimum pension liability adjustment,
net of tax of $167 -- (281) --
Foreign currency translation
adjustments 77 (56) 27
--------- --------- ---------
COMPREHENSIVE INCOME $ 20,132 $ 12,593 $ 27,016
========= ========= =========
NET INCOME PER SHARE OF COMMON STOCK $ 2.81 $ 1.81 $ 3.78
========= ========= =========
SHARES OUTSTANDING 7,142 7,142 7,142
========= ========= =========
See Notes to Consolidated Financial Statements.
18
<PAGE>
COORSTEK, INC.
CONSOLIDATED BALANCE SHEET
(IN THOUSANDS, EXCEPT SHARE DATA)
December 31,
1999 1998
---- ----
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ -- $ 17,203
Accounts receivable, less allowance for doubtful
accounts of $2,765 in 1999 and $1,839 in 1998 50,318 39,044
Inventories 73,015 56,223
Deferred tax assets 9,118 5,819
Other assets 6,483 4,422
-------- --------
TOTAL CURRENT ASSETS 138,934 122,711
Properties, net 142,898 131,324
Goodwill, less accumulated amortization of
$5,718 in 1999 and $3,656 in 1998 39,601 11,839
Other noncurrent assets 6,057 12,485
-------- --------
TOTAL ASSETS $327,490 $278,359
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Short-term debt payable to Parent $ 8,400 $ --
Accounts payable 15,846 10,837
Accrued salaries and vacation 14,038 11,794
Taxes other than income 3,959 2,874
Other current liabilities 13,017 7,911
-------- --------
TOTAL CURRENT LIABILITIES 55,260 33,416
Long-term debt payable to Parent 191,600 50,000
Accrued postretirement benefits 15,489 15,327
Other long-term liabilities 5,753 13,791
-------- --------
TOTAL LIABILITIES 268,102 112,534
-------- --------
SHAREHOLDERS' EQUITY:
Common stock, $.01 par value, 100,000,000
shares authorized and 7,141,984 shares
issued in 1999; $50 par value, 200,000
shares authorized and issued in 1998 72 10,000
Paid-in capital 57,802 75,060
Paid-in capital - warrants 1,600 --
Retained earnings -- 80,928
Accumulated other comprehensive loss (86) (163)
-------- --------
TOTAL SHAREHOLDERS' EQUITY 59,388 165,825
-------- --------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $327,490 $278,359
======== ========
See Notes to Consolidated Financial Statements
19
<PAGE>
COORSTEK, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(IN THOUSANDS)
YEAR ENDED DECEMBER 31,
1999 1998 1997
-------- -------- --------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 20,055 $ 12,930 $ 26,989
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 22,711 19,977 18,664
Asset impairment charges -- 11,814 --
Change in deferred income taxes 246 (3,372) (972)
(Gain) loss on sale of properties 332 (810) 303
Change in current assets and current
liabilities, net of effects from
acquisitions:
Accounts receivable (5,027) 5,386 (5,842)
Inventories (7,321) (1,640) (3,657)
Other assets (1,425) 540 (1,044)
Accounts payable 6,485 (5,460) 3,899
Accrued expenses and other liabilities 4,617 (163) 1,853
Change in deferred items and other (2,273) 3,313 (1,185)
-------- -------- --------
NET CASH PROVIDED BY OPERATING ACTIVITIES 38,400 42,515 39,008
-------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to properties (14,561) (26,890) (28,812)
Acquisitions, net of cash acquired (58,053) (915) (15,781)
Proceeds from sale of properties 3 1,863 89
Other (1,632) (343) (284)
-------- -------- --------
NET CASH USED IN INVESTING ACTIVITIES (74,243) (26,285) (44,788)
-------- -------- --------
NET CASH PROVIDED BY (USED IN) FINANCING
ACTIVITIES:
Net capital contributions from (to) Parent 18,640 (15) 5,829
-------- -------- --------
CASH AND CASH EQUIVALENTS:
Net increase (decrease) in cash and cash
equivalents (17,203) 16,215 49
Balance at beginning of period 17,203 988 939
-------- -------- --------
Balance at end of period $ -- $ 17,203 $ 988
======== ======== ========
See Notes to Consolidated Financial Statements.
20
<PAGE>
COORSTEK, INC.
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(IN THOUSANDS)
<TABLE>
<CAPTION>
Paid-in Other
Common Paid-in Capital Retained Comprehensive
Stock Capital Warrants Earnings Income (Loss) Total
------ --------- -------- --------- ------------- ---------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $ 10,000 $ 112,307 $ -- $ 41,009 $ 147 $ 163,463
Net capital contribution from Parent -- 12,676 -- -- -- 12,676
Net income -- -- -- 26,989 -- 26,989
Cumulative translation adjustment -- -- -- -- 27 27
--------- --------- -------- --------- ----------- ---------
Balance at December 31, 1997 10,000 124,983 -- 67,998 174 203,155
Net capital distribution to Parent -- (49,923) -- -- -- (49,923)
Net income -- -- -- 12,930 -- 12,930
Minimum pension liability
adjustment -- -- -- -- (281) (281)
Cumulative translation adjustment -- -- -- -- (56) (56)
--------- --------- -------- --------- ----------- ---------
Balance at December 31, 1998 10,000 75,060 -- 80,928 (163) 165,825
Net income -- -- -- 20,055 -- 20,055
Net capital contribution from Parent -- 3,445 -- -- -- 3,445
Issuance of warrants -- -- 1,600 -- -- 1,600
Cumulative translation adjustment -- -- -- -- 77 77
Spin-off recapitalization (9,928) (20,703) -- (100,983) -- (131,614)
--------- --------- -------- --------- ----------- ---------
Balance at December 31, 1999 $ 72 $ 57,802 $ 1,600 $ -- $ (86) $ 59,388
========= ========= ======== ========= =========== =========
</TABLE>
See Notes to Consolidated Financial Statements.
21
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. GENERAL INFORMATION
The accompanying financial statements and notes are based on the separate
historical financial statements of CoorsTek, Inc., which was formerly named
Coors Porcelain Company and operated its business as Coors Ceramics Company (the
"Company" or "CoorsTek"). During the periods presented, CoorsTek was a wholly
owned subsidiary of ACX Technologies, Inc. ("ACX" or "Parent"). At the close of
business on December 31, 1999, ACX distributed a dividend to its shareholders of
all outstanding shares of CoorsTek common stock based on a ratio of one share of
CoorsTek common stock for every four shares of ACX common stock held.
Established in 1911, CoorsTek develops, manufactures and sells engineered
solutions for a multitude of industrial and commercial applications that
incorporate advanced materials such as technical ceramics, engineered plastics
and precision machined metals into components, assemblies and systems.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION: The consolidated financial statements include the
assets, liabilities, results of operations, cash flows and changes in
shareholders' equity of CoorsTek and its wholly owned subsidiaries. All material
intercompany accounts and transactions have been eliminated. CoorsTek was a
wholly owned subsidiary of ACX for the periods presented. The consolidated
financial statements have been prepared in conformity with generally accepted
accounting principles, using management's best estimates and judgments when
appropriate.
The consolidated financial statements include allocations of certain
charges from ACX for general management, legal, treasury, tax, internal audit,
financial reporting, environmental affairs and other miscellaneous services.
Management believes the charges are a reasonable estimate of the costs that
would have been incurred by CoorsTek on a stand-alone basis.
USE OF ESTIMATES: The preparation of financial statements in accordance
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 as well as revenues and expenses reported for the
periods presented. Actual results can differ from these estimates.
CASH AND CASH EQUIVALENTS: CoorsTek defines cash equivalents as highly
liquid investments with original maturities of 90 days or less. The carrying
value of CoorsTek's cash equivalents approximates their fair market value.
INVENTORIES: Inventories are stated at the lower-of-cost or market. Cost is
determined by the first-in, first-out (FIFO) method. The classification of
inventories, in thousands, was as follows:
DECEMBER 31,
1999 1998
---- ----
Finished $30,856 $21,890
In process 27,107 22,049
Raw materials 15,052 12,284
------- -------
Total inventories $73,015 $56,223
======= =======
22
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
PROPERTIES: Land, buildings, equipment and goodwill are stated at cost.
Depreciation and amortization are recorded principally on a straight-line method
over the estimated useful lives of the asset as follows:
Buildings and improvements 10 to 30 years
Machinery and equipment 3 to 30 years
Leasehold improvements The shortest of the useful life, lease term or
20 years
Goodwill The shorter of the useful life or 20 years
The cost of properties and related accumulated depreciation, in thousands,
consisted of the following:
DECEMBER 31,
1999 1998
---- ----
Land and improvements $ 7,724 $ 6,401
Buildings 75,244 65,739
Machinery and equipment 233,904 197,513
Construction in progress 13,624 12,178
-------- --------
330,496 281,831
Less: accumulated depreciation (187,598) (150,507)
-------- --------
Net properties $142,898 $131,324
======== ========
Accelerated depreciation methods are generally used for income tax
purposes. Expenditures for new facilities and improvements that substantially
extend the capacity or useful life of an asset are capitalized. Ordinary repairs
and maintenance are expensed as incurred.
In early 1998, CoorsTek changed the estimated depreciable lives for certain
long-lived assets based on the actual lives exhibited for similar assets. The
effect of this change positively impacted earnings before interest and taxes by
approximately $2.0 million in 1998.
IMPAIRMENT OF LONG-LIVED ASSETS AND IDENTIFIABLE INTANGIBLES: CoorsTek
periodically reviews long-lived assets, identifiable intangibles and goodwill
for impairment whenever events or changes in business conditions indicate the
carrying amount of the assets may not be fully recoverable. Measurement of the
impairment loss is based on fair value of the asset, which is generally
determined by the discounting of future estimated cash flows. See Note 4.
REVENUE RECOGNITION: Revenues are recognized when finished products are
shipped to customers or services have been rendered.
CONCENTRATIONS OF CREDIT RISK: Sales to individual customers and industries
potentially subject the Company to concentrations of credit risk. In 1999, 22%
of CoorsTek's sales were to one customer and 30% of sales were to the
semiconductor industry.
PARENT ALLOCATIONS: Selling, general and administrative expense for 1999,
1998 and 1997 includes allocation of $5.0 million, $4.7 million and $5.0
million, respectively, of certain ACX corporate expenses for general management,
legal, treasury, tax, internal audit, financial reporting and environmental
services. In determining the allocation of ACX corporate costs, CoorsTek
performed a review of 1) the services performed by ACX, 2) headcount, facilities
and sales comparisons and 3) management oversight provided to CoorsTek, as well
as other factors. CoorsTek will not incur these management fees going forward,
but believes they are a reasonable estimate of the costs it will incur as a
stand-alone, public company.
23
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
Long-term debt at December 31, 1999 relates to the note issued to ACX in
connection with the spin-off (see Note 10). Long-term debt at December 31, 1998
consists of intercompany debt transferred from ACX at an annual interest rate of
8%. CoorsTek had no intercompany debt prior to 1998. Interest expense for the
years ended December 31, 1999 and 1998 includes $4.0 million paid to ACX in
connection with the $50.0 million of debt owed to ACX. Interest income (expense)
includes ($0.9) million and $.5 million earned (paid) from the participation in
ACX's cash management system during the years ended December 31, 1999 and 1998,
respectively. No interest income was earned from participation in ACX's cash
management system during 1997. If intercompany debt had been transferred from
ACX in 1997, the debt costs would have been approximately $4.0 million on debt
of $50.0 million.
ENVIRONMENTAL EXPENDITURES: Environmental expenditures that relate to
current operations are expensed or capitalized as appropriate. Expenditures that
relate to an existing condition caused by past operations, and which do not
contribute to current or future revenue generation, are expensed. Liabilities
are recorded when environmental assessments and/or remedial efforts are probable
and the costs can be reasonably estimated.
HEDGING TRANSACTIONS: CoorsTek from time to time engages in hedging
activities against fluctuations in foreign currency prices. These activities are
immaterial to CoorsTek and are expected to remain so in the future.
EARNINGS PER SHARE: Prior to December 31, 1999, CoorsTek was not a public
company and the capital structure was not indicative of the current structure.
As such, earnings per share for 1999, 1998 and 1997 has been calculated using
the actual number of shares distributed on December 31, 1999. There were
7,141,984 shares outstanding on December 31, 1999.
ADOPTION OF NEW ACCOUNTING STANDARDS: Statement of Financial Accounting
Standards (SFAS) No. 133 "Accounting for Derivative Instruments and Hedging
Activities," which establishes accounting and reporting standards for derivative
instruments and for hedging activities was issued in June 1998. This statement
requires the recognition of all derivatives as either assets or liabilities at
fair value in the statement of financial position. This statement is effective
for the year ending December 31, 2001 and is not expected to have a material
effect on CoorsTek's financial statements.
NOTE 3. ACQUISITIONS
On December 17, 1999, CoorsTek acquired all of the outstanding shares of
Doo Young Semitek Co., Ltd. for approximately $3.6 million. The name of Doo
Young Semitek Co., Ltd. was subsequently changed to ("CoorsTek Korea"). The
acquisition has been accounted for under the purchase method of accounting and
goodwill of approximately $2.5 million is being amortized over 15 years.
CoorsTek Korea, located in Kyungbook, South Korea, manufactures technical
ceramic parts for the semiconductor industry.
On March 12, 1999, CoorsTek acquired the net assets of Precision
Technologies for approximately $22.0 million in cash and 300,000 warrants to
receive shares of ACX's common stock at an exercise price equal to the fair
market value at the date of close. Pursuant to the spin-off, these warrants were
converted into warrants to purchase 168,767 shares of CoorsTek common stock at
an exercise price of $22.22 per share. The acquisition has been accounted for
under the purchase method of accounting, and goodwill of approximately $20.2
million is being amortized over 20 years. Precision Technologies, located in
Livermore, California, manufactures precision-machined parts for the
semiconductor, medical and aircraft industries. The results of operations for
Precision are reflected in the results of consolidated CoorsTek from the date of
acquisition.
On March 1, 1999, CoorsTek acquired all of the outstanding shares of
Edwards Enterprises for approximately $18.0 million. The acquisition has been
accounted for under the purchase method of accounting and goodwill of
approximately $4.2 million is being amortized over 20 years. Edwards
Enterprises, located in Newark, California, manufactures precision-machined
parts for the semiconductor industry. The results of operations for Edwards are
reflected in the results of consolidated CoorsTek from the date of acquisition.
24
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
In May of 1998, CoorsTek acquired the assets of Pulsation Equipment for
$0.9 million. The acquisition was accounted for under the purchase method of
accounting and goodwill of approximately $0.8 million is being amortized over 15
years. Located in Oklahoma City, the operation manufactures stainless steel
stabilizing components used in oil reclamation.
In August 1997, CoorsTek acquired the assets of Tetrafluor, Inc., based in
El Segundo, California, for $15.8 million. Tetrafluor manufactures Teflon(R)
fluoropolymer sealing systems and components for use in aerospace, industrial,
and transportation industries. The acquisition was accounted for under the
purchase method of accounting and goodwill of approximately $10.7 million is
being amortized over 15 years.
NOTE 4. ASSET IMPAIRMENT CHARGES
During 1998, CoorsTek recorded approximately $11.8 million in asset
impairment charges. A $6.2 million charge was taken in March of 1998 in
conjunction with the cancellation of the C-4 technology agreement with IBM.
Changes in the market for C-4 applications extended the time frame for achieving
commercial sales beyond original expectations. This lack of near term commercial
sales opportunities, combined with increasing overhead costs, prompted CoorsTek
to negotiate termination of the agreement with IBM. Consequently, CoorsTek wrote
down the carrying value of fixed assets associated with this project to their
discounted expected future cash flows of zero. During 1998, CoorsTek disposed of
the C-4 fixed assets. The disposition of the C-4 assets had no additional impact
on the operating results of CoorsTek. Prior to the impairment, these assets were
included in the Advanced Ceramics segment.
As a result of strong offshore competition in the electronic package
market, CoorsTek recorded a $5.6 million asset impairment charge in September of
1998 at the Chattanooga, Tennessee operation. A review of estimated undiscounted
future cash flows indicated the carrying amount of property, plant and equipment
at Chattanooga may not be recoverable. Accordingly, the fixed assets were
written down to fair value calculated by discounting expected future cash flows
under the asset held for use model. These assets are included in the Advanced
Ceramics segment.
NOTE 5. OPERATING LEASES
CoorsTek has leases for a variety of equipment and facilities that expire
in various years. Future minimum lease payments, in thousands, required as of
December 31, 1999, under non-cancelable operating leases with terms exceeding
one year, are as follows:
YEAR AMOUNT
---- ------
2000 $1,167
2001 521
2002 421
2003 362
2004 and thereafter 364
------
Total $2,835
======
Operating lease rentals for warehouse, production, office facilities and
equipment amounted to $1.7 million, $0.9 million and $1.2 million for the years
ended December 31, 1999, 1998 and 1997, respectively.
NOTE 6. INCOME TAXES
CoorsTek and its U.S. subsidiaries file consolidated Federal and Colorado
state income tax returns with ACX. In addition, CoorsTek files state income tax
returns in various other states. The Federal income tax sharing agreement with
ACX substantially approximates a Federal income tax provision and liability as
if CoorsTek was filing on a separate income tax return basis. Liabilities for
Federal and Colorado state income taxes are payable to ACX. CoorsTek directly
pays to all other states in which it files a state tax return. CoorsTek's
foreign subsidiaries file separate returns with the applicable taxing authority.
25
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
The components of income before income taxes, in thousands, for the years
ended December 31 were:
1999 1998 1997
------- ------- -------
Domestic $31,887 $20,319 $42,933
Foreign 593 293 248
------- ------- -------
Total income before taxes $32,480 $20,612 $43,181
======= ======= =======
The provision for income taxes, in thousands, for the years ended December
31, included the following:
1999 1998 1997
------- ------- -------
Current provision:
Federal $11,879 $ 9,209 $14,889
State 1,842 1,764 2,122
Foreign 224 81 153
------- ------- -------
Total current tax expense 13,945 11,054 17,164
------- ------- -------
Deferred provision:
Federal (1,332) (3,014) (898)
State (188) (358) (74)
------- ------- -------
Total deferred tax benefit (1,520) (3,372) (972)
------- ------- -------
Total income tax expense $12,425 $ 7,682 $16,192
======= ======= =======
Temporary differences, which give rise to a significant portion of deferred
tax assets and liabilities, in thousands, at December 31, are as follows:
1999 1998
------ ------
Deferred tax asset arising from:
Depreciation and other property related $ 106 $ 2,517
Pension and employee benefits 14,145 12,181
Inventory 3,767 2,205
All other 3,674 3,223
Valuation allowance (3,621) (3,386)
------- -------
Gross deferred tax assets 18,071 16,740
------- -------
Deferred tax liabilities arising from:
Depreciation and other property related 6,034 7,325
Pension and employee benefits 1,734 --
All other 6 157
------- -------
Gross deferred tax liabilities 7,774 7,482
------- -------
Net deferred tax asset $10,297 $ 9,258
======= =======
The principle differences between the effective income tax rate and the
U.S. statutory federal income tax rate at December 31, were as follows:
1999 1998 1997
------- ------- -------
Expected tax rate 35.0% 35.0% 35.0%
State income taxes (net of federal benefit) 3.5 4.9 3.5
Research tax credits 0.0 (2.2) (1.3)
Nontaxable income (1.5) (1.0) 0.0
Foreign tax expense 0.0 0.1 0.0
Non-deductible items 0.5 0.6 0.3
Other--net 0.8 (0.1) 0.0
---- ---- ----
Effective tax rate 38.3% 37.3% 37.5%
==== ==== ====
26
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
The Internal Revenue Service (IRS) has completed its examination of ACX's
Federal income tax returns through 1995. During 1999, the IRS began the Federal
income tax return review for 1996 through 1998. In the opinion of management,
adequate accruals have been provided for all income tax matters and related
interest.
CoorsTek has not provided for U.S. or additional foreign taxes on $5.7
million of undistributed earnings of its foreign subsidiaries. These
undistributed earnings are considered to be reinvested indefinitely. If such
earnings were repatriated, foreign tax credits should become available under
current law to reduce or eliminate the resulting U.S. income tax liability.
ACX, CoorsTek and their respective subsidiaries have executed a Tax Sharing
Agreement that defines the parties' rights and obligations with respect to
deficiencies and refunds of Federal, state and other taxes relating to the
CoorsTek business for tax years prior to the spin-off and with respect to
certain tax attributes of CoorsTek after the spin-off. In general, ACX will be
responsible for filing consolidated Federal and combined or consolidated state
tax returns and paying the associated taxes for periods through the date of the
spin-off. CoorsTek will reimburse ACX for the CoorsTek portion of such taxes
relating to the CoorsTek business. CoorsTek is responsible for filing returns
and paying taxes related to the CoorsTek business for periods beginning on or
after the distribution date. ACX and CoorsTek will agree to cooperate with each
other and to share information in preparing such tax returns and in dealing with
other tax matters. ACX and CoorsTek will be responsible for their own taxes
other than those described above.
The Tax Sharing Agreement is designed to preserve the status of the
spin-off as a tax-free distribution. CoorsTek has agreed that it will refrain
from engaging in certain transactions during the two-year period following the
spin-off unless it first provides ACX with a ruling from the Internal Revenue
Service or an opinion of tax counsel acceptable to ACX that the transaction will
not adversely affect the tax-free nature of the spin-off. The transactions
subject to these restrictions, which are not expected to materially affect
CoorsTek's operating flexibility, consist of liquidations, mergers or
consolidations of CoorsTek, redemptions by CoorsTek of certain amounts of its
stock, sales of assets out of the ordinary course of business, discontinuance of
certain businesses and certain issuances of CoorsTek's common stock. In
addition, CoorsTek will agree to indemnify ACX against any tax liability or
other expense it may incur if the spin-off is determined to be taxable as a
result of CoorsTek's breach of any covenant or representation contained in the
Tax Sharing Agreement or CoorsTek's action in effecting such transactions. By
its terms, the Tax Sharing Agreement will terminate when the statutes of
limitations under applicable tax laws expire.
NOTE 7. STOCK COMPENSATION
ACX had an equity incentive plan that provided for the granting of
nonqualified stock options and incentive stock options to certain key employees
of CoorsTek prior to the spin-off. The equity incentive plan also provided for
the granting of restricted stock, bonus shares, stock units and offers to
officers of ACX to purchase stock. Generally, options outstanding under the
ACX's equity incentive plan were subject to the following terms: (1) grant price
equal to 100% of the fair value of the stock on the date of grant; (2) ratable
vesting over a three year service period; and (3) maximum term of ten years from
the date of grant.
On December 31, 1999 in conjunction with the distribution, those CoorsTek
employees who had ACX vested and unvested stock options were granted substitute
CoorsTek stock options which were equal in value to the original ACX options
granted. CoorsTek did not incur any compensation charges because 1) the
aggregate intrinsic value of the options did not change, 2) the ratio of the
exercise price per option to the market value per share did not change and 3)
the vesting provisions and option period of the original grant did not change.
27
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
Stock option transactions for the three years ended December 31, were
as follows (shares in thousands):
<TABLE>
<CAPTION>
1999 1998 1997
------------------------------------------------------------------------
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Options outstanding at January 1 675 $31.25 556 $29.42 495 $28.02
Granted 509 $23.48 125 $39.06 74 $38.53
Exercised -- -- (6) $24.31 (5) $24.94
Expired or forfeited (38) $31.48 -- -- (8) $29.89
------------------------------------------------------------------------
Options outstanding at December 31 1,146 $27.79 675 $31.25 556 $29.42
========================================================================
Exercisable at December 31 567 $29.78 482 $28.64 367 $27.04
========================================================================
Available for future grant 1,000 -- --
======= ==== =====
</TABLE>
In 1998 and 1997, shares available for future grant were pursuant to the
ACX equity incentive plan.
The following table summarizes information about stock options outstanding
at December 31, 1999 (shares in thousands):
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
- ------------------------------------------------------------------------------- --------------------------------
Weighted Weighted Weighted
Number Average Average Number Average
Range of Outstanding Remaining Exercise Exercisable Exercise
Exercise Prices at 12/31/99 Contractual Life Price at 12/31/99 Price
- ------------------------------------------------------------------------------- --------------------------------
<S><C> <C> <C> <C> <C> <C>
$17.11 to $24.33 309 4.8 years $21.32 189 $22.08
$24.44 to $24.44 384 9.1 years $24.44 0 $0.00
$26.44 to $34.44 321 5.0 years $31.95 316 $31.91
$35.67 to $48.11 132 7.9 years $42.72 62 $42.40
- --------------------------------------------------------------------------- --------------------------------
$17.11 to $48.11 1,146 6.7 years $27.79 567 $29.78
=============================================================================== ================================
</TABLE>
The Company applies Accounting Principles Board Opinion No. 25 and related
interpretations in accounting for its stock-based compensation plans.
Accordingly, no compensation expense has been recognized for its equity
incentive plan and employee stock purchase plan. If the Company had elected to
recognize compensation cost based on the fair value of the stock options at
grant date as allowed by SFAS No. 123, "Accounting for Stock-Based
Compensation," compensation expense, net of income tax, of $1.0 million, $0.8
million and $0.4 million would have been recorded for 1999, 1998 and 1997,
respectively. Proforma net income and earnings per share would have been reduced
to the pro forma amounts indicated below:
December 31,
1999 1998 1997
--------------------------------
Net income in thousands:
As reported $ 20,055 $ 12,930 $ 26,989
Pro forma $ 19,043 $ 12,120 $ 26,625
Earnings per share:
As reported $ 2.81 $ 1.81 $ 3.78
Pro forma $ 2.67 $ 1.70 $ 3.73
28
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option pricing model with the following assumptions: (1)
dividend yield of 0%; (2) expected volatility of 31% in 1999, 28.1% in 1998 and
23.2% in 1997; (3) risk-free interest rate ranging from 5.7% to 6.7% in 1999,
4.8% to 4.9% in 1998 and 5.4% to 5.5% in 1997; and (4) expected life of 3 to
9.11 years in 1999, 3 to 8.57 years in 1998 and 3 to 9.86 years in 1997. The
weighted average per share fair value of options granted during 1999, 1998 and
1997 was $23.48, $39.06 and $38.53, respectively.
NOTE 8. RETIREMENT AND OTHER POSTRETIREMENT BENEFIT PLANS
Pension Plan: CoorsTek provides a defined benefit retirement plan for
substantially all of its employees. CoorsTek manages the plan including plan
assets, which consist primarily of equity and interest-bearing investments.
Benefits are based on years of service and average base compensation levels over
a period of years. The Company's funding policy is to contribute annually not
less than the ERISA minimum funding requirements nor more than the maximum
amount that can be deducted for Federal income tax purposes.
Retiree Medical Plan: In addition to receiving pension benefits, CoorsTek
employees may participate in a medical plan, which provides health care and life
insurance benefits to eligible retirees and their dependents. Eligible employees
may receive these benefits after reaching age 55 with 10 years of service. Prior
to reaching age 65, eligible retirees may receive certain health care benefits
substantially similar to those available to active employees. The amount the
retiree pays is based on age and service at the time of retirement. These plans
are not funded.
401(k) Plan: Eligible employees of CoorsTek may participate in CoorsTek's
401(k) plan in which employees can contribute up to 18% of annual eligible
compensation subject to certain regulatory and plan limitations. The Company
matches 50% of the first 2% of the employees' contributions. Expense related to
the 401(k) match was $0.7 million in 1999, 1998 and 1997.
29
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
The following tables set forth the estimated change in benefit
obligation, change in plan assets, funded status, net periodic benefit cost and
other information applicable to the CoorsTek, Inc. Retirement Plan and retiree
medical coverage. Information for 1998 is based on the estimated allocations
from ACX for the respective plan assets and liabilities. All information, except
interest rates, is in thousands.
<TABLE>
<CAPTION>
PENSION BENEFITS OTHER BENEFITS
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Change in benefit obligation:
Benefit obligation at beginning of year $ 97,815 $ 90,267 $ 13,162 $ 12,357
Service cost 2,407 2,290 341 338
Interest cost 7,000 6,439 833 892
Actuarial loss (gain) (5,393) 1,890 (738) (3)
Benefits paid (4,535) (3,071) (318) (422)
-------- -------- -------- --------
Benefit obligation at end of year 97,294 97,815 13,280 13,162
-------- -------- -------- --------
Change in plan assets:
Fair value of plan assets at beginning of year 77,229 79,404 -- --
Actual return on plan assets 17,056 630 -- --
Company contributions 7,291 -- -- --
Benefits paid (4,535) (2,805) -- --
-------- -------- -------- --------
Fair value of plan assets at end of year 97,041 77,229 -- --
-------- -------- -------- --------
Funded status (253) (20,586) (13,280) (13,162)
Unrecognized actuarial loss (gain) (5,139) 11,794 (2,175) (1,929)
Unrecognized prior service cost 3,659 4,070 (594) (793)
-------- -------- -------- --------
Accrued benefit cost $ (1,733) $ (4,722) $(16,049) $(15,884)
======== ======== ======== ========
Amounts recognized in the Consolidated Balance Sheet consist of:
Accrued benefit liability $ (1,733) $ (9,738) $(16,049) $(15,884)
Intangible asset -- 4,568 -- --
Accumulated other comprehensive income -- 448 -- --
-------- -------- -------- --------
Net amount recognized $ (1,733) $ (4,722) $(16,049) $(15,884)
======== ======== ======== ========
Weighted average assumptions at year end:
Discount rate 6.80% 6.80% 6.80% 6.80%
Expected return on plan assets 9.75% 9.75%
Rate of compensation increase 4.30% 4.30%
</TABLE>
It is the Company's policy to amortize unrecognized gains and losses in
excess of 10% of the larger of plan assets and the projected benefit obligation
(PBO) over the expected service of active employees (12-15 years). However, in
cases where the accrued benefit liability exceeds the actual unfunded liability
by more than 20% of the PBO, the amortization is reduced to 5 years.
For measurement purposes, a 7.5% annual rate of increase in the per capita
cost of covered health care benefits was assumed for 1999. The rate was assumed
to decrease by 0.5% per annum to 4.25% and remain at that level thereafter.
<TABLE>
<CAPTION>
Pension Benefits Other Benefits
1999 1998 1997 1999 1998 1997
-------- ------- ------- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Components of net periodic benefit cost
Service cost $ 2,407 $ 2,290 $ 1,968 $ 341 $ 338 $ 248
Interest cost 7,000 6,439 4,470 832 892 763
Actual return on plan assets (17,056) (843) (8,595) -- -- --
Amortization of prior service costs 644 651 306 (689) (198) (104)
Recognized actuarial loss (gain) 10,445 (6,082) 4,879 -- (481) (90)
-------- ------- ------- ----- ----- -----
Net periodic benefit cost $ 3,440 $ 2,455 $ 3,028 $ 484 $ 551 $ 817
======== ======= ======= ===== ===== =====
</TABLE>
30
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
Assumed health care cost trend rates have a significant effect on the
amounts reported for the health care plans. A one-percentage-point change in
assumed health care cost trend rates would have the following effects:
1% POINT 1% POINT
INCREASE DECREASE
-------- --------
Effect on total of services and interest cost components $ 297 $ 276
Effect on postretirement benefit obligation 903 849
NOTE 9: SUPPLEMENTAL CASH FLOW INFORMATION:
1999 1998 1997
-------- -------- -------
Total interest costs $ 5,066 $ 4,125 $ 224
Interest capitalized -- -- 114
Interest expensed 5,066 4,125 110
Interest paid (primarily to Parent) 4,975 4,000 24
Income taxes paid (primarily to Parent) 12,576 11,882 16,950
Non Cash Investing Activities: See description of noncash investing
activities with ACX in Note 10.
NOTE 10. RELATED PARTY TRANSACTIONS
Since the formation of ACX in 1992, CoorsTek, as ACX's wholly-owned
subsidiary, has engaged in several related party transactions with ACX and its
subsidiaries. These included, but were not limited to, participation in ACX's
cash management system, benefiting from administrative services provided by ACX,
intercompany debt allocations, payments of dividends, miscellaneous asset and
liability transfers between the entities as well as miscellaneous capital
contributions of other forms between the entities. The average amount due to
ACX, during 1999, 1998 and 1997 was $87.5 million, $45.8 million and $0,
respectively. At December 31, 1999, 1998 and 1997 the Company owed ACX $200.0
million, $50 million and $0, respectively.
On December 31, 1999, CoorsTek issued to ACX a $200 million, 8.9%, note,
which was subsequently paid on January 4, 2000. This note was for the payment of
a $131.6 million dividend and $68.4 million of intercompany obligations. For
1998 and 1997, dividends paid to ACX totaled $0 and $38,000, respectively. Net
capital contributions from ACX, in thousands, for the year ended December 31,
consisted of:
1999 1998 1997
-------- -------- -------
Assets transferred from ACX $ 3,445 $ 13 $ 6,846
Bonuses paid in common stock of ACX -- 79 177
Transfer of liability to ACX -- -- (176)
Transfer of long-term debt from ACX -- (50,000) --
Capital contribution to ACX -- (15) --
Capital contribution from ACX -- -- 5,829
------- -------- -------
Total net capital contributions $ 3,445 $(49,923) $12,676
======= ======== =======
NOTE 11. INDEBTEDNESS
In December 1999, CoorsTek negotiated a $270 million Credit Facility, which
consists of a $95 million revolver and an $85 million Senior Term A facility,
both maturing in five years, and a $90 million Senior Term B facility maturing
in seven years (the "Credit Facility"). The Credit Facility is collaterallized
by the accounts receivable and inventory of the Company. Currently, the interest
rate on the revolver and Senior Term A is LIBOR plus 2% and the interest rate on
the Senior Term B is LIBOR plus 2.75%. The interest rate spreads on the Credit
Facility vary based upon the financial performance of the Company.
31
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
There were no outstanding amounts under the Credit Facility as of December
31, 1999. The required principal payments of the Term A and Term B of the Credit
Facility are as follows:
Year Term A Term B Total
---- ------ ------ -----
2000 $ 7,500 $ 900 $ 8,400
2001 10,000 900 10,900
2002 15,000 900 15,900
2003 25,000 900 25,900
2004 27,500 900 28,400
2005 -- 900 900
2006 -- 84,600 84,600
------- ------- --------
Total $85,000 $90,000 $175,000
======= ======= ========
On January 4, 2000, the Company borrowed approximately $205.0 million under
the Credit Facility to pay the note to ACX and to fund the Credit Facility
commitment costs.
NOTE 12. COMMITMENTS AND CONTINGENCIES
CoorsTek is self-insured for certain insurable risks consisting primarily
of employee health insurance programs and workers' compensation. Certain
stop-loss and excess insurance policies are also maintained to reduce overall
risk. In addition, CoorsTek maintains insurance policies to protect against loss
related to property, business interruption and general liability risks.
CoorsTek is named as a defendant in various actions and proceedings arising
in the normal course of business, including claims by current or former
employees relating to employment or termination. Although the eventual outcome
of the various lawsuits cannot be predicted, it is management's opinion that
these suits will not result in liabilities to such extent that they would
materially affect CoorsTek's financial position or results of operations.
CoorsTek has received a demand for payment arising out of contamination of
a semiconductor manufacturing facility formerly owned by a subsidiary of
CoorsTek, Coors Components, Inc. ("CCI"). Colorado state environmental
authorities are seeking clean up of soil and ground water contamination from a
subsequent owner. The contamination is believed to have occurred prior to
CoorsTek's ownership of CCI and there are possible off-site sources of
contamination. CCI was sold in November 1987. Although CoorsTek does not believe
it is responsible for the contamination or the cleanup, the parties agreed to a
remediation plan. CoorsTek is responsible to pay from 10% to 15% of the
remediation costs in excess of $500,000. There is no firm estimate of potential
clean up costs, however management does not currently believe it will be
material.
CoorsTek has received a Unilateral Administration Order issued by the EPA
relating to the Rocky Flats Industrial Park Site, (RFIP) and is participating
with the RFIP Group to perform an Engineering Evaluation/Cost Analysis on the
property. There is no estimate of potential clean up costs, but management does
not believe it will be material.
Some of CoorsTek's facilities have been notified that they may be
potentially responsible parties ("PRPs") under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA") or similar state
laws with respect to the remediation of certain sites where hazardous substances
have been released into the environment. CoorsTek cannot predict with certainty
the total costs of remediation, its share of the total costs, the extent to
which contributions will be available from other parties, the amount of time
necessary to complete the remediation or the availability of insurance. However,
based on investigations to date, CoorsTek believes that any liability with
respect to these sites would not be material to the financial condition and
results of operations of CoorsTek. There can be no certainty, however, that
CoorsTek will not be named as a PRP at additional sites or be subject to other
environmental matters in the future or that the costs associated with those
additional sites or matters would not be material.
CoorsTek is a guarantor on industrial development bonds of CCI, a former
subsidiary that was sold in November 1987. The buyer of CCI assumed the
liability at the time of purchase. The terms require annual principal and
32
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
interest payments and a balloon payment of $2.2 million in May 2000. In the
event of default by the buyer, CoorsTek would assume the liability. The buyer
has made all payments to date in a timely manner and management does not believe
CoorsTek is at risk for payment of the bonds as of December 31, 1999. The
outstanding balance as of December 31, 1999, 1998 and 1997 was $2.2 million,
$2.4 million and $3.0 million, respectively.
On August 12, 1999, five current and former employees sued one of
CoorsTek's subsidiaries in the U.S. District Court for the Eastern District of
Arkansas claiming gender discrimination, sexual harassment and retaliation. The
plaintiffs are seeking class certification, which the Company is resisting based
on the distinctions among their respective claims. CoorsTek's preliminary
evaluation indicates the case is largely without merit, however, sufficient
information is not available to determine the ultimate outcome or any potential
liability related to these claims.
NOTE 13. SEGMENT INFORMATION
Prior to 1999, the Company operated as a single segment that consisted
primarily of advanced ceramic products. In 1999, the Company acquired Edwards
Enterprises and Precision Technologies (see Note 3). These companies manufacture
precision-machined parts primarily for the semiconductor industry. As a result
of acquiring these companies and the resultant significance of the semiconductor
industry to the Company, the Company changed its internal reporting to track two
segments separately: Semiconductor and Advanced Ceramics. The Semiconductor
segment produces both ceramic and non ceramic products that are used in the
semiconductor industry. The Advanced Ceramics segment produces primarily ceramic
products that are used outside the semiconductor industry.
The accounting policies of the segments are the same as those described in
Note 2 and there are generally no intersegment transactions. The Company
evaluates the performance of its segments and allocates resources to them based
primarily on gross profit.
The table below summarizes information about reportable segments, in
thousands, as of and for the years ended December 31:
Depreciation
Net Gross and Capital
Sales Margin Amortization Assets Expenditures
-------- ------- ------------ -------- ------------
1999
- ----
Semiconductor $111,099 $ 31,953 $ 2,494 $ 79,845 $ 4,043
Advanced Ceramics 253,962 58,710 20,217 247,645 10,518
-------- -------- -------- -------- --------
Consolidated total $365,061 $ 90,663 $ 22,711 $327,490 $ 14,561
======== ======== ======== ======== ========
1998
- ----
Semiconductor $ 17,061 $ 4,976 $ 1,337 $ 20,626 $ 1,015
Advanced Ceramics 279,553 68,732 18,640 257,733 25,875
-------- -------- -------- -------- --------
Consolidated total $296,614 $ 73,708 $ 19,977 $278,359 $ 26,890
======== ======== ======== ======== ========
1997
- ----
Semiconductor $ 19,199 $ 6,928 $ 1,527 $ 19,279 $ 1,032
Advanced Ceramics 285,625 78,075 17,137 243,408 27,780
-------- -------- -------- -------- --------
Consolidated total $304,824 $ 85,003 $ 18,664 $262,687 $ 28,812
======== ======== ======== ======== ========
33
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
Information related to CoorsTek's operations by geographic area is
presented below:
Revenue from unaffiliated customers, in thousands:
December 31,
1999 1998 1997
--------- --------- ---------
United States $ 304,599 $ 224,295 $ 224,272
Europe 35,896 39,338 41,815
Asia 20,507 19,975 23,497
Canada 8,995 8,446 8,886
Other foreign 7,279 6,696 8,161
Less: discounts and allowances (12,215) (2,136) (1,807)
--------- --------- ---------
Total $ 365,061 $ 296,614 $ 304,824
========= ========= =========
Long-lived assets, in thousands:
December 31,
1999 1998 1997
-------- -------- --------
United States $174,728 $151,636 $155,796
Europe 3,705 3,486 3,101
Asia 4,066 -- --
-------- -------- --------
Total $182,499 $155,122 $158,897
======== ======== ========
Long-lived assets consist primarily of net property, plant and equipment
and goodwill.
34
<PAGE>
COORSTEK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
NOTE 14. QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
The following summarizes selected quarterly financial information, in
thousands except for per share data, for each of the two years in the period
ended December 31, 1999.
First Second Third Fourth Year
----- ------ ----- ------ ----
1999
- ----
Net sales $76,579 $95,411 $94,946 $98,125 $365,061
Cost of goods sold 58,305 71,646 70,504 73,943 274,398
------- ------- ------- ------- --------
Gross profit 18,274 23,765 24,442 24,182 90,663
Selling, general & administrative 9,008 13,180 13,768 17,246 53,202
------- ------- ------- ------- --------
Operating income 9,266 10,585 10,674 6,936 37,461
Interest expense, net (701) (1,602) (1,328) (1,350) (4,981)
------- ------- ------- ------- --------
Income before income taxes 8,565 8,983 9,346 5,586 32,480
Income tax expense 3,355 3,137 3,609 2,324 12,425
------- ------- ------- ------- --------
Net income $ 5,210 $ 5,846 $ 5,737 $ 3,262 $ 20,055
======= ======= ======= ======= ========
Net income per share of
common stock $ .73 $ .82 $ .80 $ .46 $ 2.81
======= ======= ======= ======= ========
Shares outstanding 7,142 7,142 7,142 7,142 7,142
======= ======= ======= ======= ========
1998
- ----
Net sales $80,945 $79,422 $70,023 $66,224 $296,614
Cost of goods sold 60,241 59,258 53,792 49,615 222,906
------- ------- ------- ------- --------
Gross profit 20,704 20,164 16,231 16,609 73,708
Selling, general & administrative 10,076 9,762 8,690 9,230 37,758
Asset impairment charge 6,232 -- 5,582 -- 11,814
------- ------- ------- ------- --------
Operating income 4,396 10,402 1,959 7,379 24,136
Interest expense, net (1,055) (984) (855) (630) (3,524)
------- ------- ------- ------- --------
Income before income taxes 3,341 9,418 1,104 6,749 20,612
Income tax expense 1,229 3,485 403 2,565 7,682
------- ------- ------- ------- --------
Net income $ 2,112 $ 5,933 $ 701 $ 4,184 $ 12,930
======= ======= ======= ======= ========
Net income per share of
common stock $ .30 $ .82 $ .10 $ .59 $ 1.81
======= ======= ======= ======= ========
Shares outstanding 7,142 7,142 7,142 7,142 7,142
======= ======= ======= ======= ========
35
<PAGE>
SCHEDULE II
Allowance for doubtful receivables (deducted from accounts receivable)
Additions
Balance at charged to costs Balance at end
beginning of year and expenses Other Deductions of year
----------------- ---------------- ----- ---------- --------------
1997 $ 1,282 1,079 60 (428) $ 1,993
1998 $ 1,993 547 (5) (696) $ 1,839
1999 $ 1,839 1,757 8 (839) $ 2,765
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Within the last two years there have been no changes in CoorsTek's
independent accountants or disagreements on accounting and financial statement
disclosure matters.
