<PAGE> 1
================================================================================
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 [Fee Required]
For the fiscal year ended December 31, 1997, or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 [No Fee Required]
For the transition period from ____________ to____________
COMMISSION FILE NO. 1-5842
------------------
BOWNE & CO., INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 13-2618477
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
345 HUDSON STREET
NEW YORK, NEW YORK 10014
(Address of principal executive offices) (Zip code)
</TABLE>
(212) 924-5500
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<CAPTION>
NAME OF EACH EXCHANGE ON
TITLE OF EACH CLASS WHICH REGISTERED
<S> <C>
Common Stock, American Stock Exchange
Par Value $.01
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
(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 ]
The aggregate market value of the Common Stock issued and outstanding and
held by nonaffiliates of the Registrant, based upon the closing price for the
Common Stock on the American Stock Exchange on March 24, 1998, was $739,875,384.
For purposes of the foregoing calculation, the Registrant's Employees' Stock
Purchase Plan is deemed to be an affiliate of the Registrant.
The number of shares outstanding of each of the Registrant's classes of
common stock was 18,322,046 shares of Common Stock outstanding as at March 24,
1998.
DOCUMENTS INCORPORATED BY REFERENCE
Certain portions of the documents of the Registrant listed below have been
incorporated by reference into the indicated parts of this Annual Report on Form
10-K:
<TABLE>
<S> <C>
Notice of Annual Meeting of Stockholders and Proxy
Statement anticipated to be dated April 10, 1998.... Part III, Items 11-12
Part IV, Item 14
</TABLE>
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<PAGE> 2
PART I
ITEM 1. BUSINESS
The Registrant was established in 1775 and incorporated in 1968 in the
State of New York. (The Registrant and its subsidiaries are hereinafter
collectively referred to as the "Company," unless otherwise noted.)
The Company is in the midst of a major re-focusing of its business, one
that will take a number of years to accomplish. Its business is being re-focused
on "Empowering Information," a term used to define the management, repurposing
and distribution of a client's information to any audience, through any medium,
in any language, anywhere in the world. The Company manages and repurposes the
information for distribution by digital, Internet or paper media. It manages
documents on the clients' site or at its own facilities. It provides business
services and solutions for transactional financial, corporate reporting and
mutual fund printing, digital data management, Internet services, localization,
translation and document management outsourcing, among others. Until recently,
the Company's focus was principally on financial printing and certain types of
commercial printing. Management believes the transition now underway will allow
the Company to leverage the document management and information management
technologies it has traditionally employed into a variety of new business
solutions for its customers worldwide. Those newer services complement the
Company's older business, as well as one another. The Company views its business
as providing solutions that empower its clients' information on any medium.
The transactional financial printing market consists primarily of
transactional financial, corporate reporting, and mutual fund printing.
Transactional financial printing includes registration statements, tax-exempt
offering circulars, prospectuses, loan agreements, special proxy statements,
tender offer materials and other documents related to corporate financings,
acquisitions and mergers. Corporate reporting includes interim reports and
regular proxy materials prepared by corporations for distribution to
stockholders, Securities and Exchange Commission reports on Form 10-K and other
forms, and stock exchange listing applications. Mutual fund printing includes
regulatory and stockholder communications such as annual or semi-annual reports,
prospectuses, information statements, and marketing related materials. The
Company receives its clients' information in myriad formats and repurposes it
for distribution typically in print or digitally via EDGAR or Internet formats.
One of the Company's newer solution offerings, digital data management,
assists customers by providing their individual clients with high-speed,
customized periodic statements or other on demand printing. Such customers
include mutual funds, stock brokers, investment banks, retail banks and other
financial institutions that manage multi-option client portfolios, healthcare
providers, insurance companies and others that manage 401(k) and other
retirement plans, and employers which offer multiple benefit options to their
employees.
In 1997, the Company began offering its customers the design and
maintenance of customized websites. Through a recent acquisition the Company has
begun to provide development of advanced data-mining tools which enable
financial institutions and others to strengthen client relationships with
database-driven websites that tailor information to the needs of individual
users.
In late 1996, the Company began offering localization services which
enhanced its traditional translation offerings. The Company's localization
services principally focus on the worldwide software industry by localizing and
re-engineering software for use in countries other than the country of original
development. This service may involve language translation, machine translation,
testing applications and in some cases the custom creation of content. One
application of localization, for which demand is growing, is the globalization
of software products and other client information, by which their distribution
around the world is made practicable. The Company also offers the traditional
translation of written documents, including highly confidential legal documents,
medical information bulletins and other materials.
In late 1996, the Company began to offer outsourcing of document management
to the financial service and legal communities. Outsourcing includes the on-site
management of document building and reproduction
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operations at the facilities of customers, off-site backup of those same
services, specialized applications of graphics and presentation technologies,
and digital file and case management systems.
Commercial printing consists of business forms, sales literature and aids,
annual reports, point of purchase materials, market letters, newsletters and
other custom-printed matter prepared for commercial customers. Commercial
printing also includes the printing of legal briefs and records for use by
attorneys in trial, appellate and administrative proceedings.
In January 1997, the Company sold its Baseline Financial Services, Inc.
("Baseline") subsidiary which, in the Company's view, did not fit with the
Company's information empowerment strategy.
During the fourteen-month period ended December 31, 1997, a number of
developments supported the Company's transition to this broader spectrum of
information empowerment services for its clients. In November 1996, March 1997
and June 1997, the Company acquired five unrelated companies in software
localization, namely IDOC based in Los Angeles, GECAP based in Munich, the ME&TA
companies in Madrid, I&G COM in Paris and Pacifitech in Tokyo. These companies
allow the Company to offer its clients localized and global information
empowerment solutions. In February 1997, the Company acquired Imagineer, Inc., a
Phoenix-based provider of facilities management services to the West-coast and
Southwest legal communities. The Internet Factory, Inc., a Detroit-based
developer of websites, was acquired in March 1997 to enable the Company to offer
business solutions via the Internet. The assets of United Media Corporation, a
specialist in presentation technology based in Houston, and the assets of J.
Feuerstein Systems, a division of Docucon, Incorporated based in San Antonio,
serving law firms with digital file management systems, were both purchased in
late 1997. Also in November 1997, the Company acquired Linguistix, Inc. of San
Francisco, an on-line machine translation provider. In January and February
1998, Quadravision Communications Ltd. of Toronto, a provider of Internet
solutions for the financial services industry, and SiteWerks, Inc., a website
developer based in Seattle, were both acquired.
For each of the last three fiscal years, the Company's financial printing
business described above has accounted for the largest share of consolidated
total sales, as shown below:
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEM- OCTOBER 31,
BER 31, ---------------------------
TYPE OF SERVICE 1997 1996 1995
--------------- ---------- ---- ----
<S> <C> <C> <C>
Transactional financial printing......................... 52% 45% 40%
Corporate reporting printing............................. 18 20 22
Mutual fund printing..................................... 12 14 17
Globalization and localization, internet and digital
solutions and other*................................... 9 6 6
Commercial printing...................................... 9 15 15
------ ------ ------
100% 100% 100%
====== ====== ======
</TABLE>
- ---------------
* In 1996 and 1995 Baseline was the largest service in this category.
The Company has facilities to serve customers throughout the United States
and Canada and around the world, including offices in Dublin, London, Paris,
Frankfurt, Munich, Madrid, Rio de Janeiro, Mexico City, Hong Kong, Singapore,
Tokyo and many other cities. Total sales, net income and identifiable assets
attributable to the United States, Canada and other foreign operations for the
calendar year 1997, and fiscal years 1996 and 1995 are shown in Note 16 of the
Notes to Consolidated Financial Statements on page 26.
Although substantial investment in equipment and facilities is required,
the Company's business is principally service-oriented. Transactional financial,
corporate reporting and mutual fund printing solutions rendered by the Company
normally call for speed and accuracy at all stages, and frequently the customer
continues to make changes after presswork has begun. Speed and accuracy are also
highly important with the Company's digital data-management and Internet
services. Time pressures and the need for high quality will be important in the
Company's newer solution offerings as well. In all these activities, the need to
preserve the confidentiality of the customers' information is paramount.
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The Company maintains conference rooms and telecommunications capabilities
at many of its financial printing offices for use by customers while jobs are in
progress. On-site conveniences are also provided to customers which promote
speed and ease of editorial changes and otherwise facilitate the completion of
jobs. For many of its outsourcing customers, the Company maintains facilities
and stations staff at the customers' own premises as well as outsourcing
centers. The Company's localization activities are conducted in a large number
of countries around the world. In addition, the Company uses an extensive
electronic communications network which facilitates data handling and makes
collaboration practicable among customers at different sites.
COMPETITION
The Company believes that no other company offers the same array of
information empowerment solutions. However, competition with other providers of
the various services described above is intense. Not only the speed and accuracy
with which the Company can meet customer needs, but also the price of the
services and quality of the product and supporting services are factors in this
competition. The Company's customers include a wide variety of business
corporations, law firms, investment banks, underwriters, bond dealers, mutual
funds and other financial institutions, as well as the leading software
companies. Microsoft Corporation is the Company's single largest customer.
In the case of financial printing, the Company competes directly with a
number of other financial printers having the same degree of specialization.
Some of those financial printers operate at multiple locations, and some are
subsidiaries or divisions of companies having greater financial resources than
those of the Company. Although there is no published information available to
determine its exact share of the total financial printing market, the Company
believes it is the largest in terms of sales volume in this field. In addition
to its customer base, the Company has experienced intense competition for sales
personnel and, to a lesser degree, for customer service and production personnel
in financial printing.
In commercial printing and digital solutions, the Company competes not only
with other financial printers but also with general commercial printers, which
are far more numerous than those in the financial printing area. The field of
document management outsourcing also has a great deal of competition, with some
participants having been established there much longer than the Company.
Furthermore, the costs of entry into this latter market are much lower than
those associated with the Company's other business activities.
Finally, with respect to its localization and Internet service offerings,
the Company has a large number of competitors. Many of them have offered their
services to the same potential customers for a longer time, but none of them is
believed to have acquired a dominant market position. The Company believes that
it is the largest independent provider of localization solutions. Considerable
consolidation is going on presently in these business areas, and some of the
organizations making acquisitions in the field have resources comparable to
those of the Company.
SEASONAL AND OTHER FACTORS AFFECTING THE COMPANY'S BUSINESS
The Company's transactional financial printing service is affected by
conditions in the world's capital markets. Sales and net income in that area
depend upon the volume of public financings, particularly equity offerings which
are influenced by corporate funding needs, stock market fluctuations, prevailing
interest rates, and general economic and political conditions. A portion of the
Company's revenue is seasonal as the greatest number of proxy statements and
annual reports are required to be printed during the Company's first fiscal
quarter ending March 31. Because of these cyclical and seasonal factors, coupled
with the general need to complete certain printing jobs quickly after delivery
of copy by the customers, the Company must maintain physical plant and customer
service staff sufficient to meet maximum work loads.
On the other hand, the Company's other business activities are less
cyclical and less seasonal than financial and corporate work.
RESEARCH AND DEVELOPMENT
The Company maintains a research and development capability to evaluate on
an ongoing basis advances in computer software, hardware and peripherals,
computer networking, telecommunication systems and Internet-related technologies
as they relate to the Company's business and to develop and install enhance-
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<PAGE> 5
ments to the Company's proprietary systems. Like its principal competitors, the
Company utilizes a computerized typesetting and telecommunications system in the
process of preparing documentation. In order to serve the customers of its
localization and other computer software services, the Company continually tests
new programs and often works directly with its customers in the design and
development of new software and other technological products. The Company's
research and development expenditures, determined in accordance with generally
accepted accounting principles, are not material.
PATENTS AND OTHER RIGHTS
The Company has no significant patents, licenses, franchises, concessions
or other rights other than certain trademarks. Except for a proprietary computer
typesetting and telecommunications system, the Company does not have specialized
machinery, facilities or contracts which are unavailable to other firms
providing the same or similar services to customers. The Company has many
trademarks and service marks worldwide, most of which are registered or pending
registration. The most significant of these is the trade name "Bowne". The
Company is also using the service mark "Empowering Information" among others.
MARKETING
The Company employs approximately 300 sales people. In addition to
soliciting business from existing and prospective customers, the sales people
act as a liaison between the customer and those in charge of service operations.
They also provide advice and assistance to customers. The Company regularly
advertises in financial newspapers and trade publications and conducts sales
promotion by mail and by presentations at seminars.
CUSTOMERS AND BACKLOG OF ORDERS
The Company has no significant long-term contracts with its customers.
During the fiscal year ended December 31, 1997, no customer accounted for 10% or
more of the Company's sales. The Company has no backlog, within the common
meaning of that term, which is normal throughout the service offerings in which
the Company is focused.
EMPLOYEES
At December 31, 1997, the Company had approximately 4,975 employees.
Relations with the Company's employees are considered to be satisfactory.
Approximately 5% of the Company's employees are members of various unions, which
represent different categories of workers. The subsidiaries of the Company which
have union employees enter into separate contracts with various local unions.
Such contracts include provisions for employer contributions to pension and
welfare plans. The Company also provides pension, profit-sharing, certain
insurance and other benefits to most nonunion employees.
SUPPLIERS
The Company purchases various materials and services from a number of
suppliers, of which the most important items are paper, computer hardware,
software and peripherals, communication equipment and services and electrical
energy. The Company purchases paper from a paper mill and from paper merchants.
No difficulty has been experienced to date in obtaining adequate amounts of
paper, computer hardware, software and peripherals, communication equipment and
services or electrical energy, and alternate sources of supply are presently
available. However, a severe paper or energy shortage could have an adverse
effect upon many of the Company's operations.
FOREIGN SALES
The Company conducts foreign operations in Toronto, Montreal, Dublin,
London, Paris, Frankfurt, Munich, Madrid, Rio de Janeiro, Mexico City, Hong
Kong, Singapore, Tokyo and many other cities. In addition, the Company has
affiliations with certain firms providing similar services abroad. Sales derived
from foreign countries other than Canada were approximately 13% of the Company's
total sales in 1997 and were less than 10% in 1996 and 1995. See Note 16 of the
Notes to Consolidated Financial Statements.
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FORWARD-LOOKING INFORMATION
The forward-looking statements included in this report, which reflect
management's best judgment based on factors currently known, involve risks and
uncertainties. Actual results could differ materially from those anticipated in
the forward-looking statements included herein and in the Company's 1997 Annual
Report to Stockholders.
ITEM 2. PROPERTIES
Information regarding the material facilities of the Company, as of
December 31, 1997, four of which are leased and nine of which are owned in fee,
is set forth below.
<TABLE>
<CAPTION>
YEAR
LEASE SQUARE
LOCATION EXPIRES DESCRIPTION FOOTAGE
<S> <C> <C> <C>
345 Hudson Street 2006 Typesetting, general office space 180,000
New York, NY and Computer Center.
60 Gervais Drive 2000 Typesetting, printing plant and 71,000
Don Mills (Toronto), general office space.
Ontario, Canada
Orense 69 2002 Localization and 50,000
Madrid, Spain globalization services,
general office space.
1570 Northside Drive 2002 Typesetting, printing plant and 44,000
Atlanta, GA general office space.
215 County Avenue Owned Printing plant and general 105,000
Secaucus, NJ office space.
2103 East University Drive Owned Printing plant and general 103,000
Dominguez Hills, CA office space.
411 D Street Owned Typesetting, printing plant and 73,000
Boston, MA general office space.
1241 Superior Avenue Owned Typesetting, printing plant and 73,000
Cleveland, OH general office space.
325 West Ohio Street Owned Typesetting, printing plant and 60,000
Chicago, IL general office space.
5400 Chemin St. Francois Owned Typesetting, printing plant and 55,000
St. Laurent (Montreal), general office space.
Quebec, Canada
1500 North Central Avenue Owned Typesetting, printing plant and 50,000
Phoenix, AZ general office space.
1200 Oliver Street Owned Typesetting, printing plant and 48,000
Houston, TX general office space.
1931 Market Center Blvd. Owned Typesetting, printing plant 36,000
Dallas, TX and general office space.
</TABLE>
All of the properties described above are well maintained, in good
condition and suitable for all presently anticipated requirements of the
Company. Virtually all of the Company's equipment is owned outright, free and
clear of any liens and encumbrances. A relatively minor amount of equipment
utilized by the Company is rented on short-term leases, and no renewal problems
are anticipated. All of the foregoing properties are used in the Company's
printing business. Reference is made to Note 14 of the Notes to Consolidated
Financial Statements.
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ITEM 3. PENDING LEGAL PROCEEDINGS
The Company is involved in no pending legal proceedings other than routine
litigation incidental to the conduct of its business which is not material to
its business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Inapplicable.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
The Company's common stock is traded on the American Stock Exchange under
the symbol "BNE". The following is the range of high and low sales prices as
reported by the American Stock Exchange and dividends paid per share for
calendar 1997 and 1996 by quarters.
<TABLE>
<CAPTION>
RANGE OF
SALES PRICES DIVIDENDS
------------------------- PER
HIGH LOW SHARE
---- --- ---------
<S> <C> <C> <C>
1997
Fourth quarter......................................... $ 40 5/8 $ 32 5/8 $ .09
Third quarter.......................................... 35 1/8 28 .09
Second quarter......................................... 34 15/16 25 1/4 .09
First quarter.......................................... 30 1/4 21 3/4 .09
------ ------ ---------
Calendar year..................................... $ 40 5/8 $ 21 3/4 $ .36
====== ====== =========
1996
Fourth quarter......................................... $ 25 7/8 $ 21 1/2 $ .09
Third quarter.......................................... 23 18 1/4 .09
Second quarter......................................... 23 3/8 17 1/4 .09
First quarter.......................................... 19 7/8 17 1/4 .09
------ ------ ---------
Calendar year..................................... $ 25 7/8 $ 17 1/4 $ .36
====== ====== =========
</TABLE>
The approximate number of holders of record of the Company's common stock
on December 31, 1997 was 1,350.
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ITEM 6. SELECTED FINANCIAL DATA
The following table summarizes information with respect to the operations
of the Company.
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED OCTOBER 31,
DECEMBER 31, ---------------------------------------------------------
1997 1996 1995 1994 1993
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Operating Data
Net sales.................... $716,647,000 $501,369,000 $392,713,000 $380,653,000 $333,255,000
Expenses:
Cost of sales.............. 392,120,000 276,141,000 233,493,000 221,943,000 173,061,000
Selling and
administrative........... 203,362,000 133,194,000 102,439,000 93,452,000 90,322,000
Depreciation and
amortization............. 29,669,000 21,247,000 17,852,000 15,158,000 12,859,000
Interest................... 1,621,000 677,000 884,000 1,130,000 2,336,000
Purchased in-process research
and development and
other charges.............. 6,991,000 -- -- -- --
------------ ------------ ------------ ------------ ------------
633,763,000 431,259,000 354,668,000 331,683,000 278,578,000
------------ ------------ ------------ ------------ ------------
Operating income............... 82,884,000 70,110,000 38,045,000 48,970,000 54,677,000
Gain on sale of
subsidiary............... 35,273,000 -- -- -- --
Other income............... 2,456,000 4,905,000 3,706,000 5,233,000 4,334,000
------------ ------------ ------------ ------------ ------------
Income before income
taxes.................... 120,613,000 75,015,000 41,751,000 54,203,000 59,011,000
Income taxes............... 51,070,000 32,512,000 18,465,000 22,963,000 23,692,000
------------ ------------ ------------ ------------ ------------
NET INCOME..................... $ 69,543,000 $ 42,503,000 $ 23,286,000 $ 31,240,000 $ 35,319,000
============ ============ ============ ============ ============
Balance Sheet Data
Current assets............... $285,504,000 $234,903,000 $200,349,000 $157,750,000 $152,504,000
Current liabilities.......... 120,639,000 87,541,000 67,300,000 51,253,000 64,719,000
Working capital.............. 164,865,000 147,362,000 133,049,000 106,497,000 87,785,000
Current ratio................ 2.37 to 1 2.68 to 1 2.98 to 1 3.08 to 1 2.36 to 1
Net plant and equipment...... $138,933,000 $128,583,000 $105,130,000 $101,522,000 $ 88,840,000
Total assets................. 500,653,000 385,822,000 325,670,000 291,581,000 283,624,000
Long-term indebtedness....... 2,537,000 2,495,000 2,830,000 3,178,000 8,836,000
Stockholders' equity......... 358,600,000 280,734,000 241,509,000 222,795,000 196,683,000
Per Share
Net income:
Basic...................... $3.84 $2.42 $1.34 $1.80 $2.05
Diluted.................... 3.74 2.39 1.33 1.77 2.02
Dividends.................... .36 .36 .36 .315 .30
<CAPTION>
TWO MONTHS THREE MONTHS
ENDED ENDED
DECEMBER 31, JANUARY 31,
1996 1996
------------ ------------
UNAUDITED
<S> <C> <C>
Operating Data
Net sales.................... $ 90,218,000 $ 90,728,000
Expenses:
Cost of sales.............. 49,467,000 55,797,000
Selling and
administrative........... 26,831,000 24,483,000
Depreciation and
amortization............. 4,716,000 4,864,000
Interest................... 120,000 194,000
Purchased in-process research
and development and
other charges.............. -- --
------------ ------------
81,134,000 85,338,000
------------ ------------
Operating income............... 9,084,000 5,390,000
Gain on sale of
subsidiary............... -- --
Other income............... 228,000 922,000
------------ ------------
Income before income
taxes.................... 9,312,000 6,312,000
Income taxes............... 4,128,000 2,719,000
------------ ------------
NET INCOME..................... $ 5,184,000 $ 3,593,000
============ ============
Balance Sheet Data
Current assets............... $245,821,000 $169,360,000
Current liabilities.......... 98,966,000 53,141,000
Working capital.............. 146,855,000 116,219,000
Current ratio................ 2.48 to 1 3.19 to 1
Net plant and equipment...... $131,983,000 $109,357,000
Total assets................. 408,267,000 315,912,000
Long-term indebtedness....... 2,424,000 2,763,000
Stockholders' equity......... 291,556,000 245,682,000
Per Share
Net income:
Basic...................... $.29 $.21
Diluted.................... .29 .20
Dividends.................... -- .09
</TABLE>
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
The Company's financial position continues to be strong with excellent
liquidity. On December 31, 1997, the Company had working capital of
$164,865,000.
During 1997, the Company completed nine acquisitions to strengthen and
diversify the information empowerment solutions that it provides its clients.
Three companies located in Europe and one in Japan strengthen our globalization
and localization solutions; the others, all located in the U.S., provide
Internet, machine language translation and document management outsourcing
solutions. These acquisitions were paid for mostly in cash. In January 1997, the
Company sold its Baseline Financial Services, Inc. ("Baseline") subsidiary
which, in the Company's view, did not fit with the Company's information
empowerment strategy. The cash generated from this sale plus cash generated from
operations were used to fund these acquisitions. It is expected that the cash
generated from operations, working capital and the Company's borrowing capacity
will be sufficient to fund the development and integration of its new
information empowerment solution offerings, to finance future acquisitions and
capital expenditures, and to provide for the payment of dividends.
CASH FLOWS
The Company had net cash provided by operating activities of $58,035,000
and $30,940,000 for the years ended December 31, 1997 and October 31, 1996,
respectively.
Net cash used in investing activities was $35,498,000 and $31,937,000 for
the years ended December 31, 1997 and October 31, 1996, respectively. This
included expenditures related to the expansion of facilities, the acquisition of
the additional information empowerment solution companies and continued
investments in new technologies. In 1997, the Company derived $36,679,000 from
the sale of Baseline, which was principally used to fund the cash expenditures
for acquisitions of $40,491,000.
Net cash used in financing activities was $5,988,000 and $3,714,000 for the
years ended December 31, 1997 and October 31, 1996, respectively. In July 1997,
the Company borrowed $20,000,000 from a temporary short-term line of credit
facility, of which $10,000,000 was repaid in July with the remainder repaid in
August. During July 1997, the Company entered into a $200,000,000 five-year
revolving line of credit facility.
FOREIGN EXCHANGE
The Company derives a portion of its revenues from various foreign sources.
The Company has not experienced significant gains or losses as a result of
fluctuations in the exchange rates of the related foreign currencies. To date,
the Company has not used foreign currency hedging instruments to reduce its
exposure to foreign exchange fluctuations.