36
<PAGE>
Part III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS
(a) DIRECTORS
In accordance with CoorsTek's Bylaws, the CoorsTek Board consists of eight
directors as of February 16, 2000. CoorsTek's Certificate of Incorporation
provides for the division of the Board of Directors into three classes as of the
first annual meeting of stockholders. The full slate of directors will stand for
election at the first annual meeting of stockholders, to be held in 2001, and at
that time will be nominated to serve for terms of one, two and three years
(Classes I, II and III), respectively. Stockholders will elect one class,
consisting of approximately one third of the Directors, for three-year terms at
each succeeding annual meeting. CoorsTek's Certificate of Incorporation sets a
cap on the number of directors at 11 and the number of directors may be fixed by
or in the manner provided in the Bylaws. In addition, William K. Coors serves as
Director Emeritus. As Director Emeritus, Mr. Coors provides advice and
consulting services to the Board but does not constitute a "director" and does
not have voting rights.
Information about each of the current directors follows:
John K. Coors, age 43, has been the President of CoorsTek since October
1998. Mr. Coors was the Chief Executive Officer of Golden Genesis Company (a
former publicly traded subsidiary of ACX), from January 1997 to October 1998;
and President of Golden Photon Company from July 1992 to October 1998. From
January to July 1992 he served as Vice President and Plant Manager of Coors
Brewing Company's Memphis, Tennessee brewery.
Joseph Coors, Jr., age 57 has been the Chairman of CoorsTek since 1989, and
the Chief Executive Officer of CoorsTek since March 1997. Mr. Coors was
President of CoorsTek from 1997 to October 1998 and from 1985 to 1993. From 1992
to 1999 he served as President of ACX. Mr. Coors served as Executive Vice
President of Adolph Coors Company from 1991 to 1992. He is currently a director
of Hecla Mining Company (NYSE: HL) and Chairman of the Air Force Memorial
Foundation.
David A. Coulter, age 53, joined the Beacon Group as Partner in September
1999. He was the Chairman of BankAmerica Corporation and Bank of America NT & SA
from May 1996 through October 1998 and he served as Chief Executive Officer from
January to May 1996 and President from August 1995 to January 1996. From 1976 to
January 1996, he held various positions with Bank of America in World Banking,
Treasury and Corporate Planning. He currently serves as a director of PG&E
Corporation, Pacific Gas and Electric Company, eCoverage, the San Francisco Art
Institute, Asia Society, and the University of California San Francisco
Foundation. He is a Trustee of Carnegie Mellon University and serves as Chair of
the Public Policy Institute of California.
John E. Glancy, age 53, has been the Corporate Executive Vice President and
Manager of Commercial and International Business of Science Applications
International Corp. ("SAIC") since 1978. (SAIC provides professional and
technical services and products in high-technology areas to government and the
private sector.) He was employed by General Atomic Company, a manufacturer of
nuclear reactors, and the U.S. Atomic Energy Commission prior to 1978. Dr.
Glancy is a director of SAIC and Network Solutions, Inc.
John Markle, III, age 44, was the Senior Vice President of Strategy and
Chief Information Officer for Rental Services Corporation from 1997 to January
2000. From 1987 to 1997, he was the president of Center Rental and Sales.
Donald E. Miller, age 69, was Vice Chairman of The Gates Corporation from
1994 to August 1996 at which time he retired. Mr. Miller served as President and
Chief Operating Officer of The Gates Corporation from 1986 to 1994 and President
of Gates Rubber Company from 1982 to 1993. He currently serves as a director of
Lennox Industries, Inc., Sentry Insurance Company, Chateau Communities, Inc. and
OEA, Inc. He was a trustee for the Colorado School of Mines from 1987 to 1997
and President of the Board from 1994 to 1997.
Kimberly S. Patmore, age 43, has been the Chief Financial Officer for First
Data Corporation since February 17, 2000. From 1992 to February 2000, Ms.
Patmore served as Chief Financial Officer for various divisions of First Data
37
<PAGE>
Corporation. Ms. Patmore served as a Senior Manager for entrepreneurial services
at Ernst & Young from 1981 to 1992.
Robert L. Smialek, age 55, was the President and Chief Executive Officer of
Insilco Corporation from 1993 until July 1999 at which time he retired. Mr.
Smialek was the President and Chief Operating Officer of the Temperature and
Appliance Controls Group of Siebe plc, from October 1992 to May 1993. He serves
as a director of General Cable Corporation and Gleason Corporation.
COMMITTEES OF THE COORSTEK BOARD
The CoorsTek Board has four standing committees: Audit, Compensation,
Executive and Corporate Governance.
Audit Committee, which consists of three non-employee directors, Kimberly
S. Patmore, Chairman, John Markle, III and Robert L. Smialek:
o Reviews the scope and results of the audit of CoorsTek by CoorsTek's
independent accountants.
o Recommends the appointment of CoorsTek's independent accountants.
o Reviews the adequacy of CoorsTek's systems of internal control and
accounting policies and procedures, including compliance with
CoorsTek's ethics policy.
o Directs and supervises investigations into matters within the scope of
its duties.
Compensation Committee, which consists of three non-employee directors,
Donald E. Miller, Chairman, David A. Coulter and John E. Glancy:
o Reviews and recommends to the Board compensation of management
personnel.
o Reviews and approves executive incentive and benefit plans.
o Reviews and recommends to the Board general employee benefits.
Executive Committee, which consists of two employee directors and one
non-employee director, Joseph Coors, Jr., Chairman, John K. Coors and Donald E.
Miller:
o Exercises all of the authority of the Board when the Board is not in
session except as provided in CoorsTek's Certificate of Incorporation,
Bylaws and applicable law.
Corporate Governance Committee, which consists of three non-employee
directors, David A. Coulter, Chairman, John Markle, III and Robert L. Smialek:
o Develops operating guidelines for the Board.
o Considers and recommends nominees for election as directors.
o Reviews and evaluates the performance of the Board.
COMPENSATION OF DIRECTORS
Employee directors do not receive additional compensation for serving as
directors of CoorsTek. Each non-employee director of CoorsTek receives an annual
retainer of $28,000, 50 percent of which is paid in shares of CoorsTek's common
stock. The balance of the retainer is paid in cash unless the non-employee
director elects to take all or a portion of it in CoorsTek's common stock.
38
<PAGE>
In addition, each non-employee director receives a grant of 5,000
non-qualified stock options upon initial election to the Board and will be
eligible to receive 3,000 non-qualified stock options upon election by
stockholders to his or her three-year term. The options, with an exercise price
equal to 100% of market value on the date of grant, will vest 100% at the end of
one year and will expire, if unexercised, ten years from the date of grant.
No additional amounts are paid to directors for committee meetings.
Directors are reimbursed for expenses incurred while attending Board or
committee meetings and in connection with any other Company business. In
addition, CoorsTek has purchased accidental death and dismemberment insurance
for the non-employee directors.
FAMILY RELATIONSHIPS
John K. Coors and Joseph Coors, Jr. are brothers and nephews of William K.
Coors.
(b) EXECUTIVE OFFICERS
The executive officers of CoorsTek are as follows:
Joseph Coors, Jr., biographical information for Joseph Coors, Jr. is
incorporated by reference to Item 10 (a).
John K. Coors, biographical information for John K. Coors is incorporated
by reference to Item 10 (a).
Derek C. Johnson, age 39, has been Executive Vice President of Sales and
Marketing and Operations of CoorsTek since August 1999. Mr. Johnson was Vice
President of Sales and Marketing from October 1998 to August 1999, Vice
President of Golden Operations from 1997 to 1998 and Manager of Manufacturing
for Golden Operations from 1992 to 1997. Mr. Johnson received a bachelor's
degree in electrical engineering from the KirkCaldy Technical College of
Scotland and a master's degree in business administration from the University of
Denver.
Larry D. Murphy, age 57, has been Executive Vice President of Strategic
Initiatives of CoorsTek since October 1999. Prior to joining CoorsTek, he served
as Financial Services Group Banking Director with Andersen Consulting from 1990
to September 1999. From 1987 to 1990, Mr. Murphy was Chief Information Officer
for Union Bank and he served as Chief Executive Officer and President of
Security Pacific Information Services, Inc. from 1980 to 1987. Mr. Murphy
received a bachelor's degree in mathematics from Auburn University and a
master's degree in business administration from National University.
Katherine A. Resler, age 40, has been General Counsel and Secretary of
CoorsTek since September 1999. Ms. Resler was Counsel for ACX from 1998 until
December 1999, its Director of Executive Compensation from 1995 until December
1999 and its Assistant Secretary from 1992 until December 1999. Ms. Resler
received a bachelor's degree in science and a master's degree in business
administration from Colorado State University, and a J.D. from the University of
Denver.
Joseph G. Warren, Jr., age 54, has been Chief Financial Officer and
Treasurer of CoorsTek since August 1999. Mr. Warren was Vice President of
Finance, Chief Financial Officer, Secretary and Treasurer of White Electronics &
Designs, Inc., a semiconductor manufacturer, from 1995 to July 1999. From 1994
to 1995 he served as Vice President and Chief Financial Officer of Axxess
Technologies, Inc. and from 1993 to 1994 served as Secretary, Treasurer and Vice
President of Golden Technologies Company, Inc., a wholly-owned subsidiary of
ACX. From 1992 to 1993, Mr. Warren was President of Coors Ceramicon Designs,
Ltd., a subsidiary of CoorsTek, and from 1985 to 1992 was Vice President of
CoorsTek. Mr. Warren received a bachelor's degree in accounting from Arizona
State University.
(c) IDENTIFICATION OF CERTAIN SIGNIFICANT EMPLOYEES
Jeffrey C. Brines, age 43, has been Vice President of Accounting of
CoorsTek since February 2000. Mr. Brines was the Vice President and Chief
Financial Officer of Golden Genesis Company from 1997 to 1999 and served as
Plant Manager of Golden Photon, Inc. from 1994 to 1996. He holds a bachelor's
and master's degree in business administration from Regis University.
39
<PAGE>
Janet D. Comerford, age 41, has been Vice President of Human Resources and
Environmental Health and Safety of CoorsTek since October 1998. Ms. Comerford
was Regional Human Resources Manager of CoorsTek from 1997 to 1998, served as
Manager of Administration from 1994 to 1997 and was a Production Manager from
1991 to 1994. Ms. Comerford received a bachelor's degree in business
administration from the University of Arizona.
Dean A. Rulis, age 52, has been Vice President of Acquisitions and
Technology of CoorsTek since 1998. He was President and General Manager of
Wilbanks International, Inc. (a wholly-owned subsidiary of CoorsTek) from 1997
to 1998; and President of Golden Technologies Company, Inc. from 1992 to 1997.
He holds a bachelor's degree in mechanical engineering from Purdue University.
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
COMPENSATION PHILOSOPHY
CoorsTek's compensation philosophy is intended to create value for
CoorsTek's stockholders through long-term growth in sales and earnings. The
total compensation package consists of salary, benefits, an annual incentive
opportunity and equity grants and is designed to attract, motivate and retain
the quality of executives needed to successfully lead and manage CoorsTek. This
package intentionally ties a significant portion of the executives' total
compensation to CoorsTek's performance and creation of shareholder value.
<TABLE>
<CAPTION>
Summary Compensation Table
- ------------------------------------------------------------------------------------------------------------
Long-
Term Compensation/
Annual Compensation Awards
----------------------------------------------- --------------------------
Restricted Securities All other
Other Annual Stock Underlying Compen-
Name and Principal Compensation Award(s) Options/ SARs sation
Position Year Salary ($) Bonus ($) (1) ($) (2) ($) (3) (#) ($) (4)
- ---------------------- ---- ---------- ------------- ------------ ---------- ------------- ---------
<S> <C> <C> <C> <C> <C> <C>
Joseph Coors, Jr. (5) 1999 $510,000 $200,000 162,000 $ 14,018
Chairman and CEO 1998 $485,000 $305,550 34,875 $ 12,705
1997 $460,000 $479,780 $3,236 8,438 $ 8,659
John K. Coors 1999 $247,499 $198,000 $6,267 74,250 $ 3,040
President 1998 (6)
1997
Derek C. Johnson 1999 $195,554 $146,520 $ 239 32,344 $ 2,159
Executive Vice 1998 $172,869 $105,000 $5,124 4,500 $ 173
President 1997 $150,454 $159,000 5,625 $ 1,445
Larry D. Murphy 1999 $ 86,584 (7) $ 25,000 (8) 47,813 $101,600 (9)
Executive Vice 1998
President 1997
Joseph G. Warren, Jr. 1999 $ 67,308 (7) $ 91,000 (8) $ 759 28,125 $ 87,383 (9)
Chief Financial 1998
Officer 1997
</TABLE>
(1) Bonuses shown were the total bonuses paid for each respective fiscal year
and were paid 100 percent in cash.
(2) Amounts shown are reimbursements during the year for taxes.
(3) Stock units were granted on October 1, 1994 in an amount approximately
equal to the Company's liability as of January 1, 1994 for the benefit due
certain named executives under salary continuation agreements. The stock
units replace a cash liability of the Company and tie the eligible named
executive's post-retirement benefit to stock value. The stock units are
payable in full upon retirement at age 60 or after. The stock units are 50
percent vested at age 50 with 10 years of service and the remaining 50
percent vests in 5 percent increments between ages 51 and 60. The number of
stock units granted, the percent vested at year end 1999 and the market
value as of January 3, 2000, respectively, were: Joseph Coors, Jr. - 36,018
units, 85 percent vested, valued at $648,324 and John K. Coors - 10,213
units, 0 percent vested, valued at $183,834.
41
<PAGE>
(4) Other Compensation includes the value of term life insurance benefiting the
executive and the employer's contribution to the 401(k) plan, respectively,
as follows: Joseph Coors, Jr. $10,018 and $4,000; John K. Coors $1,440 and
$1,600; Derek C. Johnson $459 and $1,700; Larry D. Murphy $1,445 and $155;
and Joseph G. Warren, Jr. $1,460 and $923.
(5) Joseph Coors, Jr. was President and Chief Executive Officer of ACX
Technologies, Inc. during 1997, 1998 and 1999, and all amounts shown were
paid by ACX.
(6) Mr. Coors was elected President as of October 1998. His total annual salary
and bonus for 1998 did not exceed $100,000.
(7) Mr. Murphy and Mr. Warren were elected officers and became employees of the
Company as of October 1999 and August 1999, respectively. The salary
amounts include actual amounts paid during 1999 and are based on an annual
salary of $402,000 for Mr. Murphy and $240,000 for Mr. Warren.
(8) In addition to the annual cash bonus described in footnote (1) above, Mr.
Murphy and Mr. Warren received a one-time bonus of $25,000 as a result of
their election as an officer of the Company.
(9) Other Compensation includes a one-time allowance for moving expenses as
follows: Mr. Murphy -- $100,000 and Mr. Warren -- $85,000.
OPTION/SAR GRANTS IN LAST FISCAL YEAR
The following table provides information on grants of options to purchase
shares of ACX common stock made during 1999, which were converted to CoorsTek
options as of the distribution date (the "Substituted Options"). The exercise
price for each Substituted Option granted by CoorsTek was based on the
respective relative fair market values of the pre-spin ACX common stock price of
$10.6875 and the CoorsTek common stock post-spin price of $19. All Substituted
Options were granted at the common stock's fair market value on the grant date,
and have the same terms and conditions as the original ACX options, including
the expiration date as specified in the table. All options vest in the event of
a change in control. The option price may be paid in cash, by surrendering
shares owned for more than 6 months, or through irrevocable instructions to a
broker to deduct the option price from the proceeds of the sale.
<TABLE>
<CAPTION>
Individual Grants (1)
-------------------------------------------------------------------
Number of
Securities % of Total
Underlying Options/SARS Grant Date
Options/SARs Granted to Exercise or Present
Granted Employees Base Price Expiration Value
Name (#) (2) in Fiscal Yr. ($/Sh) Date ($)(3)
- ---- ------------ ------------- ----------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Joseph Coors, Jr. 162,000 31.9% $24.4444 2/09/09 $2,280,960
John K. Coors 64,969 $24.4444 2/09/09 $ 914,764
9,281 $22.1111 8/31/09 $ 118,147
------
74,250 14.6%
Derek C. Johnson 27,000 $24.444 2/09/09 $ 380,160
5,344 $22.1111 8/31/09 $ 68,029
------
32,344 6.4%
Larry D. Murphy 47,813 9.4% $17.1111 10/01/09 $ 470,958
Joseph G. Warren, Jr. 28,125 5.5% $22.1111 8/31/09 $ 358,031
</TABLE>
42
<PAGE>
(1) All options are granted at the Common Stock's market value on the grant
date, and each grant has an expiration date as specified in the table. All
options vest in the event of a change in control. The option price may be
paid in cash, by surrendering shares owned for more than 6 months, or
through irrevocable instructions to a broker to deduct the option price
from the proceeds of the sale. Options include the right to have shares
withheld by the Company to pay withholding tax obligations due in
connection with the exercise.
(2) The number of options granted during 1999 was based on 3 times the number
of options normally granted on an annual basis. Therefore, the optionees
are not eligible for another annual grant until 2002. The options granted
in 1999 vest 50 percent if the Company's stock price is $20.00 per share on
average for 30 consecutive trading days and the remaining 50 percent vest
if the Company's stock price is $25.00 per share on average for 30
consecutive trading days. In any event, 100 percent vest upon the fifth
anniversary of the grant date. Each vested increment is exercisable until
the tenth anniversary of the grant date.
(3) Values indicated are an estimate based on the Black-Scholes option pricing
model using the following assumptions: (a) 30.8 percent stock price
volatility based on the average stock price volatility of the companies
included in the S&P Manufacturing (Diversified/Industrials) Index; (b) 6.66
percent risk-free rate of return for the February 1999 grants and 6.65
percent risk-free rate of return for the August 1999 and October 1999
grants; (c) zero dividend yield; (d) anticipated exercising at the end of
the option term; and (e) no adjustment for non-transferability or risk of
forfeiture. The actual value realized will be determined by the excess of
the stock price over the exercise price on the date the option is
exercised. There is no certainty the actual value realized will be at or
near the value estimated by the Black-Scholes option pricing model.
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END
OPTION/SAR VALUES
<TABLE>
<CAPTION>
Number of Securities Value of Unexercised
Underlying Unexercised In-The-Money
Shares Acquired Value Options/SARs Options/SARs
On Exercise Realized At 12/31/99 (#) at 12/31/99 ($) (1)
Name (#) ($) Exercisable Unexercisable Exercisable Unexercisable
- --------------------- --------------- -------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Joseph Coors, Jr. 0 $0 366,656 188,063 $0 $ 0
John K. Coors 0 $0 29,432 91,126 $0 $ 0
Derek C. Johnson 0 $0 6,375 37,219 $0 $ 0
Larry D. Murphy 0 $0 0 47,813 $0 $42,501
Joseph G. Warren, Jr. 0 $0 0 28,125 $0 $ 0
</TABLE>
(1) Value of unexercised options equals market value of the shares ($18.00)
underlying in-the-money options at January 3, 2000, less the exercise
price, times the number of in-the-money options outstanding.
RETIREMENT PLAN
The Board of Directors of ACX approved the spin-off of the assets and
liabilities of the ACX Technologies, Inc. Retirement Plan attributable to
current and former employees of CoorsTek and its subsidiaries into a separate
CoorsTek Retirement Plan ("Retirement Plan"), effective August 31, 1999. The
Retirement Plan's assets are held in trust. The provisions of the Retirement
Plan are substantially the same as the provisions applicable to the CoorsTek
portion of the ACX Retirement Plan. The Retirement Plan is administered by an
administrative committee appointed by the Board of Directors of CoorsTek.
The retirement benefit is generally based on length of service and average
monthly compensation. Compensation taken into account is the total base
compensation, including commissions, overtime pay and amounts deferred by the
employee under Company plans pursuant to ss. 125 and 401(k) of the Internal
Revenue Code of 1986, as amended, but excluding profit sharing pay and cash
bonuses. Average monthly compensation is determined by using the average of the
highest 36 consecutive months out of the last ten years, including years with
ACX and its subsidiaries and Adolph Coors Company and its subsidiaries.
43
<PAGE>
The normal annual retirement benefit equals 1.25% of average annual
compensation times years of service (maximum of 25 years), plus 0.5% of average
annual compensation in excess of covered compensation times years of service
(maximum of 25 years), plus 0.5% of average annual compensation times years of
service in excess of 25 years, plus, beginning in 1996, the sum of 1.5% of bonus
pay for each plan year (not to exceed 25% of base pay). Covered compensation is
generally based on an average of the Social Security taxable wage bases in
effect during the 35 years ending with the calendar year in which the employee's
social security retirement age occurs. Years of service includes years of
service with ACX and its subsidiaries (and Adolph Coors Company and its
subsidiaries with respect to certain employees).
Unreduced normal retirement benefits are payable under the Retirement Plan
at (i) age 65, regardless of years of service or (ii) any time after age 60
provided age plus years of vesting service total at least 90. The benefit
accrued under the pension formula set forth above is in the form of a straight
life annuity. An employee with at least ten years of vesting service who retires
prior to normal retirement date is eligible for a retirement benefit, at reduced
rates, provided the employee is at least age 55.
The following table sets forth annual retirement benefits for
representative years of service and average annual compensation as of December
31, 1999. The amounts shown in the table were calculated without taking into
account an amount for covered compensation; accordingly, the benefits shown
would be subject to a reduction to reflect the payment of Social Security
benefits. Furthermore, the amounts shown in the table were calculated without
adding any amounts related to the portion of the formula which adds, beginning
in 1996, the sum of 1.5% of bonus pay for each plan year (not to exceed 25% of
base pay). This portion of the formula is not based on average annual
compensation.
The maximum permissible benefit under ERISA from the qualified Retirement
Plan for 1999 was $130,000. In addition, the maximum compensation for 1999 that
may be used in determining benefits from the qualified Retirement Plan is
$160,000. CoorsTek's Executive Deferred Compensation Plan provides for the
benefits that are not payable from the Retirement Plan because of these two
limitations. The amounts shown in this table include the benefits payable under
the Executive Deferred Compensation Plan because of these two limitations.
PENSION PLAN
YEARS OF SERVICE
--------------------------------------------------------
REMUNERATION (1) 15 20 25 30 35
- ---------------- -------- -------- -------- -------- --------
$125,000 $ 32,813 $ 43,750 $ 54,688 $ 65,625 $ 68,750
$150,000 39,375 52,500 65,625 78,750 82,500
$175,000 45,938 61,250 76,563 91,875 96,250
$200,000 52,500 70,000 87,500 105,000 110,000
$225,000 59,063 78,750 98,438 118,125 123,750
$250,000 65,625 87,500 109,375 131,250 137,500
$275,000 72,188 96,250 120,313 144,375 151,250
$300,000 78,750 105,000 131,250 157,500 165,000
$325,000 85,313 113,750 142,188 170,625 178,750
$350,000 91,875 122,500 153,125 183,750 192,500
$375,000 98,438 131,250 164,063 196,875 206,250
$400,000 105,000 140,000 175,000 210,000 220,000
$425,000 111,563 148,750 185,938 223,125 233,750
$450,000 118,125 157,500 196,875 236,250 247,500
$475,000 124,688 166,250 207,813 249,375 261,250
$500,000 131,250 175,000 218,750 262,500 275,000
$525,000 137,813 183,750 229,688 275,625 288,750
$550,000 144,375 192,500 240,625 288,750 302,500
$575,000 150,938 201,250 251,563 301,875 316,250
(1) As of fiscal year-end 1999, average annual compensation covered by the
Retirement Plan, which is equal to the highest average salary amount over a
consecutive 36 month period in the last 10 years, and credited years of
service with ACX, including previous compensation and years of service with
CoorsTek and its subsidiaries, for the named executives are as follows:
44
<PAGE>
Joseph Coors, Jr.--$466,808 and 22 years; John K. Coors--$174,152 and 20
years; and Derek C. Johnson-- $125,600 and 14 years. Larry D. Murphy and
Joseph G. Warren, Jr. have been with CoorsTek and/or ACX less than the
above 36-month period.
EMPLOYMENT CONTRACTS, TERMINATION OF EMPLOYMENT, SALARY CONTINUATION AND
CHANGE-IN-CONTROL ARRANGEMENTS
CoorsTek has employment contracts with all of the named executives for a
three year period. Under the contracts, the executives receive an annual salary
as indicated in the Compensation Table, receive a $25,000 signing bonus and are
eligible to participate in equity incentive and annual bonus plans. Larry D.
Murphy received 47,813 CoorsTek nonqualified stock options and Joseph G. Warren,
Jr. received 28,125 CoorsTek nonqualified stock options subject to vesting
conditions based on time and stock performance. Upon termination, the executive
receives: nothing if terminated for cause; the greater of the remaining term or
one year's salary if termination is not for cause but two years salary if
termination is due to a Change in Control (as defined in the stock option and
incentive plan); and a gross-up amount if certain excise tax payments are
triggered.
Compensation received by the named executives upon retirement includes
normal retirement benefits and, for the Chief Executive Officer and the
President, a number of shares of stock to be granted under salary continuation
agreements. The shares will be payable in full upon retirement at age 60 or
after. Additionally, the shares will be 50 percent vested at age 50 with 10
years of service and the remaining 50 percent will vest in 5 percent increments
between ages 51 and 60.
In addition, in the case of a Change in Control of CoorsTek, CoorsTek's
compensation plans will be affected as follows: (1) under the Stock Option and
Incentive Plan, all outstanding options will become exercisable in full and all
stock units will become payable in full and prorated bonuses will be calculated
and paid, if earned; (2) under the Executive Deferred Compensation Plan,
distributions of deferred amounts will be made in a lump sum within 90 days
after the Change in Control; and (3) under the salary continuation agreements,
stock units vest 100% without regard to the executive's age or service. The
definition of change in control for these purposes is as follows: (i) if
beneficial ownership of 50% or more of either the outstanding shares of
CoorsTek's common stock or the combined voting power of CoorsTek's voting stock
is acquired by persons or entities not related to CoorsTek without consent of
the current Board, (ii) upon the election of individuals constituting a majority
of the Board who were either not members prior to their election or not
recommended to the stockholders by the Board, (iii) upon a merger, consolidation
or sale of all or substantially all of CoorsTek's assets, whereupon (a) at least
50% of the outstanding shares of CoorsTek's common stock and of the combined
voting power of voting securities are not held in the same proportion, and by
the same persons as the beneficial owners prior to such event, (b) at least 35%
of CoorsTek's common stock is held by a person that did not hold such amount
prior to the event and (c) a majority of the current Board did not continue to
serve as directors, or (iv) approval by the stockholders of CoorsTek of a
complete liquidation or dissolution of CoorsTek.
45
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS,
DIRECTORS AND EXECUTIVE OFFICERS OF COORSTEK
The following table lists beneficial ownership of CoorsTek common stock as
of March 13, 2000 by owners of more than five percent of CoorsTek common stock,
each of the directors, each of the named executive officers and all directors
and executive officers of CoorsTek as a group. Except as otherwise indicated,
the beneficial owner has sole voting and investment power.
<TABLE>
<CAPTION>
AMOUNT AND NATURE OF
ADDRESS FOR 5% BENEFICIAL PERCENT
NAME OWNERS OWNERSHIP OF CLASS
- ------------------------------------- ---------------------- -------------------- --------
<S> <C> <C> <C>
Adolph Coors, Jr. Trust Adolph Coors Company 700,000 9.8%
(William K. Coors, Jeffrey H. Golden, Colorado 80401
Coors, J. Brad Coors, Joseph
Coors, and Peter H. Coors, co-
trustees with shared voting and
investment power)
Grover C. Coors Trust Adolph Coors Company 681,753 9.6%
(William K. Coors, Jeffrey H. Golden, Colorado 80401
Coors, John K. Coors, Joseph
Coors, and Joseph Coors, Jr.,
Co-trustees with shared voting and
investment power)
May Kistler Coors Trust Adolph Coors Company 431,663 6.0%
(William K. Coors, Jeffrey H. Golden, Colorado 80401
Coors, Joseph Coors, Joseph
Coors, Jr. and Peter H. Coors,
co-trustees with shared voting
and investment power)
Herman F. Coors Trust Adolph Coors Company 358,750 5.0%
(William K. Coors, Jeffrey H. Golden, Colorado 80401
Coors, Joseph Coors, Joseph
Coors, Jr. and Peter H. Coors,
co-trustees with shared voting
and investment power)
Jeffrey H. Coors (1) ACX Technologies, Inc. 455,574 6.4%
Golden, Colorado 80403
Joseph Coors (2) Adolph Coors Company 494,947 6.9%
Golden, Colorado 80401
Peter H. Coors (3) Adolph Coors Company 433,931 6.1%
Golden, Colorado 80401
William K. Coors (4) Adolph Coors Company 463,271 6.5%
Golden, Colorado 80401
</TABLE>
46
<PAGE>
<TABLE>
<CAPTION>
Amount and Nature of
Address for 5% Beneficial Percent
Name Owners Ownership of Class
- --------------------- ----------------------------- -------------------- --------
<S> <C> <C> <C>
Joseph Coors, Jr. (5) CoorsTek, Inc. 806,314 11.3%
16000 Table Mountain Parkway
Golden, Colorado 80403
John K. Coors (6) 30,394 *
David A. Coulter 0 *
John E. Glancy 0 *
John Markle, III 0 *
Donald E. Miller 0 *
Kimberly S. Patmore 0 *
Robert L. Smialek 1,000 *
Derek C. Johnson (7) 10,035 *
Larry D. Murphy 0 *
Joseph G. Warren, Jr. 0 *
Directors and Executive Officers
as a Group (12 persons) 850,693 11.9%
</TABLE>
-------------
* Holds less than 1% of the Common Stock
(1) Includes 431,663 shares held by Jeffrey H. Coors as trustee of the May
Kistler Coors Trust, as to which he shares voting and investment power with
William K. Coors, Joseph Coors, Joseph Coors, Jr. and Peter H. Coors, as
co-trustees.
(2) Includes 431,663 shares held by Joseph Coors as trustee of the May Kistler
Coors Trust, as to which he shares voting and investment power with William
K. Coors, Jeffrey H. Coors, Joseph Coors, Jr. and Peter H. Coors, as
co-trustees. Also includes 62,500 shares held by Joseph Coors as co-trustee
of his revocable trust.
(3) Includes 431,663 shares held by Peter H. Coors as trustee of the May
Kistler Coors Trust, as to which he shares voting and investment power with
William K. Coors, Joseph Coors, Joseph Coors, Jr. and Jeffrey H. Coors, as
co-trustees.
(4) Includes 431,663 shares held by William K. Coors as trustee of the May
Kistler Coors Trust, as to which he shares voting and investment power with
Jeffrey H. Coors, Joseph Coors, Joseph Coors, Jr. and Peter H. Coors, as
co-trustees.
(5) Includes 431,663 shares held by Joseph Coors, Jr. as trustee of the May
Kistler Coors Trust, as to which he shares voting and investment power with
William K. Coors, Jeffrey H. Coors, Joseph Coors and Peter H. Coors, as
co-trustees. Does not include 1,013 shares of CoorsTek common stock
restricted and unissued until the earlier of retirement or death,
disability or termination of employment; or 36,018 shares of common stock
restricted and unissued until retirement. Includes 360,547 shares of
CoorsTek common stock issuable pursuant to options that are currently
exercisable or will be exercisable within 60 days.
(6) Does not include 10,213 shares of CoorsTek common stock restricted and
unissued until retirement. Includes 29,432 shares of CoorsTek common stock
issuable pursuant to options that are currently exercisable or will be
exercisable within 60 days.
(7) Includes 7,875 shares of CoorsTek common stock issuable pursuant to options
that are currently exercisable or will be exercisable within 60 days.
47
<PAGE>
ITEM 13. RELATED PARTY INFORMATION
In the past, ACX and CoorsTek have engaged in various transactions with
each other. These transactions, which included financial support by ACX of
CoorsTek, ceased at the time of the spin-off. ACX no longer has ownership
interest in CoorsTek and no longer provides managerial or financial support to
it. ACX and CoorsTek have entered into contracts that will govern certain
relationships between them following the Distribution, including the
Distribution Agreement and the agreements described below. CoorsTek and ACX
believe that these agreements are at fair market value and are on terms
comparable to those that would have been reached in arm's-length negotiations
had the parties been unaffiliated at the time of the negotiations.
The Distribution Agreement and the other agreements described below are
included as exhibits to CoorsTek's registration statement on Form 10.
TAX SHARING AGREEMENT
ACX, CoorsTek and their respective subsidiaries are parties to a Tax
Sharing Agreement that defines the parties' rights and obligations with respect
to deficiencies and refunds of Federal, state and other taxes relating to the
CoorsTek business for tax years prior to the spin-off and with respect to
certain tax attributes of CoorsTek after the spin-off. In general, ACX is
responsible for filing federal and state tax returns and paying the associated
taxes for periods through the Distribution Date. CoorsTek will reimburse ACX for
the portion of such taxes relating to the CoorsTek business. CoorsTek is
responsible for filing returns and paying taxes related to the CoorsTek business
for periods beginning on or after the Distribution Date. ACX and CoorsTek have
agreed to cooperate with each other and to share information in preparing such
tax returns and in dealing with other tax matters. ACX and CoorsTek will be
responsible for their own taxes other than those described above.
The Tax Sharing Agreement is designed to preserve the status of the
spin-off as a tax-free distribution. CoorsTek has agreed that it will refrain
from engaging in certain transactions during the two-year period following the
spin-off unless it first provides ACX with a ruling from the Internal Revenue
Service or an opinion of tax counsel acceptable to ACX that the transaction will
not adversely affect the tax-free nature of the spin-off. The transactions
subject to these restrictions, which are not expected to materially affect
CoorsTek's operating flexibility, consist of liquidations, mergers or
consolidations of CoorsTek, redemptions by CoorsTek of certain amounts of its
stock, sales of assets out of the ordinary course of business, discontinuance of
certain businesses and certain issuances of CoorsTek's common stock. In
addition, CoorsTek has agreed to indemnify ACX against any tax liability or
other expense it may incur if the spin-off is determined to be taxable as a
result of CoorsTek's breach of any covenant or representation contained in the
Tax Sharing Agreement or CoorsTek's action in effecting such transactions. By
its terms, the Tax Sharing Agreement terminates when the statutes of limitations
under applicable tax laws expire.
TRANSITIONAL SERVICES AND OTHER AGREEMENTS
In the past, ACX and CoorsTek provided services for each other such as
insurance administration, joint purchasing and telecommunications services. To
facilitate an orderly and mutually beneficial transition to the status of two
separate public companies, certain of these services will continue to be
provided by contract on a transitional basis for up to one-year following the
Distribution Date. ACX and CoorsTek and subsidiaries of ACX and CoorsTek, as
applicable, will enter into one or more transitional service agreements to
provide services deemed necessary or desirable by the parties. The agreements
referred to above, individually or collectively, are not material to the
business of CoorsTek.
ACX and CoorsTek have agreed to enter or cause their respective
subsidiaries to enter into a joint defense agreement in the event both ACX (or
one or more of its subsidiaries) and CoorsTek (or one or more of its
subsidiaries) may be involved in litigation, and have entered into an
Environmental Responsibility Agreement allocating responsibility for
environmental liabilities if they should occur. ACX, CoorsTek and their
respective subsidiaries have agreed to give notice and to cooperate with respect
to any such environmental matter and have agreed to indemnify one another for
their respective environmental practices under the environmental responsibility
agreement. Any joint defense agreement would provide for management of the
proceeding and allocation of related costs, liabilities and recoveries. The
stated terms of any joint defense agreement that may be entered into would
typically be tied to the duration of the litigation that is the subject matter
of the agreement.
48
<PAGE>
Part IV
ITEM 14. INDEX TO EXHIBITS; 8-K FILINGS
(a) INDEXES TO EXHIBITS
- -------------------------
NUMBER DOCUMENT DESCRIPTION
- -----------------------------
2 Distribution Agreement^
3.1 Certificate of Incorporation of Registrant*
3.2 Bylaws of Registrant*
4.1 Rights Agreement^
4.2 Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock^
10.1 Description of Officers' Life Insurance Program*
10.2 CoorsTek, Inc. Stock Option and Incentive Plan*
10.3 CoorsTek, Inc. Executive Deferred Compensation Plan*
10.4 Tax Sharing Agreement^
10.5 Environmental Responsibility Agreement^
10.6 Master Transition Materials and Services Agreement^
10.7 Amended Salary Continuation Agreement for John K. Coors*
10.8 Amended Salary Continuation Agreement for Joseph Coors, Jr.*
10.9 Employment Agreement for John K. Coors*
10.10 Employment Agreement for Joseph Coors, Jr.*
10.11 Employment Agreement for Derek C. Johnson*
10.12 Employment Agreement for Larry D. Murphy*
10.13 Employment Agreement for Joseph G. Warren, Jr.*
10.14 CoorsTek Revolving Credit and Term Loan Agreement
21 List of Subsidiaries
23 Consents
27 Financial Data Schedule
- --------
^ Filed with amendment to registration statement on Form 10 filed December 2,
1999
* Filed with amendment to registration statement on Form 10 filed December
14, 1999
Reports on Form 8-K
- -------------------
Not applicable.
49
<PAGE>
Signatures
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
CoorsTek, Inc.
Date: March 30, 2000 By /s/Joseph Coors, Jr.
--------------------------- ------------------------
Joseph Coors, Jr.
Chairman and Chief Executive Officer
Date: March 30, 2000 By /s/John K. Coors
--------------------------- --------------------
John K. Coors
President
Date: March 30, 2000 By /s/Joseph G. Warren, Jr.
--------------------------- ----------------------------
Joseph G. Warren, Jr.
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the date indicated.
Date: March 30, 2000 By /s/Joseph Coors, Jr.
--------------------------- ------------------------
Joseph Coors, Jr.
Chairman of the Board of Directors
and Chief Executive Officer
and Director
Date: March 30, 2000 By /s/John K. Coors
--------------------------- --------------------
John K. Coors
President and Director
Date: March 30, 2000 By /s/David A. Coulter
--------------------------- -----------------------
David A. Coulter
Director
Date: March 30, 2000 By /s/John E. Glancy
--------------------------- ---------------------
John E. Glancy
Director
Date: March 30, 2000 By /s/John Markle, III
--------------------------- -----------------------
John Markle, III
Director
Date: March 30, 2000 By /s/Donald E. Miller
--------------------------- -----------------------
Donald E. Miller
Director
Date: March 30, 2000 By /s/Kimberly S. Patmore
--------------------------- --------------------------
Kimberly S. Patmore
Director
Date: March 30, 2000 By /s/Robert L. Smialek
--------------------------- ------------------------
Robert L. Smialek
Director
50
REVOLVING CREDIT AND TERM LOAN AGREEMENT
among
COORSTEK, INC.,
Borrower
BANC OF AMERICA SECURITIES LLC,
Sole Lead Arranger, Book Manager, and Syndication Agent
BANK OF AMERICA, N.A.,
Administrative Agent,
ABN AMRO BANK, N.V.,
Documentation Agent,
the Co-Agents defined herein,
and
THE LENDERS NAMED HEREIN,
Lenders
$270,000,000
SENIOR CREDIT FACILITIES
Dated as of December 6, 1999,
but effective as of December 13, 1999
<PAGE>
TABLE OF CONTENTS
-----------------
Page
SECTION 1 DEFINITIONS AND TERMS............................................1
1.1 Definitions......................................................1
1.2 Number and Gender of Words; Other References....................21
1.3 Accounting Principles...........................................22
SECTION 2 BORROWING PROVISIONS............................................22
2.1 Revolver Facility...............................................22
2.2 Term Loan A Facility............................................22
2.3 Term Loan B Facility............................................22
2.4 LC Subfacility..................................................23
2.5 Swing Line Subfacility..........................................26
2.6 Terminations or Reductions of Commitments.......................27
2.7 Borrowing Procedure.............................................28
SECTION 3 TERMS OF PAYMENT................................................29
3.1 Loan Accounts, Notes, and Payments..............................29
3.2 Interest and Principal Payments.................................30
3.3 Prepayments.....................................................31
3.4 Interest Options................................................33
3.5 Quotation of Rates..............................................33
3.6 Default Rate....................................................33
3.7 Interest Recapture..............................................33
3.8 Interest Calculations...........................................33
3.9 Maximum Rate....................................................34
3.10 Interest Periods................................................34
3.11 Conversions.....................................................34
3.12 Order of Application............................................35
3.13 Sharing of Payments, Etc........................................36
3.14 Offset..........................................................36
3.15 Booking Borrowings..............................................36
3.16 Euro Provisions.................................................36
SECTION 4 CHANGE IN CIRCUMSTANCES.........................................37
4.1 Increased Cost and Reduced Return...............................37
4.2 Limitation on Types of Loans....................................38
4.3 Illegality......................................................38
4.4 Treatment of Affected Loans.....................................39
4.5 Compensation....................................................39
4.6 Taxes...........................................................39
SECTION 5 FEES............................................................41
5.1 Treatment of Fees...............................................41
5.2 Fees of Administrative Agent and Arranger.......................41
5.3 Commitment Fees.................................................42
5.4 LC Fees.........................................................42
d-699365.10 (i) CoorsTek Credit Agreement
-------------------------
<PAGE>
SECTION 6. SECURITY; GUARANTIES............................................42
6.1 Collateral......................................................42
6.2 Guaranties......................................................43
6.3 Future Liens....................................................43
6.4 Release of Collateral...........................................43
6.5 Negative Pledge.................................................44
SECTION 7 CONDITIONS PRECEDENT............................................44
7.1 Conditions Precedent to Closing.................................44
7.2 Conditions Precedent to Initial Borrowing.......................44
7.3 Conditions Precedent to a Permitted Acquisition.................44
7.4 Conditions Precedent to Each Borrowing..........................45
7.5 Borrowing Notices and LC Requests...............................45
SECTION 8 REPRESENTATIONS AND WARRANTIES..................................45
8.1 Purpose of Credit Facilities....................................45
8.2 Existence, Good Standing, and Authority.........................46
8.3 Subsidiaries; Capital Stock.....................................46
8.4 Authorization and Contravention.................................46
8.5 Binding Effect..................................................47
8.6 Financial Statements............................................47
8.7 Litigation, Claims, Investigations..............................47
8.8 Taxes...........................................................47
8.9 Environmental Matters...........................................47
8.10 Employee Benefit Plans..........................................48
8.11 Properties; Liens; Leases.......................................48
8.12 Government Regulations..........................................48
8.13 Transactions with Affiliates....................................49
8.14 Debt............................................................49
8.15 Material Agreements.............................................49
8.16 Insurance.......................................................49
8.17 Labor Matters...................................................49
8.18 Solvency........................................................49
8.19 Intellectual Property...........................................49
8.20 Compliance with Laws............................................50
8.21 The Spinoff.....................................................50
8.22 Permitted Acquisitions..........................................50
8.23 Regulation U....................................................51
8.24 Tradename.......................................................51
8.25 Year 2000 Compliance............................................51
8.26 No Default......................................................51
8.27 Full Disclosure.................................................51
8.28 Perfection of Security Interests................................52
SECTION 9 COVENANTS.......................................................52
9.1 Use of Proceeds.................................................52
9.2 Books and Records...............................................52
9.3 Items to be Furnished...........................................52
9.4 Inspections.....................................................54
d-699365.10 (iii) CoorsTek Credit Agreement
-------------------------
<PAGE>
9.5 Taxes...........................................................54
9.6 Payment of Obligations..........................................54
9.7 Maintenance of Existence, Assets, and Business..................54
9.8 Insurance.......................................................55
9.9 Preservation and Protection of Rights...........................55
9.10 Employee Benefit Plans..........................................55
9.11 Environmental Laws..............................................55
9.12 Debt and Guaranties.............................................56
9.13 Liens...........................................................56
9.14 Transactions with Affiliates....................................58
9.15 Compliance with Laws and Documents..............................58
9.16 Permitted Acquisitions, Subsidiary Guaranties,
and Collateral Documents........................................58
9.17 Assignment......................................................58
9.18 Fiscal Year and Accounting Methods..............................58
9.19 Government Regulations..........................................58
9.20 Loans, Advances, and Investments................................58
9.21 Distributions...................................................59
9.22 Restrictions on Subsidiaries....................................59
9.23 Sale of Assets..................................................59
9.24 Sale-Leaseback Financings.......................................60
9.25 Mergers and Dissolutions; Sale of Capital Stock.................60
9.26 New Business....................................................60
9.27 Affiliate Subordination Agreements..............................60
9.28 Amendments to Documents.........................................60
9.29 Year 2000 Compliance............................................61
9.30 Financial Covenants.............................................61
SECTION 10 DEFAULT.........................................................62
10.1 Payment of Obligation...........................................62
10.2 Covenants.......................................................62
10.3 Debtor Relief...................................................62
10.4 Judgments and Attachments.......................................63
10.5 Government Action...............................................63
10.6 Misrepresentation...............................................63
10.7 Change of Control...............................................63
10.8 Default Under Other Debt and Agreements.........................63
10.9 Employee Benefit Plans..........................................63
10.10 Validity and Enforceability of Loan Documents...................63
10.11 Environmental Liability.........................................64
10.12 Pledged Stock; Collateral Documents.............................64
10.13 LCs.............................................................64
SECTION 11 RIGHTS AND REMEDIES.............................................64
11.1 Remedies Upon Default...........................................64
11.2 Company Waivers.................................................65
11.3 Performance by Administrative Agent.............................65
11.4 Delegation of Duties and Rights.................................65
11.5 Not in Control..................................................65
11.6 Course of Dealing...............................................66
d-699365.10 (iii) CoorsTek Credit Agreement
-------------------------
11.7 Cumulative Rights...........................................66
11.8 Application of Proceeds.....................................66
11.9 Certain Proceedings.........................................66
11.10 Expenditures by Lenders.....................................66
11.11 Judgment Currency...........................................66
11.12 INDEMNIFICATION.............................................67
SECTION 12 AGREEMENT AMONG LENDERS.....................................67
12.1 Administrative Agent........................................67
12.2 Expenses....................................................69
12.3 Proportionate Absorption of Losses..........................69
12.4 Delegation of Duties; Reliance..............................69
12.5 Limitation of Liability.....................................70
12.6 Default; Collateral.........................................71
12.7 Limitation of Liability.....................................72
12.8 Relationship of Lenders.....................................72
12.9 Benefits of Agreement.......................................72
12.10 Obligations Several.........................................72
12.11 Financial Hedges............................................72
12.12 Agents......................................................73
SECTION 13 MISCELLANEOUS...............................................73
13.1 Headings....................................................73
13.2 Nonbusiness Days............................................73
13.3 Notices.....................................................73
13.4 Form and Number of Documents................................74
13.5 Exceptions to Covenants.....................................74
13.6 Survival....................................................74
13.7 Governing Law...............................................74
13.8 Invalid Provisions..........................................74
13.9 Entirety....................................................74
13.10 Jurisdiction; Venue; Service of Process; Jury Trial.........74
13.11 Amendments, Consents, Conflicts, and Waivers................75
13.12 Multiple Counterparts.......................................76
13.13 Successors and Assigns; Assignments and Participations......76
13.14 Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances.......................................79
d-699365.10 (iv) CoorsTek Credit Agreement
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SCHEDULES AND EXHIBITS
----------------------
Schedule 2.1 - Lenders and Commitments
Schedule 7.1 - Conditions Precedent to Closing
Schedule 7.2 - Conditions Precedent to Initial Borrowing
Schedule 7.3 - Conditions Precedent to Permitted Acquisition
Schedule 8.3 - Subsidiaries
Schedule 8.8 - Taxes
Schedule 8.24 - Tradenames
Schedule 8.28 - Jurisdictions for filing Financing Statements
Schedule 9.12 - Existing Debt
Schedule 9.13 - Existing Liens
Schedule 9.20 - Existing Investments
Exhibit A-1 - Form of Revolver Note
Exhibit A-2 - Form of Term Loan A Note
Exhibit A-3 - Form of Term Loan B Note
Exhibit A-4 - Form of Swing Line Note
Exhibit B-1 - Form of Borrowing Notice
Exhibit B-2 - Form of Conversion Notice
Exhibit B-3 - Form of LC Request
Exhibit C - Form of Guaranty
Exhibit D - Form of Pledge, Assignment, and Security Agreement
Exhibit E-1 - Form of Compliance Certificate
Exhibit E-2 - Form of Permitted Acquisition Compliance Certificate
Exhibit E-3 - Form of Permitted Acquisition Loan Closing Certificate
Exhibit F - Form of Assignment and Acceptance Agreement
Exhibit G-1 - Form of Opinion of Counsel of Borrower
Exhibit G-2 - Form of Opinion of Local Counsel
Exhibit G-3 - Form of Opinion of Foreign Counsel
Exhibit H - Form of Affiliate Subordination Agreement
d-699365.10 (v) CoorsTek Credit Agreement
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
----------------------------------------
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT is entered into as of
December 6, 1999, among COORSTEK, INC., a Delaware corporation ("Borrower"),
Lenders (hereinafter defined), and BANK OF AMERICA, N.A., as Administrative
Agent (hereinafter defined), for itself and the other Lenders, ABN AMRO BANK,
N.V., as Documentation Agent (hereinafter defined), and the Co-Agents
(hereinafter defined).
RECITALS
A. On the Closing Date, ACX Technologies, Inc. ("ACX") owns 100% of the
stock of Borrower. On or prior to the Initial Borrowing Date, ACX will
distribute 100% of the shares of Borrower's common stock to the shareholders of
ACX in a tax-free spinoff (the "SPINOFF").
B. In connection with the Spinoff, Borrower intends to pay $200,000,000
to ACX in the form of one or more of the following: (i) to repay indebtedness
owed to ACX, (ii) to fund a Distribution to ACX, or (iii) to pay ACX for an
inter-company transfer of assets.
C. Borrower has requested that Lenders extend credit to Borrower in the
form of this Revolving Credit and Term Loan Agreement (the "AGREEMENT"),
providing for a revolving loan facility in the aggregate principal amount of
$95,000,000, and two term loan facilities in the aggregate principal amounts of
$85,000,000 and $90,000,000, to enable, among other things, the consummation of
the Spinoff and the payments to ACX associated therewith.
D. Upon and subject to the terms and conditions of this Agreement,
Lenders are willing to extend such credit to Borrower.
Accordingly, in consideration of the mutual covenants contained herein, the
parties hereto agree, as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 DEFINITIONS. As used herein:
ACQUISITION means any transaction or series of related transactions for the
purpose of, or resulting in, directly or indirectly, (a) the acquisition by any
Company of all or substantially all of the assets of a Person or of any business
or division of a Person, (b) the acquisition by any Company of more than 50% of
any class of Voting Stock (or similar ownership interests) of any Person
(provided that, formation or organization of any entity shall not constitute an
"Acquisition" to the extent that the amount of the loan, advance, investment, or
capital contribution in such entity constitutes a permitted investment under
Section 9.20); or (c) a merger, consolidation, amalgamation, or other
combination by any Company with another Person if a Company is the surviving
entity; provided that, in any merger involving Borrower, Borrower must be the
surviving entity.
ACX means ACX Technologies, Inc., a Colorado corporation.
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar
d-699365.10 CoorsTek Credit Agreement
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Rate Borrowing for such Interest Period by (b) 1 minus the Reserve Requirement
for such Eurodollar Rate Borrowing for such Interest Period.
ADMINISTRATIVE AGENT means Bank of America, N.A. and its permitted
successors or assigns as "Administrative Agent" for Lenders under this
Agreement.
AFFILIATE of any Person means any other individual or entity who directly
or indirectly controls, or is controlled by, or is under common control with,
such Person, and, for purposes of this definition only, "control," "controlled
by," and "under common control with" mean possession, directly or indirectly, of
the power to direct or cause the direction of management or policies (whether
through ownership of voting securities, by contract, or otherwise).
AGENTS means, collectively, the Administrative Agent, the Documentation
Agent, and the Co-Agents.
AGREEMENT means this Revolving Credit and Term Loan Agreement (as the same
may hereafter be amended, modified, supplemented, or restated from time to
time).
ALTERNATIVE CURRENCY means Belgian Francs, Deutsche Marks, Dutch Gilders,
EMU, French Francs, Italian Lira, Japanese Yen, Pounds Sterling, Spanish
Pesetas, Swiss Francs, and any other currency that Administrative Agent has
notified Borrower, upon its request, that Administrative Agent and Lenders have
determined to be freely transferable and convertible into Dollars, so long as
(a) such currency is dealt with in the London interbank deposit market, (b) such
currency is freely transferable and convertible into Dollars in the London
foreign exchange market, (c) no Governmental Authority in the country of issue
of such currency is required to permit use of such currency by Administrative
Agent for issuing LCs or honoring drafts presented under LCs in such currency,
and (d) there is no restriction or prohibition under any Law against the use of
such currency for such purposes. If, after the issuance of an LC in an
Alternative Currency, the Alternative Currency denominated in such LC ceases to
be lawful currency freely-convertible into Dollars and is replaced by the Euro,
then thereafter the Alternative Currency for purposes of such LC shall be the
Euro.
APPLICABLE LENDING OFFICE means, for each Lender and for each Type of
Borrowing, the "Lending Office" of such Lender (or an Affiliate of such Lender)
designated on SCHEDULE 2.1 attached hereto or such other office that such Lender
(or an Affiliate of such Lender) may from time to time specify to Administrative
Agent and Borrower by written notice in accordance with the terms hereof.
APPLICABLE MARGIN means either:
(a) Solely with respect to Borrowings under the Revolver Facility and the
Term Loan A Facility,
(i) on any date of determination occurring on or prior to June
30, 2000, 0.500% for Base Rate Borrowings and 2.000% for Eurodollar Rate
Borrowings; or
(ii) on any date of determination occurring after June 30, 2000,
the percentage per annum set forth in the table below for the Type of
Borrowing that corresponds to the Leverage Ratio at such date of
determination, as calculated based on the quarterly Compliance Certificate
of Borrower most recently delivered pursuant to Section 9.3 hereof:
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================================================================================
APPLICABLE MARGIN
LEVERAGE RATIO ======================================
BASE RATE EURODOLLAR RATE
BORROWINGS BORROWINGS
================================================================================
Less than 2.50:1.0 0% 1.500%
- --------------------------------------------------------------------------------
Greater than or equal to 2.50:1.0,
but less than 3.00:1.0 0.250% 1.750%
- --------------------------------------------------------------------------------
Greater than or equal to 3.00:1.0,
but less than 3.25:1.0 0.500% 2.000%
- --------------------------------------------------------------------------------
Greater than or equal to 3.25:1.0 0.750% 2.250%
- --------------------------------------------------------------------------------
and
(b) Solely with respect to Borrowings under the Term Loan B Facility,
(i) on any date of determination occurring on or prior to June
30, 2000, 1.250% for Base Rate Borrowings and 2.750% for Eurodollar Rate
Borrowings; or
(ii) on any date of determination occurring after June 30, 2000,
the percentage per annum set forth in the table below for the Type of
Borrowing that corresponds to the Leverage Ratio at such date of
determination, as calculated based on the quarterly Compliance Certificate
of Borrower most recently delivered pursuant to Section 9.3 hereof:
================================================================================
APPLICABLE MARGIN
LEVERAGE RATIO ======================================
BASE RATE EURODOLLAR RATE
BORROWINGS BORROWINGS
================================================================================
Less than 2.00:1.0 1.000% 2.500%
- --------------------------------------------------------------------------------
Greater than or equal to 2.00:1.0 1.250% 2.750%
- --------------------------------------------------------------------------------
The provisions in ITEMS (a)(ii) and (b)(ii) preceding are further subject to,
the following:
(i) With respect to any adjustments in the Applicable Margin as a
result of changes in the Leverage Ratio, such adjustment shall be effective
commencing on the second Business Day after the delivery of Financial
Statements (and the related Compliance Certificate) pursuant to SECTIONS
9.3(a) and 9.3(b) or the most recent Permitted Acquisition Compliance
Certificate for a Permitted Acquisition, as the case may be; and
(ii) If Borrower fails to timely furnish to Lenders the Financial
Statements and related Compliance Certificates as required to be delivered
pursuant to SECTIONS 9.3(a) and 9.3(b), and such failure shall not be
remedied within five days after written notice thereof from Administrative
Agent or any Lender, then (unless the Default Rate has been effected by
Required Lenders pursuant to SECTION 3.6) the Applicable Margin shall be
the maximum Applicable Margin for such Facility specified in the tables
above.
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APPLICABLE MARGIN for Commitment Fees means either:
(a) on any date of determination occurring on or prior to the Initial
Borrowing Date, 0.250%; or
(b) on any date of determination occurring after the Initial Borrowing
Date, the percentage set forth in the table below which corresponds, on any date
of determination, with the Leverage Ratio at such date of determination, as
calculated based on the quarterly Compliance Certificates of Borrower most
recently delivered pursuant to SECTION 9.3 hereof.
================================================================================
LEVERAGE RATIO APPLICABLE MARGIN FOR
COMMITMENT FEES
================================================================================
Less than 3.00:1.0 0.375%
- --------------------------------------------------------------------------------
Greater than or equal to 3.00:1.0 0.500%
- --------------------------------------------------------------------------------
The provision in ITEM (b) preceding is further subject to, the following:
(i) With respect to any adjustments in the Applicable Margin for
Commitment Fees as a result of changes in the Leverage Ratio, such
adjustment shall be effective commencing on the second Business Day after
the delivery of Financial Statements (and the related Compliance
Certificate) pursuant to SECTIONS 9.3(a) and 9.3(b) or the most recent
Permitted Acquisition Compliance Certificate for a Permitted Acquisition,
as the case may be; and
(ii) If Borrower fails to timely furnish to Lenders the Financial
Statements and related Compliance Certificates as required to be delivered
pursuant to SECTIONS 9.3(a) and 9.3(b), and such failure shall not be
remedied within five days after written notice thereof from the
Administrative Agent or any Lender, then the Applicable Margin for
Commitment Fees shall be the maximum Applicable Margin specified in the
table above.
APPROVED FUND means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in loans, any other fund that invests
in loans and is managed or advised by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
ARRANGER means Banc of America Securities LLC and its successors and
assigns, in its capacity as sole lead arranger and book manager under the Loan
Documents.
ASSUMED TAXES means (a) with respect to any Equity Issuance, an amount
equal to such incremental annual increase in franchise or other similar Taxes as
Borrower estimates in good faith shall be payable as a result of such Equity
Issuance, and (b) with respect to any Significant Sale, an amount equal to such
percentage (as Borrower estimates in good faith to be its effective rate) of the
taxable gain for federal and state income tax purposes with respect to such
sale.
AUTHORIZATIONS means all filings, recordings, and registrations with, and
all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, and permits from, any Governmental
Authority.
d-699365.10 4 CoorsTek Credit Agreement
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BANK OF AMERICA means Bank of America, N.A., in its individual capacity as
a Lender, and its successors and assigns.
BASE RATE means, for any day, the rate per annum equal to the higher of (a)
the Federal Funds Rate for such day plus one-half of one percent (.5%) and (b)
the Prime Rate for such day. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Rate shall be effective on the effective date of
such change in the Prime Rate or the Federal Funds Rate.
BASE RATE BORROWING means a Borrowing bearing interest at the sum of the
Base Rate plus the Applicable Margin for Base Rate Borrowings for the relevant
Facility.
BELGIAN FRANCS and the abbreviation Bfr mean the lawful currency of the
Kingdom of Belgium.
BORROWER means CoorsTek, Inc, a Delaware corporation, together with any
successor or assign of Borrower permitted by the Loan Documents.
BORROWING means any amount disbursed (a) by one or more Lenders to Borrower
under the Loan Documents (under the Revolver Facility, the LC Subfacility, the
Swing Line Subfacility, the Term Loan A Facility, or the Term Loan B Facility),
whether such amount constitutes an original disbursement of funds, the
continuation of an amount outstanding, or payment of a draft under an LC, or (b)
by any Lender in accordance with, and to satisfy the obligations of any Company
under, any Loan Document.
BORROWING DATE is defined in SECTION 2.7(a).
BORROWING NOTICE means a request for Borrowing made pursuant to SECTION
2.7(a), substantially in the form of EXHIBIT B-1.
BUSINESS DAY means (a) for all purposes, any day other than Saturday,
Sunday, and any other day on which commercial banking institutions are required
or authorized by Law to be closed in Dallas, Texas, or Denver, Colorado, and (b)
in addition to the foregoing, in respect of any Eurodollar Rate Borrowing, a day
on which dealings in Dollars are conducted in the London interbank market and
commercial banks are open for international business in London, England.
CAPITAL EXPENDITURES means an expenditure for the acquisition,
construction, improvement, or replacement of land, buildings, equipment, or
other fixed or capital assets or leaseholds (excluding expenditures properly
chargeable to repairs or maintenance) including any obligations to pay rent or
other amounts under a Capital Lease; provided, however, that Capital
Expenditures shall not include Permitted Acquisitions.
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CASH EQUIVALENTS means:
(a) Readily marketable, direct, full faith and credit obligations
of the United States of America, or obligations guaranteed by the full
faith and credit of the United States of America, maturing within not more
than one year from the date of acquisition;
d-699365.10 5 CoorsTek Credit Agreement
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(b) Short term certificates of deposit and time deposits, which
mature within one year from the date of issuance issued by a United States
federal or state chartered commercial bank of recognized standing, which
has capital and unimpaired surplus in excess of $500,000,000 and which bank
or its holding company has a short-term commercial paper rating of at least
"A-1" or the equivalent by S&P or at least "P-1" or the equivalent by
Moody's;
(c) Commercial paper maturing in 365 days or less from the date
of issuance and rated at least "P-1" or the equivalent by Moody's or "A-1"
or the equivalent by S&P;
(d) Debt instruments of a domestic i ssuer which mature in one
year or less and which are rated "A" or better by Moody's or S&P on the
date of acquisition of such investment;
(e) Demand deposit accounts which are maintained in the ordinary
course of business; and
(f) The securities of any investment company registered under the
Investment Company Act of 1940 that is a "money market fund" governed by
the regulations of the Securities and Exchange Commission, which invests in
any of the above or securities of companies which are rated at least "A" by
S&P or "A2" by Moody's.
CLOSING DATE means the date upon which this Agreement has been executed by
Borrower, Lenders, and Administrative Agent and all conditions precedent
specified in or required by Section 7.1 have been satisfied or waived in
accordance with SECTION 13.11.
CO-AGENTS means, collectively, Bank One, N.A., Dresdner Bank AG, New York
and Grand Cayman Branches, Norwest Bank Colorado, N.A., and U.S. Bank National
Association.
CODE means the Internal Revenue Code of 1986, as amended, together with the
rules and regulations promulgated thereunder.
COLLATERAL has the meaning set forth in SECTION 6.1.
COLLATERAL DOCUMENTS means all security agreements, Pledge Agreements,
financing statements, assignments of partnership interests, and Guaranties at
any time delivered to Administrative Agent to create or evidence Liens securing
the Obligation, together with all reaffirmations, amendments, and modifications
thereof or supplements thereto.
COMMITMENT PERCENTAGE means, at any date of determination, for any Lender
with respect to a particular Facility, the proportion (stated as a percentage)
that its Committed Sum for such Facility bears to the aggregate Committed Sums
of all Lenders for such Facility.
COMMITTED SUM means, for any Lender with respect to a particular Facility,
at any date of determination, the amount stated beside each Lender's name under
the heading for that Facility on the most-recently amended SCHEDULE 2.1 to this
Agreement (which amount is subject to increase, reduction, or cancellation in
accordance with this Agreement).
COMPANIES means, at any date of determination thereof, Borrower and each of
its Subsidiaries; and COMPANY means, on any date of determination, Borrower or
any of its Subsidiaries.
d-699365.10 6 CoorsTek Credit Agreement
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COMPLIANCE CERTIFICATE means a certificate signed by a Responsible Officer,
substantially in the form of EXHIBIT E-1.
CONSEQUENTIAL LOSS means any amount due pursuant to SECTION 4.5.
CONSOLIDATED NET INCOME means, for any period of determination, the net
income of the Companies, determined on a consolidated basis, after Taxes, but
excluding, (i) income from discontinued operations, (ii) cumulative effect of
changes in accounting principles, (iii) extraordinary items, and (iv) any equity
interests of the Companies in the unremitted earnings of any Person that is not
a Subsidiary.
CONSOLIDATED NET WORTH means, on any date of determination, the total
shareholder's equity of the Companies as the same would appear on a consolidated
balance sheet of the Companies prepared in accordance with GAAP as of such date
of determination, but excluding any stock, common or preferred, not both issued
and outstanding.
CONVERSION NOTICE means a request pursuant to SECTION 3.11, substantially
in the form of EXHIBIT B-2.
CURRENT FINANCIALS means, at the time of any determination thereof, the
more recently delivered to Lenders of either (a) (i) the audited Financial
Statements for the fiscal years ended December 31, 1996 (no balance sheet
included), December 31, 1997, and December 31, 1998, calculated on a
consolidated basis for the Companies; and (ii) the unaudited Financial
Statements for the six-month period ended June 30, 1999, calculated on a
consolidated basis for the Companies, together with calculations showing pro
forma adjustments to such Financial Statements reflecting the Spinoff; or (b)
the Financial Statements required to be delivered under SECTIONS 9.3(a) or
9.3(b), as the case may be, prepared on a consolidated basis for the Companies.
DEBT means (without duplication), for any Person, the sum of the following:
(a) all liabilities, obligations, and indebtedness of such Person which in
accordance with GAAP should be classified upon such Person's balance sheet as
liabilities in respect of (i) money borrowed, including, without limitation, the
Principal Debt and obligations evidenced by bonds, notes, debentures, or other
similar instruments, (ii) obligations of such Person under Capital Leases, (iii)
obligations of such Person under non-compete agreements, and (iv) obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations, and obligations under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business not more than 90 days past due); (b) all obligations of the type
referred to in CLAUSE (a) preceding of other Persons for the payment of which
such Person is responsible or liable as obligor, guarantor, or otherwise (each
such guaranty to constitute Debt in an amount equal to the amount of such other
Person's Debt so guaranteed); (c) all obligations of the type referred to in
CLAUSES (a) and (b) preceding of other Persons secured by any Lien on any
property or asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the obligation so secured; (d)
the face amount of all letters of credit and banker's acceptances issued for the
account of such Person, and without duplication, all drafts drawn and unpaid
thereunder; (e) net payments under Financial Hedges; and (f) all Redeemable
Preferred Stock of any Company.
DEBT ISSUANCE means Debt of any Company issued or incurred after the
Closing Date, other than Permitted Debt contemplated by SECTIONS 9.12(a) through
(h).
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
d-699365.10 7 CoorsTek Credit Agreement
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transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
DECLINING B LENDER is defined in SECTION 3.3(e).
DEFAULT is defined in SECTION 10.
DEFAULT RATE means a per annum rate of interest equal from day to day to
the lesser of (a) the sum of the Base Rate plus the highest Applicable Margin
for Base Rate Borrowings plus 2.0% and (b) the Maximum Rate.
DEUTSCHE MARKS and the abbreviation DM mean the lawful currency of the
Federal Republic of Germany.
DISTRIBUTION for any Person means, with respect to any shares of any
capital stock or other equity securities issued by such Person, (a) the
retirement, redemption, purchase, or other acquisition for value of any such
securities, (b) the declaration or payment of any dividend on or with respect to
any such securities, and (c) any other payment by such Person with respect to
such securities.
DISTRIBUTION AGREEMENT means the Distribution Agreement among ACX,
Borrower, and shareholders of ACX, dated as of December 1, 1999, effecting the
Spinoff, together with all amendments or modifications thereto in form and terms
acceptable to Administrative Agent.
DOCUMENTATION AGENT means ABN AMRO Bank, N.V. and its permitted successors
and assigns as "Documentation Agent" under this Agreement.
DOLLAR EQUIVALENT, at any time, means (a) any amount denominated in Dollars
and (b) for any amount denominated in an Alternative Currency, an amount of
Dollars into which Administrative Agent determines that it could convert the
relevant amount of that Alternative Currency by using the applicable-quoted-spot
rate reported on the appropriate page of the Reuters Screen at 11:00 a.m.
(London time) three Business Days before the day on which the calculation is
made.
DOLLARS and the symbol $ means lawful money of the United States of
America.
Domestic Subsidiary means a Subsidiary of Borrower that is organized or
incorporated under the Laws of a jurisdiction of the United States.
DUTCH GILDERS and the abbreviation Dfl means lawful currency of the Kingdom
of The Netherlands.
EBITDA means, for the Companies on a consolidated basis, as calculated at
any date of determination for a specified Rolling Period, the sum (without
duplication, without giving effect to any extraordinary losses or gains during
such Rolling Period and adjusted as required to take into account any minority
ownership interest) of (a) net income or deficit during such Rolling Period,
plus (b) to the extent already deducted in computing such net income (i) income
Tax expense during such Rolling Period, (ii) Interest Expense during such
Rolling Period, (iii) depreciation, amortization, and other non-cash-expense
items during such Rolling Period, and (iv) any losses on the sale or disposition
of assets (other than in the ordinary course of business) during such Rolling
Period, less (c) all other non-cash additions to income.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of a Lender (so long
as such assignment is not made in conjunction with the sale of such Affiliate);
(c) an Approved Fund of any Lender; and (d) any other Person approved by
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Administrative Agent and, unless a Default or Potential Default has occurred and
is continuing at the time any assignment is effected in accordance with, by
Borrower (such approvals will not be unreasonably withheld or delayed by
Borrower or Administrative Agent, and any required approval of Borrower shall be
deemed given if Administrative Agent and the assigning Lender receive no
objection from Borrower within seven Business Days after notice of such proposed
assignment has been provided by the assigning Lender to Borrower); provided,
however, that neither Borrower nor any Affiliate of Borrower shall qualify as an
Eligible Assignee. Borrower's refusal to consent to an assignment on the basis
of an increase in borrowing costs shall not be considered unreasonable.
EMPLOYEE PLAN means an employee pension benefit plan covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
and established or maintained currently or within the past six years by Borrower
or any ERISA Affiliate, but not including any Multiemployer Plan.
EMU the European economic and monetary union.
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
protection of air, groundwater, surface water, soil, or other environmental
media, (b) the protection of the environment, including natural resources, (c)
the regulation of any Hazardous Substances, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
ss.9601 et seq.) ("CERCLA"), the Clean Air Act (42 U.S.C. ss.7401 et seq.), the
Federal Water Pollution Control Act, as amended by the Clean Water Act (33
U.S.C. ss.1251 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C. ss.136 et seq.), the Emergency Planning and Community Right to Know
Act of 1986 (42 U.S.C. ss.11001 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. ss.1801 et seq.), the National Environmental
Policy Act of 1969 (42 U.S.C. ss.4321 et seq.), the Oil Pollution Act (33 U.S.C.
ss.2701 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
ss.6901 et seq.), the Rivers and Harbors Act (33 U.S.C. ss.401 et seq.), the
Safe Drinking Water Act (42 U.S.C. ss.201 and ss.300f et seq.), the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976
and the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. ss.6901 et
seq.), the Toxic Substances Control Act (15 U.S.C. ss.2601 et seq.), and
analogous state and local Laws, as any of the foregoing may have been and may be
amended or supplemented from time to time, and any analogous future enacted or
adopted Law, or (d) the Release or threatened Release of Hazardous Substances.
ENVIRONMENTAL LIABILITY means any obligation, liability (including, without
limitation, any strict liability), loss, fine, penalty, charge, Lien, damage,
cost, or expense (excluding any expense relating to compliance (but not
remediation) with any Environmental Law in the ordinary course of any Company's
business) of any kind to the extent that it results (a) from any violation of or
any obligation or liability under any Environmental Law, (b) from the presence,
Release, or threatened Release of any Hazardous Substance, or (c) from actual or
threatened damages to natural resources.
ENVIRONMENTAL PERMIT means any permit, license, or other Authorization from
any Governmental Authority that is required under any Environmental Law for the
lawful conduct of any business, process, or other activity.
EQUITY ISSUANCE means the issuance on and after the Closing Date by any
Company of any shares of any class of stock, warrants, or other equity
interests, other than (a) present and future shares of stock, options, or
warrants issued to employees, or directors of any Company under the Borrower's
stock option or other benefit or compensation plans or arrangements, or stock
issued upon their exercise, (b) stock distributed in connection with the
Spinoff, (c) option or warrants issued to consultants of the Companies as
compensation for actual services rendered or stock issued upon their exercise,
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or (d) stock of Borrower issued upon the exercise of the warrants issued upon
the conversion of the warrants exercisable for the purchase of 300,000 shares of
common stock of ACX.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and rulings thereunder.
ERISA AFFILIATE means any company or trade or business (whether or not
incorporated) which, for purposes of Title IV of ERISA, is, or has been within
the past six years, a member of Borrower's controlled group or which is, or has
been within the past six years, under common control with Borrower within the
meaning of Section 414(b), (c), (m), or (o) of the Code.
ERISA EVENT means any of the following: (a) the occurrence of a Reportable
Event; (b) the application for a minimum funding waiver with respect to an
Employee Plan, or becoming obligated to file with the PBGC a notice of failure
to make a required payment with respect to any Employee Plan; (c) the provision
by the administrator of any Employee Plan of a notice of intent to terminate
such Employee Plan; (d) the withdrawal by any Company or ERISA Affiliate, in
whole or in part, from a Multiemployer Plan; (e) the occurrence of any condition
(under ERISA, the Code, or otherwise) for the imposition of a Lien in favor of
the PBGC, any Employee Plan, or any Multiemployer Plan on the assets of any
Company; (f) the adoption of an amendment to an Employee Plan requiring the
provision of security to such Employee Plan; (g) institution by the PBGC of
proceedings to terminate or impose liability in respect of (other than premiums
under Section 4007 of ERISA), any Employee Plan, or the occurrence of any event
or condition that constitutes grounds for termination of, or the appointment of
a trustee to administer, any Employee Plan; (h) institution by the sponsor of a
Multiemployer Plan of proceedings to terminate or reorganize such Multiemployer
Plan, or to impose withdrawal liability on any Company or ERISA Affiliate with
respect to such Multiemployer Plan; (i) the cessation of operations at a
facility of any Company or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; or (j) any Company or ERISA Affiliate has engaged in
any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975
of the Code).
EURO means the European single or common currency issued as a result of the
implementation of EMU.
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Eurodollar Rate" shall mean,
for any Eurodollar Rate Borrowing for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
EURODOLLAR RATE BORROWING means a Borrowing bearing interest at the sum of
the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Borrowings for the relevant Facility.
EXHIBIT means an exhibit to this Agreement unless otherwise specified.
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FACILITIES means, collectively, the Revolver Facility, the Term Loan A
Facility, and the Term Loan B Facility; Facility means, any of the Revolver
Facility, the Term Loan A Facility, or the Term Loan B Facility.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) determined (which determination shall
be conclusive and binding, absent manifest error) by Administrative Agent to be
equal to the weighted average of the rates on overnight Federal funds
transactions with member banks of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to the Administrative Agent (in its individual capacity) on
such day on such transactions as determined by the Administrative Agent (which
determination shall be conclusive and binding, absent manifest error).
FINANCIAL HEDGE means (a) a swap, collar, floor, cap, or other contract
which is intended to reduce or eliminate the risk of fluctuations in interest
rates, or (b) any other currency swap or hedging arrangement acceptable to
Administrative Agent in its sole discretion, so long as any such Financial Hedge
obtained by any Company satisfies the following requirements: (i) any Lender or
financial institution issuing such Financial Hedge shall calculate its credit
exposure in a reasonable and customary manner; (ii) all documentation for such
Financial Hedge shall conform to ISDA standards and must be acceptable to
Administrative Agent with respect to any intercreditor issues; (iii) if issued
by any Lender or any Affiliate of a Lender to Borrower, the credit exposure
under such Financial Hedge shall be secured by Liens in and to the Collateral as
evidenced by the Collateral Documents on a pari passu basis with the Liens of
Administrative Agent (held for the benefit of Lenders), and such Lender or
Affiliate issuing a Financial Hedge shall, by acceptance of the benefits of such
Liens in the Collateral agree to the provisions of SECTION 12.11; and (iv) such
Financial Hedge shall be incurred in the ordinary course of business and
consistent with prior business practices of the Companies and not for
speculative purposes. For the purposes of this Agreement, the amount of Debt
under any Financial Hedge shall be the amount of accrued or liquidated
obligations of the Companies thereunder as of the date of determination.
FINANCIAL STATEMENTS means balance sheets, statements of operations, and
statements of cash flows prepared in accordance with GAAP, which statements of
operations and statements of cash flows shall be in comparative form to the
corresponding period of the preceding fiscal year, and which balance sheets
shall be in comparative form to the corresponding period of the preceding fiscal
year. In addition, any annual Financial Statements must include statements of
shareholders' equity prepared in accordance with GAAP, which statements of
shareholders' equity shall be in comparative form to the prior fiscal year-end
figures.
FOREIGN ASSETS is defined in SECTION 6.1.
FOREIGN SUBSIDIARY means a Subsidiary of Borrower that is organized or
incorporated under the Laws of any jurisdiction other than a jurisdiction of the
United States.
FRENCH FRANCS and the abbreviation Ffr mean the lawful currency of the
Republic of France.
GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable from time to time.
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GOVERNMENTAL AUTHORITY means any (a) local, state, municipal, federal, or
foreign judicial, executive, or legislative instrumentality, (b) private
arbitration board or panel, or (c) central bank.
GUARANTOR means any Person, including, but not limited to, any Domestic
Subsidiary of Borrower, who undertakes to be liable for all or any part of the
Obligation by execution of a Guaranty or otherwise.
GUARANTY means (a) a Guaranty in substantially the form and upon the terms
of EXHIBIT C, executed and delivered by any Person pursuant to the requirements
of the Loan Documents; and (b) any amendments, modifications, supplements,
restatements, ratifications, or reaffirmations of any Guaranty made in
accordance with the Loan Documents.
HAZARDOUS SUBSTANCE means (a) any substance that is designated, defined, or
classified as a hazardous waste, hazardous material, pollutant, contaminant, or
toxic or hazardous substance, or that is otherwise regulated, under any
Environmental Law, including without limitation, any hazardous substance within
the meaning of Section 101(14) of CERCLA, (b) petroleum, oil, gasoline, natural
gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel, and other petroleum
hydrocarbons, (c) asbestos and asbestos-containing materials in any form, (d)
polychlorinated biphenyls, or (e) urea formaldehyde foam.
INITIAL BORROWING DATE means the date upon which the funding of the initial
Borrowing hereunder occurs and all conditions precedent specified in Section 7.2
have been satisfied or waived in accordance with Section 13.11.
INTEREST EXPENSE means, for any period of calculation thereof, for any
Person, the aggregate amount of all interest (including commitment fees) on all
Debt of such Person, whether paid in cash or accrued as a liability and payable
in cash during such period (including, without limitation, imputed interest on
Capital Lease obligations; the amortization of any original issue discount on
any Debt; the interest portion of any deferred payment obligation; all
commissions, discounts, and other fees and charges owed with respect to letters
of credit or bankers' acceptance financing; net costs associated with Financial
Hedges; and the interest component of any Debt that is guaranteed or secured by
such Person), and all cash premiums or penalties for the repayments, redemption,
or repurchase of Debt.
INTEREST PERIOD is determined in accordance with SECTION 3.10.
INVESTMENTS is defined in SECTION 9.20.
ITALIAN LIRA and the symbol Lit mean lawful currency of the Republic of
Italy.
JAPANESE YEN and the symbol (Y) mean lawful currency of Japan.
JOINT DEFENSE AGREEMENT means any joint defense agreement among ACX and
Borrower entered into pursuant to the terms of the Distribution Agreement, in
form and terms reasonably acceptable to Administrative Agent, together with all
amendments or modifications thereto in form and terms acceptable to
Administrative Agent.
JUDGMENT CURRENCY is defined in SECTION 11.11.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, and decrees of any
Governmental Authority.
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LC means any standby letter of credit issued hereunder by Administrative
Agent pursuant to an LC Agreement.
LC AGREEMENT means a letter of credit application and agreement (in form
and substance satisfactory to Administrative Agent) submitted by Borrower to
Administrative Agent for the issuance of an LC for the account of Borrower;
provided that this Agreement shall control any conflict between this Agreement
and any such LC Agreement.
LC EXPOSURE means, at any time and without duplication, the sum of the
Dollar-Equivalent of (a) the aggregate undrawn portion of all uncancelled and
unexpired LCs plus (b) the aggregate unpaid reimbursement obligations of
Borrower in respect of drawings under any LC.
LC REQUEST means a request pursuant to SECTION 2.4(a), substantially in the
form of EXHIBIT B-3.
LC SUBFACILITY means a subfacility of the Revolver Facility for the
issuance of LCs as described in and subject to the limitations of Section 2.4,
under which the LC Exposure may never (a) collectively exceed the
Dollar-Equivalent of $15,000,000 and (b) together with the Revolver Principal
Debt may never exceed the Revolver Commitment.
LENDERS means, on any date of determination, the financial institutions
named on SCHEDULE 2.1 (as the same may be amended from time to time by
Administrative Agent to reflect the assignments made in accordance with SECTION
13.13(b)), and subject to the terms and conditions of this Agreement, and their
respective permitted successors and assigns (but not any Participant who is not
otherwise a party to this Agreement); provided that, solely for purposes of any
Collateral Document and SECTION 12, SECTION 3.12, SECTION 3.13, and SECTION
3.14, "LENDERS" shall also include any Lender or Affiliate of a Lender who is
party to a Financial Hedge with Borrower and their respective successors and
assigns (for purposes hereof, each Lender shall be deemed to have entered into
this Agreement for and on behalf of any Affiliate now or hereafter party to a
Financial Hedge with Borrower).
LEVERAGE RATIO means, on any date of determination, the ratio of (i) the
Total Debt on such date to (ii) EBITDA calculated for the Rolling Period then
most-recently ended. For purposes of calculating the Leverage Ratio, EBITDA for
any Company, as the case may be, shall be calculated after giving effect to
Acquisitions and divestitures of Persons (to the extent permitted by the Loan
Documents) during such period as if such transactions had occurred on the first
day of such period, regardless of whether the effect is positive or negative.
Calculations of EBITDA for Leverage Ratio purposes shall exclude any increase in
EBITDA which would be the result of any expense Borrower projects to be
eliminated by any proposed Acquisition (but not any expense which is actually
eliminated).
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or agreed arrangement with any creditor (other than under or relating
to subordination or other intercreditor arrangements) to have its claim
satisfied out of any property or assets, or the proceeds therefrom, prior to the
general creditors of the owner thereof.
LITIGATION means any action by or before any Governmental Authority.
LOAN DOCUMENTS means (a) this Agreement, the Notes, the Collateral
Documents, LCs, and LC Agreements, (b) all agreements, documents, or instruments
in favor of Agents or Lenders ever delivered pursuant to this Agreement or
otherwise delivered in connection with all or any part of the Obligation on and
after the Closing Date, including, without limitation, all documents delivered
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pursuant to SECTION 7.2 on or prior to the Initial Borrowing Date and (c) any
and all future renewals, extensions, restatements, reaffirmations, or amendments
of, or supplements to, all or any part of the foregoing.
LOAN PARTIES means, on any date of determination, Borrower and all
Guarantors.
MATERIAL ADVERSE EVENT means any one or more circumstances or events which,
individually or collectively, could reasonably be expected to result in any (a)
material impairment of the ability of the Companies (taken as a whole) to
perform any payment or other material obligations under the Loan Documents or
the ability of Administrative Agent or any Lender to enforce any such
obligations or any of their respective material Rights under the Loan Documents,
(b) material and adverse effect on the business, properties, liabilities (actual
or contingent), condition (financial or otherwise), prospects, or results of
operations of the Companies (taken as a whole), or (c) Default or Potential
Default.