RESULTS OF OPERATIONS
The Company provides information empowerment solutions consisting of
printing, localization, globalization, Internet, digital and document management
outsourcing. Revenues related to the transactional financial printing solutions
are affected by the cyclical conditions of the capital markets.
As mentioned above, during 1997 the Company acquired three localization
companies based in Europe and one in Japan. These acquisitions, along with the
localization company purchased during November 1996, provide the Company with a
major presence in the localization market. Microsoft Corporation is the largest
customer of localization solutions and of the Company. In addition, in late 1996
the Company began offering document management outsourcing and digital print
solutions. The Company also acquired five small units, one of which provides
Internet solutions, while the others provide machine language translation and
document management outsourcing solutions. The revenues associated with the
non-transactional financial print solutions traditionally have lower margins
than those of the transactional financial print services when the capital
markets are robust. However, these non-transactional financial print services
are expected to be less
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<PAGE> 10
cyclical in nature and to develop steadier margins. During the year ended
December 31, 1997 the sales related to the acquisitions and start-up solution
offerings amounted to 9.1% of sales.
YEAR 2000
The Year 2000 issue, which stems from the computer industry's historical
use of two-digits to represent a year, is presently confronting most of the
world's business communities. Year 2000 compliance programs and information
systems modifications are underway to ensure that the Company's key systems and
processes remain functional. Functionality is expected to be achieved either by
modifying present systems using internal and external resources or by installing
new systems, including enterprise systems, and by monitoring supplier and other
third-party interphaces.
In general, projects related to the company-wide standardization of
hardware and software are being accelerated to accommodate the Year 2000 issue.
While there can be no assurance that all such modifications will be successful,
management does not expect that either costs of modifications or consequences of
any unsuccessful modifications should have a material adverse effect on the
financial position, results of operations or liquidity of the Company.
STATEMENT CONCERNING FORWARD LOOKING STATEMENTS
Information contained in this Management Discussion and Analysis and
elsewhere in this report with respect to expected financial results and future
events and trends is forward looking, based upon managements' estimates and
assumptions and subject to risk and uncertainties. For such statements, the
Company claims the protection of the safe harbor for forward looking statements
contained in the Private Securities Litigation Reform Act of 1995.
CHANGE IN FISCAL YEAR
On October 30, 1997, the Company elected to change the date of its fiscal
year-end to December 31. The management discussion and analysis that follows
compares the results for the year ended December 31, 1997 to the results for the
year ended October 31, 1996 and the results for the two months ended December
31, 1996 to the results for the three months ended January 31, 1996. The Company
did not recast the data for the two month period ended December 31, 1995 because
the accounting systems in place at that time required a certain level of
procedural techniques in order for financial data to be prepared for external
reporting purposes. These procedures were implemented on a quarterly basis only.
Consequently, to recast this period would have been impractical and would have
required significant judgmental estimates.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED OCTOBER 31, 1996
Sales increased 43% to $716,647,000. The increase was primarily
attributable to higher levels of demand for transactional financial printing
solutions and continued growth in non-transactional financial printing
offerings. Secondarily, sales increased as a result of acquisitions completed
during the year. The gross margin percentage remained at 45%. The overall
increase in sales contributed to an increase in gross margin, of $99,299,000, or
44% over the year ended October 31, 1996.
Selling and administrative expenses increased 53% to $203,362,000,
primarily as a result of increases in sales commissions, incentive compensation
and other variable expenses related to higher sales and profitability and to
selling and administrative costs related to the new solution offerings.
Depreciation and amortization increased $8,422,000, or 40% primarily due to
the expansion of facilities and the acquisition of equipment and, to a lesser
extent, the depreciation and amortization related to new businesses.
Interest expense increased by $944,000 primarily as a result of borrowings
under the short-term line of credit.
During 1997, acquisition costs of $3,000,000 associated with purchased
in-process research and development were written off. In 1997, the Company
incurred charges of $3,991,000 pertaining to certain non-
9
<PAGE> 11
recurring post-acquisition costs for the newly acquired companies and costs
associated with the start-up of new services. These items had a negative
after-tax effect on income of $0.26 on a diluted per share basis.
As a result of the above and after adjusting operating income for the costs
associated with purchased in-process research and development and other charges,
income from operations would have been $89,875,000 as compared to $70,110,000
for the year ended October 31, 1996, or a 28% increase.
The Company realized a pre-tax gain of $35,273,000 as a result of the sale
of Baseline in early 1997. The net of tax effect of this item was $20,005,000 or
$1.11 on a diluted per share basis.
Other income decreased $2,449,000 due to lower levels of capital gains on
the sale of marketable securities.
The effective overall income tax rate decreased from 43% to 42% due to the
change in the geographic distribution of pre-tax income from jurisdictions with
higher rates to those with lower tax rates.
Income before income taxes was $120,613,000 producing a net income of
$69,543,000, a 61% and 64% increase, respectively, over the results reported for
the year ended October 31, 1996.
YEAR ENDED OCTOBER 31, 1996 COMPARED TO YEAR ENDED OCTOBER 31, 1995
Sales increased 28% to $501,369,000. The increase was attributable to a
greater demand for transactional financial printing sales, resulting from the
continued strength in the capital markets along with the continued growth in our
non-transactional financial printing markets related to mutual funds,
specialized commercial printing digital services and other corporate printing
solutions. The margins attributable to transactional printing sales are greater
than margins related to non-transactional financial printing sales. As a result,
the gross margin percentage increased from 41%, to 45% or $66,008,000.
Selling and administrative expenses increased 30% to $133,194,000 primarily
as a result of increases in sales commissions and incentive compensation and
other expenses related to higher sales and profitability, and increases in the
number of employees and cost of facilities.
Depreciation and amortization increased $3,395,000, or 19%, primarily due
to the continued expansion of facilities and the acquisition of equipment.
Interest expense decreased $207,000 due to lower levels of debt.
Other revenue increased 32% to $4,905,000 as a result of higher capital
gains from the sale of securities.
The effective overall income tax rate decreased from 44% to 43% due to the
change in the geographic distribution of pre-tax income from jurisdictions with
higher tax rates to those with lower tax rates.
Consequently, income before income taxes was $75,015,000, an increase of
80%, and net income increased 83% to $42,503,000.
TWO MONTHS ENDED DECEMBER 31, 1996 COMPARED TO THREE MONTHS ENDED JANUARY 31,
1996
The Company's net sales for the two months ended December 31, 1996 amounted
to $90,218,000 compared to net sales of $90,728,000 for the three months ended
January 31, 1996. The two months ended December 31, 1996 reflected the greater
demand for transactional financial printing solutions resulting from the
continued strength in the capital markets. In addition, to a lesser extent, this
period included sales from the newly acquired companies of IDOC, Inc. and from
the financial printing operations of The Williams Lea Group, Ltd. The gross
margin percentage was 45% for the two months ended December 31, 1996 compared to
39% for the three months ended January 31, 1996. The gross profit margin
increase was mainly attributable to higher levels of utilization associated with
the printing solutions.
Selling and administrative expenses for the two months ended December 31,
1996 totaled $26,831,000 compared to $24,483,000 for the three months ended
January 31, 1996. The increase was due in part to the variable costs associated
with increased sales and profitability in the Company's printing solutions, and
to a lesser extent, the selling and administrative costs related to the new
acquisitions.
10
<PAGE> 12
Depreciation and amortization for the two months ended December 31, 1996
amounted to $4,716,000 compared to $4,864,000 for the three months ended January
31, 1996. Depreciation and amortization for the two months ended December 31,
1996 reflected higher charges resulting from a greater level of fixed assets
compared to the asset level for the prior year period and, to a lesser extent,
charges related to the solution offerings.
Interest expense for the two months ended December 31, 1996 was
proportionately comparable to the three months ended January 31, 1996 because
the debt levels remained fairly constant.
Other income for the two months ended December 31, 1996 amounted to
$228,000 compared to $922,000 for the three months ended January 31, 1996. This
decrease resulted from lower investment income.
The effective overall tax rate increased slightly to 44% for the two months
ended December 31, 1996 from 43% for the three months ended January 31, 1996.
As a result of the foregoing, net income was $5,184,000 for the two months
ended December 31, 1996 compared to $3,593,000 for the three months ended
January 31, 1996.
11
<PAGE> 13
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTAL DATA
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Bowne & Co., Inc.
We have audited the accompanying consolidated balance sheets of Bowne &
Co., Inc. and Subsidiaries as of December 31, 1997 and 1996, and the related
consolidated statements of income, stockholders' equity and cash flows for the
year ended December 31, 1997, the two months ended December 31, 1996, and the
years ended October 31, 1996 and 1995. Our audits also included the financial
statement schedule listed in the Index at Item 14(a). These financial statements
and schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Bowne & Co.,
Inc. and Subsidiaries at December 31, 1997 and 1996, and the consolidated
results of their operations and their cash flows for the year ended December 31,
1997, the two months ended December 31, 1996, and the years ended October 31,
1996 and 1995, in conformity with generally accepted accounting principles.
Also, in our opinion, the related financial statement schedule, when considered
in relation to the basic financial statements taken as a whole, presents fairly
in all material respects the information set forth therein.
ERNST & YOUNG LLP
New York, New York
March 4, 1998
12
<PAGE> 14
BOWNE & CO., INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
TWO MONTHS THREE MONTHS
YEAR ENDED YEAR ENDED OCTOBER 31, ENDED ENDED
DECEMBER 31, --------------------------- DECEMBER 31, JANUARY 31,
1997 1996 1995 1996 1996
------------ ------------ ------------ ------------ ------------
UNAUDITED
<S> <C> <C> <C> <C> <C>
Net sales.............................. $716,647,000 $501,369,000 $392,713,000 $90,218,000 $90,728,000
Expenses:
Cost of sales........................ 392,120,000 276,141,000 233,493,000 49,467,000 55,797,000
Selling and administrative........... 203,362,000 133,194,000 102,439,000 26,831,000 24,483,000
Depreciation and amortization........ 29,669,000 21,247,000 17,852,000 4,716,000 4,864,000
Interest............................. 1,621,000 677,000 884,000 120,000 194,000
Purchased in-process research and
development and other charges..... 6,991,000 -- -- -- --
------------ ------------ ------------ ----------- -----------
633,763,000 431,259,000 354,668,000 81,134,000 85,338,000
------------ ------------ ------------ ----------- -----------
Operating income....................... 82,884,000 70,110,000 38,045,000 9,084,000 5,390,000
Gain on sale of subsidiary............. 35,273,000 -- -- -- --
Other income........................... 2,456,000 4,905,000 3,706,000 228,000 922,000
------------ ------------ ------------ ----------- -----------
Income before income taxes............. 120,613,000 75,015,000 41,751,000 9,312,000 6,312,000
Income taxes........................... 51,070,000 32,512,000 18,465,000 4,128,000 2,719,000
------------ ------------ ------------ ----------- -----------
NET INCOME............................. $ 69,543,000 $ 42,503,000 $ 23,286,000 $ 5,184,000 $ 3,593,000
============ ============ ============ =========== ===========
NET INCOME PER SHARE:
Basic................................ $3.84 $2.42 $1.34 $0.29 $0.21
===== ===== ===== ====== ======
Diluted.............................. $3.74 $2.39 $1.33 $0.29 $0.20
===== ===== ===== ====== ======
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
13
<PAGE> 15
BOWNE & CO., INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1997 AND 1996
ASSETS
<TABLE>
<CAPTION>
1997 1996
------------ ------------
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 40,646,000 $ 24,097,000
Marketable securities..................................... 5,829,000 4,488,000
Trade accounts receivable, less allowance for doubtful
accounts of $12,441,000 (1997) and $9,702,000 (1996).... 187,573,000 162,934,000
Inventories............................................... 35,617,000 41,917,000
Prepaid expenses and other current assets................. 15,839,000 12,385,000
------------ ------------
Total current assets...................... 285,504,000 245,821,000
------------ ------------
Property, plant and equipment at cost, less accumulated
depreciation of
$139,055,000 (1997) and $116,576,000 (1996)............... 138,933,000 131,983,000
------------ ------------
Other assets:
Goodwill, net of accumulated amortization of $7,174,000
(1997) and $5,496,000 (1996)............................ 64,452,000 21,847,000
Deferred income taxes..................................... 5,434,000 3,317,000
Other..................................................... 6,330,000 5,299,000
------------ ------------
76,216,000 30,463,000
------------ ------------
Total Assets................................................ $500,653,000 $408,267,000
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable and current portion of long-term debt....... $ 5,755,000 $ 4,004,000
Accounts payable.......................................... 28,097,000 27,840,000
Employee compensation..................................... 44,791,000 32,736,000
Accrued expenses.......................................... 29,876,000 23,362,000
Income taxes payable...................................... 12,120,000 11,024,000
------------ ------------
Total current liabilities.......................... 120,639,000 98,966,000
------------ ------------
Other liabilities:
Long-term debt -- net of current portion.................. 2,537,000 2,424,000
Deferred employee compensation and benefits............... 18,877,000 15,321,000
------------ ------------
Total liabilities.................................. 142,053,000 116,711,000
------------ ------------
Stockholders' equity:
Preferred stock:
Authorized 1,000,000 shares, par value $.01
Issuable in series -- none issued
Common stock:
Authorized 60,000,000 shares, par value $.01
Issued 19,605,955 shares (1997) and 19,378,255 shares
(1996)................................................. 196,000 194,000
Additional paid-in capital................................ 36,685,000 31,422,000
Retained earnings......................................... 339,407,000 276,379,000
Treasury stock, at cost, 1,360,199 shares (1997) and
1,420,214 shares (1996)................................. (15,954,000) (15,816,000)
Other, net................................................ (1,734,000) (623,000)
------------ ------------
Total stockholders' equity......................... 358,600,000 291,556,000
------------ ------------
Total Liabilities and Stockholders' Equity.................. $500,653,000 $408,267,000
============ ============
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
14
<PAGE> 16
BOWNE & CO., INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31, YEAR ENDED OCTOBER 31,
------------- ------------------------- TWO MONTHS ENDED THREE MONTHS ENDED
1997 1996 1995 DECEMBER 31, 1996 JANUARY 31, 1996
------------- ----------- ----------- ----------------- ------------------
UNAUDITED
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net income................................... $69,543,000 $42,503,000 $23,286,000 $ 5,184,000 $ 3,593,000
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization.............. 29,669,000 21,247,000 17,852,000 4,716,000 4,864,000
Provision for doubtful accounts............ 7,871,000 5,208,000 2,771,000 729,000 (223,000)
Gain on sales of subsidiary................ (35,273,000) -- -- -- --
Gain on disposal of fixed assets........... (959,000) -- -- (17,000) (26,000)
Gain on sales of securities and other
investments.............................. (706,000) (3,010,000) (158,000) -- (39,000)
Provision for deferred employee
compensation............................. 3,729,000 1,229,000 1,242,000 282,000 395,000
Deferred income taxes...................... (2,117,000) (1,740,000) 607,000 (329,000) --
Other...................................... 4,647,000 101,000 (315,000) (297,000) 8,000
Increase (decrease) in cash resulting from changes in:
Accounts receivable...................... (31,010,000) (47,392,000) (26,766,000) (1,822,000) 16,273,000
Inventories.............................. 6,693,000 (6,468,000) (6,832,000) (6,388,000) (6,099,000)
Prepaid expenses and other current
assets................................. (3,367,000) (1,298,000) 1,745,000 (4,010,000) (2,169,000)
Trade payables........................... (6,585,000) 4,345,000 3,599,000 1,616,000 (695,000)
Employees' compensation and benefits..... 12,283,000 9,767,000 4,375,000 (8,003,000) (15,629,000)
Accrued expenses and taxes............... 3,617,000 6,448,000 6,303,000 9,741,000 1,234,000
----------- ----------- ----------- ----------- -----------
Net cash provided by operating activities.... 58,035,000 30,940,000 27,709,000 1,419,000 1,431,000
----------- ----------- ----------- ----------- -----------
Cash flows from investing activities:
Proceeds from sale of subsidiary........... 36,679,000 -- -- -- --
Proceeds from the sale of fixed assets..... 3,992,000 -- -- 20,000 --
Purchase of other investment............... (500,000) -- -- (1,000) --
Acquisition of businesses, net of cash..... (40,491,000) -- -- (3,369,000) --
Purchase of marketable securities and other
investments.............................. (1,929,000) (3,854,000) (7,840,000) (231,000) (1,661,000)
Proceeds from sales of marketable
securities and other investments......... 1,939,000 16,402,000 4,569,000 300,000 1,032,000
Purchase of real estate, equipment and
leasehold improvements................... (35,188,000) (44,485,000) (19,954,000) (5,649,000) (9,236,000)
----------- ----------- ----------- ----------- -----------
Net cash used in investing activities........ (35,498,000) (31,937,000) (23,225,000) (8,930,000) (9,865,000)
----------- ----------- ----------- ----------- -----------
Cash flows from financing activities:
Advances from demand notes................. 974,000 -- -- 894,000 --
Proceeds from borrowing.................... 20,000,000 -- -- -- 1,026,000
Payment of debt............................ (22,612,000) (658,000) (351,000) (1,265,000) (63,000)
Proceeds from stock options exercised...... 3,412,000 3,696,000 327,000 207,000 2,123,000
Payment of dividends....................... (6,515,000) (6,335,000) (6,260,000) -- (1,578,000)
Purchase of treasury stock................. (1,247,000) (417,000) (74,000) (107,000) --
----------- ----------- ----------- ----------- -----------
Net cash used in financing activities........ (5,988,000) (3,714,000) (6,358,000) (271,000) 1,508,000
----------- ----------- ----------- ----------- -----------
Net increase (decrease) in cash and cash
equivalents................................ 16,549,000 (4,711,000) (1,874,000) (7,782,000) (6,870,000)
Cash and cash equivalents -- beginning....... 24,097,000 36,590,000 38,464,000 31,879,000 36,590,000
----------- ----------- ----------- ----------- -----------
CASH AND CASH EQUIVALENTS -- END............. $40,646,000 $31,879,000 $36,590,000 $24,097,000 $29,720,000
=========== =========== =========== =========== ===========
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
15
<PAGE> 17
BOWNE & CO., INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
YEAR ENDED DECEMBER 31, 1997, TWO MONTHS ENDED DECEMBER 31, 1996 AND
YEARS ENDED OCTOBER 31, 1996 AND 1995
<TABLE>
<CAPTION>
FOREIGN
ADDITIONAL UNREALIZED CURRENCY
COMMON PAID-IN RETAINED GAINS ON TRANSLATION TREASURY
STOCK CAPITAL EARNINGS INVESTMENTS ADJUSTMENT STOCK TOTAL
-------- ----------- ------------ ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance November 1, 1994... $190,000 $23,944,000 $218,001,000 $(1,221,000) $(18,119,000) $222,795,000
Net income............... 23,286,000 23,286,000
Unrealized gains on
investments............ $1,307,000 1,307,000
Foreign currency
translation
adjustment............. 128,000 128,000
Cash dividends ($.36 per
share)................. (6,260,000) (6,260,000)
Acquisition of treasury
stock.................. (74,000) (74,000)
Exercise of stock
options................ 1,000 326,000 327,000
-------- ----------- ------------ ---------- ----------- ------------ ------------
Balance October 31, 1995... 191,000 24,270,000 235,027,000 1,307,000 (1,093,000) (18,193,000) 241,509,000
Net income............... 42,503,000 42,503,000
Unrealized losses on
investments............ (560,000) (560,000)
Foreign currency
translation
adjustment............. 211,000 211,000
Cash dividends ($.36 per
share)................. (6,335,000) (6,335,000)
Acquisition of treasury
stock.................. (417,000) (417,000)
Non-cash stock
compensation........... 127,000 127,000
Exercise of stock
options................ 3,000 3,693,000 3,696,000
-------- ----------- ------------ ---------- ----------- ------------ ------------
Balance October 31, 1996... 194,000 28,090,000 271,195,000 747,000 (882,000) (18,610,000) 280,734,000
Net income............... 5,184,000 5,184,000
Unrealized losses on
investments............ (87,000) (87,000)
Foreign currency
translation
adjustment............. (401,000) (401,000)
Issuance of stock for
acquisition............ 3,099,000 2,901,000 6,000,000
Acquisition of treasury
stock.................. (107,000) (107,000)
Non-cash stock
compensation........... 26,000 26,000
Exercise of stock
options................ 207,000 207,000
-------- ----------- ------------ ---------- ----------- ------------ ------------
Balance December 31,
1996..................... 194,000 31,422,000 276,379,000 660,000 (1,283,000) (15,816,000) 291,556,000
-------- ----------- ------------ ---------- ----------- ------------ ------------
Net income............... 69,543,000 69,543,000
Unrealized gains on
investments............ 433,000 433,000
Foreign currency
translation
adjustment............. (1,544,000) (1,544,000)
Cash dividends ($.36 per
share)................. (6,515,000) (6,515,000)
Issuance of stock for
acquisitions........... 1,700,000 1,109,000 2,809,000
Acquisition of treasury
stock.................. (1,247,000) (1,247,000)
Non-cash stock
compensation........... 153,000 153,000
Exercise of stock
options................ 2,000 3,410,000 3,412,000
-------- ----------- ------------ ---------- ----------- ------------ ------------
Balance December 31,
1997..................... $196,000 $36,685,000 $339,407,000 $1,093,000 $(2,827,000) $(15,954,000) $358,600,000
======== =========== ============ ========== =========== ============ ============
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
16
<PAGE> 18
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 -- SUMMARY OF ACCOUNTING POLICIES
On October 30, 1997, the Company elected to change the date of its fiscal
year-end to December 31. As a result, a transition period for the two months
ended December 31, 1996, three months ended January 31, 1996 (unaudited), was
previously reported on a transition report on Form 10-Q and is also presented
herein. Consequently, the consolidated Balance Sheets have been prepared at
December 31. The Statements of Income and Cash Flows present information for the
year ended December 31, 1997, the two months ended December 31, 1996, and the
years ended October 31, 1996 and 1995.
A summary of the Company's significant accounting policies followed in the
preparation of the accompanying financial statements is set forth below:
Principles of Consolidation
The consolidated financial statements include the accounts of the Company
and its subsidiaries. All of the significant intercompany accounts and
transactions are eliminated in consolidation.
Reclassification
Certain amounts have been reclassified to conform to the current year's
presentation.
Revenue Recognition
For substantially all services revenues are recognized when products or
services are delivered or rendered to customers.
Inventories
Inventories are valued at the lower of cost or market. Cost is determined
by using purchase cost (first-in, first-out method) for materials and standard
costs, which approximate actual costs, for work in process.
Property, Plant and Equipment
Property, plant and equipment are carried at cost. Maintenance and repairs
are expensed as incurred.
Depreciation for financial statement purposes is provided on the
straight-line method and is calculated for tax purposes using accelerated
methods.
The following table summarizes the components of property, plant and
equipment:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1997 1996
------------ ------------
<S> <C> <C>
Land and buildings.............................. $ 73,008,000 $ 71,482,000
Machinery and plant equipment................... 141,524,000 128,508,000
Leasehold improvements.......................... 32,264,000 26,056,000
Furniture, fixtures and vehicles................ 31,192,000 22,513,000
------------ ------------
Total................................. $277,988,000 $248,559,000
============ ============
</TABLE>
Estimated lives used in the calculation of depreciation for financial
statement purposes are:
<TABLE>
<S> <C>
Buildings............................................... 20-40 years
Machinery and plant equipment........................... 3-12 1/2 years
Furniture and fixtures.................................. 5-12 1/2 years
Vehicles................................................ 3-5 years
Leasehold improvements.................................. Shorter of useful life
or term of lease
</TABLE>
17
<PAGE> 19
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Intangible Assets and Goodwill
The Company does not recognize the fair value of internally generated
intangible assets. Costs incurred to produce internally developed software and
other products to enhance customer related processes and internally used
management systems are expensed and recorded as a reduction of income as
incurred. On the other hand, intangible assets acquired in business combinations
accounted for by the purchase method of accounting are capitalized and amortized
over their expected useful life as a noncash charge against future results and
operations. Accordingly, the intangible assets reported in the consolidated
balance sheets are limited to intangible assets resulting from certain
acquisitions.