MATERIAL AGREEMENT means any material written or oral agreement, contract,
commitment, or understanding to which any Company is a party, by which such
Company is directly or indirectly bound, or to which any assets of such Company
may be subject (excluding purchase orders for material and inventory in the
ordinary course of business), which involves revenue payable to any Company in
excess of $25,000,000 in the aggregate during any 12-month period, or financial
obligations of any Company in excess of $10,000,000 in the aggregate during any
12-month period, and which is not cancellable by such Company upon 30 days or
less notice without liability for further payment (other than nominal
penalties).
MATERIAL FOREIGN SUBSIDIARY means, on any date of determination, based on
the most-recently delivered consolidated Financial Statements of the Companies
for the four-fiscal quarter period then-ended, any Foreign Subsidiary with
revenues greater than or equal to 5% of the total revenues of the Companies.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest which,
under applicable Law, such Lender is permitted to contract for, charge, take,
reserve, or receive on the Obligation.
MOODY'S means Moody's Investors Service, Inc. or any successor thereto.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections 3(37)
or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any Company or any
ERISA Affiliate is making, has made, is accruing, or has accrued, an obligation
to make contributions or has, within any of the preceding five plan years, made
or accrued an obligation to make contributions.
NET CASH PROCEEDS means (a) with respect to any Significant Sale, cash
(freely convertible into Dollars) (including any cash received by way of
deferred payment pursuant to a promissory note or otherwise, but only as and
when received) received, on or after the date of consummation of such sale, by
any Company from such sale, after (i) deduction of Assumed Taxes, (ii) payment
of all usual and customary brokerage commissions and all other reasonable fees
and expenses related to such sale (including, without limitation, reasonable
attorneys' fees and closing costs incurred in connection with such sale), (iii)
deduction of appropriate amounts to be provided by Borrower or any Company as a
reserve, in accordance with GAAP, against any liabilities retained by any
Company after such sale, which liabilities are associated with the asset or
assets being sold, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such sale,
and (iv) deduction for the amount of any Debt (other than the Obligation)
secured by the respective asset or assets being sold, which Debt is required to
be repaid as a result of such sale; (b) with respect to any Debt Issuance, cash
(freely convertible into Dollars) received, on or after the date of such Debt
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Issuance, by any Company from such Debt Issuance, after (i) payment of all
reasonable attorneys' fees and usual and customary underwriting commissions,
closing costs, and other reasonable expenses associated with such Debt Issuance,
(ii) deduction of all deposits, escrow amounts, or other reserves required to be
maintained by any Company in connection with such Debt, and (iii) deductions for
the amount of any other Debt (other than the Obligation) which is required to be
repaid concurrently with or otherwise as a result of the incurrence of such
Debt; and (c) with respect to any Equity Issuance, cash (freely convertible into
Dollars) (including any cash received by way of deferred payment pursuant to a
promissory note, or otherwise, but only as and when received) received, on or
after the date of such Equity Issuance, by the Borrower from such Equity
Issuance, net of usual and customary transaction costs and expenses associated
with such Equity Issuance and Assumed Taxes.
NOTES means, at the time of any determination thereof, all outstanding and
unpaid Revolver Notes, Term Loan A Notes, Term Loan B Notes, and the Swing Line
Note.
OBLIGATION means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to Administrative Agent, any other Agent, any Lender, or any
Affiliate of any Lender by any Company arising from, by virtue of, or pursuant
to any Loan Document, together with all interest accruing thereon, fees, costs,
and expenses (including, without limitation, all attorneys' fees and expenses
incurred in the enforcement or collection thereof) payable under the Loan
Documents; provided that, all references to the "Obligation" in the Collateral
Documents and in SECTIONS 3.12, 3.13 and 3.14, shall, in addition to the
foregoing, also include all present and future indebtedness, liabilities, and
obligations (and all renewals and extensions thereof or any part thereof) now or
hereafter owed to any Lender or any Affiliate of a Lender arising from, by
virtue of, or pursuant to any Financial Hedge entered into by any Company.
ORIGINAL CURRENCY is defined in SECTION 11.11.
OSHA means the Occupational Safety and Health Act of 1970, 29 U.S.C.
ss.671 et seq.
PARTICIPANT is defined in SECTION 13.13(e).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
PERMITTED ACQUISITION means:
(a) Acquisitions by any Company of businesses which are engaged
in the same or related line of business as Borrower and its Subsidiaries,
with respect to which each of the following requirements shall have been
satisfied:
(i) the Purchase Price of all Permitted Acquisitions
consummated in any calendar year may not exceed $60,000,000 in the
aggregate nor may the portion of the Purchase Price for all Permitted
Acquisitions consummated in any calendar year attributable to
goodwill exceed the lesser of 50% of the Purchase Price or
$20,000,000 in the aggregate;
(ii) as of the closing of any Acquisition, the Acquisition
has been approved and recommended by the board of directors of the
Person to be acquired or from which such business is to be acquired;
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(iii) not less than 10 Business Days prior to the closing
of any Acquisition, Borrower shall have delivered to Administrative
Agent a Permitted Acquisition Compliance Certificate (A) certifying
compliance with the terms and conditions of the Loan Documents, after
giving effect to the Acquisition and (B) for any Acquisition with a
Purchase Price of $10,000,000 or more, including (1) pro forma income
and balance sheet projections for the Companies (after giving effect
to the Acquisition), and (2) five year cash flow projections for the
Acquisition demonstrating compliance with the Companies' applicable
financial covenants and debt amortization schedules;
(iv) prior to consummation of any Acquisition, Borrower
shall have satisfied the conditions precedent set forth in SECTION
7.3;
(v) as of the closing of any Acquisition, after giving
effect to such Acquisition, the acquiring party must be Solvent and
the Companies, on a consolidated basis, must be Solvent;
(vi) as of the closing of any Acquisition, no Default or
Potential Default shall exist or occur as a result of, and after
giving effect to, such Acquisition; and
(vii) as of the closing of any Acquisition, (A) if such
Acquisition is structured as a merger, Borrower, (or if such merger
is with any Subsidiary of Borrower, then a Domestic Subsidiary that
is or becomes a Loan Party) must be the surviving entity after giving
effect to such merger; and (B) if such Acquisition is structured as a
stock/equity acquisition, the acquiring Company shall own not less
than a 100% interest in the entity being acquired and such acquired
entity shall be a Domestic Subsidiary that becomes a Loan Party;
(b) Acquisitions among Companies to the extent permitted by and
in accordance with SECTION 9.25; or
(c) Any other Acquisition for which the prior written consent of
Required Lenders has been obtained.
PERMITTED ACQUISITION COMPLIANCE CERTIFICATE means a certificate signed by
a Responsible Officer of Borrower, substantially in the form of Exhibit E-2.
PERMITTED ACQUISITION LOAN CLOSING CERTIFICATE means a certificate signed
by a Responsible Officer of Borrower, substantially in the form of EXHIBIT E-3.
PERMITTED DEBT means Debt permitted under SECTION 9.12 as described in such
Section.
PERMITTED LIENS means Liens permitted under Section 9.13 as described in
such Section.
PERSON means any individual, entity, or Governmental Authority.
PLEDGE AGREEMENT means (a) a Pledge, Assignment, and Security Agreement in
substantially the form and upon the terms of EXHIBIT D, executed and delivered
by any Person pursuant to the requirements of the Loan Documents; and (b) any
amendments, modifications, supplements, restatements, ratifications, or
reaffirmations of any Pledge Agreement made in accordance with the Loan
Documents.
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POTENTIAL DEFAULT means the occurrence of any event or existence of any
circumstance which, with the giving of notice or lapse of time or both, would
become a Default.
POUNDS STERLING and the symbol (pound) means the lawful currency of the
United Kingdom.
PRIME RATE means the per annum rate of interest established from time to
time by Bank of America, N.A., as its prime rate, which rate may not be the
lowest rate of interest charged by Bank of America, N.A. to its customers.
PRINCIPAL DEBT means, at the time of any determination thereof, the sum of
the Revolver Principal Debt, the Term Loan A Principal Debt, and the Term Loan B
Principal Debt.
PRO RATA or PRO RATA PART, for each Lender, means on any date of
determination (a) for purposes of sharing any amount or fee payable to any
Lender in respect of a Facility or Subfacility, the proportion which the portion
of the Principal Debt for the applicable Facility or Subfacility owed to such
Lender (whether held directly or through a participation in respect of the LC
Subfacility or Swing Line Subfacility and determined after giving effect
thereto) bears to the Principal Debt under the applicable Facility or
Subfacility owed to all Lenders at the time in question, and (b) for all other
purposes, the proportion which the portion of the Principal Debt owed to such
Lender bears to the Principal Debt owed to all Lenders at the time in question,
or if no Principal Debt is outstanding, then the proportion that the aggregate
of such Lender's Committed Sums then in effect under the Facilities bears to the
Total Commitment then in effect.
PURCHASE PRICE means, with respect to any Acquisition, all direct,
indirect, and deferred cash payments made to or for the benefit of the Person
being acquired (or whose assets are being acquired), its shareholders, officers,
directors, employees, or Affiliates in connection with such Acquisition,
including, without limitation, the amount of any Debt being assumed in
connection with such Acquisition (subject to the limitations on Permitted Debt
hereunder), seller financing, and payments under non-competition or consulting
agreements entered into in connection with such Acquisition and similar
agreements (but expressly excluding any non-cash consideration and the value of
any stock, options, or warrants or other Rights to acquire stock issued as part
of the consideration in such transaction); provided that, for the purposes
hereof, non-competition agreements and consulting agreements shall be valued at
their present value discounted over the term of such agreement at the Base Rate
in effect at the time of the Acquisition.
REDEEMABLE PREFERRED STOCK of any Person means any preferred stock issued
by such Person which is at any time prior to the payment in full of the
Obligation is (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise), (ii) redeemable at the option of the holder thereof, or (iii)
convertible into Debt.
REGISTER is defined in SECTION 13.13(c).
REGULATION D means Regulation D of the Board of Governors of the Federal
Reserve System, as amended.
REGULATION U means Regulation U of the Board of Governors of the Federal
Reserve System, as amended.
RELEASE means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposal, deposit,
dispersal, migrating, or other movement into the air, ground, or surface water,
or soil.
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REPORTABLE EVENT shall have the meaning specified in Section 4043 of ERISA
or the regulations issued thereunder in connection with an Employee Plan,
excluding events for which the notice requirement is waived under applicable
PBGC regulations other than those events described in sections 4043.21, 4043.24,
and 4043.28 of such regulations, including each such provision as it may
subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
REQUIRED LENDERS means (a) on any date of determination prior to the
Termination Date for the Revolver Facility, those Lenders holding 50.1% or more
of the sum of (i) the Revolver Commitment plus (ii) the Term Loan A Principal
Debt plus (iii) the Term Loan B Principal Debt; and (b) on any date of
determination on or after the Termination Date for the Revolver Facility, those
Lenders holding 50.1% or more of the Principal Debt.
RESERVE REQUIREMENT means, at any time, the maximum rate at which reserves
(including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against, in the case of
Eurodollar Rate Borrowings, "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required by any Governmental
Authority to be maintained by such member banks with respect to (a) any category
of liabilities which includes deposits by reference to which the Adjusted
Eurodollar Rate is to be determined, or (b) any category of extensions of credit
or other assets which include Eurodollar Rate Borrowings. The Adjusted
Eurodollar Rate shall be adjusted automatically on and as of the effective date
of any change in the Reserve Requirement.
RESPONSIBLE OFFICER means the chairman, president, chief executive officer,
chief financial officer, controller, senior vice president, treasurer, or
assistant treasurer of Borrower, or, for all purposes under the Loan Documents,
any other officer designated from time to time by the Board of Directors of
Borrower, which designated officer is acceptable to Administrative Agent.
REVOLVER COMMITMENT means an amount (subject to reduction or cancellation
as herein provided) equal to $95,000,000.
REVOLVER COMMITMENT USAGE means, at the time of any determination thereof,
(without duplication) the sum of (i) the aggregate Revolver Principal Debt
(including the Swing Line Principal Debt) plus (ii) LC Exposure.
REVOLVER FACILITY means the credit facility as described in and subject to
the limitations set forth in Section 2.1 hereof, including the LC Subfacility
and the Swing Line Subfacility.
REVOLVER LENDERS means, on any date of determination, any Lender that has a
Committed Sum under the Revolver Facility.
REVOLVER NOTE means a promissory note substantially in the form of EXHIBIT
A-1, and all renewals and extensions of all or any part thereof.
REVOLVER PRINCIPAL DEBT means, on any date of determination, the aggregate
unpaid principal balance of all Borrowings under the Revolver Facility, together
with the aggregate unpaid reimbursement obligations of Borrower in respect of
drawings under any LC.
d-699365.10 18 CoorsTek Credit Agreement
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RIGHTS means rights, remedies, powers, privileges, and benefits.
ROLLING PERIOD means, on any date of determination, the most recent four
fiscal quarters ended on March 31, June 30, September 30, or December 31 (as the
case may be).
S&P means Standard & Poor's Rating Group, a division of McGraw Hill, Inc.,
a New York corporation, or any successor thereto.
SCHEDULE means, unless specified otherwise, a schedule attached to this
Agreement, as the same may be supplemented and modified from time to time in
accordance with the terms of the Loan Documents.
SIGNIFICANT SALE means any sale, lease, transfer, or other disposition of
any property or assets (tangible or intangible, including the stock of any
Company) by any Company to any other Person (other than any sale, lease,
transfer, or other disposition contemplated by SECTIONS 9.23(a) through (e))
with respect to which the Net Cash Proceeds received by the Companies for such
asset disposition (or when aggregated with the Net Cash Proceeds from all such
other asset dispositions occurring in the same calendar year) equals or exceeds
$10,000,000.
SOLVENT means, as to a Person, that (a) the aggregate fair market value of
such Person's assets exceeds its liabilities (whether contingent, subordinated,
unmatured, unliquidated, or otherwise), (b) such Person has sufficient cash flow
to enable it to pay its Debts as they mature, and (c) such Person does not have
unreasonably small capital to conduct such Person's businesses.
SPANISH PESETAS and the abbreviation Ptas mean lawful currency of the
Kingdom of Spain.
SPINOFF means the planned pro rata Distribution to the shareholders of ACX
of all outstanding shares of Borrower.
SPINOFF DOCUMENTS means the Distribution Agreement effecting the Spinoff,
the Transition Services Agreement, the Tax Sharing Agreement, the Joint Defense
Agreement, and all other documents or instruments executed pursuant thereto or
in connection therewith, together with all amendments, modifications,
supplements, or restatements thereof each of which is in form and upon terms
satisfactory to Administrative Agent.
SUBFACILITIES means, collectively, the LC Subfacility and the Swing Line
Subfacility; SUBFACILITY means, any of the LC Subfacility or the Swing Line
Subfacility.
SUBSIDIARY of any Person means (a) any entity of which an aggregate of more
than 50% (in number of votes) of the stock is owned of record or beneficially,
directly or indirectly, by such Person, or (b) any partnership (limited or
general) of which such Person shall at any time be the general partner or own
more than 50% of the issued and outstanding partnership interests.
SUBSIDIARY MERGER means the merger of the existing Domestic Subsidiaries of
Borrower with and into Borrower on terms satisfactory to Administrative Agent.
SWING LINE BORROWING means any Borrowing under the Swing Line Subfacility.
SWING LINE COMMITMENT means an amount (subject to availability, reduction,
or cancellation as herein provided) equal to $10,000,000.
d-699365.10 19 CoorsTek Credit Agreement
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SWING LINE LENDER means Bank of America, N.A. and its successors as "Swing
Line Lender" under this Agreement.
SWING LINE NOTE means a promissory note in substantially the form of
EXHIBIT A-4, and all renewals and extensions of all or any part thereof.
SWING LINE PRINCIPAL DEBT means, on any date of determination, that portion
of the Revolver Principal Debt outstanding under the Swing Line Subfacility.
SWING LINE SUBFACILITY means the subfacility under the Revolver Facility
described in, and subject to the limitations of, SECTION 2.5.
SWISS FRANC and the abbreviation Sfr mean lawful currency of Switzerland.
TAXES means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
TAX SHARING AGREEMENT means the Tax Sharing Agreement between ACX and
Borrower, dated as of December 1,1999, together with all amendments or
modifications thereto in form and terms acceptable to Administrative Agent
TAX RULING is defined in SECTION 8.21.
TERMINATION DATE means (a) for purposes of the Revolver Facility, the
earlier of (x) December 6, 2004, and (y) the effective date of any other
termination, cancellation, or acceleration of all commitments to lend under the
Revolver Facility; (b) for purposes of the Term Loan A Facility, the earlier of
(x) December 6, 2004, and (y) the effective date of any other termination,
cancellation, or acceleration of the Term Loan A Facility; and (c) for purposes
of the Term Loan B Facility, the earlier of (x) December 6, 2006, and (y) the
effective date of any other termination, cancellation, or acceleration of the
Term Loan B Facility.
TERM LOAN A FACILITY means the credit facility as described in and subject
to the limitations set forth in Section 2.2 hereof.
TERM LOAN A COMMITMENT means an amount (subject to reduction or
cancellation as herein provided) equal to $85,000,000.
TERM LOAN A LENDERS means, on any date of determination, any Lender that
has a Committed Sum under the Term Loan A Facility.
TERM LOAN A NOTE means a promissory note substantially in the form of
EXHIBIT A-2, and all renewals and extensions of all or any part thereof.
TERM LOAN A PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under the Term Loan A
Facility.
TERM LOAN B COMMITMENT means an amount (subject to reduction or
cancellation as herein provided) equal to $90,000,000.
d-699365.10 20 CoorsTek Credit Agreement
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TERM LOAN B FACILITY means the credit facility as described in and subject
to the limitations set forth in Section 2.3 hereof.
TERM LOAN B LENDERS means, on any date of determination, any Lender that
has a Committed Sum under the Term Loan B Facility.
TERM LOAN B NOTE means a promissory note substantially in the form of
EXHIBIT A-3, and all renewals and extensions of all or any part thereof.
TERM LOAN B PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under the Term Loan B
Facility.
TOTAL ASSETS means, on any date of determination, the total assets of the
Companies, as reflected on the most recently-delivered consolidated Financial
Statements of the Companies.
TOTAL COMMITMENT means, on any date of determination, the sum of all
Committed Sums then in effect for all Lenders in respect of the Revolver
Facility, the Term Loan A Facility, and the Term Loan B Facility (as any of the
same may have been reduced or canceled as provided in the Loan Documents).
TOTAL DEBT means, on any date of determination, the Debt of the Companies
determined on a consolidated basis, excluding the following: (a) obligations of
any Company under non-compete agreements, (b) the undrawn amounts under any
issued and outstanding letters of credit or banker's acceptances issued for the
account of any Company, (c) net payments under Financial Hedges, (d) any Debt
described in CLAUSES (c) and (f) of the definition of "Debt" set forth in this
SECTION 1.1, and (e) guaranties by any Company of any Debt described in CLAUSES
(a) - (d) hereof.
TRANSITION SERVICES AGREEMENT means the Transition Services Agreement
between ACX and Borrower dated as of December 1, 1999, together with all
amendments or modifications thereto in form and terms acceptable to
Administrative Agent.
TYPE means any type of Borrowing determined with respect to the interest
option applicable thereto.
UCC means the Uniform Commercial Code enacted in the State of New York or
other applicable jurisdiction, as amended at the time in question.
VOTING STOCK means securities (as such term is defined in Section 2(1) of
the Securities Act of 1933, as amended) of any class or classes, the holders of
which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by Borrower or
one or more of its Wholly-owned Subsidiaries.
YEAR 2000 COMPLIANT has the meaning given such term in SECTION 8.25.
YEAR 2000 PLAN has the meaning given such term in SECTION 8.25.
1.2 NUMBER AND GENDER OF WORDS; OTHER REFERENCES. Unless otherwise
specified in the Loan Documents, (a) where appropriate, the singular includes
the plural and vice versa, and words of any gender include each other gender,
d-699365.10 21 CoorsTek Credit Agreement
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(b) heading and caption references may not be construed in interpreting
provisions, (c) monetary references are to currency of the United States of
America, (d) section, paragraph, annex, schedule, exhibit, and similar
references are to the particular Loan Document in which they are used, (e)
references to "telecopy," "facsimile," "fax," or similar terms are to facsimile
or telecopy transmissions, (f) references to "including" mean including without
limiting the generality of any description preceding that word, (g) the rule of
construction that references to general items that follow references to specific
items are limited to the same type or character of those specific items is not
applicable in the Loan Documents, (h) references to any Person include that
Person's heirs, personal representatives, successors, trustees, receivers, and
permitted assigns, (i) references to any Law include every amendment or
supplement to it, rule and regulation adopted under it, and successor or
replacement for it, and (j) references to any Loan Document or other document
include every renewal and extension of it, amendment and supplement to it, and
replacement or substitution for it.
1.3 ACCOUNTING PRINCIPLES. All accounting and financial terms used in
the Loan Documents and the compliance with each financial covenant therein shall
be determined in accordance with GAAP, and, all accounting principles shall be
applied on a consistent basis so that the accounting principles in a current
period are comparable in all material respects to those applied during the
preceding comparable period. If Borrower or any Lender determines that a change
in GAAP from that in effect on the date hereof has altered the treatment of
certain financial data to its detriment under this Agreement, such party may, by
written notice to the others and Administrative Agent not later than sixty (60)
days after the end of the calendar quarter during which such change in GAAP
becomes effective, request renegotiation of the financial covenants affected by
such change. If the Borrower and Required Lenders have not agreed on revised
covenants within thirty (30) days after delivery of such notice, then, for
purposes of this Agreement, GAAP will mean generally accepted accounting
principles on the date just prior to the date on which the change that gave rise
to the renegotiation occurred.
SECTION 2 BORROWING PROVISIONS.
2.1 REVOLVER FACILITY. Each Revolver Lender severally, but not jointly,
agrees to lend to Borrower such Revolver Lender's Commitment Percentage of one
or more Borrowings under the Revolver Facility not to exceed such Revolver
Lender's Committed Sum under the Revolver Facility, which Borrowings may be
repaid and reborrowed from time to time in accordance with the terms and
provisions of the Loan Documents; provided that, (a) each such Borrowing must
occur on a Business Day on and after the Initial Borrowing Date and no later
than the Business Day immediately preceding the Termination Date for the
Revolver Facility; (b) each such Borrowing shall be in an amount not less than
$2,000,000 or a greater integral multiple of $1,000,000 if a Eurodollar Rate
Borrowing, or $500,000 or a greater integral multiple of $100,000 if a Base Rate
Borrowing or Swing Line Borrowing, and (c) on any date of determination, the
Revolver Commitment Usage shall never exceed the Revolver Commitment.
2.2 TERM LOAN A FACILITY. Each Term Loan A Lender severally, but not
jointly, agrees to lend to Borrower in a single Borrowing on the Initial
Borrowing Date such Term Loan A Lender's Commitment Percentage of the Term Loan
A Commitment. If all or any portion of the Term Loan A Principal Debt is paid or
prepaid, then the amount so repaid may not be reborrowed.
2.3 TERM LOAN B FACILITY. Each Term Loan B Lender severally, but not
jointly, agrees to lend to Borrower in a single Borrowing on the Initial
Borrowing Date such Term Loan B Lender's Commitment Percentage of the Term Loan
B Commitment. If all or any portion of the Term Loan B Principal Debt is paid or
prepaid, then the amount so repaid may not be reborrowed.
d-699365.10 22 CoorsTek Credit Agreement
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2.4 LC SUBFACILITY.
(a) CONDITIONS. Subject to the terms and conditions of this
Agreement and applicable Law, Administrative Agent agrees to issue LCs
(denominated in Dollars or, upon Borrower's request and subject to this
SECTION 2.4, in an Alternative Currency) upon Borrower's application
therefor by delivering to Administrative Agent a properly completed LC
Request and an LC Agreement, both of which must be received by
Administrative Agent no later than 10:00 a.m. Dallas, Texas time three
Business Days before the Business Day on which the requested LC is to be
issued, so long as (i) on any date of determination and after giving effect
to any LC to be issued on such date, the Dollar Equivalent of the Revolver
Commitment Usage shall never exceed the Revolver Commitment then in effect,
(ii) on any date of determination and after giving effect to any LC to be
issued on such date, the Dollar Equivalent of the LC Exposure shall never
exceed $15,000,000 (as such commitment under the LC Subfacility may be
reduced or canceled as herein provided), (iii) at the time of issuance of
such LC, no Default or Potential Default shall exist, and (iv) each LC must
expire no later than the earlier of the 30th day prior to the Termination
Date for the Revolver Facility or one year from its issuance; provided
that, any LC may provide for automatic renewal for successive twelve month
periods (but no renewal period may extend beyond the 30th day prior to the
Termination Date for the Revolver Facility) unless Administrative Agent has
given prior notice to the applicable beneficiary of its election not to
extend such LC.
(b) PARTICIPATIONS. Immediately upon the issuance by
Administrative Agent of any LC, Administrative Agent shall be deemed to
have sold and transferred to each other Revolver Lender, and each other
such Revolver Lender shall be deemed irrevocably and unconditionally to
have purchased and received from Administrative Agent, without recourse or
warranty, an undivided interest and participation, to the extent of such
Revolver Lender's Commitment Percentage (based upon the Revolver Facility)
in the Dollar Equivalent of such LC, the LC Agreement related thereto, and
all Rights of Administrative Agent in respect thereof (other than Rights to
receive certain fees provided for in SECTION 5.4(b)).
(c) REIMBURSEMENT OBLIGATION. To induce Administrative Agent to
issue and maintain LCs and to induce Revolver Lenders to participate in
issued LCs, Borrower agrees to pay or reimburse Administrative Agent (i) no
later than one Business Day after the date on which any draft is presented
under any LC, the Dollar-Equivalent of the amount of any draft paid or to
be paid by Administrative Agent and (ii) promptly, upon demand, the amount
of any fees (in addition to the fees described in SECTION 5) which
Administrative Agent customarily charges for amending LC Agreements, for
honoring drafts under letters of credit, and taking similar action in
connection with letters of credit. If Borrower has not reimbursed
Administrative Agent for any draft paid or to be paid within one Business
Day after such draft is presented under any LC, Administrative Agent is
hereby irrevocably authorized to fund the Dollar Equivalent of such
reimbursement obligations as a Base Rate Borrowing (denominated in Dollars)
under the Revolver Facility to the extent of availability and if the
conditions precedent in this Agreement for such a Borrowing (other than any
notice requirements or minimum funding amounts) have, to Administrative
Agent's knowledge, been satisfied. The proceeds of such Borrowing shall be
advanced directly to Administrative Agent in payment of Borrower's unpaid
reimbursement obligations. If for any reason, funds cannot be advanced
under the Revolver Facility, then Borrower's reimbursement obligation shall
constitute a demand obligation. Borrower's obligations under this SECTION
2.4(c) are absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim, or defense to payment which
Borrower may have at any time against Administrative Agent or any other
Person. From the date that Administrative Agent pays a draft under an LC
until the related reimbursement obligation of Borrower is paid or funded by
d-699365.10 23 CoorsTek Credit Agreement
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proceeds of a Borrowing, the Dollar Equivalent of unpaid reimbursement
obligations shall accrue interest at the Default Rate, which accrued
interest shall be payable on demand.
(d) GENERAL. Administrative Agent shall promptly notify Borrower
of the date and the Dollar Equivalent of the amount of any draft presented
for honor under any LC (but failure to give any such notice shall not
affect Borrower's obligations under this Agreement). Administrative Agent
shall pay the Dollar Equivalent of the requested amount upon presentment of
a draft for honor unless such presentment on its face does not comply with
the terms of the applicable LC. When making payment, Administrative Agent
may disregard (i) any default or potential default that exists under any
other agreement and (ii) the obligations under any other agreement that
have or have not been performed by the beneficiary or any other Person (and
Administrative Agent shall not be liable for any obligation of any Person
thereunder). Borrower's reimbursement obligations to Administrative Agent
and Revolver Lenders, and each Revolver Lender's obligations to
Administrative Agent, under this SECTION 2.4 are absolute and unconditional
irrespective of, and Administrative Agent is not responsible for, (i) the
validity, enforceability, sufficiency, accuracy, or genuineness of
documents or endorsements which appear appropriate on their face (even if
they are in any respect invalid, unenforceable, insufficient, inaccurate,
fraudulent, or forged), (ii) any dispute by any Company with or any
Company's claims, setoffs, defenses, counterclaims, or other Rights against
Administrative Agent, any Revolver Lender, or any other Person, or (iii)
the occurrence of any Potential Default or Default. However, nothing in
this SECTION 2.4 constitutes a waiver of the Rights of Borrower or any
Revolver Lender to assert any claim or defense based upon the gross
negligence or willful misconduct of Administrative Agent. To the extent any
Revolver Lender has funded its ratable share of any draft under an LC, then
Administrative Agent shall promptly distribute reimbursement payments
received from Borrower to such Revolver Lender according to its ratable
share. In the event any payment by Borrower received by Administrative
Agent with respect to an LC and distributed to Revolver Lenders on account
of their participations therein is thereafter set aside, avoided, or
recovered from Administrative Agent in connection with any receivership,
liquidation, or bankruptcy proceeding, each Revolver Lender which received
such distribution shall, upon demand by Administrative Agent, contribute
such Revolver Lender's ratable portion of the Dollar Equivalent of the
amount set aside, avoided, or recovered, together with interest at the rate
required to be paid by Administrative Agent upon the amount required to be
repaid by it.
(e) OBLIGATION OF LENDERS. If Borrower fails to reimburse
Administrative Agent as provided in SECTION 2.4(c) and funds cannot be
advanced under the Revolver Facility to satisfy the reimbursement
obligations, then Administrative Agent shall promptly notify each Revolver
Lender of Borrower's failure, of the date and the Dollar Equivalent of the
amount of the draft paid, and of such Revolver Lender's Commitment
Percentage (based upon the Revolver Facility) thereof. Each Revolver Lender
shall promptly and unconditionally fund its participation interest in such
unreimbursed draft by making available to Administrative Agent in Dollars
in immediately available funds such Revolver Lender's Commitment Percentage
(based upon the Revolver Facility) of the Dollar Equivalent of the
unreimbursed draft. Funds are due and payable to Administrative Agent on or
before the close of business on the Business Day when Administrative Agent
gives notice to each Revolver Lender of Borrower's reimbursement failure
(if given prior to 1:00 p.m., Dallas, Texas time) or on the next succeeding
Business Day (if notice was given after 1:00 p.m., Dallas, Texas time). All
amounts payable by any Revolver Lender shall accrue interest at the Federal
Funds Rate from the day the applicable draft is paid by Administrative
Agent to (but not including) the date the amount is paid by the Revolver
Lender to Administrative Agent.
(f) DUTIES OF ADMINISTRATIVE AGENT AS ISSUING LENDER.
Administrative Agent agrees with each Revolver Lender that it will exercise
and give the same care and attention to each LC as it gives to its other
d-699365.10 24 CoorsTek Credit Agreement
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letters of credit. Administrative Agent's sole liability to each Revolver
Lender with respect to such LCs (other than liability arising from the
gross negligence or willful misconduct of Administrative Agent) shall be to
distribute promptly to each Revolver Lender who has acquired a
participating interest therein such Revolver Lender's ratable portion of
any payments made to Administrative Agent by Borrower pursuant to SECTION
2.4(d). Each Revolver Lender and Borrower agree that, in paying any draw
under any LC, Administrative Agent shall not have any responsibility to
obtain any document (other than any documents required by the respective
LC) or to ascertain or inquire as to any document's validity,
enforceability, sufficiency, accuracy, or genuineness or the authority of
any Person delivering any such document. Administrative Agent, Revolver
Lenders, and their respective Representatives shall not be liable to any
other Lender or any Company for any LCs use or for any beneficiary's acts
or omissions. Any action, inaction, error, delay, or omission taken or
suffered by Administrative Agent or any of its Representatives under or in
connection with any LC, applicable drafts or documents, or the
transmission, dispatch, or delivery of any related message or advice, if in
good faith and in conformity with such Laws as Administrative Agent or any
of its Representatives may deem applicable and in accordance with the
standards of care specified in the Uniform Customs and Practice for
Documentary Credits issued by the International Chamber of Commerce, as in
effect on the date of issue of such LC, shall be binding upon the Companies
and Lenders and shall not place Administrative Agent or any of its
Representatives under any resulting liability to any Company or any Lender.
(g) CASH COLLATERAL. On the Termination Date for the Revolver
Facility, or upon any demand by Administrative Agent upon the occurrence
and during the continuance of a Default, Borrower shall provide to
Administrative Agent, for the benefit of Revolver Lenders, and does hereby
grant and convey to, and create in favor of Administrative Agent, for the
benefit of Revolver Lenders, a first priority Lien in, (i) cash collateral
in Dollars in an amount equal to 110% of the Dollar Equivalent of the LC
Exposure existing on such date, such cash and all interest thereon shall
constitute cash collateral for all LCs, and (ii) such additional cash
collateral as Administrative Agent may from time to time require, so that
the cash collateral amount shall at all times equal or exceed 110% of the
Dollar Equivalent of the LC Exposure. On any date prior to the Termination
Date for the Revolver Facility that the LC Exposure exceeds the
then-effective commitment under the LC Subfacility, Borrower shall provide
to Administrative Agent, for the benefit of Revolver Lenders, (i) cash
collateral in Dollars in an amount equal to 110% of the amount by which the
Dollar Equivalent of the LC Exposure existing on such date exceeds the
then-effective commitment under the LC Subfacility, such cash and all
interest thereon shall constitute cash collateral for all LCs, and (ii)
such additional cash collateral as Administrative Agent may from time to
time require, so that the cash collateral amount shall at all times equal
or exceed 110% of the amount by which the Dollar Equivalent of the LC
Exposure exceeds the then-effective commitment under the LC Subfacility.
Any cash collateral deposited under this CLAUSE (g), and all interest
earned thereon, shall be held by Administrative Agent and invested and
reinvested at the expense and the written direction of Borrower, in U.S.
Treasury Bills with maturities of no more than 90 days from the date of
investment.
(h) INDEMNIFICATION. BORROWER SHALL PROTECT, INDEMNIFY, PAY, AND
SAVE ADMINISTRATIVE AGENT AND EACH LENDER HARMLESS FROM AND AGAINST THE
DOLLAR EQUIVALENT OF ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, DAMAGES, OR
LOSSES OF, OR OWED TO THIRD PARTIES (INCLUDING ANY OF THE FOREGOING ARISING
FROM THE NEGLIGENCE OF ADMINISTRATIVE AGENT, LENDERS, OR THEIR RESPECTIVE
REPRESENTATIVES), AND ANY AND ALL RELATED COSTS, CHARGES, AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES), WHICH ADMINISTRATIVE AGENT, OR ANY
LENDER MAY INCUR OR BE SUBJECT TO AS A CONSEQUENCE, DIRECT OR INDIRECT, OF
(A) THE ISSUANCE OF ANY LC, (B) ANY DISPUTE ABOUT AN LC, OR (C) THE FAILURE
d-699365.10 26 CoorsTek Credit Agreement
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OF ADMINISTRATIVE AGENT TO HONOR A DRAFT UNDER SUCH LC AS A RESULT OF ANY
ACT OR OMISSION (WHETHER RIGHT OR WRONG) OF ANY PRESENT OR FUTURE
GOVERNMENTAL AUTHORITY. HOWEVER, NO PERSON IS ENTITLED TO INDEMNITY
HEREUNDER FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE FOREGOING
INDEMNITY PROVISIONS SHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE
OBLIGATION AND TERMINATION OF THIS AGREEMENT.
(i) LC AGREEMENTS. Although referenced in any LC, terms of any
particular agreement or other obligation to the beneficiary are not
incorporated into this Agreement in any manner. The fees and other amounts
payable with respect to each LC are as provided in this Agreement, drafts
under any LC shall be deemed part of the Obligation, and in the event of
any conflict between the terms of this Agreement and any LC Agreement, the
terms of this Agreement shall be controlling.
2.5 SWING LINE SUBFACILITY.
(a) For the convenience of the parties and as an integral part of
the transactions contemplated by the Loan Documents, Swing Line Lender,
solely for its own account, agrees to make any requested Borrowing of
$500,000 or a greater integral multiple of $100,000, subject to those terms
and conditions applicable to Borrowings set forth in SECTION 7.4(b), (c),
(d), (e), and (f), directly to Borrower as a Swing Line Borrowing without
requiring any other Lender to fund its Pro Rata Part thereof unless and
until SECTION 2.5(b) is applicable; provided that: (i) each Swing Line
Borrowing must occur on a Business Day and no later than the Business Day
immediately preceding the Termination Date for the Revolver Facility; (ii)
the aggregate Swing Line Principal Debt outstanding on any date of
determination shall not exceed the Swing Line Commitment; (iii) on any date
of determination, the Revolver Commitment Usage shall never exceed the
Revolver Commitment; (iv) the Swing Line Principal Debt outstanding on any
date of determination shall not exceed the Revolver Commitment then in
effect; (v) at the time of such Swing Line Borrowing, no Default or
Potential Default shall have occurred and be continuing; (vi) each Swing
Line Borrowing shall bear interest at a rate per annum equal to a rate
mutually agreed upon by Borrower and Swing Line Lender or, if no such rate
is mutually agreed upon, the Base Rate plus the Applicable Margin for Base
Rate Borrowings for the Revolver Facility; provided that at any time after
Revolver Lenders are deemed to have purchased, pursuant to SECTION 2.5(b),
a participation in any Swing Line Borrowing, such Borrowing shall bear
interest at the Default Rate; and (vii) no additional Swing Line Borrowing
shall be made at any time after any Revolver Lender has refused,
notwithstanding the requirements of SECTION 2.5(b), to purchase a
participation in any Swing Line Borrowing as provided in such Section, and
until such purchase shall occur or until the Swing Line Borrowing has been
repaid. Each Borrowing under the Swing Line Subfacility shall be available
and may be prepaid on same day telephonic notice from Borrower to Swing
Line Lender, so long as such notice is received by Swing Line Lender prior
to 1:00 p.m., Dallas, Texas time. Accrued interest on Swing Line Borrowings
shall be due and payable on each March 31, June 30, September 30, and
December 31, and on the Termination Date for the Revolver Facility.
(b) Borrowings under the Swing Line Subfacility shall be due no
later than seven days after such Swing Line Borrowing is made. If Borrower
fails to repay any Swing Line Borrowing as provided herein, and funds
cannot be or are not advanced under the Revolver Facility to satisfy the
obligations under the Swing Line Subfacility, Administrative Agent shall
timely notify each Revolver Lender of such failure and of the date and
amount not paid. No later than the close of business on the date such
notice is given (if such notice was given prior to 12:00 noon, Dallas,
Texas time on any Business Day, or, if made at any other time, on the next
Business Day following the date of such notice), each Revolver Lender shall
be deemed to have irrevocably and unconditionally purchased and received
d-699365.10 26 CoorsTek Credit Agreement
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from Swing Line Lender an undivided interest and participation in such
Swing Line Borrowing to the extent of such Revolver Lender's Pro Rata Part
(with respect to the Revolver Facility) thereof, and each Revolver Lender
shall make available to Swing Line Lender in immediately available funds
such Revolver Lender's Pro Rata Part (with respect to the Revolver
Facility) of the unpaid amount of such Swing Line Borrowing. All such
amounts payable by any Revolver Lender shall include interest thereon from
the date on which such payment is payable by such Revolver Lender to, but
not including, the date such amount is paid by such Revolver Lender to
Administrative Agent, at the Federal Funds Rate. If such Revolver Lender
does not promptly pay such amount upon Administrative Agent's demand
therefor, and until such time as such Revolver Lender makes the required
payment, Swing Line Lender shall be deemed to continue to have outstanding
a Swing Line Borrowing in the amount of such unpaid obligation. Each
payment by Borrower of all or any part of any Swing Line Borrowing shall be
paid to Administrative Agent for the ratable benefit of Swing Line Lender
and those Revolver Lenders who have funded their participations in such
Swing Line Principal Debt under this SECTION 2.5(b); provided that, with
respect to any such participation, all interest accruing on the Swing Line
Principal Debt to which such participation relates prior to the date of
funding such participation shall be payable solely to Swing Line Lender for
its own account. In the event that any payment received by the Swing Line
Lender is required to be returned, each Revolver Lender will return to the
Swing Line Lender any portion thereof previously distributed by the Swing
Line Lender to it.
(c) Notwithstanding anything to the contrary in this Agreement,
each Revolver Lender's obligation to fund the Borrowings and to purchase
and fund participating interests pursuant to SECTION 2.5(b) shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim, recoupment,
defense, or other right which such Revolver Lender or Borrower may have
against the Swing Line Lender, Borrower, or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Potential Default or a
Default or the failure to satisfy any of the conditions specified in
SECTION 7; (iii) any adverse change in the condition (financial or
otherwise) of any Company; (iv) any breach of this Agreement by Borrower,
any Guarantor, or any Lender; or (v) any other circumstance, happening, or
event whatsoever, whether or not similar to any of the foregoing.
2.6 TERMINATIONS OR REDUCTIONS OF COMMITMENTS.
(a) VOLUNTARY COMMITMENT REDUCTIONS. Without premium or penalty,
and upon giving not less than three Business Days prior written and
irrevocable notice to Administrative Agent, Borrower may terminate in whole
or in part the unused portion of the Revolver Commitment, the Swing Line
Commitment, or the LC Subfacility commitment; provided that: (i) each
partial termination of the Revolver Commitment shall be in an amount of not
less than $5,000,000 or a greater integral multiple of $1,000,000; each
partial termination of the Swing Line Subfacility or the LC Subfacility
shall be in an amount of not less than $500,000 or a greater integral
multiple of $250,000; and (ii) on any date of determination, the amount of
the Revolver Commitment may not be reduced below the Revolver Commitment
Usage; the Swing Line Commitment may not be reduced below the Swing Line
Principal Debt; and the commitment under the LC Subfacility shall not be
reduced below the LC Exposure. At the time of any Revolver Commitment
termination, Borrower shall pay to Administrative Agent, for the account of
each Revolver Lender, as applicable, any amounts that may then be due under
SECTION 3.3(c), all accrued and unpaid fees then due and payable under this
Agreement, the interest attributable to the amount of that reduction, and
any related Consequential Loss. Any part of the Revolver Commitment that is
terminated may not be reinstated.
d-699365.10 27 CoorsTek Credit Agreement
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(b) MANDATORY COMMITMENT REDUCTION. As of the date of any
principal payment or prepayment of any Term Loan A Principal Debt or Term
Loan B Principal Debt, the Term Loan A Commitment or the Term Loan B
Commitment (as the case may be) shall be reduced by the amount of the
respective principal payment or prepayment, and each Term Loan A Lender's
Committed Sum under the Term Loan A Facility or each Term Loan B Lender's
Committed Sum under the Term Loan B Facility (as the case may be) shall be
ratably reduced by the amount of each such principal payment or prepayment.