The Company amortizes goodwill using the straight-line method over forty
years for its printing, localization and globalization, and document management
outsourcing related acquisitions. Goodwill arising from acquisitions related to
the Company's Internet services are amortized using the straight-line method
over twenty years. The realizability of goodwill is evaluated periodically to
determine the recoverability of carrying amounts. The evaluation, based on
various analyses including cash flow and profitability projections, addresses
the impact on the existing company business. The evaluation necessarily involves
significant management judgment. Historically, the Company has generated
sufficient returns from acquired businesses to recover the cost of related
goodwill.
Stock-Based Compensation
In October 1995, the Financial Accounting Standards Board issued Statement
No. 123 "Accounting for Stock-Based Compensation," became effective in the first
quarter of fiscal 1997. The Company elected to continue accounting for
stock-based compensation under the provisions of APB Opinion 25 "Accounting for
Stock Issued to Employees".
Income Taxes
The Company uses the liability method to account for income taxes. Under
the liability method, deferred income taxes reflect tax carryforwards and the
net tax effects of temporary differences between the carrying amount of assets
and liabilities for financial statement and income tax purposes, as determined
under enacted tax laws and rates.
United States income tax has not been provided on the unremitted earnings
of the Company's foreign operations since the Company intends to continue to
reinvest its undistributed foreign earnings to expand its foreign operations. In
addition, applicable foreign taxes have been provided and credits for foreign
income taxes will be available to significantly reduce any U.S. tax liability if
foreign earnings are remitted. At December 31, 1997, the cumulative amount of
undistributed foreign earnings was approximately $30 million.
Net Income Per Share
In 1997, the Financial Accounting Standards Board issued Statement 128
"Earnings per Share" which became effective for interim and annual financial
statements for periods ending after December 15, 1997. Net income is calculated
for basic earnings per share based on the weighted-average number of shares
outstanding and for diluted earnings per share as adjusted for the assumed
conversion of all potentially dilutive securities. All earnings per share
amounts for all periods have been presented, and where appropriate, restated to
conform to the Statement 128 requirements.
The following table sets forth the basic and diluted weighted average share
amounts:
<TABLE>
<CAPTION>
TWO MONTHS YEAR ENDED
YEAR ENDED ENDED OCTOBER 31,
DECEMBER 31, DECEMBER 31, --------------------------
1997 1996 1996 1995
------------ ------------ ---- ----
<S> <C> <C> <C> <C>
Weighted-average Basic shares....... 18,105,084 17,656,603 17,563,754 17,388,748
Dilutive stock options and deferred
stock units....................... 484,382 337,236 205,242 113,831
----------- ----------- ---------- ----------
Weighted-average Diluted shares..... 18,589,466 17,993,839 17,768,996 17,502,579
=========== =========== ========== ==========
</TABLE>
18
<PAGE> 20
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenue and expenses during the period.
Actual results can differ from those estimates.
Recent Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued Statement No.
130, "Reporting Comprehensive Income." This statement establishes standards for
the reporting and display of comprehensive income, requiring its components to
be reported in a financial statement that is displayed with the same prominence
as other financial statements. The Company will adopt this standard in the first
quarter of 1998. The adoption of Statement No. 130 will have no impact on
consolidated results of operations, financial condition or cash flows.
In June 1997, the Financial Accounting Standards Board issued Statement No.
131, "Disclosures about Segments of an Enterprise and Related Information." This
statement establishes standards for reporting financial information about
operating segments in annual financial statements and requires reporting of
selected information about operating segments in interim financial reports
issued to shareowners. It also establishes standards for related disclosures
about products and services, geographic areas, and major customers. Operating
segments are defined as components of an enterprise about which separate
financial information is available and evaluated regularly by the chief decision
makers when deciding how to allocate resources and in assessing performance. The
Company is required to disclose this information for the first time when
publishing the 1998 annual report but earlier adoption of the statement is
permitted. The Company is in the process of evaluating the applicability of the
segment disclosures for purposes of reporting under Statement No. 131. The
adoption of Statement No. 131 will have no impact on consolidated results of
operations, financial condition or cash flows.
NOTE 2 -- SALE OF SUBSIDIARY
On January 6, 1997, the Company sold its 90% interest in Baseline Financial
Services, Inc. The Company recorded a pre-tax gain of $35,273,000 and an
after-tax gain of $20,005,000, or $1.11 per share on a diluted basis.
NOTE 3 -- ACQUISITIONS
During the two month period ended December 31, 1996, the Company acquired
80% of IDOC, Inc., a localization and globalization solutions company, by
issuing 261,438 shares from treasury, and 100% of the financial printing
business of the Williams Lea Group, Ltd. of the United Kingdom for cash. The
total purchase price of these two companies approximated $10,700,000 with
goodwill recorded of approximately $8,300,000.
During March 1997 the Company purchased 100% of several foreign companies,
including their ownership of certain affiliates, offering localization and
globalization solutions. The companies (and respective locations) purchased
were: I&G COM (France); ME&TA Software Localization Company, S.L. (Spain);
Pacifitech (Japan); and GECAP Localization Technologies (Germany). In June 1997,
the Company purchased ME&TA MULTIMEDIA. The total purchase price and acquisition
costs related to these acquisitions were approximately $31,500,000, paid in
cash.
The Company also purchased several U.S. based companies, for a combination
of cash and stock, to promote the growth of its internally developed document
management outsourcing offerings (started in late 1996) and a machine language
translation company to enhance the localization and globalization offerings of
19
<PAGE> 21
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
the Company. The companies purchased were: Imagineer, Inc. (February 1997);
Internet Factory, Inc. (March 1997); the assets of J. Feuerstein Systems (JFS),
a division of Docucon Incorporated (November 1997); the assets of United Media
Corporation (November 1997); and Linguistix, Inc. (December 1997). The total
purchase price of these companies was approximately $16,400,000, including
acquisition costs. The shares issued for the purchase of Imagineer and Internet
Factory were 88,888 and 10,000, respectively. For Internet Factory, the purchase
agreement requires an additional 10,000 shares to be issued in both January 1998
and 1999. All of the acquisitions were accounted for using the purchase method
of
20
<PAGE> 22
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
accounting and the results from these operations were included in the statement
of income and cash flows after the date of acquisition. The goodwill recorded
during 1997 as a result of the acquisitions was nearly $46,000,000.
Approximately, $3,000,000 of the purchase price for JFS and Linguistix was
assigned to purchased in-process research and development and written off. No
pro forma financial information is presented herein due to the insignificance of
the aggregate amount of the acquisitions disclosed above.
NOTE 4 -- SUBSEQUENT EVENTS
During February 1998, the Company acquired 80% of Quadravision
Communications Limited for $10,000,000 and 100% of Sitewerks Inc. for
$2,750,000. Quadravision and Sitewerks are worldwide Internet development
companies servicing the banking, insurance, mutual funds, brokerage, automotive
and software markets.
NOTE 5 -- CASH AND CASH EQUIVALENTS
The Company's policy is to invest cash in excess of operating requirements
in income producing investments. Cash equivalents of $25,703,000 and $8,155,000
at December 31, 1997 and 1996, respectively, are carried at cost, which
approximates market, and include certificates of deposit and money market
accounts, substantially all of which have maturities of three months or less
when purchased.
NOTE 6 -- INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1997 1996
----------- -----------
<S> <C> <C>
Raw materials............................................. $ 5,750,000 $ 6,068,000
Work in process........................................... 29,867,000 35,849,000
----------- -----------
$35,617,000 $41,917,000
=========== ===========
</TABLE>
NOTE 7 -- MARKETABLE SECURITIES
The Company classifies its investment in marketable equity securities as
available-for-sale. Available-for-sale securities are carried at fair value,
with the unrealized gains and losses, net of tax, reported as a separate
component of stockholders' equity. The fair value of marketable securities
exceeded cost by $1,918,000 and $1,269,000, at December 31, 1997 and 1996,
respectively. The net unrealized gains, after deferred taxes, were $1,093,000
(1997) and $660,000 (1996).
NOTE 8 -- EMPLOYEE BENEFIT PLANS
Pension Plans
The Company sponsors a defined benefit pension plan which covers
substantially all of its United States employees not covered by union
agreements. Benefits are based upon salary and years of service under the
projected unit benefit method. The Company's policy is to fund each year's
pension expense to the maximum allowable level. The Company has an unfunded
supplemental retirement program for certain management employees. Employees
covered by union agreements are included in separate multi-employer pension
plans to which the Company makes contributions. Plan benefit and net asset data
for these multi-employer pension plans are not available. Also, certain
non-union Canadian employees are covered by defined contribution retirement
plans.
21
<PAGE> 23
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Pension costs are summarized as follows:
<TABLE>
<CAPTION>
YEAR ENDED OCTOBER 31,
YEAR ENDED -------------------------
DECEMBER 31, 1997 1996 1995
------------------- ----------- -----------
<S> <C> <C> <C>
Service cost....................................... $ 4,176,000 $ 3,077,000 $ 4,946,000
Interest cost...................................... 3,313,000 2,549,000 2,402,000
Actual return on plan assets....................... (8,508,000) (7,124,000) (7,113,000)
Net amortization and deferrals..................... 4,490,000 3,211,000 3,765,000
----------- ----------- -----------
Net periodic pension cost of defined benefit
plans............................................ 3,471,000 1,713,000 4,000,000
Union plans........................................ 444,000 534,000 607,000
Defined contribution plans......................... 765,000 679,000 407,000
----------- ----------- -----------
Total pension cost................................. $ 4,680,000 $ 2,926,000 $ 5,014,000
=========== =========== ===========
</TABLE>
The status of the Company's funded defined benefit pension plan is as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------------------
1997 1996
----------------- -----------------
<S> <C> <C>
Fair value of plan assets.......................... $48,500,000 $41,942,000
----------- -----------
Actuarial value of benefit obligations:
Vested........................................... 24,761,000 19,867,000
Non-vested....................................... 7,004,000 5,620,000
----------- -----------
Accumulated benefit obligation..................... 31,765,000 25,487,000
Effect of projected future salary increases........ 8,966,000 7,193,000
----------- -----------
Projected benefit obligation....................... 40,731,000 32,680,000
----------- -----------
Plan assets in excess of projected benefit
obligation....................................... 7,769,000 9,262,000
Unrecognized net gain.............................. (12,567,000) (11,829,000)
Unrecognized net transition asset amortized over
twenty-two years................................. (3,215,000) (3,489,000)
----------- -----------
Accrued pension cost............................... $ 8,013,000 $ 6,056,000
=========== ===========
</TABLE>
At December 31, 1997, the projected benefit obligation under the unfunded
supplemental retirement program amounted to $3,446,000 for retired employees and
$2,193,000 for active employees, which amounts have been fully accrued. The plan
contains covenants which prohibit retired participants from engaging in
competition with the Company.
Effective November 1, 1996, the defined benefit pension plan was amended
with respect to compensation and service used in determining benefits for
certain employees. In addition, effective with the December 31, 1996 measurement
date, the mortality assumption was updated to reflect current market and
demographic conditions. As a result of these changes, the December 31, 1996
projected benefit obligation increased approximately $3,425,000 and the annual
periodic pension cost increased approximately $1,190,000. The discount rate used
to calculate the projected benefit obligations was 7.25% and 8% at December 31,
1997 and 1996, respectively. The rate used to project future salary increases
was 4.0% and 4.5% at December 31, 1997 and 1996, respectively. The expected
long-term rate of return on plan assets was 9.0% for the years ended December
31, 1997 and October 31, 1996 and 1995. The assets of the funded plan consist
primarily of equity and fixed income securities.
Profit Sharing Plan
Certain subsidiaries are participating companies in a qualified profit
sharing plan covering substantially all employees of those subsidiaries who are
not covered by union agreements. Amounts charged to income for the Profit
Sharing Plan were $9,483,000 for the year ended December 31, 1997 and $8,364,000
and $4,937,000 for the years ended October 31, 1996 and 1995, respectively.
22
<PAGE> 24
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Stock Purchase Plan
Under the Employees' Stock Purchase Plan, participating subsidiaries match
50% of amounts contributed by employees. All contributions are invested in the
common stock of the Company. The plan acquired 115,255 shares in the year ended
December 31, 1997, and 88,453 shares and 102,049 shares in the years ended
October 31, 1996 and 1995, respectively, of the Company's common stock on the
open market. At December 31, 1997 and 1996, the Stock Purchase Plan held 547,262
shares and 483,513 shares of the Company's common stock, respectively. Charges
to income amounted to $1,138,000, $603,000 and $500,000 for the year ended
December 31, 1997 and the years ended October 31, 1996 and 1995, respectively.
The shares held by the plan are considered outstanding in computing the
Company's earnings per share, and dividends paid to the plan are charged to
retained earnings.
NOTE 9 -- STOCK OPTION PLANS
The Company has three stock option plans, a 1981 Plan, a 1992 Plan and a
1997 Plan.
The 1981 Plan, which provided for the granting of options to purchase
1,400,000 shares of the Company's common stock, expired December 15, 1991 except
as to options then outstanding. The Company's 1992 Stock Option Plan provides
for the granting of options to purchase 850,000 shares to officers and key
employees at a price not less than the fair market value on the date each option
is granted. The 1997 Plan, provides for the granting of options to purchase
850,000 shares to officers and key employees at a price not less than the fair
market value of a share on the date each option is granted.
All plans permit grants of either Incentive Stock Options or Non-Qualified
Options. Options become exercisable as determined at the date of grant by a
committee of the Board of Directors. Options expire ten years after the date of
grant unless an earlier expiration date is set at the time of grant. The 1997
Plan permits the issuance of stock appreciation rights ("SARs"), limited stock
appreciation rights ("LSARs") and awards that are valued in whole or in part on
the fair value of the shares. SARs, LSARs and awards may be paid in shares, cash
or combinations thereof.
Details of stock options are as follows:
<TABLE>
<CAPTION>
NUMBER OF OPTION
SHARES PRICE
--------- -------------
<S> <C> <C>
YEAR ENDED OCTOBER 31, 1995
Granted................................................ 104,900 $16.06
Exercised.............................................. 35,042 8.13--14.50
Cancelled.............................................. 40,800 8.13--19.06
Outstanding, end of year............................... 1,042,176 9.75--19.06
Exercisable, end of year............................... 291,225 9.75--17.88
YEAR ENDED OCTOBER 31, 1996
Granted................................................ 222,300 $20.19
Exercised.............................................. 273,876 9.75--20.19
Cancelled.............................................. 62,650 10.00--20.19
Outstanding, end of year............................... 927,950 11.13--20.19
Exercisable, end of year............................... 264,900 11.13--17.88
TWO MONTHS ENDED DECEMBER 31, 1996
Granted................................................ 144,300 $22.31
Exercised.............................................. 9,850 13.69--17.88
Cancelled.............................................. 400 17.19--19.06
Outstanding, end of period............................. 1,062,000 11.13--22.31
Exercisable, end of period............................. 83,200 11.13--17.19
</TABLE>
23
<PAGE> 25
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
NUMBER OF OPTION
SHARES PRICE
--------- -------------
<S> <C> <C>
YEAR ENDED DECEMBER 31, 1997
Granted................................................ 509,050 $22.31--37.06
Exercised.............................................. 226,700 11.13--19.06
Cancelled.............................................. 59,425 11.13--22.31
Outstanding, end of year............................... 1,284,925 11.13--37.06
Exercisable, end of year............................... 334,225 11.13--22.31
</TABLE>
Options to purchase 401,275 shares (at December 31, 1997) and 900 shares
(at December 31, 1996) were available for grant under the 1997 and 1992 Plan.
In accordance with APB Opinion 25 and related interpretations, no
compensation cost has been recognized for the Company's stock option plans. Had
compensation cost been based upon the fair value at the grant dates for all
awards granted during the year ended December 31, 1997, the two month period
ended December 31, 1996, and the year ended October 31, 1996, net income would
have been reduced on a pro forma basis as follows:
<TABLE>
<CAPTION>
TWO MONTHS
YEAR ENDED ENDED YEAR ENDED
DECEMBER 31, 1997 DECEMBER 31, 1996 OCTOBER 31, 1996
----------------- ----------------- ----------------
<S> <C> <C> <C>
Net Income:
As Reported..... $69,543,000 $5,184,000 $42,503,000
Pro Forma....... 68,756,000 5,107,000 42,332,000
Pro Forma Per Share:
Basic........... $3.80 $.29 $2.41
Diluted......... 3.70 .29 2.38
</TABLE>
No adjustment was made to October 31, 1995, as Statement No. 123 does not
apply to grants issued before December 31, 1994. The grants issued during the
year ended October 31, 1995, were issued on December 14, 1994. Since the
compensation expense associated with the grants would have been recognized
generally over a four year vesting period, the initial impact of applying
Statement No. 123 on pro forma net income is not representative of the potential
impact on pro forma net income in future years, when the pro forma effect would
be fully reflected.
These pro forma amounts may not be representative of future disclosures
since the estimated fair value of stock options is amortized to expense over the
vesting period, and additional options may be granted in future years. The fair
value for these options was estimated at the date of grant using the
Black-Scholes model with the following assumptions:
<TABLE>
<CAPTION>
1997 1996 1995
GRANTS GRANTS GRANTS
------- ------- -------
<S> <C> <C> <C>
Expected dividend yield..................... 1.2% 1.7 % 2.0 %
Expected stock price volatility............. 30.1% 32.2 % 36.3 %
Risk-free interest rate..................... 5.8% 5.97% 5.51%
Expected life of options.................... 5 years 5 years 5 years
Weighted average fair value................. $12.23 $7.36 $6.86
</TABLE>
Deferred Stock Awards
In October 1996, the Company initiated a program for certain key
executives, and in 1997 for directors, that provided for the conversion of a
portion of their cash bonuses or directors fees into deferred stock units. It
also provided further granting of additional units for the key executives when
targets were exceeded. These units are convertible into the Company's common
stock on one-for-one basis generally at the time of retirement or earlier under
certain specific circumstances. At December 31, 1997 and 1996, there were
102,656 and 31,492 units outstanding, respectively.
24
<PAGE> 26
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 10 -- INCOME TAXES
The provision for income taxes is summarized as follows:
<TABLE>
<CAPTION>
TWO MONTHS YEAR ENDED OCTOBER 31,
YEAR ENDED ENDED --------------------------
DECEMBER 31, 1997 DECEMBER 31, 1996 1996 1995
----------------- ----------------- ----------- -----------
<S> <C> <C> <C> <C>
Current:
U.S. Federal................. $39,346,000 $ 3,308,000 $25,813,000 $12,725,000
Foreign...................... 3,183,000 91,000 1,504,000 1,292,000
State and local.............. 10,658,000 852,000 6,935,000 3,841,000
----------- ----------- ----------- -----------
53,187,000 4,251,000 34,252,000 17,858,000
----------- ----------- ----------- -----------
Deferred:
U.S. Federal................. (1,415,000) 166,000 (1,220,000) 533,000
Foreign...................... (379,000) (327,000) (229,000) (110,000)
State and local.............. (323,000) 38,000 (291,000) 184,000
----------- ----------- ----------- -----------
(2,117,000) (123,000) (1,740,000) 607,000
----------- ----------- ----------- -----------
$51,070,000 $ 4,128,000 $32,512,000 $18,465,000
=========== =========== =========== ===========
</TABLE>
Income taxes paid during the year ended December 31, 1997, the two months
ended December 31, 1996, and the years ended October 31, 1996 and 1995 were
$51,523,000, $850,000, $31,508,000 and $11,489,000, respectively.
The provision for income taxes differed from the U.S. Federal statutory
rate for the following reasons:
<TABLE>
<CAPTION>
YEAR ENDED
TWO MONTHS OCTOBER 31,
YEAR ENDED ENDED ------------
DECEMBER 31, 1997 DECEMBER 31, 1996 1996 1995
----------------- ----------------- ---- ----
<S> <C> <C> <C> <C>
Statutory tax rate............................ 35.0% 35.0% 35.0% 35.0%
Increase in tax resulting from:
State and local taxes....................... 5.5 6.2 5.8 6.3
Foreign taxes............................... .1 .3 .3 .1
Non-deductible items........................ 2.5 2.8 2.2 2.7
Other....................................... (.8) -- -- .1
---- ---- ---- ----
Effective income tax rate..................... 42.3% 44.3% 43.3% 44.2%
==== ==== ==== ====
</TABLE>
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
the Company's deferred tax liabilities and assets at December 31, 1997 and 1996
are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1997 1996
----------- -----------
<S> <C> <C>
Non-current deferred tax assets (liability):
Deferred compensation and benefits........................ $ 8,742,000 $ 7,627,000
Depreciation.............................................. (4,115,000) (5,155,000)
Other..................................................... 807,000 845,000
----------- -----------
Total net non-current asset................................. $ 5,434,000 $ 3,317,000
=========== ===========
</TABLE>
25
<PAGE> 27
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Prepaid expenses and other current assets at December 31, 1996 included a
current deferred tax asset of $1,455,000 related to the Company's allowance for
doubtful accounts.
NOTE 11 -- NOTES PAYABLE AND LONG-TERM DEBT
Notes payable
During March 1997, the Company entered into a short-term line of credit for
$25,000,000 to be used for general corporate purposes. The Company borrowed
$20,000,000 in July 1997, under this agreement, of which $10,000,000 was repaid
in July and the remainder paid in August.
In July 1997, the Company entered into a new unsecured five-year revolving
credit agreement for $200,000,000 with a consortium of banks. Under the new
credit agreement, interest will be charged at London Inter-bank Offered Rate
(LIBOR) plus 1/4% to 1/2% depending on certain leverage ratios. This agreement
replaced the $50,000,000 uncommitted line of credit and the temporary
$25,000,000 short-term line of credit, which was repaid in August. There were no
borrowings during the year or amounts outstanding under the new revolving credit
agreement as of December 31, 1997.
Long-term debt
The Company's long-term debt consists primarily of capital lease
obligations.
Aggregate annual installments of both the notes payable and long-term debt
due for the next five years are $5,755,000, $1,010,000, $679,000, $464,000 and
$384,000 respectively.
Interest paid was $1,535,000 and, $662,000 and $871,000 for the year ended
December 31, 1997 and the years ended October 31, 1996 and 1995, respectively.
NOTE 12 -- DEFERRED EMPLOYEE COMPENSATION AND BENEFITS
Liabilities for deferred employee compensation and benefits consist of the
following:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
1997 1996
----------- -----------
<S> <C> <C>
Pension costs............................................... $ 8,540,000 $ 6,635,000
Supplemental retirement..................................... 5,133,000 4,128,000
Deferred compensation....................................... 5,204,000 4,558,000
----------- -----------
$18,877,000 $15,321,000
=========== ===========
</TABLE>
NOTE 13 -- OTHER INCOME
The components of other income are summarized as follows:
<TABLE>
<CAPTION>
YEAR ENDED
OCTOBER 31,
YEAR ENDED -----------------------
DECEMBER 31, 1997 1996 1995
----------------- ---------- ----------
<S> <C> <C> <C>
Interest income........................................ $1,569,000 $ 991,000 $1,477,000
Dividends.............................................. 202,000 642,000 720,000
Capital gains (loss)................................... (228,000) 2,809,000 446,000
Other.................................................. 913,000 463,000 1,063,000
---------- ---------- ----------
$2,456,000 $4,905,000 $3,706,000
========== ========== ==========
</TABLE>
26
<PAGE> 28
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 14 -- LEASE COMMITMENTS
The Company's subsidiaries occupy premises and utilize equipment under
leases which are classified as operating leases and expire at various dates to
2007. Many of the leases provide for payment of certain expenses and contain
renewal and purchase options.
Rent expense relating to premises and equipment amounted to $12,736,000 for
the year ended December 31, 1997 and $9,823,000 and $8,265,000 for the years
ended October 31, 1996 and 1995, respectively. The minimum annual rental
commitments under non-cancelable leases as at December 31, 1997 are summarized
as follows:
<TABLE>
<S> <C> <C> <C>
1998........................ $14,287,000 2001........................ $ 8,035,000
1999........................ 12,593,000 2002........................ 6,510,000
2000........................ 9,986,000 2003-2007................... 15,302,000
-----------
Total....................... $66,713,000
===========
</TABLE>
NOTE 15 -- STOCKHOLDER RIGHTS PLAN
During 1997, the Company adopted a Stockholder Rights Plan that grants a
Right to each Stockholder of record on February 10, 1997 and all shares issued
thereafter to purchase 1,000 shares of the Preferred Stock for each share of
common stock owned when certain events occur. This plan is triggered when
certain events that involve the acquisition, tender offer or exchange of 20% or
more of the Common Stock by a person or group of persons, without the approval
of the Company's Board of Directors, occur. Prior to the event, the Right will
be linked to the underlying shares of the Common stock and may not be
transferred by themselves.
NOTE 16 -- SEGMENT AND GEOGRAPHIC DATA
The Company's business focuses on one line of business "Empowering
Information," a term used to define the management, repurposing and distribution
of a client's information. The Company manages and repurposes the information
for distribution by digital, Internet or paper media. It manages documents on
the clients' site or at its own facilities. It provides business services and
solutions for transactional printing, corporate reporting and mutual fund
printing, digital data-management, Internet services, localization, translation
and document management outsourcing, among others. Information about the
business of the Company by geographic area is presented in the table below. The
Company's areas of operations outside of the United States and Canada
principally include London, Paris, Hong Kong and Singapore. Sales or transfers
between geographic areas and United States export sales were not material.
General corporate expenses are included in the United States operations.
<TABLE>
<CAPTION>
OTHER
UNITED STATES CANADA FOREIGN TOTAL
------------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
1997
Net sales............................... $547,880,000 $76,695,000 $92,072,000 $716,647,000
Net income.............................. 70,918,000 4,208,000 (5,583,000) 69,543,000
Identifiable assets..................... 367,216,000 49,556,000 83,881,000 500,653,000
1996
Net sales............................... $404,683,000 $62,513,000 $34,173,000 $501,369,000
Net income.............................. 40,951,000 1,818,000 (266,000) 42,503,000
Identifiable assets..................... 324,172,000 36,760,000 24,890,000 385,822,000
1995
Net sales............................... $314,264,000 $56,199,000 $22,250,000 $392,713,000
Net income.............................. 23,328,000 526,000 (568,000) 23,286,000
Identifiable assets..................... 276,107,000 33,536,000 16,027,000 325,670,000
</TABLE>
27
<PAGE> 29
BOWNE & CO., INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 17 -- SUMMARY OF QUARTERLY DATA (UNAUDITED)
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER FULL YEAR
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
YEAR ENDED DECEMBER 31,
1997
Net sales................ $153,696,000 $193,828,000 $177,667,000 $191,456,000 $716,647,000
Gross margin............. 70,460,000 84,999,000 80,005,000 89,063,000 324,527,000
Income before income
taxes................. 53,956,000 26,223,000 17,310,000 23,124,000 120,613,000
Income taxes............. 23,433,000 10,809,000 6,640,000 10,188,000 51,070,000
Net income............... 30,523,000 15,414,000 10,670,000 12,936,000 69,543,000
============ ============ ============ ============ ============
Net income per share:
Basic................. $1.70 $.85 $.59 $.71 $3.84
Diluted............... $1.66 $.83 $.57 $.69 $3.74
Weighted average shares
outstanding:
Basic................. 17,986,227 18,085,111 18,158,095 18,190,905 18,105,084
============ ============ ============ ============ ============
Diluted............... 18,389,689 18,532,306 18,612,922 18,754,362 18,589,466
============ ============ ============ ============ ============
</TABLE>
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER FULL YEAR
----------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
YEAR ENDED OCTOBER 31, 1996
Net sales................. $90,728,000 $136,396,000 $134,153,000 $140,092,000 $501,369,000
Gross margin.............. 34,931,000 62,695,000 61,807,000 65,795,000 225,228,000
Income before income
taxes.................. 6,312,000 22,376,000 22,285,000 24,042,000 75,015,000
Income taxes.............. 2,719,000 9,862,000 9,123,000 10,808,000 32,512,000
Net income................ 3,593,000 12,514,000 13,162,000 13,234,000 42,503,000
=========== ============ ============ ============ ============
Net income per share:
Basic.................. $.21 $.71 $.75 $.75 $2.42
Diluted................ $.20 $.71 $.74 $.74 $2.39
Weighted average shares
outstanding:
Basic.................. 17,482,870 17,566,959 17,585,439 17,608,193 17,563,754
=========== ============ ============ ============ ============
Diluted................ 17,659,976 17,732,641 17,800,623 17,866,110 17,768,996
=========== ============ ============ ============ ============
</TABLE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Inapplicable.
28
<PAGE> 30
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Regarding the directors of the Company, reference is made to the
information set forth under the caption "Election of Directors" in the Company's
definitive Proxy Statement anticipated to be dated April 10, 1998, which
information is incorporated by reference herein.
The principal executive officers of the Company and their recent business
experience are as follows.
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OFFICER
NAME DURING PAST FIVE YEARS AGE SINCE
<S> <C> <C> <C>
Robert M. Johnson.............. Chairman of the Board and Chief Executive 52 1996
Officer of the Company since June 1996;
theretofore Vice Chairman, President and
Chief Executive Officer of the Company from
January 1996; previously Publisher,
President and Chief Executive Officer of
Newsday, Inc. (a subsidiary of Times
Mirror, Inc.)
James P. O'Neil................ President and Chief Operating Officer since 53 1984
January 1996; previously Executive Vice
President and Chief Operating Officer;
theretofore Vice President, Finance, of the
Company
Carl Crossetto................. Vice President, since March 1998, previously 49 1998
Director of Sales for the Company
Denise K. Fletcher............. Vice President, Chief Financial Officer, 49 1996
since July 1996; previously principal of
Fletcher Associates, Inc., a management
consulting firm
John A. Stone.................. Vice President, Technology, and Chief 54 1996
Technology Officer since December 1996;
previously Client Partner in AT&T Solutions
from 1995; theretofore principal in his own
technology consulting practice
Bruce Bezpa.................... Vice President, Strategic Development, since 42 1996
November 1996; previously Director of Mutual
Funds for the Company
Susan W. Cummiskey............. Vice President, Human Resources, since 44 1998
January 1998, previously Director, Human
Resources from February 1997; theretofore
Vice President, Human Resources for the
Chemical Group of Degussa Corporation.
Thomas P. Meola................ Vice President, Finance, and Controller since 55 1987
November 1996; previously Controller of the
Company
Douglas F. Bauer............... Corporate Secretary 55 1986
</TABLE>
There are no family relationships among any of the executive officers, and
there are no arrangements or understandings between any of the executive
officers and any other person pursuant to which any of such officers was
selected. The executive officers are normally elected by the Board of Directors
at its first meeting following the Annual Meeting of Stockholders for a one-year
term or until their respective successors are duly elected and qualify.
To the best of the Company's knowledge, none of the directors and officers
of the Company failed to file on a timely basis any report on Forms 3, 4 and 5
which was required pursuant to Section 16(a) of the Securities Exchange Act of
1934 with respect to the Company's most recent fiscal year.
29
ITEM 11. EXECUTIVE COMPENSATION
Reference is made to the information set forth under the caption "Executive
Compensation" appearing in the Company's definitive Proxy Statement anticipated
to be dated April 10, 1998, which information is incorporated herein by
reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
Reference is made to the information contained under the captions
"Principal Stockholders of the Company" and "Executive Compensation" in the
Company's definitive Proxy Statement anticipated to be dated April 10, 1998,
which information is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Inapplicable.
30
<PAGE> 31
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) DOCUMENTS FILED AS PART OF THIS REPORT:
(1) Financial Statements:
<TABLE>
<CAPTION>
PAGE NUMBER
IN THIS REPORT
--------------
<S> <C>
Report of Independent Auditors.............................. 11
Consolidated Statements of Income -- Year Ended December 31,
1997, Two Months Ended December 31, 1996, Three Months
Ended January 31, 1996 (unaudited), Years Ended October
31, 1996 and 1995......................................... 12
Consolidated Balance Sheets as of December 31, 1997 and
1996...................................................... 13-14
Consolidated Statements of Cash Flows -- Year Ended December
31, 1997, Two Months Ended December 31, 1996, Three Months
Ended January 31, 1996 (unaudited), Years Ended October
31, 1996 and 1995......................................... 15
Consolidated Statements of Stockholders' Equity -- Year
Ended December 31, 1997, Two Months Ended December 31,
1996, Years Ended October 31, 1996 and 1995............... 16
Notes to Consolidated Financial Statements.................. 17-26
</TABLE>
(2) Financial Statement Schedule -- Year Ended December 31, 1997, Two
months ended
December 31, 1996 and Years Ended October 31, 1996 and 1995:
<TABLE>
<S> <C>
Schedule II -- Valuation and Qualifying Accounts............ S-1
</TABLE>
All other schedules are omitted because they are not applicable.
(3) Exhibits:
<TABLE>
<C> <S>
3.1 -- Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Com-
pany's annual report on Form 10-K for the year ended October 31, 1984)
3.2 -- Amendment to the Certificate of Incorporation filed May 11, 1988 (incorporated by
reference to Exhibit 3.2 to the Company's annual report on Form 10-K for the year
ended October 31, 1988)
3.3 -- Amendment to the Certificate of Incorporation filed March 23, 1989 (incorporated by
reference to Exhibit 3.3 to the Company's annual report on
Form 10-K for the year ended October 31, 1989)
3.4 -- Amendment to the Certificate of Incorporation filed March 28, 1990 (incorporated by
reference to page 7 of the Company's definitive Proxy Statement dated January 29,
1990)
3.5 -- By-Laws
4.1 -- Rights Agreement dated as of January 30, 1997 (incorporated by reference to Exhibit 1
to the Company's Report on Form 8-K filed February 10, 1997).
10.1 -- Amended and Restated 1981 Stock Option Plan (incorporated by reference to the Company's
definitive Proxy Statement dated January 30, 1985)
10.2 -- Amendment to 1981 Stock Option Plan (incorporated by reference to the Company's
Post-Effective Amendment No. 1 on Form S-8 relating to the Company's Stock Option
Plan dated April 16, 1987)
10.3 -- Amendment to 1981 Stock Option Plan (incorporated by reference to the Company's
Post-Effective Amendment No. 2 on Form S-8 relating to the Company's Stock Option
Plan dated October 19, 1988)
10.4 -- 1992 Stock Option Plan (incorporated by reference to Exhibit A to the Company's
definitive Proxy Statement dated February 10, 1992)
</TABLE>
31
<PAGE> 32
<TABLE>
<C> <S>
10.5 -- Form of Supplemental Retirement Agreement for selected key employees (incorporated by
reference to Exhibit 10.2 to the Company's annual report on Form 10-K for the year
ended October 31, 1984) (such agreements having been entered into in the years
1979-1980)
10.6 -- Form of Supplemental Retirement Agreement for selected key employees with change of
control provisions (incorporated by reference to Exhibit 10.3 to the Company's annual
report on Form 10-K for the year ended October 31, 1984) (such agreements having been
entered into in 1984)
10.7 -- Form of Supplemental Retirement Agreement for selected key employees, being the most
current version of the agreements in Exhibits 10.5 and 10.6 above (incorporated by
reference to Exhibit 10.4 to the Company's annual report on Form 10-K for the year
ended October 31, 1986) (such agreements having been entered into since 1985 without
material revisions)
10.8 -- Form of Termination Protection Agreement for selected key employees providing for a
possible change in ownership or control of the Company (incorporated by reference to
Exhibit 10.8 to the Company's annual report on Form 10-K for the year ended October
31, 1995).
10.9 -- Retirement Plan for non-management members of the Board of Directors (incorporated by
reference to the description under the caption "Meetings, Attendance and Fees" on
page 4 of the Company's definitive Proxy Statement dated January 30, 1989)
10.10 -- Letter agreement between the Company and Robert M. Johnson relating to restricted stock
and certain compensation and benefits matters.
21 -- Subsidiaries of the Company
23 -- Consent of Independent Auditors
27 -- Financial Data Schedule, which is submitted electronically to the Securities and
Exchange Commission for information only and not filed
</TABLE>
(b) No reports on Form 8-K were filed by the Company during the quarter ended
December 31, 1997.
32
<PAGE> 33
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.
BOWNE & CO., INC.
Dated: March 31, 1998
By ROBERT M. JOHNSON
-----------------------------------
ROBERT M. JOHNSON
Chairman of the Board and Chief
Executive Officer
(Principal Executive Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS
REPORT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON BEHALF OF THE
REGISTRANT AND IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
ROBERT M. JOHNSON Chairman of the Board, Chief March 31, 1998
- --------------------------------------------------- Executive
(ROBERT M. JOHNSON) Officer and Director
JAMES P. O'NEIL President, Chief Operating March 31, 1998
- --------------------------------------------------- Officer and Director
(JAMES P. O'NEIL)
DENISE K. FLETCHER Vice President and Chief March 31, 1998
- --------------------------------------------------- Financial
(DENISE K. FLETCHER) Officer
* Director March 31, 1998
- ---------------------------------------------------
(ROBERT M. CONWAY)
* Director March 31, 1998
- ---------------------------------------------------
(EDWARD H. MEYER)
* Director March 31, 1998
- ---------------------------------------------------
(H. MARSHALL SCHWARZ)
* Director March 31, 1998
- ---------------------------------------------------
(JUDITH SHAPIRO)
* Director March 31, 1998
- ---------------------------------------------------
(WENDELL M. SMITH)
* Director March 31, 1998
- ---------------------------------------------------
(THOMAS O. STANLEY)
* Director March 31, 1998
- ---------------------------------------------------
(VINCENT TESE)
* Director March 31, 1998
- ---------------------------------------------------
(RICHARD R. WEST)
*By ROBERT M. JOHNSON Attorney-in-Fact
-------------------------------------------------
(ROBERT M. JOHNSON)
</TABLE>
33
<PAGE> 34
BOWNE & CO. INC. AND SUBSIDIARIES
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
- ----------------------------------------------------------------------------------------------
BALANCE AT ADDITIONS
BEGINNING CHARGED TO DEDUCTIONS/ BALANCE AT
OF COSTS AND (ADDITIONS) END OF
DESCRIPTION PERIOD EXPENSES (A)(B) PERIOD
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Allowance for doubtful accounts:
Year Ended December 31, 1997 $9,702,000 $7,871,000 $5,132,000 $12,441,000
========= ========= ========= ==========
Two Months Ended December 31, 1996 $8,763,000 $ 729,000 $(210,000) $9,702,000
========= ========= ========= ==========
Year Ended October 31, 1996 $6,269,000 $5,208,000 $2,714,000 $8,763,000
========= ========= ========= ==========
Year Ended October 31, 1995 $6,592,000 $2,771,000 $3,094,000 $6,269,000
========= ========= ========= ==========
</TABLE>
- ---------------
(a) Uncollectible accounts written off, net of recoveries.
(b) For the two months ended December 31, 1996 writeoffs were $83,000 and the
allowance was increased by $293,000 to reflect acquired businesses during
this period.
S-1
<PAGE> 35
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S> <C>
21 Subsidiaries of the Company
23 Consent of Independent Auditors
27.1 Financial Data Schedule, which is submitted electronically
to the Securities and Exchange Commission for information
only and not filed
27.2 Restated Financial Data Schedule, which is submitted electronically
to the Securities and Exchange Commission for information
only and not filed
99 Credit Agreement
</TABLE>
<PAGE> 1
EXHIBIT 21
SUBSIDIARIES OF THE COMPANY
Listed below are the significant subsidiaries of the Company and their
jurisdictions of organization. All are wholly-owned unless otherwise indicated.
Unnamed subsidiaries have been omitted because, considered in the aggregate,
they would not constitute a significant subsidiary.
<TABLE>
<CAPTION>
JURISDICTION OF
NAME OF SUBSIDIARY ORGANIZATION
------------------ ---------------
<S> <C>
Bowne Business Communications, Inc. New York
Bowne Business Services, Inc. New York
Bowne de Montreal, Inc. Canada
Bowne Global Solutions, Inc.(1) California
Bowne Global Solutions (France), S.A.R.L. France
Bowne Global Solutions (Germany) G.m.b.H. Germany
Bowne Global Solutions (Germany), Inc. Delaware
Bowne Global Solutions (Japan), K.K. Japan
Bowne Global Solutions (Netherlands), B.V. Netherlands
Bowne Global Solutions (Spain), S.L. Spain
Bowne Information Services, Inc. New Jersey
Bowne International, Ltd. United Kingdom
Bowne International, S.A.R.L. France
Bowne Internet Services, Inc. Michigan
Bowne Localization, Inc. Delaware
Bowne Litigation Solutions, L.P. Delaware
Bowne of Atlanta, Inc. Georgia
Bowne of Boston, Inc. Massachusetts
Bowne of Canada, Ltd. Ontario, Canada
Bowne of Chicago, Inc. Delaware
Bowne of Cleveland, Inc. Ohio
Bowne of Dallas, L.P. Delaware
Bowne of Europe, B.V. Netherlands
Bowne of Germany Holding G.m.b.H. Germany
Bowne of Los Angeles, Inc. California
Bowne of New York City, Inc. New York
Bowne of Ontario, L.P. Ontario, Canada
Bowne of Phoenix, Inc. Arizona
Bowne Solutions, L.L.C. Delaware
Linguistix, Inc. California
Midwest Land Company Delaware
Williams Lea and Company, Ltd. United Kingdom
</TABLE>
- ---------------
(1) 80% owned by the Company.
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statements
(Form S-8 Nos. 2-96887, 33-48831 and 33-35810 and Form S-3 No. 333-18629)
pertaining to the Stock Option Plans, Employees' Stock Purchase Plan and the
registration of 261,438 shares of Common Stock of Bowne & Co., Inc. and in the
related Prospectuses of our report dated March 4, 1998 with respect to the
consolidated financial statements and schedule of Bowne & Co., Inc. and
Subsidiaries included in the Annual Report (Form 10-K) for the year ended
December 31, 1997.
ERNST & YOUNG LLP
New York, New York
March 26, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AND THE CONSOLIDATED STATEMENT OF INCOME FILED AS
PART OF THE ANNUAL REPORT ON FORM 10-K AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH ANNUAL REPORT ON FORM 10-K.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 40,646
<SECURITIES> 5,829
<RECEIVABLES> 200,014
<ALLOWANCES> 12,441
<INVENTORY> 35,617
<CURRENT-ASSETS> 285,504
<PP&E> 277,988
<DEPRECIATION> 12,441
<TOTAL-ASSETS> 500,653
<CURRENT-LIABILITIES> 121,464
<BONDS> 0
<COMMON> 196
0
0
<OTHER-SE> 358,404
<TOTAL-LIABILITY-AND-EQUITY> 500,653
<SALES> 716,647
<TOTAL-REVENUES> 754,376
<CGS> 392,120
<TOTAL-COSTS> 392,120
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 7,871
<INTEREST-EXPENSE> 1,621
<INCOME-PRETAX> 120,613
<INCOME-TAX> 51,070
<INCOME-CONTINUING> 69,543
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 69,543
<EPS-PRIMARY> 3.84
<EPS-DILUTED> 3.74
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AND THE CONSOLIDATED STATEMENT OF INCOME FILED AS
PART OF THE ANNUAL REPORT ON FORM 10-K AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH ANNUAL REPORT ON FORM 10-K.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> YEAR YEAR
<FISCAL-YEAR-END> OCT-31-1996 OCT-31-1995
<PERIOD-START> NOV-01-1995 NOV-01-1994
<PERIOD-END> OCT-31-1996 OCT-31-1995
<CASH> 31,879 36,590
<SECURITIES> 4,618 16,015
<RECEIVABLES> 165,580 120,801
<ALLOWANCES> 8,763 6,269
<INVENTORY> 33,509 27,028
<CURRENT-ASSETS> 234,903 200,349
<PP&E> 239,387 200,126
<DEPRECIATION> 110,804 94,996
<TOTAL-ASSETS> 385,822 325,670
<CURRENT-LIABILITIES> 87,541 67,300
<BONDS> 0 0
0 0
0 0
<COMMON> 194 191
<OTHER-SE> 280,540 241,318
<TOTAL-LIABILITY-AND-EQUITY> 385,822 325,670
<SALES> 501,369 392,713
<TOTAL-REVENUES> 506,274 396,419
<CGS> 276,141 233,493
<TOTAL-COSTS> 276,141 233,493
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 5,208 2,771
<INTEREST-EXPENSE> 677 884
<INCOME-PRETAX> 75,015 41,751
<INCOME-TAX> 32,512 18,465
<INCOME-CONTINUING> 42,503 23,286
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 42,503 23,286
<EPS-PRIMARY> 2.42 1.34
<EPS-DILUTED> 2.39 1.33
</TABLE>
<PAGE> 1
EXHIBIT __
CREDIT AGREEMENT
by and among
BOWNE & CO., INC.,
THE SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO,
BANK OF MONTREAL, AS DOCUMENTATION AGENT
AND
FLEET BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
----------------
$200,000,000
----------------
Dated as of July 7, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C>
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION ............................................................ 1
1.1. Definitions .................................................................................... 1
1.2. Principles of Construction .................................................................... 24
2. AMOUNT AND TERMS OF LOANS ............................................................................ 25
2.1. Revolving Credit Loans ........................................................................ 25
2.2. Minimum Amount of Each Borrowing .............................................................. 26
2.3. Borrowing Request - Revolving Credit Loans .................................................... 27
2.4. Bid Loans; Procedure .......................................................................... 27
2.5. Disbursement of Funds ......................................................................... 31
2.6. Payments ...................................................................................... 32
2.7. Termination or Reduction of Commitments ....................................................... 34
2.8. Prepayments of the Loans ...................................................................... 34
2.9. Use of Proceeds ............................................................................... 35
2.10. Addition and Removal of Subsidiary Borrowers;
Addition of Non-Core Currencies .............................................................. 35
2.11. Extension of Commitment Termination Date ..................................................... 36
2.12. Records ...................................................................................... 38
3. INTEREST, FEES, CONVERSIONS AND YIELD PROTECTIONS .................................................... 39
3.1. Interest Rates and Payment Dates .............................................................. 39
3.2. Fees .......................................................................................... 40
3.3. Conversions ................................................................................... 41
3.4. Indemnification for Loss ...................................................................... 43
3.5. Capital Adequacy .............................................................................. 43
3.6. Reimbursement for Increased Costs ............................................................. 44
3.7. Illegality of Funding ......................................................................... 44
3.8. Substituted Interest Rate ..................................................................... 45
3.9. Taxes ......................................................................................... 46
3.10. Option to Fund ............................................................................... 49
3.11. Replacement of Lenders ....................................................................... 50
3.12. Changes of Lending Offices ................................................................... 50
4. REPRESENTATIONS AND WARRANTIES ....................................................................... 51
4.1. Subsidiaries; Jurisdictions ................................................................... 51
4.2. Existence and Power ........................................................................... 51
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
4.3. Authority and Execution ....................................................................... 51
4.4. Binding Agreement ............................................................................. 52
4.5. Litigation .................................................................................... 52
4.6. Required Consents ............................................................................. 52
4.7. Absence of Defaults; No Conflicting Agreements ................................................ 53
4.8. Compliance with Applicable Laws ............................................................... 53
4.9. Taxes ......................................................................................... 53
4.10. Governmental Regulations ..................................................................... 54
4.11. Federal Reserve Regulations; Use of Loan
Proceeds ..................................................................................... 54
4.12. Plans ........................................................................................ 54
4.13. Financial Statements ......................................................................... 54
4.14. Property ..................................................................................... 55
4.15. Authorizations ............................................................................... 55
4.16. Environmental Matters ........................................................................ 55
5. CONDITIONS TO FIRST LOANS ............................................................................ 56
5.1. Evidence of Action ............................................................................ 56
5.2. Absence of Litigation ......................................................................... 57
5.3. Approvals and Consents ........................................................................ 57
5.4. Opinion of Counsel to the Parent Borrower ..................................................... 57
5.5. Opinion of Special Counsel .................................................................... 57
5.6. Fees of Agents and the Lenders ................................................................ 58
5.7. Fees and Expenses of Special Counsel .......................................................... 58
6. CONDITIONS OF LENDING - ALL LOANS .................................................................... 58
6.1. Compliance .................................................................................... 58
6.2. Borrowing Request ............................................................................. 58
7. AFFIRMATIVE COVENANTS ................................................................................ 59
7.1. Financial Statements and Information .......................................................... 59
7.2. Certificates; Other Information ............................................................... 60
7.3. Legal Existence ............................................................................... 61
7.4. Taxes ......................................................................................... 62
7.5. Insurance ..................................................................................... 62
7.6. Condition of Property ......................................................................... 62
7.7. Observance of Legal Requirements .............................................................. 62
7.8. Inspection of Property; Books and Records;
Discussions ................................................................................... 63
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C> <C>
7.9. Authorizations ................................................................................ 63
7.10. Capitalization Ratio ......................................................................... 63
7.11. Subsidiaries ................................................................................. 63
8. NEGATIVE COVENANTS ................................................................................... 63
8.1. Indebtedness .................................................................................. 64
8.2. Liens ......................................................................................... 64
8.3. Consolidations and Mergers .................................................................... 65
8.4. Acquisitions .................................................................................. 66
8.5. Dispositions .................................................................................. 66
8.6. Investments ................................................................................... 67
9. DEFAULT .............................................................................................. 67
9.1. Events of Default ............................................................................. 67
9.2. Contract Remedies ............................................................................. 70
10. THE AGENTS .......................................................................................... 71
10.1. Appointment .................................................................................. 71
10.2. Delegation of Duties ......................................................................... 72
10.3. Exculpatory Provisions ....................................................................... 72
10.4. Reliance by the Agents ....................................................................... 73
10.5. Notice of Default ............................................................................ 73
10.6. Non-Reliance on the Agents and Other Lenders ................................................. 74
10.7. Indemnification .............................................................................. 74
10.8. Lenders in Their Respective Individual
Capacities ................................................................................... 75
10.9. Successor Agents ............................................................................. 76
11. GUARANTY OF THE PARENT BORROWER ..................................................................... 77
11.1. Guaranty ..................................................................................... 77
11.2. Absolute Obligation .......................................................................... 78
11.3. Repayment in Bankruptcy ...................................................................... 79
11.4. No Subrogation ............................................................................... 79
12. OTHER PROVISIONS .................................................................................... 80
12.1. Amendments and Waivers ....................................................................... 80
12.2. Notices ...................................................................................... 81
12.3. No Waiver; Cumulative Remedies ............................................................... 82
12.4. Survival of Representations and Warranties
and Certain Obligations ...................................................................... 82
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<S> <C> <C> <C>
12.5. Expenses ..................................................................................... 82
12.6. Assignments and Participations ............................................................... 83
12.7. Indemnity .................................................................................... 85
12.8. Limitation of Liability ...................................................................... 86
12.9. Counterparts ................................................................................. 86
12.10. Adjustments; Set-off ........................................................................ 86
12.11. Construction ................................................................................ 88
12.12. Governing Law ............................................................................... 88
12.13. Judgment Currency ........................................................................... 88
12.14. International Banking Facilities ............................................................ 89
12.15. Incorporation by Reference .................................................................. 89
12.16. Headings Descriptive ........................................................................ 89
12.17. Severability ................................................................................ 89
12.18. Integration ................................................................................. 90
12.19. Consent to Jurisdiction ..................................................................... 90
12.20. Service of Process .......................................................................... 90
12.21. No Limitation on Service or Suit ............................................................ 90
12.22. WAIVER OF TRIAL BY JURY ..................................................................... 91
12.23. Parent Borrower as Agent for Subsidiary
Borrowers ................................................................................... 91
12.24. Effective Date .............................................................................. 91
12.25. Treatment of Certain Information ............................................................ 92
EXHIBITS
Exhibit A List of Commitment Amounts
Exhibit B-1 Form of Borrower Addendum
Exhibit B-2 Form of Currency Addendum
Exhibit C Form of Borrowing Request
Exhibit D Form of Notice of Conversion
Exhibit E Form of Compliance Certificate
Exhibit F Form of Opinion of Counsel to the Parent Borrower
Exhibit G Form of Opinion of Special Counsel
Exhibit H Form of Assignment and Acceptance Agreement
Exhibit I Form of Bid Request
Exhibit J Form of Invitation to Bid
Exhibit K Form of Bid
Exhibit L Form of Bid Accept/Reject Letter
</TABLE>
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<PAGE> 6
<TABLE>
<S> <C>
Exhibit M List of Administrative Agent's Address for Notices and Agent Payment Offices
Exhibit N List of Lenders' Addresses for Notices
Exhibit O List of Borrowers' Addresses for Notices
Exhibit P List of Borrowers' Payment Accounts
Exhibit Q-1 Form of Revolving Credit Note
Exhibit Q-2 Form of Bid Note
SCHEDULES
Schedule 4.1 List of Subsidiaries; Jurisdictions
Schedule 4.5 List of Litigation
Schedule 8.1 List of Existing Indebtedness
Schedule 8.2 List of Existing Liens
</TABLE>
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<PAGE> 7
CREDIT AGREEMENT, dated as of July 7, 1997, by and among BOWNE & CO.,
INC., a New York corporation (the "Parent Borrower"), the Subsidiaries party
hereto or which from time to time become party hereto (each a "Subsidiary
Borrower" and, collectively, the "Subsidiary Borrowers"), the lenders party
hereto (each a "Lender" and, collectively, the "Lenders"), BANK OF MONTREAL, as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent") and FLEET BANK, NATIONAL ASSOCIATION, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1. Definitions
As used in this Agreement, terms defined in the preamble have
the meanings therein indicated, and the following terms have the following
meanings:
"ABR Advances": the Revolving Credit Loans (or any portions
thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Alternate Base Rate.