(c) ADDITIONAL REDUCTIONS. The Swing Line Commitment and the
commitment under the LC Subfacility shall each be reduced from time to time
on the date of any mandatory or voluntary reduction of the Revolver
Commitment by the amount, if any, by which each such Subfacility commitment
exceeds the Revolver Commitment after giving effect to such reduction of
the Revolver Commitment.
(d) RATABLE ALLOCATION OF REVOLVER COMMITMENT REDUCTIONS. Each
reduction of the Revolver Commitment under this SECTION 2.6 shall be
allocated among the Revolver Lenders in accordance with their respective
Commitment Percentages under the Revolver Facility.
2.7 BORROWING PROCEDURE. The following procedures apply to all
Borrowings (other than Swing Line Borrowings and Borrowings pursuant to
SECTION 2.4(c)):
(a) BORROWING REQUEST. Borrower may request a Borrowing by
making or delivering a Borrowing Notice (that may be telephonic if
confirmed in writing within two Business Days) to Administrative Agent
requesting that Lenders fund a Borrowing on a certain date (the "BORROWING
DATE"), which Borrowing Notice (i) shall be irrevocable and binding on
Borrower, (ii) shall specify the Facility or Facilities under which such
Borrowing is being made, (iii) shall specify the Borrowing Date, amount,
Type, and (for a Borrowing comprised of Eurodollar Rate Borrowings)
Interest Period, and (iv) must be received by Administrative Agent no later
than 11:00 a.m. Dallas, Texas time on either the third Business Day
preceding the Borrowing Date for any Eurodollar Rate Borrowing or the same
Business Day for any Base Rate Borrowing. Administrative Agent shall timely
notify each Lender with respect to each Borrowing Notice.
(b) FUNDING. Each Lender shall remit its Commitment Percentage
for the relevant Facility of each requested Borrowing to Administrative
Agent's principal office in Dallas, Texas, in funds which are or will be
available for immediate use by Administrative Agent by 1:00 p.m. Dallas,
Texas time on the applicable Borrowing Date. Subject to receipt of such
funds, Administrative Agent shall (unless to its actual knowledge any of
the conditions precedent therefor have not been satisfied by Borrower or
waived by the requisite Lenders under SECTION 13.11) make such funds
available to Borrower by (at Borrower's option) (i) wiring the funds to or
for the account of Borrower or (ii) depositing the funds in Borrower's
account with Administrative Agent.
(c) FUNDING ASSUMED. Absent contrary written notice from a
Lender, Administrative Agent may assume that each Lender has made its
Commitment Percentage of the requested Borrowing available to
Administrative Agent on the applicable Borrowing Date, and Administrative
Agent may, in reliance upon such assumption (but shall not be required to),
make available to Borrower a corresponding amount. If a Lender fails to
make its Commitment Percentage of any requested Borrowing available to
Administrative Agent on the applicable Borrowing Date, Administrative Agent
may recover the applicable amount on demand, (i) from that Lender, together
with interest commencing to accrue on the Borrowing Date and ending on (but
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excluding) the date Administrative Agent recovers the amount from that
Lender, at an annual interest rate equal to the Federal-Funds Rate, or (ii)
if that Lender fails to pay its amount upon demand, then from Borrower. No
Lender is responsible for the failure of any other Lender to make its
Commitment Percentage of any Borrowing available as required by SECTION
2.7(b); however, failure of any Lender to make its Commitment Percentage of
any Borrowing so available does not excuse any other Lender from making its
Commitment Percentage of any Borrowing so available.
SECTION 3 TERMS OF PAYMENT.
3.1 LOAN ACCOUNTS, NOTES, AND PAYMENTS.
(a) LOAN ACCOUNTS; NOTELESS TRANSACTION. The Principal Debt owed
to each Lender shall be evidenced by one or more Loan Accounts or records
maintained by such Lender in the ordinary course of business. The Loan
Accounts or records maintained by the Administrative Agent (including,
without limitation, the Register) and each Lender shall be prima facie
evidence absent manifest error of the amount of the Borrowings made by
Borrower from each Lender under this Agreement (and the Facilities and
Subfacilities thereunder) and the interest and principal payments thereon.
Any failure to so record or any error in doing so shall not, however, limit
or otherwise affect the obligation of Borrower under the Loan Documents to
pay any amount owing with respect to the Obligation.
(b) NOTES. Upon the request of any Lender, made through the
Administrative Agent, the Principal Debt owed to such Lender may be
evidenced by one or more of the following Notes (as the case may be): (i) a
Revolver Note (with respect to Revolver Principal Debt other than under the
Swing Line Subfacility); (ii) a Swing Line Note (with respect to Revolver
Principal Debt arising under the Swing Line Subfacility); (iii) a Term Loan
A Note (with respect to Term Loan A Principal Debt); and (iv) a Term Loan B
Note (with respect to the Term Loan B Principal Debt).
(c) PAYMENT. All payments of principal, interest, and other
amounts to be made by Borrower under this Agreement and the other Loan
Documents shall be made to Administrative Agent at its principal office in
Dallas, Texas in Dollars and in funds which are or will be available for
immediate use by Administrative Agent by 12:00 noon Dallas, Texas time on
the day due, without setoff, deduction, or counterclaim. Payments made
after 12:00 noon, Dallas, Texas, time shall be deemed made on the Business
Day next following. Administrative Agent shall pay to each Lender any
payment of principal, interest, or other amount to which such Lender is
entitled hereunder on the same day Administrative Agent shall have received
the same from Borrower; provided such payment is received by Administrative
Agent prior to 12:00 noon, Dallas, Texas time, and otherwise before 12:00
noon Dallas, Texas time on the Business Day next following.
(d) PAYMENT ASSUMED. Unless Administrative Agent has received
notice from Borrower prior to the date on which any payment is due under
this Agreement that Borrower will not make that payment in full,
Administrative Agent may assume that Borrower has made the full payment due
and Administrative Agent may, in reliance upon that assumption, cause to be
distributed to the appropriate Lender on that date the amount then due to
such Lenders. If and to the extent Borrower does not make the full payment
due to Administrative Agent, each Lender shall repay to Administrative
Agent on demand the amount distributed to that Lender by Administrative
Agent together with interest for each day from the date that Lender
received payment from Administrative Agent until the date that Lender
repays Administrative Agent (unless such repayment is made on the same day
as such distribution), at an annual interest rate equal to the Federal
Funds Rate.
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3.2 INTEREST AND PRINCIPAL PAYMENTS.
(a) INTEREST. Accrued interest on each Eurodollar Rate Borrowing
is due and payable on the last day of its respective Interest Period and on
the Termination Date for the applicable Facility; provided that, if any
Interest Period is greater than three months, then accrued interest is also
due and payable on the three month anniversary of the date on which such
Interest Period commences and on each three month anniversary thereafter,
as well as on the last day of such Interest Period. Accrued interest on
each Base Rate Borrowing shall be due and payable on each March 31, June
30, September 30, and December 31, and on the Termination Date for the
applicable Facility.
(b) REVOLVER PRINCIPAL DEBT. The Revolver Principal Debt is due
and payable on the Termination Date for the Revolver Facility.
(c) TERM LOAN A PRINCIPAL DEBT. The Term Loan A Principal Debt
is due and payable in quarterly installments in the principal amounts
indicated in the table below, commencing on March 31, 2000, and continuing
thereafter on the last Business Day of each March, June, September, and
December, with the final payment due on the Termination Date for the Term
Loan A Facility, in accordance with the following amortization schedule:
======================================================================
PAYMENT DATES PRINCIPAL INSTALLMENTS
======================================================================
March 31, 2000, June 30, 2000, $1,875,000/each
September 30, 2000, and
December 31, 2000
----------------------------------------------------------------------
March 31, 2001, June 30, 2001, $2,500,000/each
September 30, 2001, and
December 31, 2001
----------------------------------------------------------------------
March 31, 2002, June 30, 2002, $3,750,000/each
September 30, 2002, and
December 31, 2002
----------------------------------------------------------------------
March 31, 2003, June 30, 2003, $6,250,000/each
September 30, 2003, and
December 31, 2003
----------------------------------------------------------------------
March 31, 2004, June 30, 2004, $6,875,000/each
September 30, 2004, and
December 6, 2004
======================================================================
(d) TERM LOAN B PRINCIPAL DEBT. The Term Loan B Principal Debt is
due and payable in quarterly installments in the principal amounts
indicated in the table below, commencing on March 31, 2000, and continuing
thereafter on the last Business Day of each March, June, September, and
December, with the final payment due on the Termination Date for the Term
Loan B Facility, in accordance with the following amortization schedule:
d-699365.10 30 CoorsTek Credit Agreement
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======================================================================
PAYMENT DATES PRINCIPAL INSTALLMENTS
======================================================================
Each March 31, June 30, $225,000/each
September 30, and December 31
of fiscal years 2000, 2001, 2002,
2003, 2004, and 2005
----------------------------------------------------------------------
March 31, 2006, June 30, 2006, $21,150,000/each
September 30, 2006, and
December 6, 2006
======================================================================
3.3 PREPAYMENTS.
(a) OPTIONAL PREPAYMENTS. Except as set forth herein, after
giving Administrative Agent advance written notice of the intent to prepay,
Borrower may voluntarily prepay all or any part of the Revolver Principal
Debt, the Swing Line Principal Debt, the Term Loan A Principal Debt, or the
Term Loan B Principal Debt from time to time and at any time, in whole or
in part, without premium or penalty; provided that: (i) such notice must be
received by Administrative Agent by 12:00 noon, Dallas, Texas time, one
Business Day preceding the date of prepayment of any Borrowing; (ii) each
such partial prepayment must be in a minimum amount of at least $5,000,000
or a greater integral multiple of $1,000,000 thereof or such lesser amount
as may be outstanding under the applicable Facility (or with respect to
prepayments of the Swing Line Principal Debt, $500,000 or a greater
integral multiple of $250,000 thereof or such lesser amount as may be
outstanding under the Swing Line Subfacility); (iii) any Eurodollar Rate
Borrowing may only be prepaid at the end of an applicable Interest Period
(unless Borrower pays the amount of any Consequential Loss); and (iv)
Borrower shall pay any related Consequential Loss within ten (10) days
after demand therefor. Conversions under SECTION 3.11 are not prepayments.
Each notice of prepayment shall specify the prepayment date, the Facility
hereunder being prepaid, and the Type of Borrowing(s) and amount(s) of such
Borrowing(s) to be prepaid and shall constitute a binding obligation of
Borrower to make a prepayment on the date stated therein, together with
(unless such prepayment is made with respect to a Base Rate Borrowing or
Swing Line Borrowing) accrued and unpaid interest to the date of such
payment on the aggregate principal amount prepaid. Unless a Default or
Potential Default has occurred and is continuing (or would arise as a
result thereof), any payment or prepayment of the Revolver Principal Debt
may be reborrowed by Borrower, subject to the terms and conditions hereof.
(b) MANDATORY PREPAYMENTS FROM NET CASH PROCEEDS. Until such
time as the Principal Debt has been repaid in full, the Principal Debt
shall be permanently prepaid in the amounts and upon the occurrence of any
of the following events:
(i) Concurrently with any Debt Issuance by any Company,
the Principal Debt shall be permanently prepaid, in the order and
manner specified herein, by an amount equal to 100% of the Net Cash
Proceeds realized by any Company from such Debt Issuance;
(ii) Concurrently with the consummation of any Significant
Sale by any Company (which Significant Sale must be otherwise
permitted under the Loan Documents or shall have been consented to by
Required Lenders), the Principal Debt shall be permanently prepaid in
the order and manner specified herein, by an amount equal to 100% of
the Net Cash Proceeds realized by any Company from such Significant
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Sale or as and when any deferred Purchase Price is received (or if
such disposition is a Significant Sale as a result of aggregation
with other asset dispositions in the same fiscal year, 100% of the
aggregate Net Cash Proceeds received from all such asset dispositions
in the calendar year in excess of $10,000,000), if such Net Cash
Proceeds or any portion thereof have not been reinvested in similar
assets of the Companies within ten (10) months from the date of
consummation of such Significant Sale or other asset disposition, as
the case may be; and
(iii) Concurrently with any Equity Issuance by any Company,
the Principal Debt shall be permanently prepaid in the order and
manner specified herein, by an amount equal to 75% of the Net Cash
Proceeds realized by any Company from such Equity Issuance; provided
that, only 50% of the Net Cash Proceeds realized by any Company from
such Equity Issuance shall be required to be paid pursuant to this
CLAUSE (iii) if the Leverage Ratio determined as of the date of the
Equity Issuance for the most-recently ended two consecutive fiscal
quarters (immediately prior to giving effect to such mandatory
prepayment) is less than 2.50 to 1.0.
Each commitment reduction or prepayment under this SECTION 3.3(b) shall be
applied as follows: (i) first, ratably as a prepayment of the Obligation
arising under the Term Loan A Facility and the Term Loan B Facility until
paid in full (for purposes hereof, "ratably", for each Facility, on any
date of determination, shall mean the proportion that either the Term Loan
A Principal Debt or the Term Loan B Principal Debt, as the case may be,
bears to the sum of the Term Loan A Principal Debt and the Term Loan B
Principal Debt), and (ii) second, as a mandatory prepayment of the Revolver
Principal Debt, or, if a Default exists or arises as a result therefrom, as
a reduction of the Revolver Commitment. All mandatory prepayments of the
Term Loan A Principal Debt and the Term Loan B Principal Debt shall be
applied to the regularly-scheduled Term Loan A Principal Debt and Term Loan
B Principal Debt reductions as set forth in SECTIONS 3.2(c) and (d),
respectively, in inverse order of maturities.
(c) REVOLVER FACILITY MANDATORY PAYMENTS/REDUCTIONS. On any date
of determination if the Revolver Commitment Usage exceeds the Revolver
Commitment then in effect (including any Revolver Commitment reduction
pursuant to SECTION 3.3(b)) or the Swing Line Principal Debt exceeds the
Swing Line Commitment then in effect, then Borrower shall make a mandatory
prepayment of the Revolver Principal Debt or the Swing Line Principal Debt,
as the case may be, in at least the amount of such excess, together with
(x) all accrued and unpaid interest on the principal amount so prepaid and
(y) any Consequential Loss arising as a result thereof; provided that, if
no Swing Line Principal Debt or Revolver Principal Debt is then
outstanding, Borrower shall provide to Administrative Agent, for the
benefit of Lenders, cash collateral in Dollars in an amount at least equal
to 110% of such excess. All mandatory prepayments under the Revolver
Facility or Revolver Commitment reductions hereunder shall be allocated
among the Revolver Lenders in accordance with their respective Commitment
Percentages under the Revolver Facility.
(d) MANDATORY PREPAYMENTS OF INTEREST/CONSEQUENTIAL LOSS. All
prepayments under SECTION 3.3(b) and (c) shall be made, together with
accrued interest to the date of such prepayment on the principal amount
prepaid, together with any Consequential Loss arising as a result thereof.
(e) TERM LOAN B FACILITY. To the extent there is any Term Loan A
Principal Debt outstanding, any Term Loan B Lender, at its option, may
elect not to accept such partial prepayment under this SECTION 3.3 (such
Lender being a "DECLINING B LENDER"), in which event the provisions of the
next sentence shall apply. On the prepayment date, an amount equal to that
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portion of the prepayment amount available to prepay Term Loan B Lenders
(less any amounts that would otherwise be payable to Declining B Lenders)
shall be applied ratably to prepay Term Loan B Principal Debt owed to Term
Loan B Lenders other than Declining B Lenders and any amounts that would
otherwise have been applied to prepay Term Loan B Principal Debt owing to
Declining B Lenders shall instead be applied to prepay the remaining Term
Loan A Principal Debt; provided further, that upon prepayment in full of
the Term Loan B Principal Debt owing to Term Loan B Lenders other than
Declining B Lenders the remainder of any prepayment amount that is to be
applied to Term Loan B Principal Debt shall be applied ratably to prepay
Term Loan B Principal Debt owing to Declining B Lenders. Any Term Loan B
Lender may elect not to accept its ratable share of a partial prepayment by
giving written notice to the Administrative Agent not later than 11:00 a.m.
Dallas, Texas time on the Business Day immediately preceding the scheduled
prepayment date.
3.4 INTEREST OPTIONS. Except that the Eurodollar Rate may not be
selected when a Default or Potential Default exists and except as otherwise
provided in this Agreement, Borrowings bear interest at a rate per annum equal
to the lesser of (a) as to the respective Type of Borrowing (as designated by
Borrower in accordance with this Agreement), the Base Rate plus the Applicable
Margin for Base Rate Borrowings or the Adjusted Eurodollar Rate plus the
Applicable Margin for Eurodollar Rate Borrowings, and (b) the Maximum Rate. Each
change in the Base Rate or the Maximum Rate, subject to the terms of this
Agreement, will become effective, without notice to Borrower or any other
Person, upon the effective date of such change.
3.5 QUOTATION OF RATES. Borrower may call Administrative Agent before
delivering a Borrowing Notice to receive an indication of the rates then in
effect, but such indicated rates do not bind Administrative Agent or Lenders or
affect the rate of interest that is actually in effect when the Borrowing Notice
is given or on the Borrowing Date.
3.6 DEFAULT RATE. At the option of Required Lenders and to the extent
permitted by Law, all past-due Principal Debt, all past due payment and
reimbursement obligations in connection with LCs, and past due interest accruing
on any of the foregoing shall bear interest from maturity (stated or by
acceleration) at the Default Rate until paid, regardless whether such payment is
made before or after entry of a judgment.
3.7 INTEREST RECAPTURE. If the designated rate applicable to any
Borrowing exceeds the Maximum Rate, the rate of interest on such Borrowing shall
be limited to the Maximum Rate, but any subsequent reductions in such designated
rate shall not reduce the rate of interest thereon below the Maximum Rate until
the total amount of interest accrued thereon equals the amount of interest which
would have accrued thereon if such designated rate had at all times been in
effect. In the event that at maturity (stated or by acceleration), or at final
payment of the Principal Debt, the total amount of interest paid or accrued is
less than the amount of interest which would have accrued if such designated
rates had at all times been in effect, then, at such time and to the extent
permitted by Law, Borrower shall pay an amount equal to the difference between
(a) the lesser of the amount of interest which would have accrued if such
designated rates had at all times been in effect and the amount of interest
which would have accrued if the Maximum Rate had at all times been in effect,
and (b) the amount of interest actually paid or accrued on the Principal Debt.
3.8 INTEREST CALCULATIONS. Interest will be calculated on the basis of
actual number of days (including the first day but excluding the last day)
elapsed but computed as if each calendar year consisted of 360 days in the case
of an Eurodollar Rate Borrowing (unless the calculation would result in an
interest rate greater than the Maximum Rate, in which event interest will be
calculated on the basis of a year of 365 or 366 days, as the case may be) and
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365 or 366 days, as the case may be, in the case of a Base Rate Borrowing. All
interest rate determinations and calculations by Administrative Agent are
conclusive and binding absent manifest error.
3.9 MAXIMUM RATE. Regardless of any provision contained in any Loan
Document, neither Administrative Agent nor any Lender shall ever be entitled to
contract for, charge, take, reserve, receive, or apply, as interest on all or
any part of the Obligation, any amount in excess of the Maximum Rate, and, if
Lenders ever do so, then such excess shall be deemed a partial prepayment of
principal and treated hereunder as such and any remaining excess shall be
refunded to Borrower. In determining if the interest paid or payable exceeds the
Maximum Rate, Borrower and Lenders shall, to the maximum extent permitted under
applicable Law, (a) treat all Borrowings as but a single extension of credit
(and Lenders and Borrower agree that such is the case and that provision herein
for multiple Borrowings is for convenience only), (b) characterize any
nonprincipal payment as an expense, fee, or premium rather than as interest, (c)
exclude voluntary prepayments and the effects thereof, and (d) amortize,
prorate, allocate, and spread the total amount of interest throughout the entire
contemplated term of the Obligation. However, if the Obligation is paid and
performed in full prior to the end of the full contemplated term thereof, and if
the interest received for the actual period of existence thereof exceeds the
Maximum Amount, Lenders shall refund such excess, and, in such event, Lenders
shall not, to the extent permitted by Law, be subject to any penalties provided
by any Laws for contracting for, charging, taking, reserving, or receiving
interest in excess of the Maximum Amount. If the Laws of the State of Texas are
applicable for purposes of determining the "Maximum Rate" or the "Maximum
Amount," then those terms mean the "weekly ceiling" from time to time in effect
under Texas Finance Code ss. 303.305. Borrower agrees that Chapter 346 of the
Texas Finance Code, as amended (which regulates certain revolving credit loan
accounts and revolving tri-party accounts), does not apply to the Obligation.
3.10 INTEREST PERIODS. When Borrower requests any Eurodollar Rate
Borrowing, Borrower may elect the interest period (each an "INTEREST PERIOD")
applicable thereto, which may be, at Borrower's option and subject to
availability, one, two, three, or six months; provided, however, that: (a) the
initial Interest Period for a Eurodollar Rate Borrowing shall commence on the
date of such Borrowing (including the date of any conversion thereto), and each
Interest Period occurring thereafter in respect of such Borrowing shall commence
on the day on which the next preceding Interest Period applicable thereto
expires; (b) if any Interest Period for a Eurodollar Rate Borrowing begins on a
day for which there is no numerically corresponding Business Day in the calendar
month at the end of such Interest Period, such Interest Period shall end on the
next Business Day immediately following what otherwise would have been such
numerically corresponding day in the calendar month at the end of such Interest
Period (unless such date would be in a different calendar month from what would
have been the month at the end of such Interest Period, or unless there is no
numerically corresponding day in the calendar month at the end of the Interest
Period; whereupon, such Interest Period shall end on the last Business Day in
the calendar month at the end of such Interest Period); (c) no Interest Period
may be chosen with respect to any portion of the Principal Debt which would
extend beyond the scheduled repayment date (including any dates on which
mandatory prepayments are required to be made) for such portion of the Principal
Debt; and (d) no more than an aggregate of six (6) Interest Periods shall be in
effect at one time.
3.11 CONVERSIONS. Borrower may (a) convert a Eurodollar Rate Borrowing on
the last day of the applicable Interest Period to a Base Rate Borrowing, (b)
convert a Base Rate Borrowing at any time to a Eurodollar Rate Borrowing, and
(c) elect a new Interest Period (in the case of a Eurodollar Rate Borrowing), by
giving a Conversion Notice to Administrative Agent no later than 11:00 a.m.
Dallas, Texas time on the third Business Day prior to the date of conversion or
the last day of the Interest Period, as the case may be (in the case of a
conversion to a Eurodollar Rate Borrowing or an election of a new Interest
d-699365.10 34 CoorsTek Credit Agreement
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Period), and no later than 11:00 a.m. Dallas, Texas on the last Business Day of
the Interest Period (in the case of a conversion to a Base Rate Borrowing);
provided that, the principal amount converted to, or continued as, a Eurodollar
Rate Borrowing shall be in an amount not less than $5,000,000 or a greater
integral multiple of $1,000,000 (or such lesser amount as may be outstanding
under any Facility). Administrative Agent shall timely notify each Lender with
respect to each Conversion Notice. Absent Borrower's Conversion Notice or
election of a new Interest Period, a Eurodollar Rate Borrowing shall be deemed
converted to a Base Rate Borrowing effective as of the expiration of the
Interest Period applicable thereto. The right to convert from a Base Rate
Borrowing to a Eurodollar Rate Borrowing, or to continue as a Eurodollar Rate
Borrowing, shall not be available during the occurrence of a Default or
Potential Default.
3.12 ORDER OF APPLICATION.
(a) NO DEFAULT. If no Default or Potential Default exists and
if no order of application is otherwise specified in Section 3.3 or
otherwise in the Loan Documents, payments and prepayments of the Obligation
shall be applied first to fees, second to accrued interest then due and
payable on the Principal Debt, and then to the remaining Obligation in the
order and manner as Borrower may direct.
(b) DEFAULT. If a Default or Potential Default exists (or if
Borrower fails to give directions as permitted under SECTION 3.12(a)), any
payment or prepayment (including proceeds from the exercise of any Rights)
shall be applied to the Obligation in the following order: (i) to the
ratable payment of all fees, expenses, and indemnities for which Agents or
Lenders have not been paid or reimbursed in accordance with the Loan
Documents (as used in this SECTION 3.12(b)(i), a "ratable payment" for any
Lender or any Agent shall be, on any date of determination, that proportion
which the portion of the total fees, expenses, and indemnities owed to such
Lender or such Agent bears to the total aggregate fees, expenses, and
indemnities owed to Agents and all Lenders on such date of determination);
(ii) to the ratable payment of accrued and unpaid interest on the Principal
Debt (as used in this SECTION 3.12(b)(ii), "ratable payment" means, for any
Lender, on any date of determination, that proportion which the accrued and
unpaid interest on the Principal Debt owed to such Lender bears to the
total accrued and unpaid interest on the Principal Debt owed to all
Lenders); (iii) to the ratable payment of the Swing Line Principal Debt
which is due and payable and which remains unfunded by any Borrowing under
the Revolver Facility; provided that, such payments shall be allocated
ratably among the Swing Line Lender and the Revolver Lenders which have
funded their participations in the Swing Line Principal Debt; (iv) to the
ratable payment of any reimbursement obligation with respect to any LC
issued pursuant to the Agreement which is due and payable and which remains
unfunded by any Borrowing, provided that, such payments shall be allocated
ratably among Administrative Agent (as the issuing Lender) and the Lenders
which have funded their participations in such LC; (v) to the ratable
payment of the Principal Debt (as used in this SECTION 3.12(b)(v), "ratable
payment" means for any Lender, on any date of determination, that
proportion which the Principal Debt owed to such Lender bears to the
Principal Debt owed to all Lenders; (vi) to provide cash collateral in an
amount equal to 110% of the LC Exposure then existing in accordance with
SECTION 2.4(g); and (vii) to the payment of the remaining Obligation in the
order and manner Required Lenders deem appropriate. All payments of the
Term Loan A Principal Debt and the Term Loan B Principal Debt shall be
applied to the regularly-scheduled Term Loan A Principal Debt and Term Loan
B Principal Debt reductions as set forth in SECTIONS 3.2(c) and (d),
respectively, in inverse order of maturities.
Subject to the provisions of SECTION 12 and provided that Administrative Agent
shall not in any event be bound to inquire into or to determine the validity,
scope, or priority of any interest or entitlement of any Lender and may suspend
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all payments or seek appropriate relief (including, without limitation,
instructions from Required Lenders or an action in the nature of interpleader)
in the event of any doubt or dispute as to any apportionment or distribution
contemplated hereby, Administrative Agent shall promptly distribute such amounts
to each Lender in accordance with the Agreement and the related Loan Documents.
3.13 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any payment or
prepayment with respect to the Obligation (whether voluntary, involuntary, or
otherwise, including, without limitation, as a result of exercising its Rights
under SECTION 3.14) which is in excess of its ratable share of any such payment,
then such Lender shall purchase from the other Lenders such participations as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each other Lender. If all or any portion of such excess payment is
subsequently recovered from such purchasing Lender, then the purchase shall be
rescinded and the purchase price restored to the extent of such recovery.
Borrower agrees that any Lender purchasing a participation from another Lender
pursuant to this SECTION may, to the fullest extent permitted by Law, exercise
all of its Rights of payment (including the Right of offset) with respect to
such participation as fully as if such Lender were the direct creditor of
Borrower in the amount of such participation.
3.14 OFFSET. If a Default exists, each Lender shall be entitled to
exercise (for the benefit of all Lenders in accordance with SECTION 3.13) the
Rights of offset and/or banker's Lien against each and every account and other
property, or any interest therein, which any Loan Party may now or hereafter
have with, or which is now or hereafter in the possession of, such Lender to the
extent of the full amount of the Obligation.
3.15 BOOKING BORROWINGS. To the extent permitted by Law, any Lender may
make, carry, or transfer its Borrowings at, to, or for the account of any of its
branch offices or the office of any of its Affiliates; provided that, no
Affiliate shall be entitled to receive any greater payment under SECTION 4 than
the transferor Lender would have been entitled to receive with respect to such
Borrowings.
3.16 EURO PROVISIONS.
(a) If, as a result of the implementation of the EMU, either any
Alternative Currency has ceased or ceases to be lawful currency of the
jurisdiction issuing it and has been or is replaced by the Euro or any
Alternative Currency and the Euro are at the same time both recognized by
the central bank or comparable Governmental Authority of the jurisdiction
issuing such currency as lawful currency of that jurisdiction, then either:
(i) notwithstanding any contrary provision of the Loan
Documents, any amount payable under any Loan Document in that
Alternative Currency shall instead be payable in the Euro, and the
amount so payable shall be determined by redenominating or converting
such amount into the Euro at the exchange rate officially fixed by
the European Central Bank for the purpose of implementing the EMU; or
(ii) to the extent any EMU legislation provides that an
amount denominated either in the Euro or in the applicable
Alternative Currency can be paid either in Euros or in the applicable
Alternative Currency, each party to the Loan Documents shall be
entitled to pay or repay such amount in Euros or in the applicable
Alternative Currency.
Before the occurrence of the event or events described in the introductory
clause of this SECTION 3.16, each amount payable under any Loan Document in
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any Alternative Currency shall, except as otherwise specifically provided
in the Loan Documents, continue to be payable only in that Alternative
Currency.
(b) Borrower shall from time to time, at Administrative Agent's
request, pay to Administrative Agent for the account of each Lender the
amount of any cost or increased cost incurred by, or of any reduction in
any amount payable to or in the effective return on its capital to, or of
interest or other return foregone by, that Lender or any holding company of
that Lender as a result of the introduction of, changeover to, or operation
of the Euro in any applicable jurisdiction.
SECTION 4 CHANGE IN CIRCUMSTANCES.
4.1 INCREASED COST AND REDUCED RETURN.
(a) CHANGES IN LAW. If, after the date hereof, the adoption of
any applicable Law or any change in any applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
Governmental Authority:
(i) shall subject such Lender (or its Applicable Lending
Office) to any Tax or other charge with respect to any Eurodollar
Rate Borrowing, its Notes, or its obligation to loan Eurodollar Rate
Borrowings, or change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under this Agreement
or its Notes in respect of any Eurodollar Rate Borrowings (other than
Taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Reserve Requirement utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the commitments
of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or the London interbank market any other condition
affecting this Agreement or its Notes or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to materially increase the cost
to such Lender (or its Applicable Lending Office) of making, converting
into, continuing, or maintaining any Eurodollar Rate Borrowings or to
reduce any sum received or receivable by such Lender (or its Applicable
Lending Office) under this Agreement or its Notes with respect to any
Eurodollar Rate Borrowing, then Borrower shall pay to such Lender on demand
such amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by Borrower under
this SECTION 4.1(a), Borrower may, by notice to such Lender (with a copy to
Administrative Agent), suspend the obligation of such Lender to loan or
continue Eurodollar Rate Borrowings, or to convert Borrowings of any other
Type into Eurodollar Rate Borrowings, until the event or condition giving
rise to such request ceases to be in effect (in which case the provisions
of SECTION 4.4 shall be applicable); provided, that such suspension shall
not affect the right of such Lender to receive the compensation so
requested.
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(b) CAPITAL ADEQUACY. If, after the date hereof, any Lender
shall have determined that the adoption of any applicable Law regarding
capital adequacy or any change therein or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such Governmental Authority has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender's obligations hereunder to a
level below that which such Lender or such corporation could have achieved
but for such adoption, change, request, or directive (taking into
consideration its policies with respect to capital adequacy), then from
time to time upon demand Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.
(c) CHANGES IN APPLICABLE LENDING OFFICE. COMPENSATION STATEMENT.
Each Lender shall promptly notify Borrower and Administrative Agent of any
event of which it has knowledge, occurring after the date hereof, which
will entitle such Lender to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender, be otherwise materially
disadvantageous to it. Any Lender claiming compensation under this Section
shall furnish to Borrower and Administrative Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder which
shall be conclusive evidence of the amount due. In determining such amount,
such Lender may use any reasonable averaging and attribution methods.
4.2 LIMITATION ON TYPES OF LOANS. If on or prior to the first day of any
Interest Period for any Eurodollar Rate Borrowing:
(a) INABILITY TO DETERMINE EURODOLLAR RATE. Administrative Agent
reasonably determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period; or
(b) COSTS OF FUNDS. Required Lenders determine (which
determination shall be conclusive) and notify Administrative Agent that the
Adjusted Eurodollar Rate will not adequately and fairly reflect the cost to
the Lenders of funding Eurodollar Rate Borrowings for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof specifying
the relevant amounts or periods, and so long as such condition remains in
effect, the Lenders shall be under no obligation to fund additional Eurodollar
Rate Borrowings, continue Eurodollar Rate Borrowings, or to convert Base Rate
Borrowings into Eurodollar Rate Borrowings, and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Eurodollar
Rate Borrowings, either prepay such Borrowings or convert such Borrowings into
Base Rate Borrowings in accordance with the terms of this Agreement.
4.3 ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Borrowings hereunder, then
such Lender shall promptly notify Borrower thereof and such Lender's obligation
to make or continue Eurodollar Rate Borrowings and to convert other Base Rate
Borrowings into Eurodollar Rate Borrowings shall be suspended until such time as
such Lender may again make, maintain, and fund Eurodollar Rate Borrowings (in
which case the provisions of SECTION 4.4 shall be applicable).
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4.4 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to fund
Eurodollar Rate Borrowings or to continue, or to convert Base Rate Borrowings
into Eurodollar Rate Borrowings, shall be suspended pursuant to SECTIONS 4.1,
4.2, or 4.3 hereof, such Lender's Eurodollar Rate Borrowings shall be
automatically converted into Base Rate Borrowings on the last day(s) of the then
current Interest Period(s) for Eurodollar Rate Borrowings (or, in the case of a
conversion required by SECTION 4.3 hereof, on such earlier date as such Lender
may specify to Borrower with a copy to Administrative Agent) and, unless and
until such Lender gives notice as provided below that the circumstances
specified in SECTIONS 4.1, 4.2, or 4.3 hereof that gave rise to such conversion
no longer exist:
(a) to the extent that such Lender's Eurodollar Rate Borrowings
have been so converted, all payments and prepayments of principal that
would otherwise be applied to such Lender's Eurodollar Rate Borrowings
shall be applied instead to its Base Rate Borrowings; and
(b) all Borrowings that would otherwise be made or continued by
such Lender as Eurodollar Rate Borrowings shall be made or continued
instead as Base Rate Borrowings, and all Borrowings of such Lender that
would otherwise be converted into Eurodollar Rate Borrowings shall be
converted instead into (or shall remain as) Base Rate Borrowings.
If such Lender gives notice to Borrower (with a copy to Administrative Agent)
that the circumstances specified in SECTIONS 4.1, 4.2, or 4.3 hereof that gave
rise to the conversion of such Lender's Eurodollar Rate Borrowings pursuant to
this SECTION 4.4 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Eurodollar Rate Borrowings
made by other Lenders are outstanding, such Lender's Base Rate Borrowings shall
be automatically converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Rate Borrowings, to the extent
necessary so that, after giving effect thereto, all Eurodollar Rate Borrowings
held by the Lenders and by such Lender are held pro rata (as to principal
amounts, Types, and Interest Periods) in accordance with their respective
Commitment Percentage.
4.5 COMPENSATION. Upon the request of any Lender, Borrower shall pay to
such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a Eurodollar Rate
Borrowing for any reason (including, without limitation, the acceleration
of the loan pursuant to SECTION 11.1 or as a result of the syndication of
any Facility by Administrative Agent during the 180-day period immediately
following the Initial Borrowing Date) on a date other than the last day of
the Interest Period for such Borrowing; or
(b) any failure by Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in SECTION 7.4
to be satisfied) to borrow, convert, continue, or prepay a Eurodollar Rate
Borrowing on the date for such borrowing, conversion, continuation, or
prepayment specified in the relevant notice of borrowing, prepayment,
continuation, or conversion under this Agreement.
4.6 TAXES.
(a) GENERAL. Any and all payments by Borrower to or for the
account of any Lender or Administrative Agent hereunder or under any other
Loan Document shall be made free and clear of and without deduction for any
and all present or future Taxes, excluding, in the case of each Lender and
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Administrative Agent, Taxes imposed on its income and franchise Taxes
imposed on it by the jurisdiction under the Laws of which such Lender (or
its Applicable Lending Office) or Administrative Agent (as the case may be)
is organized, or any political subdivision thereof. If Borrower shall be
required by Law to deduct any Taxes from or in respect of any sum payable
under this Agreement or any other Loan Document to any Lender or
Administrative Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions
applicable to additional sums payable under this SECTION 4.6) such Lender
or Administrative Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Borrower shall make such
deductions, (iii) Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable Law, and (iv) Borrower shall furnish to Administrative Agent, at
its address listed in SCHEDULE 2.1, the original or a certified copy of a
receipt evidencing payment thereof.
(b) STAMP AND DOCUMENTARY TAXES. In addition, to the extent
permitted by applicable Law, Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this
Agreement or any other Loan Document or from the execution or delivery of,
or otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "OTHER TAXES").
(c) INDEMNIFICATION FOR TAXES. Borrower agrees to indemnify each
Lender and Administrative Agent for the full amount of Taxes and Other
Taxes which Borrower is obligated to pay under this Section 4.6 (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this SECTION 4.6) paid by such Lender
or Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto.
(d) WITHHOLDING TAX FORMS. Each Lender organized under the Laws
of a jurisdiction outside the United States, on or prior to the date of its
execution and delivery of this Agreement in the case of each Lender listed
on the signature pages hereof and on or prior to the date on which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by Borrower or Administrative Agent (but
only so long as such Lender remains lawfully able to do so), shall provide
Borrower and Administrative Agent with (i) if such Lender is a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, Internal Revenue
Service Form 1001 or 4224, as appropriate, or any successor form prescribed
by the Internal Revenue Service, certifying that such Lender is entitled to
benefits under an income tax treaty to which the United States is a party
which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States, or (ii) if such Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and intends to claim an exemption from
United States withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest," a Form W-8, or any
successor form prescribed by the Internal Revenue Service, and a
certificate representing that such Lender is not a bank for purposes of
Section 881(c) of the Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of Borrower, and is not a
controlled foreign corporation related to Borrower (within the meaning of
Section 864(d)(4) of the Code). Each Lender which so delivers a W-8, Form
1001, or 4224 further undertakes to deliver to Borrower and Administrative
Agent additional forms (or a successor form) on or before the date such
form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, in each case
certifying that such Lender is entitled to receive payments from Borrower
under any Loan Document without deduction or withholding (or at a reduced
rate of deduction or withholding) of any United States federal income
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taxes, unless an event (including without limitation any change in treaty,
law, or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender advises
Borrower and Administrative Agent that it is not capable of receiving such
payments without any deduction or withholding of United States federal
income tax.
(e) FAILURE TO PROVIDE WITHHOLDING FORMS; CHANGES IN TAX LAWS.
For any period with respect to which a Lender has failed to provide
Borrower and Administrative Agent with the appropriate form pursuant to
SECTION 4.6(d) (unless such failure is due to a change in Law occurring
subsequent to the date on which a form originally was required to be
provided), such Lender shall not be entitled to indemnification under
SECTION 4.6(a) or 4.6(b) with respect to Taxes imposed by the United
States; provided, however, that should a Lender, which is otherwise exempt
from or subject to a reduced rate of withholding tax, become subject to
Taxes because of its failure to deliver a form required hereunder, Borrower
shall take such steps as such Lender shall reasonably request to assist
such Lender to recover such Taxes.
(f) CHANGE IN APPLICABLE LENDING OFFICE. If Borrower is
required to pay additional amounts to or for the account of any Lender
pursuant to this SECTION 4.6, then such Lender will agree to use reasonable
efforts to change the jurisdiction of its Applicable Lending Office so as
to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the reasonable judgment of such Lender, is not
otherwise materially disadvantageous to such Lender.
(g) TAX PAYMENT RECEIPTS. Within thirty (30) days after the date
of any payment of Taxes, Borrower shall furnish to Administrative Agent the
original or a certified copy of a receipt evidencing such payment.
(h) SURVIVAL. Without prejudice to the survival of any other
agreement of Borrower hereunder, the agreements and obligations of Borrower
contained in this SECTION 4.6 shall survive the termination of the Total
Commitment and the payment in full of the Obligation.
SECTION 5 FEES.
5.1 TREATMENT OF FEES. Except as otherwise provided by Law, the fees
described in this SECTION 5: (a) do not constitute compensation for the use,
detention, or forbearance of money, (b) are in addition to, and not in lieu of,
interest and expenses otherwise described in this Agreement, (c) shall be
payable in accordance with SECTION 3.1, (d) shall be non-refundable, (e) shall,
to the fullest extent permitted by Law, bear interest, if not paid when due, at
the Default Rate, and (f) shall be calculated on the basis of actual number of
days (including the first day but excluding the last day) elapsed, but computed
as if each calendar year consisted of 360 days, unless such computation would
result in interest being computed in excess of the Maximum Rate, in which event
such computation shall be made on the basis of a year of 365 or 366 days, as the
case may be.
5.2 FEES OF ADMINISTRATIVE AGENT AND ARRANGER. Borrower shall pay to
Administrative Agent and Arranger, as the case may be, solely for their
respective accounts, the fees described in that certain separate letter
agreement dated as of October 4, 1999, between Borrower, ACX Technologies, Inc.,
Administrative Agent, and Arranger.
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5.3 COMMITMENT FEES. Following the Closing Date, Borrower shall pay to
Administrative Agent, for the ratable account of Lenders, a commitment fee,
calculated daily from the Closing Date but payable in installments in arrears on
the Initial Borrowing Date, each March 31, June 30, September 30, and December
31 and on the Termination Date for the Revolver Facility, commencing on the
earlier of (i) the Initial Borrowing Date or (ii) March 31, 2000. On and after
the Closing Date through, but not including, the Initial Borrowing Date, the
commitment fee shall be an amount equal to the Applicable Margin for Commitment
Fees multiplied by the Total Commitment. On any day of determination on or after
the Initial Borrowing Date, the commitment fee shall be an amount equal to the
Applicable Margin for Commitment Fees multiplied by the amount by which (a) the
Revolver Commitment on such day exceeds (b) the Revolver Commitment Usage on
such day. Each such installment shall be calculated in accordance with Section
5.1(f). Solely for the purposes of this SECTION 5.3, (i) determinations of the
average daily Revolver Commitment Usage shall exclude the Swing Line Principal
Debt; and (ii) "ratable" shall mean, with respect to any Lender, that proportion
which (x) the average daily unused Committed Sum of such Lender during such
period bears to (y) the amount of the average daily unused Total Commitment.