"Accountants": Ernst & Young (or any successor thereto), or
such other firm of certified public accountants of recognized national standing
selected by the Parent Borrower.
"Accumulated Funding Deficiency": as defined in Section 302
of ERISA.
"Acquisition": with respect to any Person, the purchase or
other acquisition by such Person, by any means whatsoever (including through a
merger, dividend or otherwise and whether in a single transaction or in a
series of related transactions), of (i) any Capital Stock of any other Person
if, immediately thereafter, such other Person would be either a Subsidiary of
such Person or otherwise under the control of such Person, (ii) any business,
going concern or divisions or segment of any other Person, or (iii) any
Property of any other Person other than in the ordinary course of business,
provided, however, that no acquisition of all or substantially all of the
assets of such other Person shall be deemed to be in the ordinary course of
business.
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<PAGE> 8
"Advance": an ABR Advance, a Eurodollar Advance, or a Core
Currency Euro Advance, as the case may be.
"Adjusted Consolidated Net Worth": as of any date, the total
stockholders' equity of the Parent Borrower and its Subsidiaries, determined on
a Consolidated basis in accordance with GAAP, set forth in, (i) during the
period commencing on the Effective Date and ending on the date of delivery
thereafter of the first annual financial statements pursuant to Section 7.1(b),
the Parent Borrower's Form 10Q for the fiscal quarter thereof ended April 30,
1997, and (ii) at all other times, the most recent annual financial statements
delivered pursuant to Section 7.1(b).
"Adjusted Eurodollar Rate": for any date, a rate of interest
per annum, as determined by the Administrative Agent, equal to the rate per
annum for deposits in Dollars having a one month maturity which appears on page
3750 of the Dow Jones Telerate Screen (or any successor page) as of 11:00 a.m.
London time on such date.
"Affected Advance": as defined in Section 3.8.
"Agent Payment Office": (i) with respect to all amounts owing
under the Loan Documents (other than in respect of Alternate Currency Loans),
initially, the office, branch, affiliate, or correspondent bank of the
Administrative Agent designated as its "Domestic Payment Office" in Exhibit M
and, thereafter, such other office, branch, affiliate, or correspondent bank
thereof as it may from time to time designate in writing as such to the Parent
Borrower and each Lender, and (ii) with respect to all amounts owing in respect
of each Alternate Currency Loan, initially, the office, branch, affiliate, or
correspondent bank of the Administrative Agent designated as its payment office
for the applicable Alternate Currency in Exhibit M and, thereafter, such other
office, branch, affiliate, or correspondent bank thereof as it may from time to
time designate in writing as such to the Parent Borrower and each Lender.
"Aggregate Commitment Amount": at any time, the sum at such
time of the Commitment Amounts of all Lenders.
"Aggregate Credit Exposure": as of any date of determination,
the sum as of such date of the outstanding principal amount of the Loans of all
Lenders (determined, in the case of each Alternate Currency Loan, on the basis
of the Dollar Equivalent thereof).
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<PAGE> 9
"Agreement": this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per
annum equal to the greater of (i) the Federal Funds Rate in effect on such date
plus 1/2 of 1% and (ii) the Adjusted Eurodollar Rate in effect on such date
plus the Applicable Margin in effect on such date.
"Alternate Currency": any Currency (other than Dollars).
"Alternate Currency Bid Loan": each Bid Loan denominated in
an Alternate Currency.
"Alternate Currency Equivalent": on any date of determination
thereof, the amount, as determined by the Administrative Agent, of the relevant
Alternate Currency which could be purchased with the amount of Dollars involved
in such computation at the spot rate at which such Alternate Currency may be
exchanged into Dollars as set forth on such date on Dow Jones Telerate pages
262, 264, 265, 266 or 9993 (or any successor pages) or, if such rate does not
appear on such pages, at the arithmetic average of the respective spot exchange
rates therefor notified to the Administrative Agent by the Reference Lenders as
of 11:00 a.m. (London time) on such date for delivery (i) in the case of an
exchange of Canadian Dollars into Dollars, one Core Currency Business Day later
and (ii) in all other cases, two Core Currency Business Days later.
"Alternate Currency Loan": an Alternate Currency Revolving
Credit Loan or an Alternate Currency Bid Loan, as the case may be.
"Alternate Currency Revolving Credit Loan": each Revolving
Credit Loan denominated in Alternate Currency.
"Applicable Fee Percentage": with respect to the Facility
Fee, at all times during which the applicable Pricing Level set forth below is
in effect, the percentage set forth below next to such Pricing Level:
<TABLE>
<CAPTION>
Pricing Level Applicable Fee Percentage
------------- -------------------------
<S> <C>
Pricing Level I .100%
Pricing Level II .125%
Pricing Level III .150%
Pricing Level IV .175%
</TABLE>
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<PAGE> 10
Changes in the Applicable Fee Percentage resulting from a
change in a Pricing Level shall be based upon the Compliance Certificate most
recently delivered pursuant to Section 7.1(a) and shall become effective on the
date such Compliance Certificate is delivered to the Administrative Agent and
the Lenders. Notwithstanding anything to the contrary contained in this
definition, (i) if, at any time and from time to time, the Parent Borrower
shall be in Default of its obligations under Section 7.1(a), Pricing Level IV
shall apply until such Default is cured, and (ii) during the period commencing
on the Effective Date and ending on the date of delivery thereafter of the
first Compliance Certificate pursuant to Section 7.1(a), Pricing Level I shall
apply.
"Applicable Margin": with respect to Eurodollar Advances,
Core Currency Euro Advances and ABR Advances to the extent based on the
Adjusted Eurodollar Rate, in each case at all times during which the applicable
Pricing Level set forth below is in effect, the percentage set forth below next
to such Pricing Level:
<TABLE>
<CAPTION>
Pricing Level Applicable Margin
------------- -----------------
<S> <C>
Pricing Level I .150%
Pricing Level II .175%
Pricing Level III .225%
Pricing Level IV .325%
</TABLE>
Changes in the Applicable Margin resulting from a change in a
Pricing Level shall be based upon the Compliance Certificate most recently
delivered pursuant to Section 7.1(a) and shall become effective on the date
such Compliance Certificate is delivered to the Administrative Agent and the
Lenders. Notwithstanding anything to the contrary contained in this definition,
(i) if, at any time and from time to time, the Parent Borrower shall be in
Default of its obligations under Section 7.1(a), Pricing Level IV shall apply
until such Default is cured, and (ii) during the period commencing on the
Effective Date and ending on the date of delivery thereafter of the first
Compliance Certificate pursuant to Section 7.1(a), Pricing Level I shall apply.
"Assignment": as defined in Section 12.6(b).
"Assignment and Acceptance Agreement": an assignment and
acceptance agreement executed by an assignor and an assignee, substantially in
the form of Exhibit H.
-4-
<PAGE> 11
"Benefited Lender": as defined in Section 12.10(a).
"Bid": an offer by a Lender to make a Bid Loan, substantially
in the form of Exhibit K.
"Bid Accept/Reject Letter": a notification made by a Borrower
or, if such Borrower is a Subsidiary Borrower, the Parent Borrower, on behalf
of such Borrower, pursuant to Section 2.4(d), substantially in the form of
Exhibit L.
"Bid Interest Period": as to any Bid Loan, the period
commencing on the Borrowing Date with respect to such Bid Loan and ending on
the date requested in the Bid Request with respect to such Bid Loan, which
ending date (i) shall be one, two, three, six, nine or twelve months after such
Borrowing Date, in the case of Core Currency Index Rate Bid Loans, and (ii)
shall not be earlier than seven days after such Borrowing Date or later than
360 days after such Borrowing Date, in all other cases; provided, however, that
(a) if any Bid Interest Period would otherwise end on a day which is not a
Business Day or a Core Currency Business Day, as the case may be, such Bid
Interest Period shall be extended to the next succeeding Business Day or Core
Currency Business Day, as the case may be, unless (A) such next succeeding
Business Day or Core Currency Business Day, as the case may be, would be a date
on or after the Commitment Termination Date or such earlier date upon which the
Commitments shall have been voluntarily terminated by the Parent Borrower in
accordance with Section 2.7, in which event such Bid Interest Period shall end
on the next preceding Business Day or Core Currency Business Day, as the case
may be, and (B) in the case of Core Currency Index Rate Bid Loans, the result
of such extension would be to carry such Bid Interest Period into another
calendar month, in which event such Bid Interest Period shall end on the next
preceding Core Currency Business Day, (b) in the case of Core Currency Index
Rate Bid Loans, any Bid Interest Period that begins on the last Core Currency
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Bid Interest Period)
shall end on the last Core Currency Business Day of a calendar month, and (c)
no Bid Interest Period shall end after the Commitment Termination Date or such
earlier date upon which the Commitments shall have been voluntarily terminated
by the Parent Borrower in accordance with Section 2.7. Interest shall accrue
from and including the first day of a Bid Interest Period to, but excluding,
the last day of such Bid Interest Period.
"Bid Loan": each Loan from a Lender to a Borrower made
pursuant to Section 2.4.
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<PAGE> 12
"Bid Rate": as to any Bid made by a Lender pursuant to
Section 2.4(b), (i) with respect to each Core Currency Index Rate Bid Loan, the
applicable Eurodollar Rate or Core Currency Euro Rate, as the case may be,
therefor, plus the fixed margin or spread offered by such Lender with respect
thereto as set forth in such Bid, and (ii) with respect to each other Bid Loan,
the fixed rate of interest offered by such Lender with respect thereto as set
forth in such Bid.
"Bid Request": a request by a Borrower or, if such Borrower
is a Subsidiary Borrower, the Parent Borrower, on behalf of such Borrower, for
Bids, substantially in the form of Exhibit I.
"Borrower Addendum": an Addendum, duly completed and executed
by each of the Parent Borrower and the relevant Subsidiary thereof,
substantially in the form of Exhibit B-1.
"Borrowers": collectively, the Parent Borrower and the
Subsidiary Borrowers.
"Borrowing Date": (i) any Business Day on which (a) the
Lenders make ABR Advances in accordance with a Borrowing Request, or (b) one or
more Lenders make Bid Loans (other than Core Currency Index Rate Bid Loans)
pursuant to Bids which have been accepted by a Borrower, as the case may be, or
(ii) any Core Currency Business Day on which (a) the Lenders make Eurodollar
Advances or Core Currency Euro Advances, as the case may be, in accordance with
a Borrowing Request, or (b) one or more Lenders make Core Currency Index Rate
Bid Loans pursuant to Bids which have been accepted by a Borrower, as the case
may be.
"Borrower Obligations": as defined in Section 11.1.
"Borrowing Request": a request for Revolving Credit Loans,
substantially in the form of Exhibit C.
"Business Day": any day except Saturday, Sunday or a day
which in New York City or New Jersey is a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close.
"Canadian Dollars": freely transferable lawful money of
Canada.
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<PAGE> 13
"Capital Lease Obligations": with respect to any Person,
obligations of such Person with respect to leases which are required to be
capitalized for financial reporting purposes in accordance with GAAP.
"Capital Stock": as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations and
other rights in, or other equivalents (however designated) of, such Person's
equity (however designated), and any rights, warrants or options exchangeable
for, or convertible into, such shares, interests, participations, rights or
other equivalents.
"Capitalization Ratio": as of the last day of any fiscal
quarter of the Parent Borrower, the ratio of (i) Funded Debt on such date to
(ii) Consolidated Capitalization on such date.
"Change of Control": one or both of the following events:
(i) any person or group (other than any one or
more permitted investors) shall have become the beneficial owner of
voting shares entitled to exercise more than 30% of the total power of
all outstanding voting shares of the Parent Borrower (including any
voting shares which are not then outstanding of which such person or
group is deemed the beneficial owner), and, in addition, a change in
the composition of the Managing Person of the Parent Borrower shall
have occurred in which the individuals who constituted the Managing
Person of the Parent Borrower at the beginning of the two year period
immediately preceding such change (together with any other director
whose election by the Managing Person of the Parent Borrower or whose
nomination for election by the shareholders of the Parent Borrower was
approved by a vote of at least two-thirds of the members of such
Managing Person then in office who either were members of such Managing
Person at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to
constitute a majority of the members of such Managing Person then in
office; and
(ii) any person or group (other than any one or
more permitted investors) shall have become the beneficial owner of
voting shares entitled to exercise more than 50% of the total power of
all outstanding voting shares of the Parent Borrower (including any
voting shares which are not then outstanding of which such person or
group is deemed the beneficial owner).
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<PAGE> 14
For purposes of this definition, (a) the terms "person" and
"group" shall have the respective meanings ascribed thereto in Sections 13(d)
and 14(d)(2) of the Exchange Act, (b) the term "beneficial owner" shall have
the meaning ascribed thereto in Rule 13d-3 under the Exchange Act, (c) the term
"permitted investors" shall mean Edmund A. Stanley, Jr., Thomas O. Stanley
and/or any one or more of their respective family members, and (d) the term
"voting shares" shall mean all outstanding shares of any class or classes
(however designated) of Capital Stock of the Parent Borrower entitled to vote
generally in the election of members of the Managing Person thereof.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's
undertaking during the Commitment Period to make Revolving Credit Loans,
subject to the terms and conditions hereof, in an aggregate outstanding
principal amount not exceeding the Commitment Amount of such Lender.
"Commitment Amount": as of any date and with respect to any
Lender, the amount set forth adjacent to its name under the heading "Commitment
Amount" in Exhibit A on such date or, in the event that such Lender is not
listed in Exhibit A, the "Commitment Amount" which such Lender shall have
assumed from another Lender in accordance with Section 12.6 on or prior to such
date, in each case as the same may be adjusted from time to time pursuant to
Sections 2.7 and 12.6.
"Commitment Percentage": as to any Lender in respect of such
Lender's Commitment, the percentage equal to such Lender's Commitment Amount
divided by the Aggregate Commitment Amount (or, if no Commitments then exist,
the percentage equal to such Lender's Commitment Amount on the last day upon
which Commitments did exist divided by the Aggregate Commitment Amount on such
day).
"Commitment Period": the period commencing on the Effective
Date and ending on the Commitment Termination Date, or such earlier date upon
which the Commitments shall have been terminated in accordance herewith.
"Commitment Termination Date": July 5, 2002, as the same may
be extended from time to time in accordance with Section 2.11.
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<PAGE> 15
"Compliance Certificate": a certificate substantially in the
form of Exhibit E.
"Consolidated": the Parent Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP.
"Consolidated Capitalization": as of the last day of any
fiscal quarter of the Parent Borrower, total stockholder's equity of the Parent
Borrower and its Subsidiaries, determined on a Consolidated basis in accordance
with GAAP, on such date plus Funded Debt on such date.
"Consolidated EBITDA": for any period, net income of the
Parent Borrower and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP, for such period, plus the sum of, without duplication, of
each of the following with respect to the Parent Borrower and its Subsidiaries,
to the extent utilized in determining such net income: (i) all interest
expense, (ii) provision for income taxes, and (iii) depreciation, amortization
and other non-cash charges, provided, however, that, for purposes of this
definition, extraordinary gains and losses from sales, exchanges and other
dispositions of Property not in the ordinary course of business, and other
non-recurring items, shall be excluded to the extent utilized in determining
such net income.
"Contingent Obligation": as to any Person ( a "secondary
obligor"), any obligation of such secondary obligor (i) guaranteeing or in
effect guaranteeing any return on any investment made by another Person, or
(ii) guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend
or other obligation (a "primary obligation") of any other Person (a "primary
obligor") in any manner, whether directly or indirectly, including any
obligation of such secondary obligor, whether contingent, (a) to purchase any
primary obligation or any Property constituting direct or indirect security
therefor, (b) to advance or supply funds (A) for the purchase or payment of any
primary obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of a primary
obligor, (c) to purchase Property, securities or services primarily for the
purpose of assuring the beneficiary of any primary obligation of the ability of
a primary obligor to make payment of a primary obligation, (d) otherwise to
assure or hold harmless the beneficiary of a primary obligation against loss in
respect thereof, and (e) in respect of the liabilities of any partnership in
which a secondary obligor is a general partner, except to the extent that such
liabilities of such partnership are nonrecourse to such secondary obligor and
its separate Property, provided, however, that the term "Contingent Obligation"
shall not include the indorsement of instruments for deposit
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<PAGE> 16
or collection in the ordinary course of business. The amount of any Contingent
Obligation of a Person shall be deemed to be an amount equal to the stated or
determinable amount of a primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith.
"Continuing Lenders": as defined in Section 2.11.
"Control Person": as defined in Section 3.5.
"Conversion Date": any date on which (i) a Eurodollar Advance
is converted to an ABR Advance or a new Eurodollar Advance, as the case may be,
(ii) an ABR Advance is converted to a Eurodollar Advance, or (iii) a Core
Currency Euro Advance is converted to a new Core Currency Euro Advance, as the
case may be.
"Core Currency": any Currency other than a Non-Core Currency.
"Core Currency Business Day": with respect to any Currency,
any Business Day which is a day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England and which is not a
legal holiday or a day on which banking institutions are authorized or required
by law or other government action to close in the national jurisdiction in
which the Agent Payment Office with respect to such Currency is located or, if
there is no such Agent Payment Office, the national jurisdiction of which such
Currency is the freely transferable lawful money.
"Core Currency Euro Advances": the Revolving Credit Loans (or
any portions thereof) at such time as they (or such portions) are made and/or
being maintained in a Core Currency (other than Dollars) at a rate of interest
based upon the applicable Core Currency Euro Rate.
"Core Currency Euro Rate": with respect to each Core Currency
Euro Advance and each Core Currency Index Rate Bid Loan not denominated in
Dollars, a rate of interest per annum, as determined by the Administrative
Agent, obtained by dividing (and then rounding to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
(a)(i) the rate per annum for deposits having a
maturity most nearly comparable to the Euro Interest Period in respect of such
Core Currency Euro Advance or the Bid Interest Period in respect of such Core
Currency Index Rate Bid Loan, as the case
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<PAGE> 17
may be, in the applicable Core Currency which appears on page 3750 of the Dow
Jones Telerate Screen (or any successor page) as of 11:00 a.m. London time on
the date which is two Core Currency Business Days prior to the first day of
such Euro Interest Period or such Bid Interest Period, as the case may be, (ii)
if such rate does not appear on page 3750 of the Dow Jones Telerate Screen (or
any successor page), the rate per annum equal to the arithmetic average (and
then rounding to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%,
then to the next higher 1/16 of 1%) of the respective offered quotations
notified to the Administrative Agent by the Reference Lenders, in each case as
quoted by such Reference Lender at approximately 11:00 a.m. London time (or as
soon thereafter as practicable) on the date which is two Core Currency Business
Days prior to the first day of such Euro Interest Period or such Bid Interest
Period, as the case may be, to leading banks in the interbank eurocurrency
market as the rate at which such Reference Lender is offering deposits in such
Core Currency in an amount approximately equal to its Commitment Percentage of
such Core Currency Euro Advance or the principal amount of such Core Currency
Index Rate Bid Loan, as the case may be, and having a period to maturity
approximately equal to such Euro Interest Period or such Bid Interest Period,
as the case may be, or (iii) to the extent required by Section 3.8, the rate
per annum equal to the arithmetic average of the respective rates reported to
the Administrative Agent by the Reference Lenders, in each case as the rate
determined by such Reference Lender to be reflective of the all-in cost of
funds of such Reference Lender to fund such Core Currency Euro Advance in an
amount approximately equal to its Commitment Percentage of such Core Currency
Euro Advance and having a period to maturity approximately equal to such Euro
Interest Period, by
(b) a number equal to 1.00 minus the aggregate
of the then stated maximum rates during such Euro Interest Period or such Bid
Interest Period, as the case may be, of all reserve requirements (including
marginal, emergency, supplemental and special reserves), expressed as a decimal,
established by the Board of Governors of the Federal Reserve System and any
other United States banking authority to which Fleet and other major United
States money center banks are subject in respect of eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D), without
benefit of credits for proration, exceptions or offsets which may be available
from time to time to Fleet.
"Core Currency Index Rate Bid Loan": any Bid Loan denominated
in a Core Currency which is designated as a "Core Currency Index Rate Bid Loan"
in the Bid applicable thereto.
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<PAGE> 18
"Credit Party": each Borrower and each other party (other
than the Agents and the Lenders) to a Loan Document.
"Currencies": collectively, Dollars, French Francs, German
Marks, Sterling Pounds, and the Non-Core Currencies.
"Currency Addendum": an Addendum, duly completed and executed
by the Parent Borrower, substantially in the form of Exhibit B-2.
"Default": any event or condition which constitutes an Event
of Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"Disposition": with respect to any Person, any sale,
assignment, transfer or other disposition by such Person, by any means, of (i)
the Capital Stock of any other Person, (ii) any business, going concern or
division or segment thereof, or (iii) any other Property of such Person other
than in the ordinary course of business, provided, however, that no such sale,
assignment, transfer or other disposition of Property (other than inventory,
except to the extent subject to a bulk sale) shall be deemed to be in the
ordinary course of business if it is the sale, assignment, transfer or
disposition of (a) all or substantially all of the Property of such Person, or
(b) any Operating Entity.
"Dollar Bid Loan": each Bid Loan denominated in Dollars.
"Dollar Equivalent": on any date of determination thereof,
the amount, as determined by the Administrative Agent, of Dollars which could
be purchased with the amount of the relevant Alternate Currency involved in
such computation at the spot rate at which Dollars may be exchanged into such
Alternate Currency as set forth on such date on Dow Jones Telerate pages 262,
264, 265, 266 or 9993 (or any successor pages) or, if such rate does not appear
on such pages, at the arithmetic average of the respective spot exchange rates
therefor notified to the Administrative Agent by the Reference Lenders as of
11:00 a.m. (London time) on such date for delivery (i) in the case of an
exchange of Dollars into Canadian Dollars, one Core Currency Business Day later
and (ii) in all other cases, two Core Currency Business Days later.
"Dollar Revolving Credit Loan": as defined in Section
2.1(a)(ii).
"Dollars" and "$": lawful currency of the United States.
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<PAGE> 19
"Domestic Borrower": any Borrower which is organized under
the laws of the United States or any State thereof and which has its principal
place of business in the United States.
"Domestic Subsidiary": any Subsidiary of the Parent Borrower
which is organized under the laws of the United States or any State thereof.
"Dutch Guilders": freely transferable lawful money of the
Netherlands.
"Effective Date": as defined in Section 12.24.
"Eligible Assignee": as defined in Section 12.6(b).
"Employee Benefit Plan": an employee benefit plan within the
meaning of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Parent Borrower, any of its Subsidiaries or any ERISA Affiliate.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA Affiliate": when used with respect to an Employee
Benefit Plan, ERISA, the PBGC or a provision of the Code pertaining to employee
benefit plans, any Person which is a member of any group of organizations
within the meaning of Sections 414(b) or (c) of the Code (or, solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, Sections 414(m) or (o) of the Code) of which the
Parent Borrower or any of its Subsidiaries is a member.
"Euro Interest Period": with respect to any Eurodollar
Advance or Core Currency Euro Advance requested by any Borrower or, if such
Borrower is a Subsidiary Borrower, the Parent Borrower, on behalf of such
Borrower, the period commencing on the Borrowing Date or Conversion Date, as
the case may be, with respect to such Advance and ending one, two, three, six
or, if made available by all of the Lenders, nine or twelve months thereafter,
as selected by such Borrower or, if such Borrower is a Subsidiary Borrower, the
Parent Borrower, on behalf of such Borrower, in the applicable Borrowing
Request or Notice of Conversion, as the case may be, therefor, provided,
however, that (i) if any Euro Interest Period would otherwise end on a day
which is not a Core Currency Business Day, such Euro Interest Period shall be
extended to the next succeeding Core
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<PAGE> 20
Currency Business Day unless (A) such next succeeding Core Currency Business
Day would be a date on or after the Commitment Termination Date or such earlier
date upon which the Commitments shall have been voluntarily terminated by the
Parent Borrower in accordance with Section 2.7, in which event such Euro
Interest Period shall end on the next preceding Core Currency Business Day, or
(B) the result of such extension would be to carry such Euro Interest Period
into another calendar month, in which event such Euro Interest Period shall end
on the immediately preceding Core Currency Business Day, (ii) any Euro Interest
Period that begins on the last Core Currency Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Euro Interest Period) shall end on the last
Core Currency Business Day of a calendar month and (iii) no Euro Interest
Period shall end after the Commitment Termination Date or such earlier date
upon which the Commitments shall have been voluntarily terminated by the Parent
Borrower in accordance with Section 2.7. Interest shall accrue from and
including the first day of a Euro Interest Period to, but excluding, the last
day of such Euro Interest Period.
"Eurodollar Advances": the Revolving Credit Loans (or any
portions thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Eurodollar Advance and
each Core Currency Index Rate Bid Loan denominated in Dollars, a rate of
interest per annum, as determined by the Administrative Agent, obtained by
dividing (and then rounding to the nearest 1/16 of 1% or, if there is no nearest
1/16 of 1%, then to the next higher 1/16 of 1%):
(a)(i) the rate per annum for deposits having a
maturity most nearly comparable to the Euro Interest Period in respect of such
Eurodollar Advance or the Bid Interest Period in respect of such Core Currency
Index Rate Bid Loan, as the case may be, in Dollars which appears on page 3750
of the Dow Jones Telerate Screen (or any successor page) as of 11:00 a.m. London
time on the date that is two Core Currency Business Days prior to the first day
of such Euro Interest Period or such Bid Interest Period, as the case may be, or
(ii) if such rate does not appear on page 3750 of the Dow Jones Telerate Screen
(or any successor page), the rate per annum equal to the arithmetic average (and
then rounding to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%,
then to the next higher 1/16 of 1%) of the respective offered quotations
notified to the Administrative Agent by the Reference Lenders, in each case as
quoted by such Reference Lender at approximately 11:00 a.m. London time (or as
soon thereafter as practicable) two Core Currency Business Days prior to the
first day of such Euro Interest Period or such
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<PAGE> 21
Bid Interest Period, as the case may be, to leading banks in the interbank
eurodollar market as the rate at which such Reference Lender is offering Dollar
deposits in an amount approximately equal to its Commitment Percentage of such
Eurodollar Advance or the principal amount of such Core Currency Index Rate
Loan, as the case may be, and having a period to maturity approximately equal
to such Euro Interest Period or such Bid Interest Period, as the case may be,
by
(b) a number equal to 1.00 minus the aggregate
of the then stated maximum rates during such Euro Interest Period or such Bid
Interest Period, as the case may be, of all reserve requirements (including
marginal, emergency, supplemental and special reserves), expressed as a decimal,
established by the Board of Governors of the Federal Reserve System and any
other banking authority to which Fleet and other major United States money
center banks are subject in respect of eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D), without benefit of credits
for proration, exceptions or offsets which may be available from time to time to
Fleet.
"Event of Default": as defined in Section 9.1.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Existing Indebtedness": all Indebtedness under the Existing
Promissory Note and all accrued and unpaid monetary obligations of the Parent
Borrower and its Subsidiaries under the Existing Promissory Note and all
documents, instruments and other agreements executed and delivered in
connection therewith.
"Existing Promissory Note": the Promissory Note, dated March
31, 1997, made by the Parent Borrower to Fleet, as amended.
"Expiration Date": as defined in Section 2.11.
"Extending Lender": with respect to any assignment by a
Non-Extending Lender of its rights and obligations under the Loans Documents
pursuant to Section 2.11(b), any other Lender selected by the Parent Borrower
which is willing to assume such rights and obligations in accordance with such
Section or, to the extent no other Lender shall be so willing, any Eligible
Assignee selected by the Parent Borrower which is so willing.
"Extension Request": as defined in Section 2.11.
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<PAGE> 22
"Facility Fee": as defined in Section 3.2(a).
"Federal Funds Rate": for any day, a rate per annum (expressed
as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%)
equal to the weighted average of the rates on overnight federal funds
transactions with members 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 (i) if the day for
which such rate is to be determined 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 (ii) if
such rate is not so published for any day, the Federal Funds Rate for such day
shall be the average of the quotations for such day on such transactions
received by the Administrative Agent.
"Financial Officer": as to any Person, the chief financial
officer or the treasurer thereof, or any other financial officer thereof
designated by such chief financial officer.
"Financial Statements": as defined in Section 4.13.
"Fixed Rate Loan": any Eurodollar Advance, any Core Currency
Euro Advance or any Bid Loan, as the case may be.
"Fleet": Fleet Bank, National Association.
"French Borrower": any Borrower which is organized under the
laws of, and has its principal office in, France.
"French Francs": freely transferable lawful money of France.
"Funded Debt": at any date of determination, an amount equal
to the sum, without duplication, of each of the following: (i) the aggregate
funded indebtedness for borrowed money on such date of the Parent Borrower and
its Subsidiaries, determined on a Consolidated basis in accordance with GAAP,
plus (ii) the aggregate Capital Lease Obligations on such date of the Parent
Borrower and its Subsidiaries, determined on a Consolidated basis in accordance
with GAAP, plus (iii) the aggregate guaranty obligations on such date of the
Parent Borrower and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP, solely in respect of any funded indebtedness for borrowed
money or any Capital Lease Obligations.
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<PAGE> 23
"GAAP": generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied.
"German Borrower": any Borrower which is organized under the
laws of, and has its principal office in, Germany.
"German Marks": freely transferable lawful money of Germany.
"Governmental Authority": any foreign, federal, state,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
"Guarantor Obligations": as defined in Section 11.1(a).
"Indebtedness": as to any Person, at a particular time, all
items which constitute, without duplication, (i) indebtedness for borrowed
money, (ii) indebtedness in respect of the deferred purchase price of Property
(other than trade payables incurred in the ordinary course of business), (iii)
indebtedness evidenced by notes, bonds, debentures or similar instruments, (iv)
obligations with respect to any conditional sale or title retention agreement,
(v) indebtedness arising under acceptance facilities and the amount available to
be drawn under all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder to the extent such Person shall
not have reimbursed the issuer in respect of the issuer's payment thereof, (vi)
all liabilities secured by any Lien on any Property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof (other than carriers', warehousemen's, mechanics', repairmen's or other
like non-consensual statutory Liens arising in the ordinary course of business),
(vii) Capital Lease Obligations, and (viii) all Contingent Obligations of such
Person in respect of any of the foregoing.
"Indemnified Liabilities": as defined in Section 12.5.
"Indemnified Person": as defined in Section 12.7.
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<PAGE> 24
"Indemnified Tax": as to any Person, any Tax imposed on such
Person, including any interest, fees or penalties for late payment of such Tax,
provided, however, that, for purposes of this definition, "Indemnified Tax"
shall not include any Tax on the Income imposed on such Person, including any
interest, fees or penalties for late payment of such Tax on the Income.
"Indemnified Tax Person": either Agent or any Lender, as the
case may be.
"Intercompany Disposition": a Disposition by the Parent
Borrower or any of its Subsidiaries to the Parent Borrower or any of its
Subsidiaries.
"Intercompany Indebtedness": loans or advances which are made
by the Parent Borrower or any of its direct or indirect Subsidiaries to the
Parent Borrower or any of its direct or indirect Subsidiaries.
"Interest Payment Date": (i) as to each ABR Advance, the last
day of each March, June, September and December commencing on the first of such
days to occur after such ABR Advance is made or any Eurodollar Advance is
converted to an ABR Advance, (ii) as to each Eurodollar Advance, each Core
Currency Euro Advance and each Bid Loan, the last day of the Euro Interest
Period or the Bid Interest Period, as the case may be, applicable thereto, and,
without duplication, (iii) as to each Eurodollar Advance, each Core Currency
Euro Advance and each Bid Loan in respect of which the Euro Interest Period or
the Bid Interest Period, as the case may be, applicable thereto is greater than
three months or 90 days, as the case may be, the last day of each three month or
90-day, as the case may be, interval occurring during such Euro Interest Period
or Bid Interest Period, as the case may be.
"Investments": as defined in Section 8.6.
"Invitation to Bid": an invitation to make Bids in the form
of Exhibit J.
"Japanese Yen": freely transferable lawful money of Japan.
"Judgment Currency": as defined in Section 12.13.
"Judgment Currency Conversion Date": as defined in Section
12.13.
"Leverage Ratio": at any date of determination, the ratio of
(i) Funded Debt on such date to (ii) Consolidated EBITDA for the period of the
four fiscal quarters of the
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<PAGE> 25
Parent Borrower ending on such date or, if such date is not the last day of a
fiscal quarter of the Parent Borrower, for the period of the immediately
preceding four fiscal quarters of the Parent Borrower.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit or preferential arrangement, encumbrance, lien (statutory or other), or
other security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
capital or financing lease having substantially the same economic effect as any
of the foregoing.
"Loan": a Revolving Credit Loan or a Bid Loan, as the case may
be.
"Loan Documents": collectively, this Agreement and all
agreements, instruments and other documents executed or delivered in connection
with any of the foregoing, including any promissory notes executed and delivered
pursuant to Section 2.12, in each case as amended, supplemented or otherwise
modified from time to time.
"Loans": the Revolving Credit Loans and/or the Bid Loans, as
the case may be.
"Managing Person": with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability company, its board
of control, managing member or members, (iii) a limited partnership, its general
partner, (iv) a general partnership or a limited liability partnership, its
managing partner or executive committee or (v) any other Person, the managing
body thereof or other Person analogous to the foregoing.
"Margin Stock": any "margin stock", as defined in Regulation U
of the Board of Governors of the Federal Reserve System, as amended,
supplemented or otherwise modified from time to time.
"Material Adverse Change": a material adverse change in (i)
the condition (financial or otherwise), operations, business or Property of the
Parent Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the
Credit Parties, taken as a whole, to perform their obligations under the Loan
Documents or (iii) the ability of either Agent or any Lender to enforce any Loan
Document.
"Material Adverse Effect": a material adverse effect on (i)
the condition (financial or otherwise), operations, business or Property of the
Parent Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the
Credit Parties, taken as a whole, to
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<PAGE> 26
perform their obligations under the Loan Documents or (iii) the ability of
either Agent or any Lender to enforce any Loan Document.
"Multiemployer Plan": a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Non-Affiliate": any Person other than (i) the Parent Borrower
or any direct or indirect Subsidiary thereof, (ii) Bowne Williams Lea
International, Inc., (iii) any bank or other financial institution, and (iv) any
Governmental Authority.
"Non-Core Currencies": collectively, Canadian Dollars, Dutch
Guilders, Japanese Yen, Spanish Pesetas, and such other currencies as shall
become Non-Core Currencies in accordance with Section 2.10(b).
"Non-Extending Lender": as defined in Section 2.11.
"Notice of Conversion": a notice substantially in the form of
Exhibit D.
"Obligation Currency": as defined in Section 12.13.
"Operating Entity": any Person or any business or operating
unit of a Person which is, or could be, operated separate and apart from (i) the
other businesses and operations of such Person, or (ii) any other line of
business or business segment.
"Organizational Documents": as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Pension Plan": at any date of determination, any Employee
Benefit Plan (including a Multiemployer Plan) subject to Section 302 of ERISA
or Section 412 of the Code, the funding requirements of which (under such
Section 302 or such Section 412) are, or at any time within the six years
immediately preceding such date, were in whole or
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<PAGE> 27
in part, the responsibility of the Parent Borrower, any of its Subsidiaries or
any ERISA Affiliate.
"Permitted Lien": a Lien permitted to exist under Section 8.2.
"Person": any individual, firm, partnership, limited liability
company, joint venture, corporation, association, business enterprise, joint
stock company, unincorporated association, trust, Governmental Authority or any
other entity, whether acting in an individual, fiduciary or other capacity, and
for the purpose of the definition of "ERISA Affiliate", a trade or business.
"Pricing Level": Pricing Level I, Pricing Level II, Pricing
Level III, or Pricing Level IV, as applicable.
"Pricing Level I": any time when the Leverage Ratio is less
than or equal to 1.50:1.00.
"Pricing Level II": any time when the Leverage Ratio is
greater than 1.50:1.00 but less than or equal to 2.00:1.00.
"Pricing Level III": any time when the Leverage Ratio is
greater than 2.00:1.00 but less than or equal to 2.50:1.00.
"Pricing Level IV": any time when the Leverage Ratio is
greater than 2.50:1.00.
"Prohibited Transaction": a transaction which is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
"Property": all types of real, personal, tangible, intangible
or mixed property.
"Proposed Lender": as defined in Section 3.11.
"Reference Lenders": collectively, Fleet and Bank of Montreal.
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<PAGE> 28
"Regulation D": Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Regulatory Change": (i) the introduction of any law, rule or
regulation after the Relevant Date, (ii) the issuance or promulgation after the
Relevant Date of any directive, guideline or request from any Governmental
Authority (whether or not having the force of law), or (iii) any change after
the Relevant Date in the interpretation of any existing law, rule, regulation,
directive, guideline or request by any Governmental Authority charged with the
administration thereof.
"Relevant Date": (i) in the case of each Lender listed on the
signature pages hereof, the Effective Date and (ii) in the case of each other
Lender, the effective date of the Assignment and Acceptance Agreement or other
document pursuant to which it became a Lender.
"Reportable Event": with respect to any Pension Plan, any
event set forth in Section 4043(b) of ERISA or the regulations thereunder (other
than a Reportable Event as to which the 30 day notice requirement is waived by
the PBGC under applicable regulations).
"Required Lenders": at any time prior to the Commitment
Termination Date, Lenders having Commitment Amounts greater than or equal to 51%
of the Aggregate Commitment Amount and, at all other times, Lenders having Loans
outstanding greater than or equal to 51% of the Aggregate Credit Exposure.
"Required Payment": as defined in Section 3.9.
"Revolving Credit Exposure": with respect to any Lender, as of
any date of determination, the sum as of such date of the outstanding principal
amount of such Lender's Loans (determined, in the case of each Alternate
Currency Loan, on the basis of the Dollar Equivalent thereof).
"Revolving Credit Loan" and "Revolving Credit Loans": as
defined in Section 2.1.
"SEC": the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
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"Spanish Pesetas": freely transferable lawful money of Spain.
"Special Counsel": Emmet, Marvin & Martin, LLP, special
counsel to the Documentation Agent.
"Sterling Borrower": any Borrower which is organized under
the laws of, and has its principal office in, the United Kingdom.
"Sterling Pounds": freely transferable lawful money of the
United Kingdom.
"Subsidiary": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which such Person or any Subsidiary of such Person, directly or indirectly,
either (i) in respect of a corporation, owns or controls more than 50% of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the managing Person thereof, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any contingency, or (ii)
in respect of an association, partnership, limited liability company, joint
venture or other business entity, is entitled to share in more than 50% of the
profits and losses thereof, however determined.
"Subsidiary Borrower Obligations": at any time and with
respect to any Subsidiary Borrower, the principal amount outstanding at such
time of the Loans made to such Subsidiary Borrower, together with all accrued
interest thereon and all other sums due and owing at such time from such
Subsidiary Borrower under the Loan Documents.
"Super-majority Lenders": at any time prior to the Commitment
Termination Date, Lenders having Commitment Amounts greater than 85% of the
Aggregate Commitment Amount and, at all other times, Lenders having Loans
outstanding greater than 85% of the Aggregate Credit Exposure.
"Tax": any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by a
Governmental Authority, on whomsoever and wherever imposed, levied, collected,
withheld or assessed.
"Tax on the Income": as to any Person, a Tax constituting an
income tax or franchise tax on all or part of the net income or net profits of
such Person, or representing interest, fees or penalties for late payment of
such an income tax or such a franchise tax, in each case imposed by one of the
following jurisdictions or by any political subdivision
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or taxing authority thereof: (i) the United States, (ii) the jurisdiction in
which such Person is organized, (iii) the jurisdiction in which such Person's
principal office is located, or (iv) in the case of each Lender, any
jurisdiction in which such Person is deemed to be doing business.
"Termination Event": with respect to any Pension Plan, (i) a
Reportable Event, (ii) the termination of a Pension Plan, or the filing of a
notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan
amendment as a termination under Section 4041(c) of ERISA, (iii) the institution
of proceedings to terminate a Pension Plan under Section 4042 of ERISA, or (iv)
the appointment of a trustee to administer any Pension Plan under Section 4042
of ERISA.
"Unfunded Pension Liabilities": with respect to any Pension
Plan, at any date of determination, the amount determined by taking the
accumulated benefit obligation, as disclosed in accordance with Statement of
Accounting Standards No. 87, "Employers' Accounting for Pensions", over the fair
market value of Pension Plan assets.
"United States": the United States of America (including the
States thereof and the District of Columbia).
"Unrecognized Retiree Welfare Liability": with respect to any
Employee Benefit Plan that provides postretirement benefits other than pension
benefits, the amount of the transition obligation, as determined in accordance
with Statement of Financial Accounting Standards No. 106, "Employers' Accounting
for Postretirement Benefits Other Than Pensions," as of the most recent
valuation date, that has not been recognized as an expense in an income
statement of the Parent Borrower and its Consolidated subsidiaries, provided
that prior to the date such Statement is applicable to the Parent Borrower, such
amount shall be based on an estimate made in good faith of such transition
obligation.
1.2. Principles of Construction
(a) All terms defined in a Loan Document shall have the
meanings given such terms therein when used in the other Loan Documents or any
certificate, opinion or other document made or delivered pursuant thereto,
unless otherwise defined therein.
(b) As used in the Loan Documents and in any certificate,
opinion or other document made or delivered pursuant thereto, accounting terms
not defined in Section 1.1, and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them
under GAAP. If at any time any change
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<PAGE> 31
in GAAP would affect the computation of any financial ratio or requirement set
forth in this Agreement, the Administrative Agent, the Lenders and the Parent
Borrower shall negotiate in good faith to amend such ratio or requirement to
reflect such change in GAAP (subject to the approval of the Required Lenders),
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Parent Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
(c) The words "hereof", "herein", "hereto" and
"hereunder" and similar words when used in a Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof, and
Section, schedule and exhibit references contained therein shall refer to
Sections thereof or schedules or exhibits thereto unless otherwise expressly
provided therein.
(d) The phrase "may not" is prohibitive and not
permissive.
(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to
the contrary, any reference to a time shall refer to such time in New York.
(g) Unless specifically provided in a Loan Document to
the contrary, in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
(h) The words "include" and "including", when used in
each Loan Document, shall mean that the same shall be included "without
limitation", unless otherwise expressly provided therein.
2. AMOUNT AND TERMS OF LOANS
2.1. Revolving Credit Loans
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(a) Subject to the terms and conditions hereof, each
Lender severally agrees from time to time during the Commitment Period to make
revolving credit loans to one or more of the Borrowers in the Core Currencies
(each a "Revolving Credit Loan" and, as the context may require, collectively
with all other Revolving Credit Loans of such Lender and with the Revolving
Credit Loans of all other Lenders, the "Revolving Credit Loans"), provided,
however, that:
(i) immediately after giving effect thereto, (A)
the Aggregate Credit Exposure shall not exceed the Aggregate
Commitment Amount, and (B) with respect to each Lender, such
Lender's Revolving Credit Exposure shall not exceed such
Lender's Commitment Amount, and
(ii) such Revolving Credit Loan, (A) if to be
made in Dollars (each a "Dollar Revolving Credit Loan"), shall
be made to any Borrower, (B) if to be made in French Francs,
shall be made to a French Borrower or any Domestic Borrower,
(C) if to be made in German Marks, shall be made to a German
Borrower or any Domestic Borrower, and (D) if to be made in
Sterling Pounds, shall be made to a Sterling Borrower or any
Domestic Borrower.