5.4 LC FEES. As an inducement for the issuance (including, without
limitation, any extension) of each LC, Borrower agrees to pay to Administrative
Agent:
(a) For the account of each Lender, according to each Lender's
Commitment Percentage under the Revolver Facility on the day the fee is
payable, an issuance fee payable quarterly in arrears for so long as each
such LC is outstanding, on the last Business Day of each March, June,
September, and December and on the expiry date of the LC. The issuance fee
for each LC or any extension thereof shall be in an amount equal to the
product of (a) the Applicable Margin for Eurodollar Rate Borrowings in
effect on the date of payment of such fee (calculated on a per annum basis)
multiplied by (b) the Dollar Equivalent of the stated amount of such LC.
(b) For the account of Administrative Agent, as the issuer of
LCs, payable on the date of issuance of any LC (or any extension thereof) a
fronting fee of 0.125% of the Dollar Equivalent of the stated amount of
such LC. In addition, Borrower shall pay to Administrative Agent, for its
individual account, standard administrative charges for LC amendments.
SECTION 6. SECURITY; GUARANTIES.
6.1 COLLATERAL. To secure full and complete payment and performance of
the Obligation, the Loan Parties hereby jointly and severally grant and convey
to, and create in favor of, Administrative Agent (for the ratable benefit of the
Lenders) first priority Liens in and to the following on the terms and
conditions set forth in the Collateral Documents: (i) all of the issued and
outstanding stock of the Domestic Subsidiaries owned by Borrower or any Domestic
Subsidiary; (ii) 65% of the outstanding stock of each of the Material Foreign
Subsidiaries owned by Borrower or any Domestic Subsidiary; and (iii) all
inventory and accounts receivable of Borrower or any Domestic Subsidiary,
excluding inventory located outside the United States and accounts receivable
generated from the sale of inventory to purchasers located outside the United
States (collectively, the "FOREIGN ASSETS"), so long as the aggregate value of
such Foreign Assets does not exceed 10% of the total assets of the Loan Parties,
as more particularly described in the Collateral Documents (collectively, the
"COLLATERAL"); provided that, the stock of any Domestic Subsidiary that will be
merged out of existence upon the occurrence of the Subsidiary Mergers will not
be required to be pledged hereunder unless the Subsidiary Mergers have not been
consummated in full on or prior to the 60th day following the Initial Borrowing
Date, at which time the stock of each then-existing Domestic Subsidiary shall be
pledged hereunder. In addition, promptly after the designation, formation, or
Acquisition of any new Domestic Subsidiary or after any Foreign Subsidiary
becomes a Material Foreign Subsidiary as reflected on the most-recently
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delivered Financial Statements, Borrower shall execute and deliver to
Administrative Agent all instruments and documents (including, without
limitation, Collateral Documents and all certificates and instruments
representing shares of stock), and shall take all further action that may be
necessary or desirable, or that Administrative Agent may reasonably request, to
grant and perfect first priority Liens in favor of Administrative Agent (for the
ratable benefit of the Lenders) in all of each new Domestic Subsidiary owned by
Borrower or any Domestic Subsidiary, 65% of the issued and outstanding stock of
each new Material Foreign Subsidiary owned by Borrower or any Domestic
Subsidiary as security for the Obligation, and any additional Collateral owned
by any new Domestic Subsidiary.
6.2 GUARANTIES. As an inducement to Agents and Lenders to enter into
this Agreement, Borrower shall cause each Domestic Subsidiary to execute and
deliver to Administrative Agent a Guaranty substantially in the form and upon
the terms of EXHIBIT C, providing for the guarantee of payment and performance
of the Obligation; provided that, guaranties from any Domestic Subsidiary that
will be merged out of existence upon the occurrence of the Subsidiary Mergers
will not be required hereunder unless the Subsidiary Mergers have not been
consummated in full on or prior to the 60th day following the Initial Borrowing
Date, at which time guaranties from each then-existing Domestic Subsidiary shall
be required hereunder.
6.3 FUTURE LIENS. Promptly upon the designation, formation, or
Acquisition of any new Domestic Subsidiary (the stock, accounts receivable, and
inventory of such new Domestic Subsidiary are referred to herein as the
"ADDITIONAL ASSETS"), Borrower shall (or shall cause such Domestic Subsidiary
to) execute and deliver to Administrative Agent all further instruments and
documents (including, without limitation, Collateral Documents and all
certificates and instruments evidencing Debt), and shall take all further action
that may be necessary or desirable, or that Administrative Agent may reasonably
request, to grant, perfect, and protect Liens in favor of Administrative Agent
for the benefit of the Lenders in such Additional Assets, as security for the
Obligation; it being expressly understood that the granting of such additional
security for the Obligation is a material inducement to the execution and
delivery of this Agreement by each Lender. Upon satisfying the terms and
conditions hereof, such Additional Assets shall be included in the "COLLATERAL"
for all purposes under the Loan Documents, and all references to the
"COLLATERAL" in the Loan Documents shall include the Additional Assets.
6.4 RELEASE OF COLLATERAL.
(a) SALES OF COLLATERAL. Upon any sale, transfer, or
disposition of Collateral which is expressly permitted pursuant to the Loan
Documents (or is otherwise authorized by Required Lenders or Lenders, as
the case may be), and upon ten (10) Business Days' prior written request by
Borrower (which request must be accompanied by true and correct copies of
(i) all material documents of transfer or disposition, including any
contract of sale and (ii) all requested release instruments),
Administrative Agent shall (and is hereby irrevocably authorized by the
Lenders to) execute such documents as may be necessary to evidence the
release of Liens granted to Administrative Agent for the benefit of Lenders
pursuant hereto in such Collateral.
(b) PERMITTED MERGERS AND DISSOLUTIONS. If any merger, sale, or
dissolution permitted by Section 9.25 results in the dissolution of a Loan
Party or results in a surviving entity which is not (or is not required to
become) a Loan Party under the Loan Documents, then upon ten (10) Business
Days' prior written request by Borrower (which request must be accompanied
by true and correct copies of (i) all material documents relating to such
merger, dissolution, or sale, and (ii) all requested release instruments)
and subject to compliance with any applicable mandatory prepayment
requirements of SECTION 3.3, Administrative Agent shall (and is hereby
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irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Guaranties of such merged or
dissolved Loan Party and the release of all Liens granted to Administrative
Agent (for the benefit of Lenders) in and to the stock or assets of such
merged or dissolved Loan Party.
(c) GENERAL PROVISIONS. The actions of Administrative Agent
under this SECTION 6.4 are subject to the following: (i) no such release of
Liens or Guaranties shall be granted if any Default or Potential Default
has occurred and is continuing, including, without limitation, the failure
to make certain mandatory prepayments in accordance with SECTION 3.3(b) in
conjunction with the sale or transfer of such Collateral or such permitted
merger or dissolution (as applicable); (ii) Administrative Agent shall not
be required to execute any such document on terms which, in Administrative
Agent's opinion, would expose Administrative Agent to liability or create
any obligation or entail any consequence other than the release of such
Liens without recourse or warranty; and (iii) such release shall not in any
manner discharge, affect, or impair the Obligation, or Liens upon (or
obligations of any Company in respect of) all interests retained by the
Companies, including (without limitation) the proceeds of any sale, all of
which shall continue to constitute Collateral.
6.5 NEGATIVE PLEDGE. To the extent Administrative Agent agrees to delay
the perfection or attachment of any Lien on any Collateral of the Companies,
including, without limitation, the Foreign Assets and the stock and assets of
the Foreign Subsidiaries, for whatever reason, the Companies hereby covenant and
agree not to directly create, incur, grant, suffer, or permit to be created or
incurred any Lien on any such assets, other than Permitted Liens. Furthermore,
within thirty (30) days of the request of Administrative Agent, Borrower shall
(or shall cause each Company to) execute and deliver to Administrative Agent all
instruments and documents (including, without limitation, certificates and
instruments and documents representing shares of stock or evidencing Debt) and
shall take all further action that may be necessary or desirable, or that
Administrative Agent may reasonably request, to grant, perfect, and protect
Liens in favor of Administrative Agent for the benefit of Lenders, in such
assets, as security for the Obligation; it being expressly understood that the
provisions of this negative pledge are a material inducement to the execution
and delivery of this Agreement by each Lender.
SECTION 7 CONDITIONS PRECEDENT.
7.1 CONDITIONS PRECEDENT TO CLOSING. This Agreement shall not become
effective, and Lenders shall not be obligated to advance any Borrowing or issue
any LC, unless (a) Administrative Agent shall have received all of the
agreements, documents, instruments, and other items described on SCHEDULE 7.1;
(b) all of the representations and warranties of each Company set forth in the
Loan Documents are true and correct in all material respects; and (c) no Default
or Potential Default shall have occurred or occur as a result thereof.
7.2 CONDITIONS PRECEDENT TO INITIAL BORROWING. Lenders shall not be
obligated to advance any Borrowing or issue any LC unless each of the conditions
precedent required in SECTION 7.1 have been satisfied and Administrative Agent
shall have received all of the agreements, documents, instruments, and other
items described on SCHEDULE 7.2.
7.3 CONDITIONS PRECEDENT TO A PERMITTED ACQUISITION. On or prior to the
consummation of any Permitted Acquisition (whether or not the purchase price for
such Acquisition is funded by Borrowings), Borrower shall have satisfied the
conditions and delivered, or caused to be delivered, to Administrative Agent,
all documents and certificates set forth on SCHEDULE 7.3 by no later than the
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dates specified for satisfaction of such conditions on SCHEDULE 7.3. Promptly
upon receipt of each Permitted Acquisition Compliance Certificate and each
Permitted Acquisition Loan Closing Certificate, Administrative Agent shall
provide copies of such certificates to Lenders. All documentation delivered and
satisfaction of conditions pursuant to the requirements of SECTION 7.3 must be
reasonably satisfactory to Administrative Agent. To the extent any Borrowing is
being requested in connection with the consummation of the Acquisition, the
conditions set forth in SECTIONS 7.3 and 7.4 hereof must be satisfied prior to
the making of any such Borrowing.
7.4 CONDITIONS PRECEDENT TO EACH BORROWING. In addition to the
conditions stated in SECTIONS 7.1, 7.2, and 7.3, Lenders will not be obligated
to fund (as opposed to continue or convert) any Borrowing, and Administrative
Agent will not be obligated to issue any LC, as the case may be, unless on the
date of such Borrowing (and after giving effect thereto): (a) Administrative
Agent shall have timely received therefor a Borrowing Notice or a LC Request
(together with the applicable LC Agreement), as the case may be; (b)
Administrative Agent shall have timely received, as applicable, the LC fees
provided for in SECTION 5.4; (c) all of the representations and warranties of
each Company set forth in the Loan Documents are true and correct in all
material respects (except to the extent that (i) the representations and
warranties speak to a specific date or (ii) the facts on which such
representations and warranties are based have been changed by transactions
permitted by the Loan Documents); (d) no change in the financial condition or
business of any Company which could be a Material Adverse Event shall have
occurred since the date of the Current Financials delivered by Borrower to
Lenders pursuant to SECTION 7.2 of the Credit Agreement; (e) no Default or
Potential Default shall have occurred and be continuing; (f) the funding of such
Borrowings and issuance of such LC, as the case may be, are permitted by Law;
and (g) upon the reasonable request of Administrative Agent, Borrower shall
deliver to Administrative Agent evidence substantiating any of the matters in
the Loan Documents which are necessary to enable Borrower to qualify for such
Borrowing. Each Borrowing Notice and LC Request delivered to Administrative
Agent shall constitute the representation and warranty by Borrower to
Administrative Agent that the statements above are true and correct in all
respects. Each condition precedent in this Agreement is material to the
transactions contemplated in this Agreement, and time is of the essence in
respect of each thereof. Subject to the prior approval of Required Lenders,
Lenders may fund any Borrowing, and Administrative Agent may issue any LC,
without all conditions being satisfied, but, to the extent permitted by Law, the
same shall not be deemed to be a waiver of the requirement that each such
condition precedent be satisfied as a prerequisite for any subsequent funding or
issuance, unless Required Lenders specifically waive each such item in writing.
7.5 BORROWING NOTICES AND LC REQUESTS. Each Borrowing Notice (whether
telephonic or written) and LC Request constitutes a representation and warranty
by Borrower that, as of the Borrowing Date or the date of issuance of the
requested LC, as the case may be, all of the conditions precedent in SECTION 7
applicable thereto have been satisfied.
SECTION 8 REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Administrative Agent and Lenders as follows:
8.1 PURPOSE OF CREDIT FACILITIES. Borrower will use (or will loan such
proceeds to other Loan Parties to so use) all proceeds of Borrowings for one or
more of the following: (a) up to $200,000,000 to be used concurrently with the
Spinoff (i) to repay indebtedness owed to ACX, (ii) to fund a Distribution to
ACX, and/or (iii) to pay ACX for an inter-company transfer of assets; (b) to pay
the costs and expenses associated with the Spinoff; (c) to finance Permitted
Acquisitions; (d) for working capital of the Companies; (e) to finance Capital
Expenditures; and (f) for general corporate purposes of the Companies. No
Company is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying any
"margin stock" within the meaning of Regulation U. No part of the proceeds of
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any Borrowing will be used, directly or indirectly, for a purpose which violates
any Law, including, without limitation, the provisions of Regulations T, U, or X
(as enacted by the Board of Governors of the Federal Reserve System, as
amended).
8.2 EXISTENCE, GOOD STANDING, AND AUTHORITY. Each Company is duly
organized, validly existing, and (so long as applicable to the respective
jurisdiction) in good standing under the Laws of its jurisdiction of
organization (such jurisdictions being identified on SCHEDULE 8.3, as
supplemented in writing from time to time by an amendment to that Schedule
delivered by Borrower to Administrative Agent to reflect any changes to such
Schedule as a result of transactions permitted by the Loan Documents). Except
where the failure to do so could not reasonably be expected to constitute a
Material Adverse Event, each Company is duly qualified to transact business and
(so long as applicable to the respective jurisdiction) is in good standing in
each jurisdiction where the nature and extent of its business and properties
require the same. Except where the failure to do so could not reasonably be
expected to constitute a Material Adverse Event, each Company possesses all
requisite authority and power to conduct its business as is now being conducted
and as proposed under the Loan Documents to be conducted and to own and operate
its business as now owned and operated and as proposed to be owned and operated.
8.3 SUBSIDIARIES; CAPITAL STOCK. The Companies have no Subsidiaries
except as disclosed on SCHEDULE 8.3 (as supplemented from time to time in
writing by an amendment to that Schedule delivered by Borrower to Administrative
Agent to reflect any changes to such Schedule as a result of transactions
permitted by the Loan Documents). All Material Foreign Subsidiaries are
described as such on SCHEDULE 8.3. All of the outstanding shares of capital
stock (or similar voting interests) of each Subsidiary are duly authorized,
validly issued, fully paid, and nonassessable and are owned of record and
beneficially as set forth on SCHEDULE 8.3 (as supplemented and modified in
writing from time to time by an amendment to that Schedule delivered by Borrower
to Administrative Agent to reflect any changes to such Schedule as a result of
transactions permitted by the Loan Documents), free and clear of any Liens,
restrictions, claims, or rights of another Person, other than Permitted Liens,
and none of such shares owned by any Company is subject to any restriction on
transfer thereof except for restrictions imposed by securities Laws and general
corporate Laws. No Company has outstanding any warrant, option, or other right
of any Person to acquire any of its capital stock or similar equity interests
other than warrants issued upon the conversion of the warrants exercisable for
the purchase of 300,000 shares of common stock of ACX.
8.4 AUTHORIZATION AND CONTRAVENTION. The execution and delivery by each
Company of each Loan Document to which it is a party and the performance by such
Company of its obligations under such Loan Documents (a) are within the
corporate or partnership power of such Company, (b) will have been duly
authorized by all necessary corporate or partnership action on the part of such
Company when such Loan Document is executed and delivered, (c) require no
Authorization, waiver, formal exemption from, or other action by or in respect
of, or filing with, any Governmental Authority or Person, which consent, action,
or filing has not been taken or made on or prior to the Closing Date (or if
later, the date of execution and delivery of such Loan Document), (d) will not
violate any provision of the articles of incorporation, bylaws, or partnership
agreement of such Company, (e) will not violate any provision of Law applicable
to it, other than such violations which individually or collectively could not
reasonably be expected to constitute a Material Adverse Event, (f) will not
violate any written or oral agreements, contracts, commitments, or
understandings to which it is a party, other than such violations which could
not reasonably be expected to constitute a Material Adverse Event and could not
reasonably be expected to impose any liability on any Agent or Lender, or (g)
will not result in the creation or imposition of any Lien on any asset of any
Company (except for the Liens in favor of Administrative Agent and the Lenders,
securing the Obligation). The Companies have (or will have upon consummation
thereof) all necessary Authorizations, consents, and approvals of any Person or
Governmental Authority required to be obtained in order to effect the Spinoff
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and any Permitted Acquisition, asset transfer, change of control, merger, or
consolidation permitted by the Loan Documents, other than the failure to obtain
such consents or approvals which could not reasonably be expected to be a
Material Adverse Event. Upon their execution, the Loan Documents will constitute
the valid and binding obligations of the Loan Parties to the extent that each is
a party thereto, enforceable in accordance with their terms.
8.5 BINDING EFFECT. Upon execution and delivery by all parties thereto,
each Loan Document will constitute a legal, valid, and binding obligation of
each Company party thereto, enforceable against each such Company in accordance
with its terms, except as enforceability may be limited by applicable Debtor
Relief Laws and general principles of equity.
8.6 FINANCIAL STATEMENTS. The Current Financials were prepared in
accordance with GAAP and present fairly, in all material respects, the
consolidated financial condition, results of operations, and cash flows of the
Companies as of and for the portion of the fiscal year ending on the date or
dates thereof (subject only to normal year-end audit adjustments for interim
statements). There were no material liabilities, direct or indirect, fixed or
contingent, of the Companies as of the date or dates of the Current Financials
which are required under GAAP to be reflected therein or in the notes thereto,
and are not so reflected. Except for transactions directly related to,
specifically contemplated by, or expressly permitted by, the Loan Documents, (a)
there have been no changes in the consolidated financial condition of the
Companies from that shown in the Current Financials after such date which could
be a Material Adverse Event, and (b) neither Borrower nor any Company has
incurred any liability (including, without limitation, any liability under any
Environmental Law), direct or indirect, fixed or contingent, after such date
which could be a Material Adverse Event.
8.7 LITIGATION, CLAIMS, INVESTIGATIONS. No Company is subject to, or
aware of the threat of, any Litigation which is reasonably likely to be
determined adversely to any Company, and, if so adversely determined, could
(individually or collectively with other Litigation) be a Material Adverse
Event. There are no outstanding orders or judgments for the payment of money in
excess of $2,000,000 (individually or collectively) or any warrant of
attachment, sequestration, or similar proceeding against the assets of any
Company having a value (individually or collectively) of $2,000,000 or more
which is not either (a) stayed on appeal or (b) being diligently contested in
good faith by appropriate proceedings with adequate reserves having been set
aside on the books of such Company in accordance with GAAP. There are no formal
complaints, suits, claims, investigations, or proceedings initiated at or by any
Governmental Authority pending or, to Borrower's knowledge, threatened by or
against any Company (a) relating to the Spinoff, (b) relating to the
transactions evidenced by the Loan Documents, or (c) which could reasonably be
expected to be a Material Adverse Event, nor any judgments, decrees, or orders
of any Governmental Authority outstanding against any Company that could
reasonably be expected to be a Material Adverse Event.
8.8 TAXES. All Tax returns of each Company required to be filed have
been filed (or extensions have been granted) prior to delinquency, except as set
forth on SCHEDULE 8.8 or for any such returns for which the failure to so file
could not be a Material Adverse Event, and all Taxes imposed upon each Company
which are due and payable have been paid prior to delinquency, other than Taxes
for which the criteria for Permitted Liens (as specified in SECTION 9.13(b)(ix))
have been satisfied or for which nonpayment thereof could not constitute a
Material Adverse Event.
8.9 Environmental Matters. The Companies conduct and have conducted
ongoing reviews to determine that its properties and operations are in material
compliance with the Environmental Laws and to identify and evaluate associated
material costs and liabilities (including, without limitation, (i) any capital
or operating expenditures required for clean-up or closure of properties
presently or previously owned, operated, or used, or of properties to be
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acquired, (ii) any capital or operating expenditure required to achieve or
maintain compliance with Environmental Laws and all Environmental Permits held
by any Company; (iii) any related constraints on operating activities, including
any periodic or permanent shutdown of any facility or reduction in the level of,
or change in the nature of operation of, any facility; (iv) any costs or
liabilities in connection with off-site disposal of wastes or Hazardous
Substances; and (v) any actual or potential liability to third parties,
including employees, and any related costs and expenses). In addition, there is
(a) no environmental condition or circumstance, such as the presence or Release
of any Hazardous Substance, on any property presently or previously owned,
operated, or used by any Company that could reasonably be expected to be a
Material Adverse Event, (b) no Environmental Liability or violation of or by any
Company of any Environmental Law, except for such liabilities or violations that
could not reasonably be expected to be a Material Adverse Event, and (c) no
obligation by any Company to address any Environmental Liability or remedy any
violation of any Environmental Law, except for such obligations that could not
reasonably be expected to be a Material Adverse Event. Except where not a
Material Adverse Event, the Companies possess all necessary Environmental
Permits and approvals required to conduct their respective operations and are
operating in substantial compliance thereunder.
8.10 EMPLOYEE BENEFIT PLANS. (a) No Employee Plan has incurred an
"accumulated funding deficiency" (as defined in Section 302 of ERISA and Section
412 of the Code), (b) no Company or any ERISA Affiliate has incurred material
liability to the PBGC or with respect to an Employee Plan, which liability is
currently due and remains unpaid under Title IV of ERISA, (c) each Employee Plan
subject to ERISA and the Code complies in all material respects, both in form
and operation, with ERISA and the Code, (d) no ERISA Event has occurred or is
reasonably expected to occur with respect to any Employee Plan or Multiemployer
Plan which, individually or collectively with all other ERISA Events then
existing, could reasonably be expected to be a Material Adverse Event, (e) the
present value of all accrued benefits under each Employee Plan (based on
actuarial assumptions used for funding purposes in the most recent actuarial
valuation prepared by the Employee Plan's actuary with respect to such Employee
Plan) did not, as of the last annual actuarial valuation date for such Employee
Plan, exceed the then-current value of the assets of such Employee Plan, (f) the
present value of accrued benefits under each Employee Plan (based on PBGC
actuarial assumptions used for plan termination), on any date of determination,
does not exceed the value of the assets of such Employee Plan by more than
$22,500,000 (such amount to be based on a good faith estimate using the
assumptions from the most-recent Employee Plan valuation), (g) the Spinoff and
related transfer of Employee Plan assets between ACX and Borrower has been
reviewed and approved by the PBGC, and (h) no Company has received any
notification or request from the PBGC regarding a potential Reportable Event or
a request for information to assess the impact of the Loan Documents, the
Spinoff, or any other transaction.
8.11 PROPERTIES; LIENS; LEASES. Each Company has good and marketable
title to all its property reflected on the Current Financials, except (a) for
(i) property that is obsolete, (ii) property that has been disposed of in the
ordinary course of business, or (iii) property with title defects or failures in
title which, when considered in the aggregate, could not reasonably be expected
to be a Material Adverse Event, or (b) as otherwise permitted by the Loan
Documents. Except for Permitted Liens, there is no Lien on any property of any
Company. No Company is party or subject to any agreement, instrument, or order
which in any way restricts any Company's ability to allow Liens to exist upon
any of its assets, except relating to Permitted Liens. Except where not a
Material Adverse Event, (a) each Company enjoys peaceful and undisturbed
possession under all leases necessary for the operation of its properties,
assets, and business and (b) all material leases under which any Company is a
lessee are in full force and effect.
8.12 GOVERNMENT REGULATIONS. No Company is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
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Company Act of 1935, as amended, or any other Law (other than Regulations T, U,
and X of the Board of Governors of the Federal Reserve System) which regulates
the incurrence of Debt.
8.13 TRANSACTIONS WITH AFFILIATES. Except as permitted in SECTION 9.14,
no Company is a party to a material transaction with any of its Affiliates
(excluding transactions between or among Loan Parties), other than transactions
in the ordinary course of business and upon fair and reasonable terms not
materially less favorable than such Company could obtain or could become
entitled to in an arm's-length transaction with a Person that was not its
Affiliate.
8.14 DEBT. No Company has any Debt, other than Permitted Debt.
8.15 MATERIAL AGREEMENTS. (a) There are no failures of any Material
Agreement having a remaining financial obligation of or any remaining value to
any Company in excess of $50,000,000 to be in full force and effect except for
any Material Agreement for which Administrative Agent has approved the
termination in advance; (b) there are no failures of any Material Agreement
having a financial obligation of any Company in excess of $10,000,000 but less
than $50,000,000, or value to any Company in excess of $25,000,000 but less than
$50,000,000, to be in full force and effect except for those for which the
Company has given Administrative Agent at least 10 Business Days prior written
notice of any termination; and (c) no default or potential default exists on the
part of any Company or any other party under any Material Agreement which could
reasonably be expected to result in a Material Adverse Effect.
8.16 INSURANCE. Each Company maintains, with financially sound,
responsible, and reputable insurance companies or associations, insurance
concerning its properties and businesses against such casualties and
contingencies and of such types and in such amounts (and with co-insurance and
deductibles) as is customary in the case of same or similar businesses.
8.17 LABOR MATTERS. There are no actual or threatened strikes, labor
disputes, slow downs, walkouts, or other concerted interruptions of operations
by the employees of any Company that could be a Material Adverse Event. Hours
worked by and payment made to employees of the Companies have not been in
violation of the Fair Labor Standards Act or any other applicable Law dealing
with such matters, other than any such violations, individually or collectively,
which could not constitute a Material Adverse Event. All payments due from any
Company for employee health and welfare insurance, including, without
limitation, workers compensation insurance, have been paid or accrued as a
liability on its books, other than any such nonpayments which could not,
individually or collectively, constitute a Material Adverse Event. The business
activities and operations of each Company are in compliance with OSHA and other
applicable health and safety laws, except to the extent that any non-compliance
could not reasonably be expected to be a Material Adverse Event.
8.18 SOLVENCY. At the time of each Borrowing hereunder, and on the dates
of the Spinoff and each Permitted Acquisition, each Company is (and after giving
effect to the transactions contemplated by the Loan Documents, the Spinoff, any
Permitted Acquisition, and any incurrence of additional Debt, will be) Solvent.
8.19 INTELLECTUAL PROPERTY. Except where not reasonably expected to be a
Material Adverse Event, each Company owns or has sufficient and legally
enforceable rights to use all licenses, patents, patent applications,
copyrights, service marks, trademarks, trademark applications, and trade names
necessary to continue to conduct its businesses as heretofore conducted by it,
now conducted by it, and now proposed to be conducted by it. Each Company is
conducting its business without infringement or claim of infringement of any
license, patent, copyright, service mark, trademark, trade name, trade secret,
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or other intellectual property right of others, other than any such
infringements or claims which, if successfully asserted against or determined
adversely to any Company, could not, individually or collectively, constitute a
Material Adverse Event.
8.20 COMPLIANCE WITH LAWS. No Company is in violation of any Laws
(including, without limitation, Environmental Laws), other than such violations
which could not, individually or collectively, reasonably be expected to be a
Material Adverse Event. No Company has received notice alleging any
noncompliance with or any obligation or liability under any Laws (including,
without limitation, Environmental Laws), except for such noncompliance,
obligation, or liability which no longer exists, or which could not reasonably
be expected to constitute a Material Adverse Event.
8.21 THE SPINOFF. The Spinoff Documents have been executed and delivered
by all parties thereto and represent the valid and binding agreement of the
parties thereto, enforceable in all material respects in accordance with their
terms (except as enforceability may be limited by applicable Debtor Relief Laws
and general principles of equity). On and as of the Initial Borrowing Date, the
execution and delivery by Borrower of the Spinoff Documents, and the performance
by Borrower and each Company of its obligations thereunder (a) are within the
corporate power of such Company, (b) have been duly authorized by all necessary
corporate action on the part of such Company, (c) require no action by or in
respect of, or filing with any Governmental Authority, which action or filing
has not been taken or made on or prior to the date of the initial Borrowing
hereunder except where the failure to take or make such actions or filings could
not reasonably be expected to be a Material Adverse Event, (d) do not violate
any provision of the articles of incorporation or bylaws of such Company, (e) do
not violate any provision of Law applicable to it, other than such violations
which individually or collectively could not be a Material Adverse Event, (f) do
not violate any Material Agreements to which it is a party, other than such
violations which could not be a Material Adverse Event, (g) do not result in the
creation or imposition of any Lien on any asset of any Company or their
predecessors in interest (other than Permitted Liens), and (h) immediately prior
to, and after giving pro forma effect thereto, no Default or Potential Default
exists or arises under the Loan Documents. On and as of the Initial Borrowing
Date, the Companies have obtained all necessary consents and approvals of any
Person or Governmental Authority required to be obtained in order for such
Company to effectuate the Spinoff and the transactions contemplated by the
Spinoff Documents, except to the extent any such failure could not be a Material
Adverse Event and would not reasonably be expected to materially impair the
value to the Companies of, or the benefits to be derived by the Companies or
their predecessors in interest from, the Spinoff. On the Initial Borrowing Date,
all conditions precedent under the Spinoff Documents, to the parties'
obligations to consummate the Spinoff have been satisfied in all material
respects or waived in compliance with SECTION 9.28(b), and concurrently with the
Initial Borrowing Date, the Spinoff shall have been consummated. As of the date
of the Spinoff, the Internal Revenue Service has issued a Tax Ruling indicating
that the Spinoff will be tax free to ACX and the shareholders of ACX (the "TAX
RULING"), which Tax Ruling has not been withdrawn. Borrower will comply in all
respects with the requirements of the Tax Ruling.
8.22 PERMITTED ACQUISITIONS.
(a) VALIDITY. With respect to any Permitted Acquisition, each
Company party thereto has the power and authority under the Laws of its
state of incorporation and under its articles of incorporation and bylaws
or partnership agreement, as applicable, to enter into and perform the
related Acquisition agreement to which it is a party and all other
agreements, documents, and actions required thereunder; and all actions
(corporate or otherwise) necessary or appropriate by such Companies (as the
case may be) for the execution and performance of said Acquisition
agreements, and all other documents, agreements, and actions required
thereunder have, or at the consummation of such Permitted Acquisition, will
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have been taken, and, upon their execution, such Acquisition agreements
will constitute the valid and binding obligation of the Companies party
thereto, enforceable in accordance with their respective terms (except as
enforceability may be limited by applicable Debtor Relief Laws and general
principles of equity).
(b) NO VIOLATIONS. With respect to any Permitted Acquisition,
the making and performance of the related Acquisition agreements, and all
other agreements, documents, and actions required thereunder, will not
violate any provision of any Law, including, without limitation, all state
corporate Laws and judicial precedents of the states of incorporation or
formation of the Companies, will not require any action by or in respect
of, or filing with or consent of, any Governmental Authority or Person,
which action, filing, or consent has not been taken or made on or prior to
the date of the Permitted Acquisition except where the failure to take,
make, or obtain such actions, filings, or consents could not reasonably be
expected to be a Material Adverse Event, and will not violate any
provisions of the articles of incorporation and bylaws or partnership
agreements of the Companies, or constitute a default under any agreement by
which any Company or its respective property may be bound, unless such
default could not reasonably be expected to constitute a Material Adverse
Event.
8.23 REGULATION U. "Margin Stock" (as defined in Regulation U) constitutes
less than 25% of those assets of any Company which is subject to any limitation
on sale, pledge, or other restrictions hereunder.
8.24 TRADENAME. Except as listed on SCHEDULE 8.24, no Company has used or
transacted business in any jurisdiction under any other corporate or trade name
in the five-year period preceding the date hereof.
8.25 YEAR 2000 COMPLIANCE. The Companies have (i) initiated a review and
assessment of all material areas within their business and operations that could
be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Companies may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to and
any date after December 31, 1999), (ii) developed and delivered to
Administrative Agent by the Closing Date, a plan for addressing the Year 2000
Problem on a timely basis (the "YEAR 2000 PLAN"), and (iii) to date, implemented
in all material respects the Year 2000 Plan in accordance with that timetable
(except to the extent that a failure to do so could not reasonably be expected
to constitute a Material Adverse Event). Borrower reasonably believes that all
computer applications (including those of its suppliers and vendors) that are
material to any of the Companies' business and operations will on a timely basis
be able to perform properly date-sensitive functions for all dates before and
after January 1, 2000 (that is, be "YEAR 2000 COMPLIANT"), except to the extent
that a failure to do so could not reasonably be expected to constitute a
Material Adverse Event.
8.26 NO DEFAULT. No Default or Potential Default exists or will arise as
a result of the execution of the Loan Documents, of any Borrowing hereunder, or
after giving effect to the Spinoff.
8.27 FULL DISCLOSURE. There is no material fact or condition relating to
the Loan Documents or the financial condition, business, or property of any
Company which could reasonably be expected to be a Material Adverse Event and
which has not been related, in writing, to Administrative Agent. All material
information heretofore furnished by any Company to any Lender or Administrative
Agent in connection with the Loan Documents was, and all such information
hereafter furnished by any Company to any Lender or Administrative Agent will
be, true and correct in all material respects or prepared in good faith based
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upon assumptions Borrower believes to be reasonable on the date as of which such
information is stated or certified.
8.28 PERFECTION OF SECURITY INTERESTS. Upon filing of the financing
statements against Borrower and each Domestic Subsidiary in the jurisdictions
indicated on SCHEDULE 8.28 and the delivery to Administrative Agent, for the
benefit of Lenders, of all the outstanding shares of stock of the Domestic
Subsidiaries and 65% of the outstanding shares of stock of the Material Foreign
Subsidiaries, the security interests in the Collateral created by the Collateral
Documents will be perfected in favor of Administrative Agent, for the benefit of
Lenders. No further action, including any filing or recording of any document,
is necessary in order to establish, perfect, and maintain Lenders' first
priority security interests in the assets and the stock created by the Pledge
Agreements, except for the periodic filing of continuation statements with
respect to financing statements filed under the UCC.
SECTION 9 COVENANTS. Each Loan Party covenants and agrees (and agrees to cause
its ERISA Affiliates with respect to SECTION 9.10) to perform, observe, and
comply with each of the following covenants, from the Closing Date and so long
thereafter as Lenders are committed to lend or issue LCs under this Agreement
and thereafter until the Obligation is fully paid and performed and no LCs
remain outstanding, unless Borrower receives a prior written consent to the
contrary by Administrative Agent as authorized by the requisite Lenders in
accordance with SECTION 13.11:
9.1 USE OF PROCEEDS. Borrower shall use (and shall cause each other
Company to use) LCs a0nd the proceeds of Borrowings only for the purposes
represented herein.
9.2 BOOKS AND RECORDS. The Companies shall maintain books, records, and
accounts necessary to prepare Financial Statements in accordance with GAAP.
9.3 ITEMS TO BE FURNISHED. Borrower shall cause the following to be
furnished to Administrative Agent for delivery to Lenders:
(a) Promptly after preparation, and no later than 95 days after
the last day of each fiscal year of Borrower, Financial Statements showing
the consolidated financial condition and results of operations of the
Companies calculated as of, and for the year ended on, such day, each
accompanied by:
(i) the opinion of a firm of nationally-recognized
independent certified public accountants, based on an audit using
generally accepted auditing standards, (A) that such Financial
Statements were prepared in accordance with GAAP and present fairly
in all material respects the consolidated financial condition and
results of operations of Borrower and its Subsidiaries, and (B) that
is not qualified with respect to scope limitations imposed by the
Borrower or any of its Subsidiaries, with respect to accounting
principles followed by the Borrower or any of its Subsidiaries not in
accordance with GAAP, or with respect to a "going concern" or similar
nature; and
(ii) a Compliance Certificate.
(b) Promptly after preparation, and no later than 50 days after
the last day of the first three fiscal quarters of each fiscal year of
Borrower, Financial Statements showing the consolidated financial condition
and results of operations calculated for the Companies for such fiscal
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quarter and for the period from the beginning of the then-current fiscal
year to, such last day, accompanied by a Compliance Certificate with
respect to such Financial Statements.
(c) Promptly upon receipt thereof, copies of all auditor's annual
management letters delivered to Borrower.
(d) Notice, promptly (but not later than 10 Business Days) after
Borrower knows or has reason to know of (i) the existence and status of any
Litigation which could be a Material Adverse Event, or of any order or
judgment for the payment of money which (individually or collectively) is
in excess of $2,000,000, or any warrant of attachment, sequestration, or
similar proceeding against the assets of any Company having a value
(individually or collectively) of $2,000,000 (ii) any material change in
any material fact or circumstance represented or warranted in any Loan
Document, (iii) a Default or Potential Default specifying the nature
thereof and what action Borrower or any other Company has taken, is taking,
or proposes to take with respect thereto, (iv) any federal, state, or local
Law limiting or controlling the operations of any Company which has been
issued or adopted hereafter and which could be a Material Adverse Event,
(v) the receipt by any Company of notice of any violation or alleged
violation of any Environmental Law or Environmental Permit or any
Environmental Liability or potential Environmental Liability, which
violation or liability or alleged violation or liability could,
individually or collectively, with other such environmental violations or
allegations, constitute a Material Adverse Event, or (vi) the occurrence of
an ERISA Event or the incurrence of any liability by any Company or ERISA
Affiliate with respect to any ERISA Event, which ERISA Event or liabilities
(individually or in the aggregate with all other then existing ERISA Events
and related liabilities of the Companies and ERISA Affiliates) could
reasonably be expected to be a Material Adverse Event, specifying the
nature thereof and what action any Company or ERISA Affiliate has taken, is
taking, or proposes to take with respect thereto and providing copies of
(A) all notices from the PBGC terminating or appointing a trustee for any
Employee Plan, (B) all notices of termination or reorganization from any
sponsor of a Multiemployer Plan, (C) all notices from any sponsor of a
Multiemployer Plan imposing withdrawal liability on any Company or ERISA
Affiliate, and (D) all notices from the PBGC regarding a potential
Reportable Event or a request for information to assess the impact of any
proposed transaction of Borrower or any of its ERISA Affiliates.
(e) Promptly after any of the information or disclosures
provided on any of the Schedules delivered pursuant to this Agreement, any
annexes to any of the Pledge Agreements, or any annexes required to be
updated pursuant to the terms of any other Collateral Document becomes
outdated or incorrect in any material respect, such revised or updated
Schedule(s) or Annexes as may be necessary or appropriate to update or
correct such information or disclosures; provided that, in the case of
amendments and supplements to SCHEDULES 9.12, 9.13, and 9.20 or any
amendments or supplements to annexes to the Pledge Agreements or to annexes
required to be updated pursuant to the terms of any other Collateral
Document having the effect of deleting any Collateral, such amended or
supplemented Schedules or annexes shall not be deemed accepted for purposes
of the Loan Documents and shall not be part of the Loan Documents unless
and until approved by Required Lenders.
(f) Within 5 Business Days after Borrower becomes aware of any
material deviation from the Year 2000 Plan which would cause substantial
compliance with the Year 2000 Plan not to be achieved on a timely basis, a
statement of a Responsible Officer setting forth the details thereof and
the action which the Companies are taking or propose to take with respect
thereto.
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(g) Promptly upon the receipt thereof, a copy of any third party
assessment of any Company's Year 2000 Plan, together with any
recommendations made by such third party with respect to Year 2000
compliance.
(h) Promptly after the filing thereof, a true, correct, and
complete copy of each Form 10-K, Form 10-Q, Form 8-K, or other material
reports or filings filed by or on behalf of any Company with the Securities
and Exchange Commission.
(i) Promptly upon request therefor by Administrative Agent or
Lenders, such information (not otherwise required to be furnished under the
Loan Documents) respecting the business affairs, assets, and liabilities of
the Companies, and such opinions, certifications, and documents, in
addition to those mentioned in this Agreement, as reasonably requested.
9.4 INSPECTIONS. Upon reasonable notice, each Company shall allow
Administrative Agent or any Lender (or their respective Representatives): (a) to
inspect any of their properties, to review reports, files, and other records and
(b) to make and take away copies thereof, to conduct tests or investigations,
and to discuss any of their affairs, conditions, and finances with other
creditors, directors, officers, employees, other representatives, and
independent accountants of such Company, from time to time, during reasonable
business hours.
9.5 TAXES. Each Company (a) shall promptly pay when due any and all
Taxes other than Taxes the applicability, amount, or validity of which is being
contested in good faith by lawful proceedings diligently conducted, and against
which reserve or other provision required by GAAP has been made, and in respect
of which levy and execution of any Lien securing same have been and continue to
be stayed, (b) shall not, directly or indirectly, use any portion of the
proceeds of any Borrowing to pay the wages of employees unless a timely payment
to or deposit with the appropriate Governmental Authorities of all amounts of
Tax required to be deducted and withheld with respect to such wages is also
made, and (c) notify Lenders immediately if the Internal Revenue Service
indicates that the Spinoff is not tax free or that the requirements of the Tax
Ruling have not been met.
9.6 PAYMENT OF OBLIGATIONS. Borrower shall pay the Obligation in
accordance with the terms and provisions of the Loan Documents. Each Company (a)
shall promptly pay (or renew and extend) all of its material obligations as the
same become due (unless such obligations -- other than the Obligation -- are
being contested in good faith by appropriate proceedings), (b) shall not (i)
make any voluntary prepayment of principal of, or interest on, any other Debt
(other than the Obligation and the inter-Company Debt owed to ACX and repaid in
connection with the Spinoff), whether subordinate to the Obligation or not, or
(ii) use proceeds from the Facilities to make any payment or prepayment of
principal of, or interest on, or sinking fund payment in respect of any other
Debt of any Company, and (iii) shall not, directly or indirectly, pay, prepay,
redeem or purchase, or deposit funds or property for the payment (including,
without limitation, a payment in respect of any sinking fund, defeasance of any
subordinated Debt), prepayment, redemption, or purchase of, subordinated Debt.