During the Commitment Period, the Borrowers may borrow, prepay in whole or in
part and reborrow Revolving Credit Loans under the Commitments, all in
accordance with the terms and conditions of this Agreement.
(b) Subject to the provisions of Sections 2.3 and 3.3,
Dollar Revolving Credit Loans may be made as (i) one or more ABR Advances, (ii)
one or more Eurodollar Advances, or (iii) a combination thereof. Each Revolving
Credit Loan, together with all accrued and unpaid interest thereon, shall mature
and be due and payable on the Commitment Termination Date or such earlier date
upon which the Commitments shall have been terminated in accordance herewith.
2.2. Minimum Amount of Each Borrowing
(a) Notwithstanding anything to the contrary contained
herein, (i) each ABR Advance made on a Borrowing Date shall not be less than
$1,000,000 or such amount plus a whole multiple of $1,000,000 in excess thereof,
(ii) each Eurodollar Advance made on a Borrowing Date, when aggregated with all
amounts to be converted to a Eurodollar Advance on such date and having the same
Euro Interest Period as such first Eurodollar Advance shall not be less than
$5,000,000 or such amount plus a whole mul-
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<PAGE> 33
tiple of $1,000,000 in excess thereof, and (iii) each Core Currency Euro Advance
made on a Borrowing Date, when aggregated with all amounts to be converted to a
Core Currency Euro Advance on such date and having the same Euro Interest
Period, and being denominated in the same Currency, as such first Core Currency
Euro Advance shall not be less than an amount in such Currency having a Dollar
Equivalent of approximately $5,000,000 or such amount plus an amount in such
Currency having a Dollar Equivalent of a whole multiple of approximately
$1,000,000 in excess thereof.
(b) At no time shall the aggregate outstanding number
(whether as a result of borrowings or conversions), of (i) all Eurodollar
Advances exceed ten and (ii) all Core Currency Euro Advances exceed ten, in each
case unless otherwise agreed to by the Administrative Agent.
2.3. Borrowing Request - Revolving Credit Loans
(a) Whenever a Borrower desires to borrow Revolving
Credit Loans hereunder, such Borrower or, if such Borrower is a Subsidiary
Borrower, the Parent Borrower, on behalf of such Borrower, shall notify the
Administrative Agent, which notice shall be irrevocable, no later than (i) 10:00
a.m. on the proposed Borrowing Date, in the case of ABR Advances, and (ii) 11:00
a.m. three Core Currency Business Days prior to the proposed Borrowing Date, in
the case of Eurodollar Advances and Core Currency Euro Advances, specifying (A)
the proposed Borrowing Date, (B) whether the borrowing is to be of one or more
ABR Advances, one or more Eurodollar Advances, one or more Core Currency Euro
Advances, or a combination thereof, and the amount of each thereof (stated in
the applicable Currency), and (C) the Euro Interest Period for each Eurodollar
Advance and each Core Currency Euro Advance, which notice shall be promptly
confirmed by delivery to the Administrative Agent of a Borrowing Request. The
Administrative Agent shall promptly notify each Lender (by telephone or
otherwise, such notice to be confirmed by facsimile or other writing) of such
borrowing request.
2.4. Bid Loans; Procedure
(a) Each Borrower may, provided that no Default shall
have occurred and be continuing, request Bids for one or more Bid Loans
denominated in any Currency during the Commitment Period by delivering, or, if
such Borrower is a Subsidiary Borrower, causing the Parent Borrower to deliver,
on behalf of such Borrower, by hand or facsimile to the Administrative Agent a
duly completed Bid Request not later than 12:00 noon, (i) four Core Currency
Business Days, in the case of Core Currency Index Rate Bid Loans, and (ii) two
Business Days, in all other cases, before the proposed Borrowing Date
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therefor. A request for Bids that does not conform substantially to the format
of Exhibit I may be rejected in the Administrative Agent's sole discretion, and
the Administrative Agent shall promptly notify the applicable Borrower and, if
such Borrower is a Subsidiary Borrower, the Parent Borrower of such rejection by
facsimile. Each Bid Request shall specify (A) the amount of each Bid Loan
(stated in the applicable Currency) and, if applicable, its nature as a Core
Currency Index Rate Bid Loan, (B) the proposed Borrowing Date therefor, and (C)
the Bid Interest Period or Bid Interest Periods (which shall not exceed three
different Bid Interest Periods in a single Bid Request), with respect thereto.
Promptly after its receipt of each Bid Request that is not rejected as
aforesaid, the Administrative Agent shall send to each Lender an Invitation to
Bid, appropriately completed by the Administrative Agent with reference to such
Bid Request.
(b) Each Lender may, in its sole and absolute discretion,
make one or more Bids in response to an Invitation to Bid. Each Bid by a Lender
must be received by the Administrative Agent not later than 9:30 a.m., (i) three
Core Currency Business Days, in the case of Core Currency Index Rate Bid Loans,
and (ii) one Business Day, in all other cases, before the proposed Borrowing
Date for a proposed Bid Loan. Bids to make Bid Loans that do not conform
substantially to the format of Exhibit K may be rejected by the Administrative
Agent after conferring with, and upon the instruction of, the applicable
Borrower or, if such Borrower is a Subsidiary Borrower, the Parent Borrower, and
the Administrative Agent shall notify the Lender making such nonconforming bid
of such rejection as soon as practicable. Each Bid shall be irrevocable and
shall specify (A) whether the Bid Loan that the Lender is willing to make to the
applicable Borrower is to be a Core Currency Index Rate Bid Loan, (B) the amount
(stated in the applicable Currency and which (1) shall be in a minimum principal
amount of $1,000,000 or such amount plus a whole multiple of $100,000 in excess
thereof (or, in the case of Alternate Currency Bid Loans, an amount in the
applicable Alternate Currency having a Dollar Equivalent of approximately
$1,000,000 or such amount plus an amount in the applicable Alternate Currency
having a Dollar Equivalent of a whole multiple of approximately $100,000 in
excess thereof), and (2) may equal the entire principal amount requested by such
Borrower) of such Bid Loan, (C) the Bid Rate with respect to such Bid Loan, and
(D) the Bid Interest Period with respect to such Bid Loan and the last day
thereof. If any Lender shall elect not to make a Bid, such Lender shall so
notify the Administrative Agent by facsimile not later than not later than 9:30
a.m., (I) three Core Currency Business Days, in the case of Core Currency Index
Rate Bid Loans, and (II) one Business Day, in all other cases, before the
proposed Borrowing Date therefor, provided, however, that the failure by any
Lender to give any such notice shall not obligate such Lender to make any Bid
Loan in connection with the relevant Bid Request.
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(c) With respect to each Invitation to Bid sent to the
Lenders, the Administrative Agent shall (i) promptly notify the applicable
Borrower and, if such Borrower is a Subsidiary Borrower, the Parent Borrower by
facsimile of each Bid made, the amount (stated in the applicable Currency) of
the Bid Loan offered thereby and its nature, if applicable, as a Core Currency
Index Rate Loan, the Bid Rate applicable thereto, and the identity of the Lender
that made such Bid, and (ii) send a list of all Bids to such Borrower and, if
such Borrower is a Subsidiary Borrower, the Parent Borrower for their respective
records as soon as practicable after completion of the bidding process. Each
notice and list sent by the Administrative Agent pursuant to this Section 2.4(c)
shall list the Bids in ascending yield order.
(d) The applicable Borrower may in its sole and absolute
discretion, subject only to the provisions of this Section 2.4(d), accept or
reject any Bid made in accordance with the procedures set forth in this Section
2.4, and such Borrower or, if such Borrower is a Subsidiary Borrower, the Parent
Borrower, on behalf of such Borrower, shall notify the Administrative Agent by
telephone, confirmed by facsimile in the form of a Bid Accept/Reject Letter,
whether and to what extent it has decided to accept or reject any or all of such
Bids, not later than 10:30 a.m., (i) three Core Currency Business Days, in the
case of Core Currency Index Rate Loans, and (ii) one Business Day, in all other
cases, before the proposed Borrowing Date therefor, provided, however, that the
failure by such Borrower or the Parent Borrower, on behalf of such Borrower, as
the case may be, to give such notice shall be deemed to be a rejection of all
such Bids. In connection with each acceptance of one or more Bids by such
Borrower:
(A) such Borrower shall not accept a Bid made at a
particular Bid Rate if it has decided to reject any other Bid made at a
lower Bid Rate and having the same Bid Interest Period as such Bid,
(B) the aggregate amount of the Bids accepted by such
Borrower shall not exceed the principal amount specified in the Bid
Request therefor (determined, in the case of each Alternate Currency
Bid Loan, on the basis of the Dollar Equivalent thereof),
(C) if such Borrower shall desire to accept a Bid made at
a particular Bid Rate and having a particular Bid Interest Period, it
must accept all other Bids made at such Bid Rate and having such Bid
Interest Period, provided, however, that if the acceptance of all such
other Bids would cause the aggregate amount of all such accepted Bids
to exceed the amount requested (determined, in the case of each
Alternate Currency Bid Loan, on the basis of the Dollar Equivalent
thereof),
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then such acceptance shall be made pro rata in accordance with the
amount of each such Bid at such Bid Rate and having such Bid Interest
Period, and
(D) except pursuant to Section 2.4(d)(C), no Bid shall be
accepted unless the Bid Loan with respect thereto shall be in (1) a
minimum principal amount of $1,000,000, or such amount plus a whole
multiple of $100,000 in excess thereof (or, in the case of Alternate
Currency Bid Loans, an amount in the applicable Alternate Currency
having a Dollar Equivalent of approximately $1,000,000, or such amount
plus an amount in the applicable Alternate Currency having a Dollar
Equivalent of a whole multiple of approximately $100,000 in excess
thereof), or (2) if less, an aggregate principal amount equal to the
excess of the Aggregate Commitment Amount over the outstanding
principal amount of all Loans (determined, in the case of each
Alternate Currency Bid Loan, on the basis of the Dollar Equivalent
thereof).
(e) The Administrative Agent shall promptly notify each
bidding Lender whether or not each Bid of such Lender has been accepted (and, if
so, in what amount) by facsimile sent by the Administrative Agent, and, if such
Bid has been accepted by the applicable Borrower, in whole or in part, such
bidding Lender shall, after its receipt of such notice, make funds available in
respect of such Bid in accordance with Section 2.5(b). Notwithstanding anything
to the contrary contained herein, no Lender shall be obligated to make a Bid
Loan if, immediately after making such Bid Loan, the Aggregate Credit Exposure
would exceed the Aggregate Commitment Amount.
(f) A Bid Request in respect of any Currency shall not be
made within five Business Days or five Core Currency Business Days, as the case
may be, after the date of any previous Bid Request in respect of such Currency,
unless the applicable Borrower has accepted one or more Bids pursuant to a Bid
Request in respect of such Currency made within such five Business Days or five
Core Currency Business Days, as the case may be.
(g) If the Administrative Agent shall elect to submit a
Bid in its capacity as a Lender, it shall submit such bid directly to the
applicable Borrower and, if such Borrower is a Subsidiary Borrower, the Parent
Borrower fifteen minutes earlier than the latest time at which the other Lenders
are required to submit their bids to the Administrative Agent pursuant to
Section 2.4(b).
(h) All notices required by this Section 2.4 shall be
given in accordance with Section 12.2.
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(i) Each Bid Loan shall be due and payable on the last
day of the Bid Interest Period applicable thereto.
2.5. Disbursement of Funds
(a) Revolving Credit Loans. No later than 12:00 noon
(local time in the city in which the proceeds thereof are to be made available
in accordance with the terms hereof, in the case of an Alternate Currency
Revolving Credit Loan, and New York City time, in the case of a Dollar Revolving
Credit Loan) on the Borrowing Date specified in the Borrowing Request therefor,
each Lender will make available its Commitment Percentage of the Revolving
Credit Loans requested to be made on such Borrowing Date in the applicable
Currencies. All such Revolving Credit Loans shall be made available in
immediately available funds at the applicable Agent Payment Office, and the
Administrative Agent will make available to the applicable Borrower at such
Agent Payment Office, in the applicable Currencies, and in immediately available
funds, the aggregate of the amounts so made available by the Lenders prior to
2:00 p.m. (local time in the city in which the proceeds thereof are to be made
available in accordance with the terms hereof, in the case of an Alternate
Currency Revolving Credit Loan, and New York City time, in the case of a Dollar
Revolving Credit Loan) on such Borrowing Date and to the extent of funds
actually received by the Administrative Agent.
(b) Bid Loans. Subject to Section 2.4(e), with respect to
any Bid of any Lender, if such Lender shall have received notice from the
Administrative Agent in accordance with such Section that such Bid has been
accepted by the applicable Borrower, and if such Bid has been accepted by such
Borrower, in whole or in part, then such Lender shall make immediately available
funds in the applicable Currency and in the amount in which such Bid was so
accepted available, (i) in the case of Dollar Bid Loans, to the Administrative
Agent at the applicable Agent Payment Office, and (ii) in the case of Alternate
Currency Bid Loans, (A) directly to such Borrower, or (B) upon the occurrence
and during the continuance of an Event of Default, if directed by the Required
Lenders and with the consent of the Administrative Agent, to the Administrative
Agent at the applicable Agent Payment Office, in each case no later than 12:00
noon (local time in the city in which such funds are to be made available in
accordance with the terms hereof) on the proposed Borrowing Date. The
Administrative Agent will make available to such Borrower at the applicable
Agent Payment Office, in the applicable Currency, and in immediately available
funds, the aggregate of the amount so made available by such Lender prior to
2:00 p.m. (such local time) on such Borrowing Date and to the extent of funds
actually received by the Administrative Agent.
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(c) Failure to Fund. Unless the Administrative Agent
shall have received prior notice from a Lender (by telephone or otherwise, such
notice to be confirmed by facsimile or other writing) that such Lender will not
make available to the Administrative Agent the amount of (i) such Lender's
Commitment Percentage of the Revolving Credit Loans to be made on a Borrowing
Date or (ii) to the extent required by Section 2.5(b), any Bid Loan to be made
on a Borrowing Date, as the case may be, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent on
such Borrowing Date, provided that such Lender received notice thereof from the
Administrative Agent in accordance with the terms hereof, and the Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower on such Borrowing Date a corresponding amount. If and to the extent
such Lender shall not have so made such amount available to the Administrative
Agent, such Lender and such Borrower severally agree to pay to the
Administrative Agent, forthwith on demand, such corresponding amount (to the
extent not previously paid by the other), together with interest thereon for
each day from the date such amount is made available to such Borrower until the
date such amount is paid to the Administrative Agent, at a rate per annum equal
to, in the case of such Borrower, the applicable interest rate set forth in
Section 3.1 and, in the case of such Lender, the Federal Funds Rate (or, in the
case of each Alternate Currency Loan, a rate determined by the Administrative
Agent to be reflective of the all- in cost of funds of the Administrative Agent
to fund such Alternate Currency Loan). Any such payment by such Borrower shall
be without prejudice to its rights against such Lender. If such Lender shall pay
to the Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Revolving Credit Loan as part of such Revolving Credit
Loans, or such Lender's Bid Loan, as the case may be, for purposes of this
Agreement, which Revolving Credit Loan or Bid Loan, as the case may be, shall be
deemed to have been made by such Lender on the applicable Borrowing Date.
(d) Borrower Accounts. Each Loan made to a Borrower shall
be made to its applicable payment account specified on Exhibit P or the Borrower
Addendum, if any, executed and delivered with respect to such Borrower pursuant
to Section 2.10, as the case may be, or such other account which it may from
time to time specify by written notice to the Administrative Agent and the
Lenders.
2.6. Payments
(a) Loans and Fees. Except as otherwise specifically
provided herein, each payment, including each prepayment, of principal and
interest on the Loans and the
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Facility Fee shall be made by the Borrowers to the Administrative Agent at the
applicable Agent Payment Office in funds immediately available to the
Administrative Agent at such office by 12:00 noon (local time in the city in
which such Agent Payment Office is located) on the due date for such payment,
provided, however, that unless an Event of Default has occurred and is
continuing and the Required Lenders have directed the Administrative Agent and
the Borrowers to the contrary, and the Administrative Agent shall have consented
thereto, each payment, including each prepayment, of principal and interest on
the Alternate Currency Bid Loans shall be made directly by the applicable
Borrower to the applicable Lender by 12:00 noon (local time in the city in which
such payment is to be made in accordance with the terms hereof), and such Lender
and such Borrower or, if such Borrower is a Subsidiary Borrower, the Parent
Borrower, on behalf of such Borrower, shall promptly notify the Administrative
Agent of the date and amount of such payment. Subject to Section 9.2(b),
promptly upon receipt by the Administrative Agent of each payment, including
each prepayment, pursuant to this Section, the Administrative Agent shall remit
such payment in like funds as received as follows: (i) in the case of the
Facility Fee, to each Lender according to its Commitment Percentage, and (ii) in
the case of principal and interest on the Loans, to each Lender pro rata
according to the amount of principal or interest, as the case may be, which is
then due and payable.
(b) Late Payments. The failure of the applicable Borrower
to make any such payment by such time shall not constitute a default hereunder,
provided that such payment is made on such due date, but any such payment made
after 2:00 p.m. (local time in the city in which such payment is to be made in
accordance with the terms hereof) on such due date shall be deemed to have been
made on the next Business Day or Core Currency Business Day, as the case may be,
for the purpose of calculating interest on amounts outstanding on the applicable
Loans.
(c) Alternate Currencies. Notwithstanding anything to the
contrary contained in any Loan Document, each payment (including each
prepayment) of principal and interest on each Alternate Currency Loan shall be
made solely in the Currency in which such Alternate Currency Loan is
denominated.
(d) Extension of Due Dates. If any payment hereunder or
under the Loans shall be due and payable on a day which is not a Business Day or
a Core Currency Business Day, as the case may be, the due date thereof (except
as otherwise provided herein) shall be extended to the next Business Day or Core
Currency Business Day, as the case may be, and (except with respect to payments
in respect of the Facility Fee) interest shall be payable at the applicable rate
specified herein during such extension.
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2.7. Termination or Reduction of Commitments
(a) Voluntary Reductions. Except as otherwise provided in
Section 2.11(b), the Parent Borrower shall have the right, upon at least three
Business Days' prior written notice to the Administrative Agent, (i) at any time
when there shall be no Loans outstanding, to terminate the Commitments of all
Lenders, or (ii) at any time and from time to time when the Aggregate Commitment
Amount shall exceed the aggregate outstanding principal amount of all Loans
(determined, in the case of each Alternate Currency Loan, on the basis of the
Dollar Equivalent thereof), to reduce permanently the Aggregate Commitment
Amount by a sum not greater than the amount of such excess, provided, however,
that each partial reduction shall be in an amount equal to $5,000,000 or such
amount plus a whole multiple of $1,000,000 in excess thereof.
(b) In General. Except as otherwise provided in Section
2.11(b), each reduction of the Aggregate Commitment Amount shall be made by
reducing each Lender's Commitment Amount by a sum equal to such Lender's
Commitment Percentage of the amount of such reduction.
2.8. Prepayments of the Loans
(a) Voluntary Prepayments. Each Borrower may, at its
option, prepay the Revolving Credit Loans made to such Borrower, without premium
or penalty (but subject to Section 3.4), in full at any time or in part from
time to time, in each case by notifying, or, if such Borrower is a Subsidiary
Borrower, causing the Parent Borrower, on behalf of such Borrower, to notify,
the Administrative Agent in writing at least one Business Day, in the case of a
prepayment of an ABR Advance, and three Core Currency Business Days, in the case
of a prepayment of a Eurodollar Advance or a Core Currency Euro Advance, in each
case prior to the proposed prepayment date, specifying, with respect to each
Advance to be prepaid, the amount to be prepaid (stated in the applicable
Currency) and the date of prepayment. Each such notice given by a Borrower or
the Parent Borrower, on behalf of such Borrower, as the case may be, pursuant to
this Section 2.8(a) shall be irrevocable. Upon receipt of each such notice, the
Administrative Agent shall promptly notify each Lender thereof. Each partial
prepayment pursuant to this Section 2.8(a) shall be (i) in the case of ABR
Advances, in a minimum amount of $1,000,000 or such amount plus a whole multiple
of $1,000,000 in excess thereof, and (ii) in the case of Eurodollar Advances, in
a minimum amount of $5,000,000 or such amount plus a whole multiple of
$1,000,000 in excess thereof, and (iii) in the case of Core Currency Euro
Advances, in a minimum amount in the applicable Currency having an Alternate
Currency Equivalent of approximately $ 5,000,000 or such amount plus an amount
in the applicable
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Currency having an Alternate Currency Equivalent of a whole multiple of
approximately $1,000,000 in excess thereof. Except as otherwise permitted by
Sections 2.8(b) or 3.7, no Borrower shall, or shall be permitted to, prepay any
Bid Loan without the prior consent of the applicable Lender.
(b) Aggregate Credit Exposure Prepayments. If, on the
last day of any calendar quarter, the Aggregate Credit Exposure shall exceed an
amount equal to 105% of the Aggregate Commitment Amount, then the Borrowers
shall prepay the Loans on such day such that, immediately after giving effect
thereto, the Aggregate Credit Exposure shall not exceed an amount equal to 105%
of the Aggregate Commitment Amount.
(c) In General. Simultaneously with each prepayment
hereunder, the Borrowers shall prepay all accrued and unpaid interest on the
amount prepaid through the date of prepayment.
2.9. Use of Proceeds
Each Borrower agrees that the proceeds of the Loans shall be
used solely, directly or indirectly, (i) to repay the Existing Indebtedness, and
(ii) for the general corporate purposes of the Parent Borrower and its
Subsidiaries, including acquisitions and transaction fees and expenses
(including the Facility Fee). Notwithstanding anything to the contrary contained
in any Loan Document, each Borrower agrees that no part of the proceeds of any
Loan will be used, directly or indirectly, for a purpose which violates any law,
rule or regulation of any Governmental Authority, including the provisions of
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System, as amended.
2.10. Addition and Removal of Subsidiary Borrowers; Addition of
Non-Core Currencies
(a) Addition and Removal of Subsidiary Borrowers
(i) Addition of Subsidiary Borrowers. Provided
that no Default has occurred and is then continuing, the Parent Borrower may
from time to time direct that any of its Subsidiaries which is not then a
Subsidiary Borrower become a Subsidiary Borrower by submitting a Borrower
Addendum to the Administrative Agent with respect to such Subsidiary, together
with (A) a certificate, dated the date of such Borrower Addendum, of the
Secretary or Assistant Secretary of such Subsidiary and substantially in the
form of, and with substantially the same attachments as, the certificate which
would
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have been required under Section 5.1 if such Subsidiary had become a party
hereto on the Effective Date, and (B) an opinion of counsel (including, in the
case of a foreign Subsidiary, an opinion of foreign local counsel) to such
Subsidiary in all respects reasonably satisfactory to the Administrative Agent,
provided that, to the extent that any such certificate, attachment or opinion is
not in English, it shall be accompanied by a certified English translation
thereof. Upon receipt of such Borrower Addendum and all of the supporting items
referred to in clauses (A) and (B) of this Section 2.10(a)(i), the
Administrative Agent shall confirm such Borrower Addendum by signing a copy
thereof and shall deliver a copy thereof to the Parent Borrower and each Lender,
at which time such Subsidiary shall become a "Subsidiary Borrower" hereunder.
(ii) Removal of Subsidiary Borrowers. The Parent
Borrower may from time to time direct that any Subsidiary Borrower cease to be a
Subsidiary Borrower by submitting written notice thereof to the Administrative
Agent. Upon receipt of such notice, the Administrative Agent shall confirm such
notice by signing a copy thereof and shall deliver a copy thereof to the Parent
Borrower and each Lender, at which time such Subsidiary Borrower shall cease to
be a "Subsidiary Borrower" hereunder, provided that, immediately after giving
effect thereto, the Subsidiary Borrower Obligations of such Subsidiary Borrower
shall have been paid in full.
(b) Addition of Non-Core Currencies. Provided that no
Default has occurred and is then continuing, the Parent Borrower may from time
to time request that any currency which is not then a Non-Core Currency become a
Non-Core Currency by submitting a Currency Addendum with respect to such
currency to the Administrative Agent. Upon receipt of such Currency Addendum,
the Administrative Agent shall confirm such Currency Addendum by signing a copy
thereof and shall deliver a copy thereof to the Parent Borrower, each Lender and
each Reference Lender. In the event that both Reference Lenders consent (which
consent shall not be unreasonably withheld) to such currency becoming a Non-Core
Currency in a writing delivered to the Administrative Agent and the Parent
Borrower, then such currency shall become a "Non-Core Currency".
2.11. Extension of Commitment Termination Date
(a) Provided that no Default shall exist, the Parent
Borrower may request that the Commitment Termination Date be extended for
additional years (but in no event by more than one year per request) by giving
written notice thereof (each an "Extension Request") to the Administrative Agent
at any time (but in no event more than 120 days but not less than 90 days prior
to the then current Commitment Termination Date)
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and, upon receipt of each such notice, the Administrative Agent shall promptly
notify each Lender thereof. Subject to Section 2.11(b), the then current
Commitment Termination Date shall not be extended unless and until each Lender,
in its sole and absolute discretion, shall have consented in writing to such
request, in which event such then current Commitment Termination Date shall be
extended to the day which is one year after the then current Commitment
Termination Date, provided that if such day is not a Business Day, then such
then current Commitment Termination Date shall be extended to the immediately
preceding Business Day. Subject to Section 2.11(b), in the event that any Lender
shall not have granted its consent to an Extension Request, the then current
Commitment Termination Date shall remain in effect. Each Lender shall respond to
each Extension Request by no later than the 30th day following the date of the
relevant Extension Request (each an "Expiration Date"), provided that each
Lender which shall have failed so to respond by such time shall be deemed not to
have consented thereto. In the event that any Lender declines to grant an
Extension Request, the Administrative Agent shall notify the Parent Borrower of
the name of each such Lender.
(b) Notwithstanding any provision of Section 2.11(a) to
the contrary, in the event that Lenders having Commitment Amounts equal to or
more than 51% of the Aggregate Commitment Amount desire to extend the Commitment
Termination Date pursuant to Section 2.11(a) (collectively, the "Continuing
Lenders"), the Parent Borrower shall have the right, provided that no Default
shall have occurred and be continuing, to replace or remove any Lender that does
not desire to extend the Commitment Termination Date (each a "Non-Extending
Lender") by giving the Administrative Agent notice, no later than 20 days after
the relevant Expiration Date, of its intent to extend the Commitment Termination
Date. On or prior to the then current Commitment Termination Date, the Parent
Borrower shall, with respect to each Non-Extending Lender, either (i) reduce the
Aggregate Commitment Amount to an amount equal to the aggregate Commitment
Amounts of the Continuing Lenders and pay or cause to be paid to the
Administrative Agent for the account of such Non-Extending Lender all principal,
interest, fees and other amounts accrued or owing to such Non-Extending Lender
under the Loan Documents (in which case, the Commitment of such Non-Extending
Lender shall automatically terminate), or (ii) replace such Non-Extending
Lender. In the event of a replacement of a Non-Extending Lender, such
Non-Extending Lender agrees to assign, without recourse, representation or
warranty, all of its rights and obligations under the Loan Documents, with the
prior consent of the Administrative Agent (which consent shall not be
unreasonably withheld), to one or more Extending Lenders in such percentages as
shall be determined by the Parent Borrower, upon payment by such Extending
Lender(s) to such Non-Extending Lender of all principal, interest, fees and
other amounts accrued or owing to such Non-Extending Lender under the Loan
Documents. In the event that the Parent Borrower shall
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have elected to replace or remove a Lender pursuant to this Section 2.11(b),
then, on the date, if any, upon which all of the Parent Borrower's obligations
under this Section 2.11(b) shall have been satisfied, the then current
Commitment Termination Date shall be extended to the day which is one year
thereafter, provided, however, that (A) if such day is not a Business Day, then
such then current Commitment Termination Date shall be extended to the
immediately preceding Business Day, and (B) if the Parent Borrower shall not
have satisfied such obligations on or prior to the then current Commitment
Termination Date, then such Commitment Termination Date shall not be extended.
2.12. Records
(a) Lender's Records. Each Lender will note on its
internal records with respect to each Loan made by it: (i) the date of such Loan
and the identity of the Borrower to whom such Loan was made, (ii) whether such
Loan is a Revolving Credit Loan or a Bid Loan, (iii) in the case of a Revolving
Credit Loan, (A) whether such Loan is comprised of one or more ABR Advances, one
or more Eurodollar Advances, one or more Core Currency Euro Advances, or a
combination thereof, and the amount of each thereof (stated in the applicable
Currency), and (B) the interest rate (without regard to the Applicable Margin)
and the Euro Interest Period applicable to each Eurodollar Advance and each Core
Currency Euro Advance, (iv) in the case of a Bid Loan, (A) whether such Loan is
a Core Currency Index Rate Bid Loan, (B) the amount thereof (stated in the
applicable Currency), and (C) the interest rate and the Bid Interest Period
applicable thereto, and (v) each payment and prepayment of the principal of such
Loan.
(b) Administrative Agent's Records. The Administrative
Agent shall keep records regarding the Loans and the Loan Documents in
accordance with its customary procedures for agented credits.
(c) Prima Facie Evidence. The entries made in the records
maintained pursuant to Sections 2.12(a) and (b) shall, to the extent not
prohibited by applicable law, be prima facie evidence of the existence and
amount of the obligations of the Borrowers recorded therein; provided that the
failure of the Administrative Agent or any Lender, as the case may be, to make
any notation on its records shall not affect the respective obligations of the
Credit Parties in respect of the Loan Documents.
(d) Notes. Upon the request of any Lender to the
Administrative Agent and the Parent Borrower, with respect to any Loan made by
such Lender, the Parent Borrower agrees to execute and deliver (or cause the
applicable Subsidiary Borrower to execute and deliver), at such Lender's own
cost and expense, to the Administrative Agent
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(for delivery to such Lender) a promissory note of the applicable Borrower
evidencing such Loan, substantially in the form of Exhibits Q-1 or Q-2, as the
case may be, payable to the order of such Lender and dated the Effective Date.
3. INTEREST, FEES, CONVERSIONS AND YIELD PROTECTIONS
3.1. Interest Rates and Payment Dates
(a) Prior to Maturity. Except as otherwise provided in
Section 3.1(b), prior to maturity, the Loans shall bear interest on the
outstanding principal amount thereof at the applicable interest rate or rates
per annum set forth below:
<TABLE>
<CAPTION>
ADVANCES/LOANS RATE
-------------- ----
<S> <C>
Each ABR Advance Alternate Base Rate.
Each Eurodollar Advance Eurodollar Rate applicable thereto plus
the Applicable Margin.
Each Core Currency Euro Advance Core Currency Euro Rate applicable
thereto plus the Applicable Margin.
Each Bid Loan Bid Rate applicable thereto.
</TABLE>
(b) Default Rate. Upon the occurrence and during the
continuance of an Event of Default under Section 9.1(a) or (b), the unpaid
principal amount of any overdue Loans shall bear interest payable on demand at a
rate per annum (whether before or after the entry of a judgment thereon) equal
to (i) in the case of each Dollar Bid Loan, 2% plus the Alternate Base Rate,
(ii) in the case of each Alternate Currency Bid Loan, 2% plus the rate
determined by the applicable Lender to be reflective of the all-in cost of funds
to such Lender with respect thereto, and (iii) in all other cases, 2% plus the
rate which would otherwise be applicable under Section 3.1(a), and any overdue
interest or other overdue amount payable under the Loan Documents shall bear
interest (whether before or after the entry of a judgment thereon) payable on
demand at a rate per annum equal to 2% plus the Alternate Base Rate.
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(c) In General. Interest on all Loans shall be calculated
on the basis of a 360-day year, except that interest on Core Currency Euro
Advances denominated in Sterling Pounds and Bid Loans denominated in Canadian
Dollars shall be calculated on the basis of a 365 or 366-day year (as the case
may be), in each case for the actual number of days elapsed. Except as otherwise
provided in Section 3.1(b), interest shall be payable in arrears on each
Interest Payment Date and upon each payment (including prepayment) of the Loans.
Any change in the interest rate on the Loans resulting from a change in the
Alternate Base Rate or reserve requirements shall become effective as of the
opening of business on the day on which such change shall become effective. Each
determination of a rate of interest by the Administrative Agent, Fleet or any
Reference Lender, as the case may be, pursuant to the Loan Documents shall be
conclusive and binding on all parties hereto absent manifest error.
(d) If at any time either Reference Lender shall for any
reason cease to be a Lender, such Reference Lender shall thereupon cease to be a
Reference Lender, and the Parent Borrower shall promptly appoint from among the
Lenders a successor Reference Lender reasonably acceptable to the Administrative
Agent. Upon the acceptance of any appointment as Reference Lender by a successor
Reference Lender, such successor Reference Lender shall automatically become a
"Reference Lender", and the Parent Borrower shall promptly notify the other
Borrowers and the Lenders thereof. Each Reference Lender shall use its best
efforts to furnish all quotations and other information, and to make all
determinations, in each case as contemplated to be furnished or made by it under
the Loan Documents, on a timely basis. To the extent that, for any reason, such
information shall not have been furnished, and such determinations shall not
have been made, by any Reference Lender, then the other Reference Lender (or, in
the event that there is no other Reference Lender, the Administrative Agent)
shall furnish such information and make such determinations, and the
Administrative Agent shall promptly notify the Borrowers and the Lenders
thereof.
3.2. Fees
(a) Facility Fee. The Parent Borrower agrees to pay to
the Administrative Agent, for the account of the Lenders in accordance with each
Lender's Commitment Percentage, a fee (the "Facility Fee"), during the
Commitment Period, at a rate per annum equal to the Applicable Fee Percentage on
the average daily Aggregate Commitment Amount, regardless of usage. The Facility
Fee shall be payable (i) quarterly in arrears on the last day of each March,
June, September and December during the Commitment Period, commencing on the
first such day following the Effective Date, (ii) on the
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date of any reduction in the Aggregate Commitment Amount (to the extent of the
amount which shall have accrued on the amount of such reduction), and (iii) on
the Commitment Termination Date. The Facility Fee shall be calculated on the
basis of a 360-day year for the actual number of days elapsed.
(b) Agents' Fees. The Parent Borrower agrees to pay to
each Agent, for its own account, such other fees, if any, as have been agreed to
in writing by the Parent Borrower and such Agent.
3.3. Conversions
(a) Each applicable Borrower may elect from time to time
to convert one or more Eurodollar Advances to ABR Advances by giving, or, if
such Borrower is a Subsidiary Borrower, by causing the Parent Borrower, on
behalf of such Borrower, to give, the Administrative Agent at least two Business
Day's prior irrevocable notice of such election, specifying the amount to be
converted, provided, that any such conversion of Eurodollar Advances shall only
be made on the last day of the Interest Period applicable thereto, except as
otherwise provided in Section 3.7. In addition, each applicable Borrower may
elect from time to time to convert (i) ABR Advances to Eurodollar Advances, (ii)
Eurodollar Advances to new Eurodollar Advances by selecting a new Euro Interest
Period therefor, and (iii) Core Currency Euro Advances to new Core Currency Euro
Advances in the same applicable Currency by selecting a new Euro Interest Period
therefor, in each case by giving, or, if such Borrower is a Subsidiary Borrower,
by causing the Parent Borrower, on behalf of the Borrower, to give, the
Administrative Agent at least three Core Currency Business Days' prior
irrevocable notice of such election, specifying the amount to be so converted
and the initial Euro Interest Period relating thereto, provided that any such
conversion of ABR Advances to Eurodollar Advances shall only be made on a Core
Currency Business Day and, except as otherwise provided in Section 3.7, any such
conversion of Eurodollar Advances to new Eurodollar Advances or Core Currency
Euro Advances to new Core Currency Euro Advances, as the case may be, shall only
be made on the last day of the Euro Interest Period applicable to the Eurodollar
Advances or Core Currency Euro Advances, as the case may be, which are to be
converted to such new Eurodollar Advances or such new Core Currency Euro
Advances, as the case may be. Each such notice shall be irrevocable and shall be
promptly confirmed by delivery to the Administrative Agent of a Notice of
Conversion. The Administrative Agent shall promptly notify each Lender (by
telephone or otherwise, such notice to be confirmed by facsimile or other
writing) of each such election. Advances may be converted pursuant to this
Section in whole or in part, provided that (A) the amount to be converted to
each Eurodollar Advance, when aggregated with any Eurodollar Advance to
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<PAGE> 48
be made on such date in accordance with Section 2.3 and having the same Euro
Interest Period as such first Eurodollar Advance, shall equal no less than
$5,000,000 or such amount plus a whole multiple of $1,000,000 in excess thereof,
and (B) the amount to be converted to each Core Currency Euro Advance, when
aggregated with any Core Currency Euro Advance to be made on such date in
accordance with Section 2.3 and having the same Euro Interest Period, and being
denominated in the same applicable Currency, as such first Core Currency Euro
Advance, shall equal no less than an amount in such Currency having a Dollar
Equivalent of approximately $5,000,000 or such amount plus an amount in such
Currency having a Dollar Equivalent of a whole multiple of approximately
$1,000,000 in excess thereof.
(b) Notwithstanding anything in this Agreement to the
contrary, upon the occurrence and during the continuance of an Event of Default,
no Borrower shall have the right to elect to convert any existing ABR Advance to
a new Eurodollar Advance or to convert any existing Eurodollar Advance to a new
Eurodollar Advance, provided that the Required Lenders shall have notified the
Parent Borrower that such right to elect shall not then be permitted. In such
event, except as otherwise provided in Section 3.7, (i) each ABR Advance shall
be automatically continued as an ABR Advance, (ii) each Eurodollar Advance shall
be automatically converted to an ABR Advance on the last day of the Euro
Interest Period applicable thereto, and (iii) each Core Currency Euro Advance
shall, on the last day of the Euro Interest Period applicable thereto, be
automatically converted to a new Core Currency Euro Advance in the same
applicable Currency with a one month Euro Interest Period.
(c) Each conversion shall be effected by each Lender by
applying the proceeds of its new ABR Advance, new Eurodollar Advance or new Core
Currency Euro Advance, as the case may be, to its Advances (or portion thereof)
being converted (it being understood that any such conversion shall not
constitute a borrowing for purposes of Sections 4, 5 or 6).
(d) Notwithstanding anything to the contrary contained in
any Loan Document, if the applicable Borrower and, if such Borrower is a
Subsidiary Borrower, the Parent Borrower, on behalf of such Borrower, shall have
failed, for any reason, to elect a Eurodollar Advance or Core Currency Euro
Advance, as the case may be, under Sections 2.3 or 3.3, as the case may be, in
connection with any borrowing of new Loans or expiration of a Euro Interest
Period with respect to any existing Eurodollar Advance or Core Currency Euro
Advance, as the case may be, the amount of the Loans subject to such borrowing
or such existing Eurodollar Advance or Core Currency Euro Advance, as the case
may be, shall, except as otherwise provided in Section 3.7, thereafter be (i) in
the
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<PAGE> 49
case of a Eurodollar Advance, an ABR Advance, and (ii) in the case of a Core
Currency Euro Advance, a new Core Currency Euro Advance in the same applicable
Currency with a one month Euro Interest Period, in each case until such time, if
any, as such Borrower shall elect a new Eurodollar Advance or Core Currency Euro
Advance, as the case may be, pursuant to Section 3.3.
3.4. Indemnification for Loss
Notwithstanding anything contained herein to the contrary, (i)
if any Borrower shall fail for any reason to borrow or convert from or into any
Fixed Rate Loan on the date specified therefor in the applicable Borrowing
Request, Notice of Conversion, or Bid, as the case may be, or (ii) if any Fixed
Rate Loan to such Borrower shall terminate for any reason prior to the last day
of the Euro Interest Period or Bid Interest Period, as the case may be,
applicable thereto, or (iii) if such Fixed Rate Loan is repaid or prepaid, in
whole or in part, for any reason prior to the last day of the Euro Interest
Period or Bid Interest Period, as the case may be, applicable thereto, such
Borrower agrees to indemnify each applicable Lender against, and to pay on
demand directly to such Lender the amount (which demand shall be accompanied by
a statement setting forth the calculations of such amount in reasonable detail
which statement shall be conclusive absent manifest error) equal to any
reasonable loss or out-of-pocket expense (excluding loss of margin) suffered by
such Lender as a result of such failure to borrow or convert or such
termination, repayment or prepayment, including any loss, cost or expense
suffered by such Lender in liquidating or employing deposits acquired to fund or
maintain the funding of its Fixed Rate Loans to such Borrower, or redeploying
funds prepaid or repaid, in amounts which correspond to such Fixed Rate Loans,
and any internal processing charge customarily charged by such Lender in
connection therewith.
3.5. Capital Adequacy
If the amount of capital required to be maintained by any
Lender or any Person directly or indirectly owning or controlling such Lender
(each a "Control Person"), shall be affected by the occurrence of a Regulatory
Change and such Lender shall have determined that such Regulatory Change shall
have had or will thereafter have the effect of reducing (i) the rate of return
on such Lender's or such Control Person's capital, or (ii) the asset value to
such Lender or such Control Person of the Loans or Commitments made or
maintained by such Lender to a level below that which such Lender or such
Control Person could have achieved or would thereafter be able to achieve but
for such Regulatory Change (after taking into account such Lender's or such
Control Person's policies regarding capital adequacy) by an amount deemed by
such Lender to be material to such Lender
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<PAGE> 50
or Control Person, then the Parent Borrower agrees to pay to such Lender or such
Control Person, as the case may be, within ten days after demand by such Lender,
such additional amount or amounts as shall be sufficient to compensate such
Lender or such Control Person, as the case may be, for such reduction (which
demand shall be accompanied by a statement setting forth the calculations of
such additional amount or amounts in reasonable detail which statement shall be
conclusive absent manifest error). Notwithstanding anything to the contrary
herein, no amount shall be required to be paid pursuant to this Section to the
extent that such amount shall have been incurred by the applicable Lender or
applicable Control Person, as the case may be, or shall otherwise relate to any
reduction which shall have become effective, more than 180 days prior to the
date on which such Lender shall have made demand therefor pursuant to this
Section.
3.6. Reimbursement for Increased Costs
If any Lender shall determine that a Regulatory Change shall,
or the Bank of England does now or shall, impose, modify or make applicable any
reserve, special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Lender in respect of its Fixed Rate Loans which is not otherwise included
in the determination of a Eurodollar Rate, Core Currency Euro Rate or Bid Rate,
as the case may be, and the result of any of the foregoing is to increase the
cost to such Lender of making, renewing, converting or maintaining its Fixed
Rate Loans or its commitment to make such Fixed Rate Loans, or to reduce any
amount receivable under the Loan Documents in respect of its Fixed Rate Loans,
then, in any such case, the Parent Borrower agrees to pay such Lender, within
ten days after demand therefor, such additional amounts as is sufficient to
compensate such Lender for such additional cost or reduction in such amount
receivable which such Lender deems to be material as determined by such Lender
(which demand shall be accompanied by a statement setting forth the calculations
of such additional amounts in reasonable detail which statement shall be
conclusive absent manifest error). Notwithstanding anything to the contrary
herein, no amount shall be required to be paid pursuant to this Section to the
extent that such amount shall have been incurred by the applicable Lender more
than 90 days prior to the date on which such Lender shall have made demand
therefor pursuant to this Section.
3.7. Illegality of Funding
Notwithstanding any other provision hereof, if any Lender
shall reasonably determine that any law, regulation, treaty or directive, or any
change therein or in the
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<PAGE> 51
interpretation or application thereof, shall make it unlawful for such Lender to
make or maintain any Fixed Rate Loan as contemplated by this Agreement, such
Lender shall promptly notify the Parent Borrower and the Administrative Agent
thereof, and (i) the commitment or other obligation of such Lender to make such
Fixed Rate Loans or convert ABR Advances to Eurodollar Advances or Core Currency
Euro Advances to new Core Currency Euro Advances, as the case may be, shall
forthwith be suspended, (ii) such Lender shall fund its portion of each
requested Eurodollar Advance as an ABR Advance, (iii) such Lender's Loans then
outstanding as such Eurodollar Advances, if any, shall be converted
automatically to an ABR Advance on the last day of the then current Euro
Interest Period applicable thereto or at such earlier time as may be required,
and (iv) in the case of each Core Currency Euro Advance and each Bid Loan, the
applicable Borrower shall take such action as such Lender may reasonably request
with a view to minimizing the obligations of such Borrower under Section 3.4. If
the commitment of any Lender with respect to Eurodollar Advances or Core
Currency Euro Advances, as the case may be, is suspended pursuant to this
Section and such Lender shall have obtained actual knowledge that it is once
again legal for such Lender to make or maintain Eurodollar Advances or Core
Currency Euro Advances, as the case may be, such Lender shall promptly notify
the Administrative Agent and the Parent Borrower thereof and, upon receipt of
such notice by each of the Administrative Agent and the Parent Borrower, such
Lender's commitment to make or maintain Eurodollar Advances or Core Currency
Euro Advances, as the case may be, shall be reinstated.
3.8. Substituted Interest Rate
In the event that (i) the Administrative Agent or any
Reference Lender shall have determined (which determination shall be conclusive
and binding upon the Borrowers) that by reason of circumstances affecting the
interbank market either adequate or reasonable means do not exist for
ascertaining the Eurodollar Rate or Core Currency Euro Rate, as the case may be,
applicable pursuant to Section 3.1 or (ii) the Required Lenders shall have
notified the Administrative Agent that they have determined (which determination
shall be conclusive and binding on the Borrowers) that the applicable Eurodollar
Rate or Core Currency Euro Rate, as the case may be, will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding loans bearing
interest based on such Eurodollar Rate or Core Currency Euro Rate, as the case
may be, with respect to any portion of the Loans that any Borrower has requested
be made as Eurodollar Advances or Core Currency Euro Advances, as the case may
be, or Eurodollar Advances or Core Currency Euro Advances, as the case may be,
that will result from the requested conversion of any portion of the Advances
into or of Eurodollar Advances or Core Currency Euro Advances, as the case may
be (each an "Affected Advance"), the Administrative Agent shall promptly
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<PAGE> 52
notify the Parent Borrower and the Lenders (by telephone or otherwise, to be
promptly confirmed in writing) of such determination, on or, to the extent
practicable, prior to the requested Borrowing Date or Conversion Date for such
Affected Advances. If the Administrative Agent shall give such notice, (e) in
the case of Eurodollar Advances, (A) such Affected Advances shall be made as ABR
Advances, (B) the Advances (or any portion thereof) that were to have been
converted to Affected Advances shall be converted to ABR Advances, and (C) any
outstanding Affected Advances shall be converted, on the last day of the then
current Euro Interest Period with respect thereto, to ABR Advances, and (f) in
the case of Core Currency Euro Advances, the interest rate for such Affected
Advances shall be determined pursuant to clause (a)(iii) of the definition of
Core Currency Euro Rate. Until any notice under clause (i) or (ii), as the case
may be, of this Section has been withdrawn by the Administrative Agent (by
notice to the Parent Borrower promptly upon either (1) the Administrative Agent
having determined that such circumstances affecting the interbank market no
longer exist and that adequate and reasonable means do exist for determining the
Eurodollar Rate or Core Currency Euro Rate, as the case may be, pursuant to
Section 3.1 or (2) the Administrative Agent having been notified by such
Required Lenders that circumstances no longer render the Advances (or any
portion thereof) Affected Advances, (x) no further Eurodollar Advances shall be
required to be made by the Lenders, (y) no Borrower shall have the right to
convert all or any portion of the Loans to or as Eurodollar Advances, and (z)
the interest rate for Core Currency Euro Advances shall be determined pursuant
to clause (a)(iii) of the definition of Core Currency Euro Rate.
3.9. Taxes
(a) Payments to Be Free and Clear. All payments by each
Credit Party under the Loan Documents shall be made free and clear of, and
without any deduction or withholding for, any Indemnified Tax. If any Credit
Party or any other Person is required by any law, rule, regulation, order,
directive, treaty or guideline to make any deduction or withholding (which
deduction or withholding would constitute an Indemnified Tax) from any amount
required to be paid by any Credit Party to or on behalf of any Indemnified Tax
Person under any Loan Document (each a "Required Payment"), then:
(i) such Credit Party shall notify the
Administrative Agent and such