9.7 MAINTENANCE OF EXISTENCE, ASSETS, AND BUSINESS. Each Company shall
at all times: (a) except in connection with mergers and dissolutions permitted
under SECTION 9.25, or dispositions permitted under SECTION 9.23, maintain its
existence and good standing in the jurisdiction of its organization; and (b)
except where not a Material Adverse Event, (i) maintain its authority to
transact business and good standing in all other jurisdictions necessary for its
business and (ii) maintain all licenses, permits, and franchises (including,
without limitation, Environmental Permits) necessary for its business. Each
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Company shall keep all of its assets which are useful in and necessary to its
business in good working order and condition (ordinary wear and tear excepted)
and make all necessary repairs thereto and replacements thereof.
9.8 INSURANCE. Each Company shall, at its costs and expense, maintain
with financially sound, responsible, and reputable insurance companies or
associations insurance covering its properties and business against such risks,
in such amounts, and with no greater risk retention as are customarily
maintained, insured, or retained by companies of established repute engaged in
the same or similar business as such Company. Upon the request of Administrative
Agent, Borrower will furnish to Lenders information presented in reasonable
detail as to the insurance so carried. On the Closing Date and thereafter as
each policy is renewed and extended, the Companies shall deliver to
Administrative Agent a certificate of insurance covering the inventory and other
Collateral for each policy of insurance and evidence of payment of all premiums
therefor. Such policies of insurance and the certificates evidencing the same
shall contain an endorsement, in form and substance acceptable to Administrative
Agent, showing loss payable to Administrative Agent for the benefit of Lenders.
Such endorsement, or an independent instrument furnished to Administrative
Agent, shall provide that the insurance companies will give Administrative Agent
at least 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 any Company
or any other Person shall affect the Right of Administrative Agent to recover
under such policy or policies of insurance in case of loss or damage. Upon the
payment by the insurer of the proceeds of any such policy of insurance and if no
Default has occurred and is continuing, the Company so insured may retain such
insurance if such proceeds are used to repair or replace the property the damage
or destruction of which gave rise to the payment of such insurance proceeds;
provided, however, that any insurance proceeds not used for repair or
replacement in accordance herewith, unless paid as reimbursement of expenses
incurred and business losses suffered in connection with the loss or damage to
the Collateral, shall be paid to or retained by Administrative Agent for
application as a mandatory prepayment on the Obligation.
9.9 PRESERVATION AND PROTECTION OF RIGHTS. Each Company shall perform
such acts and duly authorize, execute, acknowledge, deliver, file, and record
any additional agreements, documents, instruments, and certificates as
Administrative Agent or Required Lenders may reasonably deem necessary or
appropriate in order to preserve and protect the Rights of Administrative Agent
and Lenders under any Loan Document.
9.10 EMPLOYEE BENEFIT PLANS. Except where not a Material Adverse Event
(individually or collectively), no Company shall permit any of the events or
circumstances described in SECTION 8.10 to exist or occur.
9.11 ENVIRONMENTAL LAWS. Each Company shall (a) operate and manage its
business and otherwise conduct its affairs in compliance with, and shall
promptly take corrective action to remedy any non-compliance with or respond to
any obligation or liability under, all applicable Environmental Laws and
Environmental Permits, except to the extent noncompliance, obligation, or
liability could not reasonably be expected to constitute a Material Adverse
Event, (b) promptly investigate and remediate any known Release or threatened
Release of any Hazardous Substance on any property owned by any Company or at
any facility operated by any Company to the extent and degree necessary to
comply with applicable Environmental Law, and (c) establish and maintain a
management system designed to ensure material compliance with applicable
Environmental Laws and Environmental Permits and minimize material financial and
other risks to each Company arising under applicable Environmental Laws or as a
result of environmentally-related injuries to Persons or property.
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9.12 DEBT AND GUARANTIES. No Company shall, directly or indirectly,
create, incur, or suffer to exist any direct, indirect, fixed, or contingent
liability for any Debt, other than:
(a) The Obligation and Guaranties thereof and Debt arising under
any Financial Hedge with a Lender or an Affiliate of a Lender;
(b) Debt of the Companies existing on the Closing Date and
described on Schedule 9.12, together with all renewals, extensions,
amendments, modifications, and refinancings thereof, so long as (x) the
principal amount of any refinanced Debt shall not exceed the principal
amount of the Debt being refinanced immediately prior to giving effect to
any such refinancing; and (y) no Default or Potential Default exists or
arises as a result of any such renewal, extension, amendment, modification,
or refinancing;
(c) Endorsements of checks or drafts in the ordinary course of
business;
(d) Debt of any Company (other than any Foreign Subsidiary) owed
to any Loan Party;
(e) Contingent liabilities of any Company for any Debt of any
Loan Party;
(f) Debt of any Foreign Subsidiary owed to any Loan Party or any
contingent liabilities of any Loan Party with respect to the Debt of any
Foreign Subsidiary, so long as and only to the extent that such loans or
contingent obligations are permitted under SECTION 9.20(i) (as the case may
be);
(g) Debt of any Company existing at the time any asset or Person
is acquired by, or merged or consolidated with or into, any Company (and
renewals, extensions, amendments, and modifications of such Debt), so long
as (i) such Debt was not incurred in contemplation of such acquisition,
merger, or consolidation, (ii) no Default or Potential Default then exists
or arises as a result thereof, (iii) no other Company (other than the
existing obligors at the time such Person or asset was acquired or
guaranties by Borrower to the extent permitted by SECTION 9.12(e)) shall
have or incur any direct or indirect liability for such Debt, (iv) the
aggregate amount of such Debt (together with any and all amendments,
modifications, or refinancings thereof) does not exceed $30,000,000, and
(v) the principal amount of any such Debt shall not be increased by any
renewal, extension, amendment, modification, or refinancing thereof (unless
such increased amount is otherwise permitted to be incurred in compliance
with SECTION 9.12(i));
(h) Debt incurred or assumed by any Company for the purpose of
financing all or any part of the cost of any asset (including Capital
Leases and renewals, extensions, amendments, and modifications of such
Debt), so long as (i) the aggregate amount of such Debt (together with any
and all amendments, modifications, or refinancings thereof) does not exceed
$15,000,000, and (ii) no Default or Potential Default then exists or arises
as a result of such Debt incurrence; and
(i) Debt of any Company not otherwise permitted by this SECTION
9.12, so long as such Debt does not exceed in the aggregate $15,000,000.
9.13 LIENS. No Company will, directly or indirectly, (a) enter into or
permit to exist any arrangement or agreement which directly or indirectly
prohibits any Company from creating or incurring any Lien on any of its assets,
other than (i) the Loan Documents, and (ii) all arrangements and agreements
arising under Debt permitted by SECTION 9.12(h), so long as any such Lien
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prohibition is limited to the property or assets financed by such Debt; or (b)
create, incur, or suffer or permit to be created or incurred or to exist any
Lien upon any of its assets, except:
(i) Liens securing the Obligation, and so long as the Obligation
is ratably secured therewith, Liens securing Debt incurred by any Company
under any Financial Hedge with any Lender or an Affiliate of any Lender to
the extent permitted under SECTION 9.12(a);
(ii) Liens existing on the Closing Date, so long as such Liens are
described on SCHEDULE 9.13 and the Debt secured by all Liens permitted
under this SECTION 9.13(b)(ii) shall not exceed in the aggregate
$2,000,000;
(iii) Liens securing Permitted Debt incurred pursuant to SECTION
9.12(g), so long as (x) any such Lien was not created in contemplation of
such acquisition, merger, or consolidation, (y) the Debt secured by all
Liens permitted under this SECTION 9.13(b)(iii) shall not exceed
$15,000,000 on any date of determination, and (z) any such Lien does not
and shall not extend to any asset other than the assets secured immediately
prior to the acquisition;
(iv) Liens securing Permitted Debt incurred pursuant to SECTION
9.12(h), so long as (x) any such Lien does not extend to any asset other
than the asset purchased or financed by such Debt, and (y) any such Lien
attached to such asset concurrently with or within 180 days of the related
asset acquisition;
(v) Pledges or deposits made to secure payment of worker's
compensation, or to participate in any fund in connection with worker's
compensation, unemployment insurance, pensions, or other social security
programs, but expressly excluding any Liens in favor of the PBGC or
otherwise arising under ERISA;
(vi) Good-faith pledges or deposits made to secure performance of
bids, tenders, insurance or other contracts (other than for the repayment
of borrowed money), or leases, or to secure statutory obligations, surety
or appeal bonds, or indemnity, performance, or other similar bonds as all
such Liens arise in the ordinary course of business of the Companies;
(vii) Encumbrances consisting of zoning restrictions, easements,
other restrictions on the use of real property, or other matters of record
affecting real property, none of which impair in any respect the use of
such property by the Person in question in the operation of its business,
and none of which is violated by existing or proposed structures or land
use, except impairments or violations which, individually or collectively,
could not reasonably be expected to be a Material Adverse Event;
(viii) Liens of landlords or of mortgagees of landlords, arising
solely by operation of law, on fixtures and movable property located on
premises leased in the ordinary course of business; and
(ix) The following, so long as the validity or amount thereof is
being contested in good faith and by appropriate and lawful proceedings
diligently conducted, reserve or other appropriate provisions (if any)
required by GAAP shall have been made, levy and execution thereon have been
stayed and continue to be stayed or is not imminent, and they do not in the
aggregate detract from the value of the property of the Person in question,
or impair the use thereof in the operation of its business (if such
detraction in value or impairment could reasonably be expected to be a
Material Adverse Event): (A) claims and Liens for Taxes (other than Liens
relating to Environmental Laws or ERISA); (B) claims and Liens upon, and
defects of title to, real or personal property, including any attachment of
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personal or real property or other legal process prior to adjudication of a
dispute of the merits; and (C) claims and Liens of mechanics, materialmen,
warehousemen, carriers, landlords, or other like Liens.
9.14 TRANSACTIONS WITH AFFILIATES. No Company shall enter into any
material transaction with any of its Affiliates (excluding transactions among or
between Loan Parties), other than an inter-Company Debt arrangement with ACX and
transactions in the ordinary course of business and upon fair and reasonable
terms not materially less favorable than such Company could obtain or could
become entitled to in an arm's-length transaction with a Person that was not its
Affiliate.
9.15 COMPLIANCE WITH LAWS AND DOCUMENTS. No Company shall violate the
provisions of any Laws (including, without limitation, Environmental Laws,
Environmental Permits, ERISA, and OSHA) applicable to it or any material written
or oral agreement, contract, commitment, or understanding to which it is a
party, if such violation alone, or when aggregated with all other such
violations, could be a Material Adverse Event; no Company shall violate the
provisions of its articles of incorporation, bylaws, or partnership agreement,
or modify, repeal, replace, or amend any provision of its articles of
incorporation, bylaws, or partnership agreement, if such action could adversely
affect the Rights of Lenders. No Company shall violate the provisions of any
Material Agreement, except to the extent such violation could not reasonably be
expected to be a Material Adverse Event.
9.16 PERMITTED ACQUISITIONS, SUBSIDIARY GUARANTIES, AND COLLATERAL
DOCUMENTS. In connection with each Permitted Acquisition, Borrower shall
deliver, or cause to be delivered to, Administrative Agent each of the items
described on SCHEDULE 7.3, on or before the date specified on such Schedule for
each such item. Borrower shall cause each Subsidiary that becomes a Domestic
Subsidiary of any Company after the Closing Date (whether as a result of
acquisition, merger, creation, or otherwise) (a) to execute a Guaranty on the
date such entity becomes a Domestic Subsidiary of a Company and promptly deliver
(but in no event later than 10 days following consummation of such creation,
acquisition, or merger) such Guaranty to Administrative Agent and (b) to execute
and deliver to Administrative Agent all required Collateral Documents creating
Liens in favor of Administrative Agent in those assets owned by such Domestic
Subsidiary on which Liens are required pursuant to the Loan Documents.
9.17 ASSIGNMENT. No Company shall assign or transfer any of its Rights,
duties, or obligations under any of the Loan Documents.
9.18 FISCAL YEAR AND ACCOUNTING METHODS. No Company will change its
fiscal year for book accounting purposes or change its method of accounting,
other than (a) immaterial changes in methods or as required by GAAP, or (b) in
connection with a Permitted Acquisition, such changes to the newly-acquired
entity so as to conform its fiscal year and its method of accounting to those of
the Companies.
9.19 GOVERNMENT REGULATIONS. No Company will conduct its business in such
a way that it will become subject to regulation under the Investment Company Act
of 1940, as amended, the Public Utility Holding Company Act of 1935, as amended,
or any other Law (other than Regulations T, U, and X of the Board of Governors
of the Federal Reserve System) which regulates the incurrence of Debt.
9.20 LOANS, ADVANCES, AND INVESTMENTS. No Company shall make any loan,
advance, extension of credit, or capital contribution to, make any investment
in, purchase or commit to purchase any stock or other securities or evidences of
Debt of, or interests in, or guaranty any Debt of, any other Person
(collectively, "INVESTMENTS"), other than:
(a) Investments (including without limitation, existing
investments in Foreign Subsidiaries) existing on the Closing Date as
described on SCHEDULE 9.20;
(b) Cash Equivalents;
(c) Investments of any Loan Party in respect of any other Loan
Party;
(d) Permitted Acquisitions (other than Acquisitions of, by, or
resulting in, Foreign Subsidiaries); provided, however, that to the extent
that any Permitted Acquisition results in the formation or Acquisition of
one or more Foreign Subsidiaries, Borrower shall provide to Administrative
Agent such information as Administrative Agent shall reasonably request to
evidence the portion of the Purchase Price attributable to such Foreign
Subsidiaries (the "FOREIGN INVESTMENT"), which Foreign Investment must be
permitted by SECTION 9.20(i);
(e) Trade accounts receivable which are for goods furnished or
services rendered in the ordinary course of business and are payable in
accordance with customary trade terms;
(f) Financial Hedges permitted by the Loan Documents;
(g) Loans or advances to any Companies' directors, officers, and
employees not to exceed $3,000,000 in the aggregate for all Companies at
any time outstanding;
(h) So long as no Default or Potential Default then exists or
arises, (i) investments in Foreign Subsidiaries (other than those existing
on the Closing Date), (ii) Acquisitions of, by, or resulting in, Foreign
Subsidiaries, and (iii) investments in other Persons (other than the Loan
Parties), which investments in the aggregate under this CLAUSE (h) do not
exceed $15,000,000, determined on a cumulative basis from and after the
Closing Date; and
(i) Loans or advances to a Loan Party from any Foreign
Subsidiary, so long as such loans or advances are subordinated to the
Obligation on terms and conditions satisfactory to Administrative Agent.
9.21 DISTRIBUTIONS. No Company may directly or indirectly declare, make,
or pay any Distribution, other than: (a) Distributions declared, made, or paid
by Borrower which are wholly in the form of its capital stock; (b) Distributions
by any Company to any Loan Party; and (c) up to $200,000,000 as a one-time
Distribution to ACX in conjunction with the Spinoff; provided that all payments
to ACX (whether as a Distribution or a repayment of inter-Company Debt) in
conjunction with the Spinoff shall not exceed $200,000,000.
9.22 RESTRICTIONS ON SUBSIDIARIES. No Subsidiary of Borrower nor any
Guarantor shall enter into or permit to exist any material arrangement or
agreement (other than the Loan Documents) which directly or indirectly prohibits
any such Subsidiary from (a) declaring, making, or paying, directly or
indirectly, any Distribution to Borrower or any other Company, (b) paying any
Debt owed to Borrower or any other Company, (c) making loans, advances, or
investments to Borrower or any other Company, or (d) transferring any of its
property or assets to Borrower or any other Company.
9.23 SALE OF ASSETS. No Company shall sell, assign, transfer, or
otherwise dispose of any of its assets, other than (a) sales of inventory in the
ordinary course of business, (b) the sale, discount, or transfer of delinquent
accounts receivable in the ordinary course of business for purposes of
collection, (c) occasional sales of immaterial assets for consideration not less
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than the fair market value thereof, (d) dispositions of obsolete assets, (e)
sale, leases, or other disposition among Loan Parties, and (f) if no Default or
Potential Default then exists or arises as a result thereof, sales of assets
other than those in CLAUSES (a) through (e) for fair value for cash or Cash
Equivalents; so long as (i) the aggregate value of all assets sold pursuant to
CLAUSE (f) during any fiscal year shall not exceed $10,000,000 and (ii)
concurrently with any such disposition, Borrower shall make the mandatory
prepayments (if any) required by SECTION 3.3(b)(iii).
9.24 SALE-LEASEBACK FINANCINGS. No Company will enter into any
sale-leaseback arrangement with any Person pursuant to which such Company shall
lease any asset (whether now owned or hereafter acquired) if such asset has been
or is to be sold or transferred by any Company to any other Person.
9.25 MERGERS AND DISSOLUTIONS; SALE OF CAPITAL STOCK. No Company will,
directly or indirectly, merge or consolidate with any other Person other than
the following, if no Default or Potential Default then exists or arises: (a) in
connection with a Permitted Acquisition if the survivor is, or concurrently with
the Permitted Acquisition becomes, a Company organized under the Laws of a
jurisdiction of the United States; (b) mergers or consolidations involving
Borrower (including a Permitted Acquisition effected as a merger) if Borrower is
the surviving entity; and (c) the Subsidiary Mergers and other mergers among
Companies; provided that, in any merger involving Borrower (including a
Permitted Acquisition effected as a merger), Borrower must be the surviving
entity, and, in any merger involving any other Loan Party (including a Permitted
Acquisition effected as a merger), a Loan Party which is a Wholly-owned
Subsidiary must be the surviving entity. No Company shall liquidate, wind up, or
dissolve (or suffer any liquidation or dissolution), other than (i)
liquidations, wind ups, or dissolutions incident to mergers permitted under this
SECTION 9.25, (ii) dissolution of any Loan Party if substantially all of its
assets have been conveyed to another Loan Party or disposed of as permitted by
and in accordance with the requirements of SECTION 9.23, or (iii) dissolution of
any Subsidiary other than a Loan Party if substantially all of its assets have
been conveyed to another Subsidiary or disposed of as permitted by and in
accordance with the requirements of SECTION 9.23. No Company may sell, assign,
lease, transfer, or otherwise dispose of the capital stock (or other ownership
interests) of any other Company, except for sales, leases, transfers, or other
such dispositions between Companies permitted by and in accordance with the
requirements of SECTION 9.23.
9.26 NEW BUSINESS. No Company will, directly or indirectly, permit or
suffer to exist any material change in the type of businesses in which it is
engaged from the businesses of the Companies as conducted on the Closing Date
and in similar or related businesses that are reasonable extensions or additions
to the Companies' business on the Closing Date.
9.27 AFFILIATE SUBORDINATION AGREEMENTS. The Companies shall,
simultaneously with the creation of any and all future Debt of any Company to
any one or more Affiliates (other than a Loan Party), cause the appropriate
Affiliate or Affiliates to execute and deliver to Administrative Agent an
agreement, substantially in the form of EXHIBIT H, subordinating the payment of
such Debt to the payment of the Obligation.
9.28 AMENDMENTS TO DOCUMENTS. No Company shall either (a) amend, modify,
repeal, replace or permit the amendment, modification, repeal, or replacement of
its articles of incorporation, bylaws, partnership agreement, or other
organizational documents as in effect on the Closing Date, if such action could
adversely affect the Rights of Lenders; or (b) without the prior written consent
of Administrative Agent, amend, modify, or waive any provision of any Spinoff
Document.
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9.29 YEAR 2000 COMPLIANCE. The Companies shall have all hardware and
software systems Year 2000 Compliant and ready (including all internal and
external testing) on a timely basis, unless the failure to do so could not
reasonably be expected to be a Material Adverse Event.
9.30 FINANCIAL COVENANTS. As calculated on a consolidated basis for the
Companies (unless otherwise indicated):
(a) LEVERAGE RATIO. Borrower shall never permit the Leverage
Ratio of the Companies at any date of determination (each a "COMPLIANCE
DATE") to be greater than the ratio shown in the table below which
corresponds to the period in which the applicable compliance date occurs:
===========================================================================
Period Maximum Leverage Ratio
===========================================================================
Closing Date, to and including 3.50 to 1
December 30, 2000
---------------------------------------------------------------------------
December 31, 2000, to and including 3.25 to 1
December 30, 2002
---------------------------------------------------------------------------
December 31, 2002, to and including 3.00 to 1
December 30, 2003
---------------------------------------------------------------------------
December 31, 2003, to and including 2.75 to 1
December 30, 2004
---------------------------------------------------------------------------
December 31, 2004, and thereafter 2.50 to 1
===========================================================================
(b) MINIMUM CONSOLIDATED NET WORTH. During the period from
Closing Date, through December 31, 1999, Borrower shall never permit its
Consolidated Net Worth to be less than $40,000,000. On and after January 1,
2000, Borrower shall never permit its Consolidated Net Worth to be less
than the sum of (i) $40,000,000, plus (ii) 75% of the cumulative
Consolidated Net Income (if positive) determined from January 1, 2000, to
any date of determination, plus (iii) 100% of the Net Cash Proceeds of all
Equity Issuances effected by any Company (excluding the Net Cash Proceeds
of any Equity Issuance by a Company to another Company).
(c) INTEREST COVERAGE. Borrower shall never permit the ratio
(determined quarterly on a cumulative basis from January 1, 2000, for
fiscal quarters ending March 31, 2000, June 30, 2000, and September 30,
2000, and thereafter, determined on a quarterly basis for the Rolling
Period then-ending) of (i) EBITDA to (ii) the Companies' Interest Expense
to be less than the ratio shown in the table below which corresponds to the
applicable fiscal quarter:
===========================================================================
Fiscal Quarter(s) Ending Minimum Interest Coverage Ratio
===========================================================================
March 31, 2000, June 30, 2000, 3.00 to 1
September 30, 2000, December 31, 2000,
March 31, 2001, June 30, 2001, and
September 30, 2001
---------------------------------------------------------------------------
December 31, 2001, March 31, 2002, 3.25 to 1
June 30, 2002, and September 30, 2002
---------------------------------------------------------------------------
December 31, 2002, March 31, 2003, 3.75 to 1
June 30, 2003, and September 30, 2003
---------------------------------------------------------------------------
December 31, 2003, and thereafter 4.00 to 1
===========================================================================
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(d) CAPITAL EXPENDITURES. Commencing on and after January 1,
2000, the Companies shall not make Capital Expenditures in any two
consecutive fiscal years if the aggregate amount of such expenditures would
exceed $50,000,000.
SECTION 10 DEFAULT. The term "DEFAULT" means the occurrence of any one or more
of the following events:
10.1 PAYMENT OF OBLIGATION. The failure or refusal of any Company to pay
(a) all or any part of the Principal Debt when the same becomes due (whether by
its terms, by acceleration, or as otherwise provided in the Loan Documents); or
(b) any other part of the Obligation (including, without limitation, any deposit
of cash collateral required pursuant to Section 2.6) on or before five calendar
days after the date due.
10.2 COVENANTS. The failure or refusal of Borrower (and, if applicable,
any other Company) to punctually and properly perform, observe, and comply with:
(a) Any covenant, agreement, or condition contained in SECTIONS
9.1, 9.3(a) and (b), 9.4, 9.12, 9.13, 9.16, 9.17, 9.20 through 9.25, and
9.30;
(b) Any covenant, agreement, or conditions contained in SECTIONS
9.3(c) through (j), 9.6 (other than the covenants to pay the Obligation as
set forth therein, which shall be governed by SECTION 10.1), 9.14, and
9.29, and such failure continues for five days; and
(c) Any other covenant, agreement, or condition contained in any
Loan Document (other than the covenants to pay the Obligation or provide
cash collateral set forth in SECTION 10.1 and the covenants in Section
10.2(a) and (b)), and such failure or refusal continues for 30 days after
(i) Administrative Agent gives notice thereof, or (ii) Borrower otherwise
becomes aware of such failure or refusal.
10.3 DEBTOR RELIEF. Borrower or any Subsidiary (a) shall not be
Solvent, (b) fails to pay its Debts generally as they become due, (c)
voluntarily seeks, consents to, or acquiesces in the benefit of any Debtor
Relief Law, other than as a creditor or claimant, or (d) becomes a party to or
is made the subject of any proceeding provided for by any Debtor Relief Law,
other than as a creditor or claimant, that could suspend or otherwise adversely
affect the Rights of Administrative Agent or any Lender granted in the Loan
Documents (unless, in the event such proceeding is involuntary, the petition
instituting same is dismissed within 30 days after its filing).
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10.4 JUDGMENTS AND ATTACHMENTS. Any Company fails, within 10 days after
entry, to pay, bond, or otherwise discharge any judgment or order for the
payment of money in excess of $5,000,000 (individually or collectively) or any
warrant of attachment, sequestration, or similar proceeding against any
Company's assets having a value (individually or collectively) of $5,000,000
which is not stayed on appeal.
10.5 GOVERNMENT ACTION. (a) A final non-appealable order is issued by any
Governmental Authority, including, but not limited to, the United States Justice
Department, seeking to cause any Company to divest a significant portion of its
assets pursuant to any antitrust, restraint of trade, unfair competition,
industry regulation, or similar Laws, or (b) any Governmental Authority shall
condemn, seize, or otherwise appropriate, or take custody or control of all or
any substantial portion of the assets of any Company.
10.6 MISREPRESENTATION. Any representation or warranty made by any
Company contained in any Loan Document shall at any time prove to have been
incorrect in any material respect when made.
10.7 CHANGE OF CONTROL. (i) Any Person or group of Persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934 (as amended
from time to time the "EXCHANGE ACT")), other than any Special Shareholders,
shall have acquired beneficial ownership (within the meaning of RULE 13d-3
promulgated by the Securities Exchange Commission pursuant to the Exchange Act)
of 50% or more of the outstanding shares of common stock of Borrower; (ii)
during any 12 consecutive calendar months, individuals who were directors of
Borrower on the first day of such period shall cease to constitute a majority of
Borrower's board of directors; (iii) the Special Shareholders cease to own at
least 20% of the outstanding shares of common stock of Borrower; or (iv) except
as otherwise permitted pursuant to this Agreement, Borrower ceases to own the
percentage of the issued and outstanding equity interests issued by its
Subsidiaries as determined on the Closing Date or, if thereafter acquired, on
the date of the related Acquisition. As used herein, "SPECIAL SHAREHOLDERS"
shall mean any trust, the primary beneficiaries of which are descendants of
Adolph Coors, Sr. or spouses of such descendants, or the trustees of any such
trusts.
10.8 DEFAULT UNDER OTHER DEBT AND AGREEMENTS. (a) The Borrower or any one
or more Companies fail to pay when due (after lapse of any applicable grace
periods) any Debt of such Company (other than the Obligation) in excess
(individually or collectively) of $5,000,000; (b) the acceleration of any Debt
of Borrower or any one or more Companies or the occurrence of any event or
condition (which with notice or lapse of time) would enable the holder of such
Debt or any Person acting on behalf of such holder to accelerate the maturing
thereof, which Debt exceeds (individually or collectively) $5,000,000; or (c)
any default exists under any Material Agreement, which default under such
Material Agreement could reasonably be expected to be a Material Adverse Event.
10.9 EMPLOYEE BENEFIT PLANS. (a) Any Company or ERISA Affiliate shall fail
to pay when due an amount or amounts for which it is liable under Title IV of
ERISA, which unpaid amounts exceed $2,500,000 in the aggregate; or (b) an ERISA
Event shall occur or exist with respect to any Employee Plan or Multiemployer
Plan, and as a result of such ERISA Event and all other ERISA Events
then-existing, the aggregate liabilities incurred (or in the reasonable judgment
of Required Lenders, likely to be incurred) of the Companies and the ERISA
Affiliates to any Employee Plan, Multiemployer Plan, or the PBGC (or any
combination thereof) shall exceed $22,500,000.
10.10 VALIDITY AND ENFORCEABILITY OF LOAN DOCUMENTS. Any Loan Document
shall, at any time after its execution and delivery and for any reason, cease to
be in full force and effect in any material respect or be declared to be null
and void (other than in accordance with the terms hereof or thereof) or the
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validity or enforceability thereof shall be contested by any Company party
thereto or any Company shall deny in writing that it has any or any further
liability or obligations under any Loan Document to which it is a party.
10.11 ENVIRONMENTAL LIABILITY. If any event or condition shall occur or
exist with respect to any Environmental Law, Environmental Permit, or Hazardous
Substance, and as a result of such event or condition, any Company shall have
incurred or in the opinion of Administrative Agent or Required Lenders be
reasonably likely to incur an Environmental Liability in excess of $2,000,000
during any consecutive twelve (12) month period.
10.12 PLEDGED STOCK; COLLATERAL DOCUMENTS. If (a) the Administrative Agent
ceases to hold as Collateral (for the benefit of Lenders) a perfected first
priority Lien on all of the issued and outstanding shares of common stock of the
Domestic Subsidiaries issued to any Loan Party and 65% of the issued and
outstanding shares of common stock of the Material Foreign Subsidiaries issued
to Borrower or any Domestic Subsidiary, and such failure is not cured within
five Business Days; or (b) any Collateral Document after delivery thereof
pursuant to Section 6 shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority Lien on and
security interest in the Collateral purported to be covered thereby, except as
permitted under the Loan Documents.
10.13 LCs. Administrative Agent shall have been served with, or becomes
otherwise subject to, a court order, injunction, or other process or decree
restraining or seeking to restrain it from paying any amount under any LC and
either (a) there has been a drawing under such LC which Administrative Agent
would otherwise be obligated to pay and Borrower has refused to reimburse
Administrative Agent for such payment or (b) the expiration date of such LC has
occurred but the right of any beneficiary thereunder to draw under such LC has
been extended past the expiration date in connection with the pendency of the
related court action or proceeding and Borrower has failed to deposit with
Administrative Agent cash collateral in an amount equal to the maximum drawing
which could be made under such LC.
SECTION 11 RIGHTS AND REMEDIES.
11.1 REMEDIES UPON DEFAULT.
(a) DEBTOR RELIEF. If a Default exists under SECTIONS 10.3(c)
or 10.3(d), the commitment to extend credit hereunder shall automatically
terminate and the entire unpaid balance of the Obligation shall
automatically become due and payable without any action or notice of any
kind whatsoever and Borrower shall be required to provide cash collateral
in an amount equal to 110% of the LC Exposure then existing in accordance
with SECTION 2.4(g).
(b) OTHER DEFAULTS. If any Default exists, Administrative Agent
shall, upon the request of Required Lenders (subject to the terms of
SECTION 12) or Required Lenders may, do any one or more of the following:
(i) if the maturity of the Obligation has not already been accelerated
under SECTION 11.1(a), declare the entire unpaid balance of the Obligation,
or any part thereof, immediately due and payable, whereupon it shall be due
and payable; (ii) terminate the commitments of Lenders to extend credit
hereunder; (iii) reduce any claim to judgment; (iv) to the extent permitted
by Law, exercise (or request each Lender to, and each Lender shall be
entitled to, exercise) the Rights of offset or banker's Lien against the
interest of each Company in and to every account and other property of each
Company which are in the possession of Administrative Agent or any Lender
to the extent of the full amount of the Obligation (to the extent permitted
by Law, each Company being deemed directly obligated to each Lender in the
full amount of the Obligation for such purposes); (v) if the maturity of
the Obligation has not already been accelerated under SECTION 11.1(a),
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demand Borrower to provide cash collateral in an amount equal to 110% of
the LC Exposure then existing in accordance with SECTION 2.4(g); and (vi)
exercise any and all other legal or equitable Rights afforded by the Loan
Documents, the Laws of the State of New York, or any other applicable
jurisdiction as Administrative Agent or Required Lenders (as the case may
be) shall deem appropriate, or otherwise, including, but not limited to,
the Right to bring suit or other proceedings before any Governmental
Authority either for specific performance of any covenant or condition
contained in any of the Loan Documents or in aid of the exercise of any
Right granted to Administrative Agent or any Lender in any of the Loan
Documents.
11.2 COMPANY WAIVERS. To the extent permitted by Law, the Companies
hereby waive presentment and demand for payment, protest, notice of intention to
accelerate, notice of acceleration, and notice of protest and nonpayment, and
agree that their respective liability with respect to the Obligation (or any
part thereof) shall not be affected by any renewal or extension in the time of
payment of the Obligation (or any part thereof), by any indulgence, or by any
release or change in any security for the payment of the Obligation (or any part
thereof).
11.3 PERFORMANCE BY ADMINISTRATIVE AGENT. If any material covenant, duty,
or agreement of any Company is not performed in accordance with the terms of the
Loan Documents, after the occurrence and during the continuance of a Default,
Administrative Agent may, at its option (but subject to the approval of Required
Lenders), perform or attempt to perform such covenant, duty, or agreement on
behalf of such Company. In such event, any amount expended by Administrative
Agent in such performance or attempted performance shall be payable by the
Companies, jointly and severally, to Administrative Agent on demand, shall
become part of the Obligation, and shall bear interest at the Default Rate from
the date of such expenditure by Administrative Agent until paid. Notwithstanding
the foregoing, it is expressly understood that Administrative Agent does not
assume, and shall never have, except by its express written consent, any
liability or responsibility for the performance of any covenant, duty, or
agreement of any Company.
11.4 DELEGATION OF DUTIES AND RIGHTS. Lenders may perform any of their
duties or exercise any of their Rights under the Loan Documents by or through
their respective Representatives.
11.5 NOT IN CONTROL. Nothing in any Loan Document shall, or shall be
deemed to (a) give any Agent or any Lender the Right to exercise control over
the assets (including real property), affairs, or management of any Company
prior to foreclosure thereon, (b) preclude or interfere with compliance by any
Company with any Law (including, without limitation, any Environmental Law), or
(c) require any act or omission by any Company that may be harmful to Persons or
property. Any "Material Adverse Event" or other materiality qualifier in any
representation, warranty, covenant, or other provision of any Loan Document is
included for the purposes of defining the agreement between the parties and
shall not, and shall not be deemed to, mean that any Agent or any Lender
acquiesces in any non-compliance by any Company with any Law or document, or
that any Agent or any Lender does not expect the Companies to promptly,
diligently, and continuously carry out all appropriate removal, remediation, and
termination activities required or appropriate in accordance with all
Environmental Laws. The Agents and the Lenders have no fiduciary relationship
with or fiduciary duty to Borrower or any Company arising out of or in
connection with the Loan Documents, and the relationship between the Agents and
the Lenders, on the one hand, and Borrower and the Companies, on the other hand,
in connection with the Loan Documents is solely that of debtor and creditor. The
power of the Agents and Lenders under the Loan Documents is limited to the
Rights provided in the Loan Documents, which Rights exist solely to assure
payment and performance of the Obligation and may be exercised in a manner
calculated by the Agents and Lenders in their respective good faith business
judgment.
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11.6 COURSE OF DEALING. The acceptance by Administrative Agent or Lenders
at any time and from time to time of partial payment on the Obligation shall not
be deemed to be a waiver of any Default then existing. No waiver by
Administrative Agent, Required Lenders, or Lenders of any Default shall be
deemed to be a waiver of any other then-existing or subsequent Default. No delay
or omission by Administrative Agent, Required Lenders, or Lenders in exercising
any Right under the Loan Documents shall impair such Right or be construed as a
waiver thereof or any acquiescence therein, nor shall any single or partial
exercise of any such Right preclude other or further exercise thereof, or the
exercise of any other Right under the Loan Documents or otherwise.
11.7 CUMULATIVE RIGHTS. All Rights available to Administrative Agent and
Lenders under the Loan Documents are cumulative of and in addition to all other
Rights granted to Administrative Agent and Lenders at law or in equity, whether
or not the Obligation is due and payable and whether or not Administrative Agent
or Lenders have instituted any suit for collection, foreclosure, or other action
in connection with the Loan Documents.
11.8 APPLICATION OF PROCEEDS. Any and all proceeds ever received by
Administrative Agent or Lenders from the exercise of any Rights pertaining to
the Obligation shall be applied to the Obligation in the order and manner set
forth in SECTION 3.12.
11.9 CERTAIN PROCEEDINGS. Each Company will promptly execute and deliver,
or cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers
Administrative Agent or Lenders may reasonably request in connection with the
obtaining of any consent, approval, registration, qualification, permit,
license, or Authorization of any Governmental Authority or other Person
necessary or appropriate for the effective exercise of any Rights under the Loan
Documents. Because the Companies agree that Administrative Agent's and Lenders'
remedies at Law for failure of the Companies to comply with the provisions of
this Section would be inadequate and that such failure would not be adequately
compensable in damages, the Companies agree that the covenants of this Section
may be specifically enforced.
11.10 EXPENDITURES BY LENDERS. Borrower shall promptly pay within thirty
(30) days after request therefor (a) all reasonable costs, fees, and expenses
paid or incurred by Administrative Agent and Arranger, incident to any Loan
Document (including, but not limited to, the reasonable fees and expenses of
counsel to Administrative Agent and Arranger in connection with the negotiation,
preparation, delivery, execution, coordination, and administration of the Loan
Documents and any related amendment, waiver, or consent) and (b) all reasonable
costs and expenses of Lenders and Administrative Agent incurred by
Administrative Agent or any Lender in connection with the enforcement of the
obligations of any Company arising under the Loan Documents following a Default
or Potential Default (including, without limitation, costs and expenses incurred
in connection with any workout or bankruptcy) or the exercise of any Rights
arising under the Loan Documents (including, but not limited to, reasonable
attorneys' fees including allocated cost of internal counsel, court costs and
other costs of collection), all of which shall be a part of the Obligation and
shall bear interest at the Default Rate from the date due until the date repaid.
11.11 JUDGMENT CURRENCY. Borrower, Agents, and each Lender hereby agree
that if, in the event that a judgment is given in relation to any sum due to any
Agent or any Lender hereunder, such judgment is given in currency (the "JUDGMENT
CURRENCY") other than that in which such sum was originally denominated (the
"ORIGINAL CURRENCy"), Borrower agrees to indemnify such Agent or Lender, as the
case may be, to the extent that the amount of the Original Currency which could
have been purchased thereby in accordance with normal banking procedures on the
Business Day following receipt of such sum is less than the sum which could have
been so purchased thereby had such purchase been made on the day on which such
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judgment was given or, if such day is not a Business Day, on the Business Day
immediately preceding the giving of such judgment, and if the amount so
purchased exceeds the amount which could have been so purchased thereby had such
purchase been made on the day on which such judgment was given or, if such day
is not a Business Day, on the Business Day immediately preceding such judgment,
such Agent or Lender agrees to remit such excess to Borrower. The agreements in
this SECTION 11.11 shall survive payment of any such judgment.
11.12 INDEMNIFICATION. BORROWER AND EACH GUARANTOR (BY EXECUTION OF A
GUARANTY), JOINTLY AND SEVERALLY, AGREE TO INDEMNIFY AND HOLD HARMLESS EACH
AGENT, ARRANGER, AND EACH LENDER AND EACH OF THEIR RESPECTIVE AFFILIATES AND
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AND ADVISORS
(EACH, AN "INDEMNIFIED PARTY") FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES,
LOSSES, LIABILITIES (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL
LIABILITIES), COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEYS' FEES) THAT MAY BE INCURRED BY OR ASSERTED OR AWARDED AGAINST ANY
INDEMNIFIED PARTY, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH OR BY
REASON OF (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY INVESTIGATION,
LITIGATION, OR PROCEEDING OR PREPARATION OF DEFENSE IN CONNECTION THEREWITH) THE
LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR
PROPOSED USE OF THE PROCEEDS OF THE BORROWINGS (INCLUDING ANY OF THE FOREGOING
ARISING FROM THE NEGLIGENCE OF THE INDEMNIFIED PARTY), EXCEPT TO THE EXTENT SUCH
CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE IS FOUND IN A FINAL,
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE
CASE OF AN INVESTIGATION, LITIGATION, OR OTHER PROCEEDING TO WHICH THE INDEMNITY
IN THIS SECTION 11.12 APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT
SUCH INVESTIGATION, LITIGATION, OR PROCEEDING IS BROUGHT BY THE BORROWER, ITS
DIRECTORS, SHAREHOLDERS OR CREDITORS OR AN INDEMNIFIED PARTY OR ANY OTHER PERSON
OR ANY INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO AND WHETHER OR NOT THE
TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED. BORROWER AND EACH COMPANY
AGREE NOT TO ASSERT ANY CLAIM AGAINST ANY INDEMNIFIED PARTY ON ANY THEORY OF
LIABILITY (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LIABILITY), FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR
OTHERWISE RELATING TO THE LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN OR THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE BORROWINGS. WITHOUT
PREJUDICE TO THE SURVIVAL OF ANY OTHER AGREEMENT OF THE BORROWER AND EACH
GUARANTOR HEREUNDER, THE AGREEMENTS AND OBLIGATIONS OF THE BORROWER AND EACH
GUARANTOR CONTAINED IN THIS SECTION 11.12 SHALL SURVIVE THE PAYMENT IN FULL OF
THE BORROWINGS AND ALL OTHER AMOUNTS PAYABLE UNDER THIS AGREEMENT.
SECTION 12 AGREEMENT AMONG LENDERS.
12.1 ADMINISTRATIVE AGENT.
(a) APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender hereby
appoints Bank of America, N.A. (and Bank of America, N.A. hereby accepts
such appointment) as its nominee and agent, in its name and on its behalf:
(i) to act as nominee for and on behalf of such Lender in and under all
Loan Documents; (ii) to arrange the means whereby the funds of Lenders are
to be made available to Borrower under the Loan Documents; (iii) to take
such action as may be requested by any Lender under the Loan Documents
(when such Lender is entitled to make such request under the Loan Documents
and after such requesting Lender has obtained the concurrence of such other
Lenders as may be required under the Loan Documents); (iv) to receive all
documents and items to be furnished to Lenders under the Loan Documents;
(v) to timely distribute, and Administrative Agent agrees to so distribute,
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to each Lender all material information, requests, documents, and items
received from Borrower under the Loan Documents; (vi) to promptly
distribute to each Lender its ratable part of each payment or prepayment
(whether voluntary, as proceeds of collateral upon or after foreclosure, as
proceeds of insurance thereon, or otherwise) in accordance with the terms
of the Loan Documents; (vii) to deliver to the appropriate Persons
requests, demands, approvals, and consents received from Lenders; and
(viii) to execute, on behalf of Lenders, such releases or other documents
or instruments as are permitted by the Loan Documents or as directed by
Lenders from time to time; provided, however, Administrative Agent shall
not be required to take any action which exposes Administrative Agent to
personal liability or which is contrary to the Loan Documents or applicable
Law.
(b) RESIGNATION OF ADMINISTRATIVE AGENT. Successor
Administrative Agents. Administrative Agent may resign at any time as
Administrative Agent under the Loan Documents by giving written notice
thereof to Lenders and may be removed as Administrative Agent under the
Loan Documents at any time with cause by Required Lenders. Should the
initial or any successor Administrative Agent ever cease to be a party
hereto or should the initial or any successor Administrative Agent ever
resign or be removed as Administrative Agent, then Required Lenders shall
elect the successor Administrative Agent from among the Lenders (other than
the resigning Administrative Agent). If no successor Administrative Agent
shall have been so appointed by Required Lenders, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or Required
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of Lenders, appoint a successor
Administrative Agent, which shall be a United States commercial bank having
a combined capital and surplus of at least $1,000,000,000. Upon the
acceptance of any appointment as Administrative Agent under the Loan
Documents by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
the Rights and assumes all the duties and obligations of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations of Administrative Agent under
the Loan Documents (provided, however, that when used in connection with
LCs issued and outstanding prior to the appointment of the successor
Administrative Agent, "Administrative Agent" shall continue to refer solely
to the bank that issued the outstanding LC; provided further that any LCs
issued or renewed after the appointment of any successor Administrative
Agent shall be issued by such successor Administrative Agent), and each
Lender shall execute such documents as any Lender may reasonably request to
reflect such change in and under the Loan Documents. After any retiring
Administrative Agent's resignation or removal as Administrative Agent under
the Loan Documents, the provisions of this Section 12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under the Loan Documents.
(c) ADMINISTRATIVE AGENT AS A LENDER. Non-Fiduciary.
Administrative Agent, in its capacity as a Lender, shall have the same
Rights under the Loan Documents as any other Lender and may exercise the
same as though it were not acting as Administrative Agent; the term
"Lender" shall, unless the context otherwise indicates, include
Administrative Agent; and any resignation, or removal of the Administrative
Agent hereunder shall not impair or otherwise affect any Rights, duties, or
obligations which it has or may have in its capacity as an individual
Lender. Each Lender and Borrower agree that Administrative Agent is not a
fiduciary for Lenders or for Borrower but simply is acting in the capacity
described herein to alleviate administrative burdens for both Borrower and
Lenders, that Administrative Agent has no duties or responsibilities to
Lenders or Borrower except those expressly set forth herein, and that
Administrative Agent in its capacity as a Lender has all Rights of any
other Lender.
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(d) OTHER ACTIVITIES OF ADMINISTRATIVE AGENT. Administrative
Agent and its Affiliates may now or hereafter be engaged in one or more
loan, letter of credit, leasing, or other financing transactions with
Borrower, act as trustee or depositary for Borrower, or otherwise be
engaged in other transactions with Borrower (collectively, the "OTHER
ACTIVITIES") not the subject of the Loan Documents. Without limiting the
Rights of Lenders specifically set forth in the Loan Documents,
Administrative Agent and its Affiliates shall not be responsible to account
to Lenders for such other activities, and no Lender shall have any interest
in any other activities, any present or future guaranties by or for the
account of Borrower which are not contemplated or included in the Loan
Documents, any present or future offset exercised by Administrative Agent
and its Affiliates in respect of such other activities, any present or
future property taken as security for any such other activities, or any
property now or hereafter in the possession or control of Administrative
Agent or its Affiliates which may be or become security for the obligations
of Borrower arising under the Loan Documents by reason of the general
description of indebtedness secured or of property contained in any other
agreements, documents, or instruments related to any such other activities;
provided that, if any payments in respect of such guaranties or such
property or the proceeds thereof shall be applied to reduction of the
obligations of Borrower arising under the Loan Documents, then each Lender
shall be entitled to share in such application ratably.
12.2 EXPENSES. Upon demand by Administrative Agent, each Lender shall pay
its Pro Rata Part of any reasonable expenses (including, without limitation,
court costs, reasonable attorneys' fees, and other costs of collection) incurred
by Administrative Agent in connection with any of the Loan Documents if and to
the extent Administrative Agent does not receive reimbursement therefor from
other sources within 60 days after incurred; provided that, each Lender shall be
entitled to receive its Pro Rata Part of any reimbursement for such expenses, or
part thereof, which Administrative Agent subsequently receives from such other
sources.
12.3 PROPORTIONATE ABSORPTION OF LOSSES. Except as otherwise provided in
the Loan Documents, nothing in the Loan Documents shall be deemed to give any
Lender any advantage over any other Lender insofar as the Obligation arising
under the Loan Documents is concerned, or to relieve any Lender from absorbing
its Pro Rata Part of any losses sustained with respect to the Obligation (except
to the extent such losses result from unilateral actions or inactions of any
Lender that are not made in accordance with the terms and provisions of the Loan
Documents).
12.4 DELEGATION OF DUTIES; RELIANCE. Administrative Agent may perform any
of its duties or exercise any of its Rights under the Loan Documents by or
through its Representatives. Administrative Agent and its Representatives shall
(a) be entitled to rely upon (and shall be protected in relying upon) any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telecopy, telegram, telex or teletype message, statement, order, or other
documents or conversation believed by it or them to be genuine and correct and
to have been signed or made by the proper Person and, with respect to legal
matters, upon opinion of counsel selected by Administrative Agent, (b) be
entitled to deem and treat each Lender as the owner and holder of the Obligation
owed to such Lender for all purposes until, subject to SECTION 13.13, written
notice of the assignment or transfer thereof shall have been given to and
received by Administrative Agent (and any request, authorization, consent, or
approval of any Lender shall be conclusive and binding on each subsequent
holder, assignee, or transferee of the Obligation owed to such Lender or portion
thereof until such notice is given and received), (c) not be deemed to have
notice of the occurrence of a Default unless a responsible officer of
Administrative Agent, who handles matters associated with the Loan Documents and
transactions thereunder, has received written notice from a Lender or Borrower
and stating that such notice is a "Notice of Default," and (d) be entitled to
consult with legal counsel (including counsel for Borrower), independent
accountants, and other experts selected by Administrative Agent and shall not be
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liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants, or experts.
12.5 LIMITATION OF LIABILITY.
(a) GENERAL. None of the Agents or any of their respective
Representatives shall be liable for any action taken or omitted to be taken
by it or them under the Loan Documents in good faith and reasonably
believed by it or them to be within the discretion or power conferred upon
it or them by the Loan Documents or be responsible for the consequences of
any error of judgment, except for fraud, gross negligence, or willful
misconduct; and none of the Agents or any of their respective
Representatives has a fiduciary relationship with any Lender by virtue of
the Loan Documents (provided that, nothing herein shall negate the
obligation of Administrative Agent to account for funds received by it for
the account of any Lender).
(b) NON-DISCRETIONARY ACTIONS. INDEMNIFICATION. Unless
indemnified to its satisfaction against loss, cost, liability, and expense,
neither Administrative Agent nor any other Agent shall be compelled to do
any act under the Loan Documents or to take any action toward the execution
or enforcement of the powers thereby created or to prosecute or defend any
suit in respect of the Loan Documents. If Administrative Agent requests
instructions from Lenders or Required Lenders, as the case may be, with
respect to any act or action (including, but not limited to, any failure to
act) in connection with any Loan Document, Administrative Agent shall be
entitled (but shall not be required) to refrain (without incurring any
liability to any Person by so refraining) from such act or action unless
and until it has received such instructions. Except where action of
Required Lenders or all Lenders is required in the Loan Documents,
Administrative Agent may act hereunder in its own discretion without
requesting instructions. In no event, however, shall Administrative Agent
or any of its respective Representatives be required to take any action
which it or they determine could incur for it or them criminal or onerous
civil liability. Without limiting the generality of the foregoing, no
Lender shall have any right of action against Administrative Agent as a
result of Administrative Agent's acting or refraining from acting hereunder
in accordance with the instructions of Required Lenders (or all Lenders if
required in the Loan Documents).
(c) INDEPENDENT CREDIT DECISION. INDEMNIFICATION. Neither
Administrative Agent nor any other Agent shall be responsible in any manner
to any Lender or any Participant for, and each Lender represents and
warrants that it has not relied upon Administrative Agent or any other
Agent in respect of, (i) the creditworthiness of any Company and the risks
involved to such Lender, (ii) the effectiveness, enforceability,
genuineness, validity, or the due execution of any Loan Document, (iii) any
representation, warranty, document, certificate, report, or statement made
therein or furnished thereunder or in connection therewith, (iv) the
existence, priority, or perfection of any Lien hereafter granted or
purported to be granted under any Loan Document, or (v) observation of or
compliance with any of the terms, covenants, or conditions of any Loan
Document on the part of any Company. Each Lender agrees to indemnify
Administrative Agent and its respective Representatives and hold them
harmless from and against (but limited to such Lender's Pro Rata Part of)
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses, and reasonable disbursements
of any kind or nature whatsoever which may be imposed on, asserted against,
or incurred by them in any way relating to or arising out of the Loan
Documents or any action taken or omitted by them under the Loan Documents
(INCLUDING ANY OF THE FOREGOING ARISING FROM THE NEGLIGENCE OF
ADMINISTRATIVE AGENT OR ITS REPRESENTATIVES), to the extent Administrative
Agent and its respective Representatives are not reimbursed for such
amounts by any Company (provided that, Administrative Agent, and its
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respective Representatives shall not have the right to be indemnified
hereunder for its or their own fraud, gross negligence, or willful
misconduct).
12.6 DEFAULT; COLLATERAL.
(a) Upon the occurrence and continuance of a Default, Lenders
agree to promptly confer in order that Required Lenders or Lenders, as the
case may be, may agree upon a course of action for the enforcement of the
Rights of Lenders; and Administrative Agent shall be entitled to refrain
from taking any action (without incurring any liability to any Person for
so refraining) unless and until Administrative Agent shall have received
instructions from Required Lenders. All rights of action under this
Agreement and under the Notes and all rights to the Collateral, if any,
hereunder may be enforced by Administrative Agent and any suit or
proceeding instituted by Administrative Agent in furtherance of such
enforcement shall be brought in its name as Administrative Agent without
the necessity of joining as plaintiffs or defendants any other Lender, and
the recovery of any judgment shall be for the benefit of Lenders subject to
the expenses of Administrative Agent. In actions with respect to any
property of Borrower, Administrative Agent is acting for the ratable
benefit of each Lender. Any and all agreements to subordinate (whether made
heretofore or hereafter) other indebtedness or obligations of Borrower to
the Obligation shall be construed as being for the ratable benefit of each
Lender.
(b) Each Lender authorizes and directs Administrative Agent to
enter into the Collateral Documents for the benefit of the Lenders. Except
to the extent unanimity is required hereunder, each Lender agrees that any
action taken by the Required Lenders in accordance with the provisions of
the this Agreement, the Collateral Documents, or the other Loan Documents,
and the exercise by the Required Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all of the Lenders.
(c) Administrative Agent is hereby authorized on behalf of all of
the Lenders, without the necessity of any notice to or further consent from
any Lender, from time to time to take any action with respect to any
Collateral or Collateral Documents which may be necessary to perfect and
maintain perfected the Liens upon the Collateral granted pursuant to the
Collateral Documents.
(d) Administrative Agent shall have no obligation whatsoever to
any Lender or to any other Person to assure that the Collateral exists or
is owned by any Loan Party or is cared for, protected, or insured or has
been encumbered or that the Liens granted to Administrative Agent herein or
pursuant hereto have been properly or sufficiently or lawfully created,
perfected, protected, or enforced, or are entitled to any particular
priority, or to exercise at all or in any particular manner or under any
duty of care, disclosure, or fidelity, or to continue exercising, any of
the Rights granted or available to Administrative Agent in this SECTION
12.6 or in any of the Collateral Documents; it being understood and agreed
that in respect of the Collateral, or any act, omission, or event related
thereto, Administrative Agent may act in any manner it may deem
appropriate, in its sole discretion, given the Administrative Agent's own
interest in the Collateral as one of the Lenders and that Administrative
Agent shall have no duty or liability whatsoever to any Lender, other than
to act without gross negligence or wilful misconduct.
(e) Lenders hereby irrevocably authorize Administrative Agent, at
its option and in its discretion, to release any Lien granted to or held by
Administrative Agent upon any Collateral: (i) upon termination of the Total
Commitment and payment and satisfaction of the Obligation; (ii)
constituting property in which no Loan Party owned an interest at the time
the Lien was granted or at any time thereafter; (iii) constituting property
leased to a Loan Party under a lease which has expired or been terminated
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in a transaction permitted under the Loan Document or is about to expire
and which has not been, and is not intended by such Loan Party to be,
renewed; (iv) consisting of an instrument evidencing Debt pledged to
Administrative Agent (for the benefit of Lenders), if the Debt evidenced
thereby has been paid in full; (v) upon the sale, transfer, or disposition
of Collateral which is expressly permitted pursuant to the Loan Documents,
including, without limitation, under SECTION 9.23 or (vi) if approved,
authorized, or ratified in writing by all necessary Lenders. Upon request
by Administrative Agent at any time, Lenders will confirm in writing
Administrative Agent's authority to release particular types or items of
Collateral pursuant to this SECTION 12.6.
(f) In furtherance of the authorizations set forth in this
SECTION 12.6, each Lender hereby irrevocably appoints Administrative Agent
its attorney-in-fact, with full power of substitution, for and on behalf of
and in the name of each such Lender, (i) to enter into Collateral Documents
(including, without limitation, any appointments of substitute trustees
under any Collateral Document), (ii) to take action with respect to the
Collateral and Collateral Documents to perfect, maintain, and preserve
Lender's Liens, and (iii) to execute instruments of release or to take
other action necessary to release Liens upon any Collateral to the extent
authorized in PARAGRAPH (e) hereof. This power of attorney shall be
liberally, not restrictively, construed so as to give the greatest latitude
to Administrative Agent's power, as attorney, relative to the Collateral
matters described in this SECTION 12.6. The powers and authorities herein
conferred on Administrative Agent may be exercised by Administrative Agent
through any Person who, at the time of the execution of a particular
instrument, is an officer of Administrative Agent. The power of attorney
conferred by this SECTION 12.6(f) is granted for valuable consideration and
is coupled with an interest and is irrevocable so long as the Obligation,
or any part thereof, shall remain unpaid or Lenders are obligated to make
any Borrowings under the Loan Documents.
12.7 LIMITATION OF LIABILITY. To the extent permitted by Law, (a) neither
Administrative Agent nor any other Agent (acting in their respective agent
capacities) shall incur any liability to any other Lender, Agent, or Participant
except for acts or omissions resulting from its own fraud, gross negligence or
willful misconduct, and (b) neither Administrative Agent nor any other Agent,
Lender, or Participant shall incur any liability to any other Person for any act
or omission of any other Agent, Lender, or Participant.
12.8 Relationship of Lenders. Nothing herein shall be construed as
creating a partnership or joint venture among Agents and Lenders.
12.9 BENEFITS OF AGREEMENT. None of the provisions of this SECTION 12
shall inure to the benefit of any Company or any other Person other than
Lenders; consequently, no Company or any other Person shall be entitled to rely
upon, or to raise as a defense, in any manner whatsoever, the failure of any
Agent or any Lender to comply with such provisions.
12.10 OBLIGATIONS SEVERAL. The obligations of Lenders hereunder are
several, and each Lender hereunder shall not be responsible for the obligations
of the other Lenders hereunder, nor will the failure of one Lender to perform
any of its obligations hereunder relieve the other Lenders from the performance
of their respective obligations hereunder
12.11 FINANCIAL HEDGES. To the extent any Lender or Affiliate of a Lender
issues a Financial Hedge in accordance with the requirements of the Loan
Documents and accepts the benefits of the Liens in the Collateral arising
pursuant to the Collateral Documents, such Lender (for itself and on behalf of
its Affiliate) agrees (i) to appoint Bank of America, N.A., as its nominee and
agent, to act for and on behalf of such Lender or Affiliate thereof in
connection with the Collateral Documents and (ii) to be bound by the terms of
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this Section 12; whereupon all references to "Lender" in this SECTION 12 and in
the Collateral Documents shall include, on any date of determination, any Lender
or Affiliate of a Lender that is party to a then-effective Financial Hedge which
complies with the requirements of the Loan Document. Additionally, if the
Obligation owed to any Lender or Affiliate of a Lender consists solely of Debt
arising under a Financial Hedge (such Lender or Affiliate being referred to in
this SECTION 12.11 as an "ISSUING LENDER"), then such Issuing Lender (by
accepting the benefits of any Collateral Documents) acknowledges and agrees that
pursuant to the Loan Documents and without notice to or consent of such Issuing
Lender: (i) Liens in the Collateral may be released in whole or in part; (ii)
all Guaranties may be released; (iii) any Collateral Document may be amended,
modified, supplemented, or restated; and (iv) all or any part of the Collateral
may be permitted to secure other Debt.
12.12 AGENTS. None of the Lenders identified in this Agreement as
"Documentation Agent" or "Co-Agent" shall have any rights, powers, obligations,
liabilities, responsibilities, or duties under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders so identified as a "Documentation Agent" or "Co-Agent" shall have or be
deemed to have any fiduciary relationship with any Lender.
SECTION 13 MISCELLANEOUS.
13.1 HEADINGS. The headings, captions, and arrangements used in any of the
Loan Documents are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify, or modify the terms of the Loan Documents, nor
affect the meaning thereof.
13.2 NONBUSINESS DAYS. In any case where any payment or action is due
under any Loan Document on a day which is not a Business Day, such payment or
action may be delayed until the next-succeeding Business Day, but interest and
fees shall continue to accrue in respect of any payment to which it is
applicable until such payment is in fact made; provided that, if, in the case of
any such payment in respect of a Eurodollar Rate Borrowing, the next-succeeding
Business Day is in the next calendar month, then such payment shall be made on
the next-preceding Business Day.
13.3 NOTICES. Unless specifically otherwise provided, whenever any Loan
Document requires or permits any consent, approval, notice, request, or demand
from one party to another, such communication must be in writing (which may be
by telex or telecopy) to be effective and shall be deemed to have been given (a)
if by telex, when transmitted to the telex number, if any, for such party, and
the appropriate answer back is received, (b) if by telecopy, when transmitted to
the telecopy number for such party with written confirmation of transmission
(and all such communications sent by telecopy shall be confirmed promptly
thereafter by personal delivery or mailing in accordance with the provisions of
this section; provided, that any requirement in this parenthetical shall not
affect the date on which such telecopy shall be deemed to have been delivered),
(c) if by mail, on the third Business Day after it is enclosed in an envelope,
properly addressed to such party, properly stamped, sealed, and deposited in the
appropriate official postal service, or (d) if by any other means, when actually
delivered to such party. Until changed by notice pursuant hereto, the address
(and telex and telecopy numbers, if any) for Administrative Agent and each
Lender is set forth on SCHEDULE 2.1, and for Borrower and each Company is the
address set forth by Borrower's signature on the signature page of this
Agreement and for each Guarantor is the address set forth by such Guarantor's
signature on the signature page of its Guaranty. A copy of each communication to
Administrative Agent shall also be sent to Haynes and Boone, LLP, 901 Main
Street, Dallas, Texas 75202, Fax: 214/651-5940, Attn: Karen S. Nelson. A copy of
each communication to Borrower, any Company, or any Guarantor shall also be sent
to Hogan & Hartson L.L.P., One Tabor Center, Suite 1500, 1200 Seventeenth
Street, Denver, Colorado 80202, Fax: 303/899-7333, Attn: Whitney Holmes.
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13.4 FORM AND NUMBER OF DOCUMENTS. Each agreement, document, instrument,
or other writing to be furnished under any provision of this Agreement must be
in form and substance and in such number of counterparts as may be reasonably
satisfactory to Administrative Agent and its counsel.
13.5 EXCEPTIONS TO COVENANTS. No Company shall take any action or fail to
take any action which is permitted as an exception to any of the covenants
contained in any Loan Document if such action or omission would result in the
breach of any other covenant contained in any of the Loan Documents.
13.6 SURVIVAL. All covenants, agreements, undertakings, representations,
and warranties made in any of the Loan Documents shall survive all closings
under the Loan Documents and, except as otherwise indicated, shall not be
affected by any investigation made by any party. All rights of, and provisions
relating to, reimbursement and indemnification of Administrative Agent or any
Lender shall survive termination of this Agreement and payment in full of the
Obligation.
13.7 GOVERNING LAW. THE LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND THE SUBSTANTIVE LAWS
OF THE STATE OF NEW YORK (EXCEPT TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION
GOVERN THE CREATION, PERFECTION, VALIDITY, OR ENFORCEMENT OF LIENS UNDER THE
COLLATERAL DOCUMENTS), AND THE APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF
AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION
OF THIS AGREEMENT AND ALL OF THE OTHER LOAN DOCUMENTS.
13.8 INVALID PROVISIONS. If any provision in any Loan Document is held to
be illegal, invalid, or unenforceable, such provision shall be fully severable;
the appropriate Loan Document shall be construed and enforced as if such
provision had never comprised a part thereof; and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by such
provision or by its severance therefrom. Administrative Agent, Lenders, and each
Company party to such Loan Document agree to negotiate, in good faith, the terms
of a replacement provision as similar to the severed provision as may be
possible and be legal, valid, and enforceable.
13.9 ENTIRETY. THE RIGHTS AND OBLIGATIONS OF THE COMPANIES, GUARANTORS,
LENDERS, AND AGENTS SHALL BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS,
DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS BETWEEN SUCH PARTIES
ARE SUPERSEDED BY AND MERGED INTO SUCH WRITINGS. THIS AGREEMENT (AS AMENDED IN
WRITING FROM TIME TO TIME) AND THE OTHER WRITTEN LOAN DOCUMENTS EXECUTED BY ANY
COMPANY, ANY GUARANTOR, ANY LENDER, AND/OR ANY AGENT, (TOGETHER WITH ALL
COMMITMENT LETTERS AND FEE LETTERS ONLY AS SUCH COMMITMENT LETTERS AND FEE
LETTERS RELATE TO THE PAYMENT OF FEES AFTER THE CLOSING DATE) REPRESENT THE
FINAL AGREEMENT BETWEEN THE COMPANIES, THE GUARANTORS, LENDERS, AND AGENTS, AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BY SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
SUCH PARTIES. EXCEPT AS SET FORTH ABOVE, NO OTHER TERMS OF THE COMMITMENT
LETTERS SURVIVE EXECUTION OF THIS AGREEMENT.
13.10 JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL. BORROWER AND
EACH GUARANTOR (BY EXECUTION OF A GUARANTY), IN EACH CASE FOR ITSELF, ITS
SUCCESSORS AND ASSIGNS, HEREBY (A) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE STATE (PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) AND FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN THE
STATE OF NEW YORK, AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE
UPON IT IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE LOAN
DOCUMENTS AND THE OBLIGATION BY SERVICE OF PROCESS AS PROVIDED BY NEW YORK LAW,
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(B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION
ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS AND THE OBLIGATION
BROUGHT IN ANY SUCH COURT, (C) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (D) AGREES
TO DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN NEW YORK IN
CONNECTION WITH ANY SUCH LITIGATION AND TO DELIVER TO ADMINISTRATIVE AGENT
EVIDENCE THEREOF, IF REQUESTED, (E) IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH LITIGATION BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (F) IRREVOCABLY AGREES THAT ANY LEGAL
PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR IN CONNECTION WITH THE
LOAN DOCUMENTS OR THE OBLIGATION SHALL BE BROUGHT IN ONE OF THE AFOREMENTIONED
COURTS, AND (G) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY. The
scope of each of the foregoing waivers is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including, without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory claims.
The Companies, Guarantors, and each other party to this Agreement acknowledge
that this waiver is a material inducement to the agreement of each party hereto
to enter into a business relationship, that each has already relied on this
waiver in entering into this Agreement, and each will continue to rely on each
of such waivers in related future dealings. The Companies, Guarantors, and each
other party to this Agreement warrant and represent that they have reviewed
these waivers with their legal counsel, and that they knowingly and voluntarily
agree to each such waiver following consultation with legal counsel. THE WAIVERS
IN THIS SECTION 13.10 ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, SUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS OR ANY OTHER LOAN
DOCUMENT. In the event of Litigation, this Agreement may be filed as a written
consent to a trial by the court.
13.11 AMENDMENTS, CONSENTS, CONFLICTS, AND WAIVERS.
(a) Except as otherwise specifically provided, (i) this Agreement
may only be amended, modified, or waived by an instrument in writing
executed jointly by Borrower and Required Lenders, and, in the case of any
matter affecting Administrative Agent (except removal of Administrative
Agent as provided in SECTION 12) by Administrative Agent, and may only be
supplemented by documents delivered or to be delivered in accordance with
the express terms hereof, and (ii) the other Loan Documents may only be the
subject of an amendment, modification, or waiver if Borrower and Required
Lenders, and, in the case of any matter affecting Administrative Agent
(except as set forth above), Administrative Agent, have approved same.
(b) Any amendment to or consent or waiver under this Agreement or
any Loan Document which purports to accomplish any of the following must be
by an instrument in writing executed by Borrower and executed (or approved,
as the case may be) by each Lender affected thereby, and, in the case of
any matter affecting Administrative Agent, by Administrative Agent: (i)
postpones or delays any date fixed by the Loan Documents for any payment or
mandatory prepayment of all or any part of the Obligation payable to such
Lender or Administrative Agent; (ii) reduces the interest rate or decreases
the amount of any payment of principal, interest, fees, or other sums
payable to Administrative Agent or any such Lender hereunder (except such
reductions as are contemplated by this Agreement); (iii) changes the
definition of "REQUIRED LENDERS"; (iv) changes the order of application of
any payment or prepayment set forth in SECTIONS 3.3 and 3.12 in any manner
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that materially affects such Lender or Administrative Agent; (v) except as
otherwise permitted by any Loan Document, releases all or substantially all
of the Guarantors (taking into account all prior releases); (vi) except as
otherwise permitted by any Loan Document, releases all or substantially all
of the Collateral for the Obligation (taking into account all prior
releases) or permits the creation, incurrence, assumption, or existence of
any Lien on all or substantially all of the Collateral to secure any
obligations, other than Liens securing the Obligation; or (vii) changes
this CLAUSE (b) or any other matter specifically requiring the consent of
all Lenders hereunder. Without the consent of such Lender, no Lender's
"COMMITTED SUM" or "COMMITMENT PERCENTAGE" may be increased.
(c) Any conflict or ambiguity between the terms and provisions
herein and terms and provisions in any other Loan Document shall be
controlled by the terms and provisions herein.
(d) No course of dealing nor any failure or delay by
Administrative Agent, any Lender, or any of their respective
Representatives with respect to exercising any Right of Administrative
Agent or any Lender hereunder shall operate as a waiver thereof. A waiver
must be in writing and signed by Administrative Agent and Required Lenders
(or by all Lenders, if required hereunder) to be effective, and such waiver
will be effective only in the specific instance and for the specific
purpose for which it is given.
13.12 MULTIPLE COUNTERPARTS. This Agreement may be executed in a number of
identical counterparts, each of which shall be deemed an original for all
purposes and all of which constitute, collectively, one agreement; but, in
making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart. It is not necessary that each Lender execute
the same counterpart so long as identical counterparts are executed by Borrower,
each Lender, and Administrative Agent. This Agreement shall become effective
when counterparts hereof shall have been executed and delivered to
Administrative Agent by each Lender, Administrative Agent, and Borrower, or,
when Administrative Agent shall have received telecopied, telexed, or other
evidence satisfactory to it that such party has executed and is delivering to
Administrative Agent a counterpart hereof.
13.13 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Agreement shall be binding upon, and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that (i) Borrower may not, directly or indirectly, assign or
transfer, or attempt to assign or transfer, any of its Rights, duties or
obligations under any Loan Documents without the express written consent of
all Lenders, and (ii) except as permitted under this Section, no Lender may
transfer, pledge, assign, sell any participation in, or otherwise encumber
its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all
or a portion of its Rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, all or a portion of
its Borrowings and its Notes (to the extent any Principal Debt owed to such
assigning Lender is evidenced by a Note or Notes)); provided, however,
that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender, an Affiliate of a Lender, or an Approved Fund of any Lender,
or in the case of an assignment of all of a Lender's Rights and
obligations under this Agreement and the other Loan Documents, any
partial assignment under any Facility shall not be less than the
following amounts for the Facility indicated unless Borrower and
d-699365.10 76 CoorsTek Credit Agreement
-------------------------
<PAGE>
Administrative Agent consent thereto (at their sole discretion) in
writing (which may be evidenced by their acceptance and execution of
the related Assignment and Acceptance Agreement):
=====================================================================
Facility Minimum Assignment
=====================================================================
Revolver Facility $5,000,000
---------------------------------------------------------------------
Term Loan A Facility $5,000,000
---------------------------------------------------------------------
Term Loan B Facility $1,000,000
=====================================================================
; provided that, no partial assignment for any Facility (including
any assignment among Lenders) may result in any Lender holding less
than $1,000,000 in any Facility;
(iii) each such assignment by a Lender shall be of a
proportionate part of all of the assigning Lender's Rights and
obligations under this Agreement and the Notes (to the extent any
Principal Debt owed to such assigning Lender is evidenced by a Note
or Notes), except that this CLAUSE (iii) shall not be construed to
prohibit the assignment of a proportionate part of all of the
assigning Lender's Rights and obligations in respect of one Facility;
and
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance an Assignment
and Acceptance Agreement substantially in the form of EXHIBIT F
hereto, together with any Notes (to the extent any Principal Debt
owed to such assigning Lender is evidenced by a Note or Notes)
subject to such assignment and a processing fee of $3,500, including,
without limitation, any assignment between Lenders; provided,
however, that with respect to an assignment to any other Lender, an
Affiliate of the assigning Lender, or an Approved Fund of such
assigning Lender, the processing fee shall be $1,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance
Agreement, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, Rights, and benefits of a
Lender under the Loan Documents and the assigning Lender shall, to the
extent of such assignment, relinquish its Rights and be released from its
obligations under the Loan Documents. Upon the consummation of any
assignment pursuant to this Section, but only upon the request of the
assignor or assignee made through Administrative Agent, Borrower shall
issue appropriate Notes to the assignor and the assignee, reflecting such
Assignment and Acceptance. If the assignee is not incorporated under the
laws of the United States of America or a state thereof, it shall deliver
to Borrower and Administrative Agent certification as to exemption from
deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred
to in SECTION 13.3 a copy of each Assignment and Acceptance Agreement
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitment, and principal amount
of the Borrowings owing to, each Lender from time to time (the "REGISTER").
The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and Borrower, Administrative Agent, and
the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of the Loan Documents. The Register
shall be available for inspection by Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice. Upon
d-699365.10 77 CoorsTek Credit Agreement
-------------------------
<PAGE>
the consummation of any assignment in accordance with this SECTION 13.13,
SCHEDULE 2.1 shall automatically be deemed amended (to the extent required)
by Administrative Agent to reflect the name, address, and respective
Committed Sums under the Facilities of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement
executed by the parties thereto, together with any Notes (to the extent any
Principal Debt owed to such assigning Lender is evidenced by a Note or
Notes) subject to such assignment and payment of the processing fee, the
Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of EXHIBIT F hereto, (i) accept
such Assignment and Acceptance Agreement, (ii) record the information
contained therein in the Register, and (iii) give prompt notice thereof to
the parties thereto.
(e) Subject to the provisions of this Section and in accordance
with applicable Law, any Lender may, in the ordinary course of its business
and in accordance with applicable Law, at any time sell to one or more
Persons (each a "PARTICIPANT") participating interests in its portion of
the Obligation; provided, however, that neither Borrower nor any Affiliate
of Borrower shall be a Participant. In the event of any such sale to a
Participant, (i) such Lender shall remain a "Lender" under this Agreement
and the Participant shall not constitute a "Lender" hereunder, (ii) such
Lender's obligations under this Agreement shall remain unchanged, (iii)
such Lender shall remain solely responsible for the performance thereof,
(iv) such Lender shall remain the holder of its share of the Principal Debt
for all purposes under this Agreement, (v) Borrower and Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's Rights and obligations under the Loan
Documents, and (vi) such Lender shall be solely responsible for any
withholding taxes or any filing or reporting requirements relating to such
participation and shall hold Borrower and Administrative Agent and their
respective successors, permitted assigns, officers, directors, employees,
agents, and representatives harmless against the same. Participants shall
have no Rights under the Loan Documents, other than certain voting Rights
as provided below. Subject to the following, each Lender shall be entitled
to obtain (on behalf of its Participants) the benefits of SECTION 4 with
respect to all participations in its part of the Obligation outstanding
from time to time so long as Borrower shall not be obligated to pay any
amount in excess of the amount that would be due to such Lender under
SECTION 4 calculated as though no participations have been made. No Lender
shall sell any participating interest under which the Participant shall
have any Rights to approve any amendment, modification, or waiver of any
Loan Document, except to the extent such amendment, modification, or waiver
extends the due date for payment of any amount in respect of principal
(other than mandatory prepayments), interest, or fees due under the Loan
Documents, reduces the interest rate or the amount of principal or fees
applicable to the Obligation (except such reductions as are contemplated by
this Agreement), or releases any material Guaranty or all or any
substantial portion of the Collateral for the Obligation under the Loan
Documents (except such releases as are contemplated by this Agreement);
provided that, in those cases where a Participant is entitled to the
benefits of SECTION 4 or a Lender grants Rights to its Participants to
approve amendments to or waivers of the Loan Documents respecting the
matters previously described in this sentence, such Lender must include a
voting mechanism in the relevant participation agreement or agreements, as
the case may be, whereby a majority of such Lender's portion of the
Obligation (whether held by such Lender or Participant) shall control the
vote for all of such Lender's portion of the Obligation. Except in the case
of the sale of a participating interest to another Lender, the relevant
participation agreement shall not permit the Participant to transfer,
pledge, assign, sell participations in, or otherwise encumber its portion
of the Obligation, unless the consent of the transferring Lender (which
consent will not be unreasonably withheld) has been obtained.
d-699365.10 78 CoorsTek Credit Agreement
-------------------------
<PAGE>
(f) Notwithstanding any other provision set forth in this
Agreement, any Lender may, without notice to, or the consent of Borrower or
Administrative Agent, at any time assign and pledge all or any portion of
its Borrowings and its Notes (to the extent any Principal Debt owed to such
assigning Lender is evidenced by a Note or Notes) to any Federal Reserve
Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank or any Lender which is a fund
may pledge all or any portion of its Borrowings and its Notes to its
trustee in support of its obligations to its trustee. No such assignment
shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the
Companies in the possession of such Lender from time to time to Eligible
Assignees and Participants (including prospective Eligible Assignees and
Participants).
13.14 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The obligations of each Company under the Loan Documents shall
remain in full force and effect until termination of the Total Commitment,
payment in full of the Principal Debt and of all interest, fees, and other
amounts of the Obligation then due and owing, and expiration of all LCs, except
that SECTIONS 4, 11, and 13, and any other provisions under the Loan Documents
expressly intended to survive by the terms hereof or by the terms of the
applicable Loan Documents, shall survive such termination. If at any time any
payment of the principal of or interest on any Note or any other amount payable
by any Company under any Loan Document is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy, or reorganization of such
Company or otherwise, the obligations of each Company under the Loan Documents
with respect to such payment shall be reinstated as though such payment had been
due but not made at such time.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
<PAGE>
Signature Page to that certain Revolving Credit and Term Loan Agreement
dated as of December 6, 1999, among CoorsTek, Inc. (formerly Coors Porcelain
Company), as Borrower, Bank of America, N.A., as Administrative Agent, and
certain Lenders named therein, including the undersigned.
EXECUTED to be effective as of the Closing Date.
Address: 16000 Table Mountain Parkway COORSTEK, INC. (formerly COORS PORCELAIN
Golden, Colorado 80403 COMPANY), as Borrower
Attention: General Counsel
Telephone: 303-271-7000 By: /s/Joseph Coors, Jr.
Facsimile: 303-271-7055 --------------------
Joseph Coors, Jr., Chief Executive
Officer
Bank of America Plaza, 14th Floor BANK OF AMERICA, N.A., as Administrative
901 Main Street Agent and a Lender
Dallas, Texas 75202
Attn: Ms. Theresa Belk
Fax: 214-209-9177 By: /s/Richard L. Nichols, Jr.
--------------------------
Richard L. Nichols, Jr., Managing
Director
<PAGE>
Signature Page to that certain Revolving Credit and Term Loan Agreement
dated as of December 6, 1999, among CoorsTek, Inc. (formerly Coors Porcelain
Company), as Borrower, Bank of America, N.A., as Administrative Agent, and
certain Lenders named therein, including the undersigned.
EXECUTED to be effective as of the Closing Date.
ABN AMRO BANK, N.V., as Documentation CREDIT AGRICOLE INDOSUEZ, as a
Agent and a Lender Lender
By: /s/John E. Robertson By: /s/Patrick Cocquerel
--------------------- --------------------
John E. Robertson, Patrick Cocquerel,
Vice President First Vice President,
Managing Director, Head
of Houston Representative
Office
By: /s/Peter J. Hallan By: /s/Kenneth C. Coulter
------------------ ---------------------
Peter J. Hallan, Kenneth C. Coulter,
Assistant Vice President Vice President,
Senior Relationship Manager
THE BANK OF NEW YORK, CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender as a Lender
By: /s/ Jennifer S. Ellerman By: /s/Robert Ivosevich
------------------------ -------------------
Jennifer S. Ellerman, Robert Ivosevich,
Vice President Senior Vice President
BANK ONE, N.A., as a Co-Agent THE DAI-ICHI KANGYO BANK, LIMITED,
and a Lender as a Lender
By: /s/Mark A. Isley By: /s/Christopher Fahey
---------------- --------------------
Mark A. Isley, Christopher Fahey,
First Vice President Vice President
BAYERISCHE HYPO- UND DRESDNER BANK AG, NEW YORK AND
VEREINSBANK AG, NEW YORK GRAND CAYMAN BRANCHES, as a
BRANCH, as a Lender Co-Agent and a Lender
By: /s/ Sylvia K. Cheng By: /s/A.R. Morris
------------------- --------------
Sylvia K. Cheng, A. Richard Morris,
Director First Vice President
By: /s/ Carlo Lamberti By: /s/D. Slusarczyk
------------------ ----------------
Carlo Lamberti, Deborah Slusarczyk,
Associate Director Vice President
COMERICA BANK, as a Lender
By: /s/ Eoin Collins
----------------
Eoin Collins,
Assistant Vice President
<PAGE>
Signature Page to that certain Revolving Credit and Term Loan Agreement
dated as of December 6, 1999, among CoorsTek, Inc. (formerly Coors Porcelain
Company), as Borrower, Bank of America, N.A., as Administrative Agent, and
certain Lenders named therein, including the undersigned.
EXECUTED to be effective as of the Closing Date.
FLEET NATIONAL BANK, as a Lender KEYBANK NATIONAL ASSOCIATION, as a
Lender
By: /s/Jeff Lynch
-------------- By: /s/Mary K. Young
Jeff Lynch, ----------------
Senior Vice President Mary K. Young,
Assistant Vice President
FRANKLIN FLOATING RATE TRUST, KZH LANGDALE LLC, as a Lender
as a Lender
By: /s/Peter Chin
By: /s/Chauncey Lufkin -------------
------------------ Peter Chin,
Chauncey Lufkin, Authorized Agent
Vice President
KZH SOLEIL-2 LLC, as a Lender
THE FUJI BANK, LIMITED, as a Lender
By: /s/Peter Chin
By: /s/Masahito Fukuda -------------
------------------ Peter Chin,
Masahito Fukuda, Authorized Agent
Senior Vice President
MERCANTILE BANK NATIONAL
GENERAL ELECTRIC CAPITAL ASSOCIATION, as a Lender
CORPORATION, as a Lender
By: /s/David F. Higbee
By: /s/Gregory Hong ------------------
--------------- David F. Higbee,
Gregory Hong, Vice President
Duly Authorized Signatory
NORWEST BANK COLORADO, N.A., as a
HARRIS TRUST AND SAVINGS BANK, Co-Agent and a Lender
as a Lender
By: /s/John R. Hall
By: /s/James H. Colley ---------------
------------------- John R. Hall,
James H. Colley, Vice President
Vice President
U. S. BANK NATIONAL ASSOCIATION,
IKB DEUTSCHE INDUSTRIEBANK, AG as a Co-Agent and a Lender
LUXEMBOURG BRANCH, as a Lender
By: /s/Andrea C. Koeneke
By: /s/Edwin Brecht --------------------
--------------- Andrea C. Koeneke,
Edwin Brecht, Executive Director Vice President
By: /s/Manfred Ziwey
----------------
Manfred Ziwey, Director
CoorsTek, Inc. And Subsidiaries
-------------------------------
Of Registrant
-------------
The following table lists subsidiaries of the Registrant and the respective
jurisdictions of their incorporation as of December 31, 1999. All subsidiaries
are included in Registrant's consolidated financial statements.
State/Country of
Name Incorporation
- -------------------------------------- -------------
CoorsTek, Inc. Delaware
Alumina Ceramics, Inc. Arkansas
Coors Ceramicon Designs, Ltd., dba
Coors Tetrafluor, Inc. Colorado
Coors Ceramics Company Limited Scotland
CoorsTek GmbH Germany
Coors Technical Ceramics Company Tennessee
Coors Wear Products, Inc. Colorado
Wilbanks International, Inc. Oregon
Edwards Enterprises California
CoorsTek Korea Co., Ltd. Korea
50
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (No. 333-31106) of CoorsTek, Inc. of our report dated
February 17, 2000 relating to the financial statements and financial statement
schedule, which appear in this Form 10K.
PricewaterhouseCoopers LLP
Denver, Colorado
March 29, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary financial information extracted from the
consolidated balance sheets and consolidated statements of income and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> DEC-31-1999
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 50,318
<ALLOWANCES> 0
<INVENTORY> 73,015
<CURRENT-ASSETS> 138,934
<PP&E> 142,898
<DEPRECIATION> 0
<TOTAL-ASSETS> 327,490
<CURRENT-LIABILITIES> 55,260
<BONDS> 0
0
0
<COMMON> 72
<OTHER-SE> 59,316
<TOTAL-LIABILITY-AND-EQUITY> 327,490
<SALES> 365,061
<TOTAL-REVENUES> 365,061
<CGS> 274,398
<TOTAL-COSTS> 274,398
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,981
<INCOME-PRETAX> 32,480
<INCOME-TAX> 12,425
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 20,055
<EPS-BASIC> 2.80
<EPS-DILUTED> 2.80
</TABLE>
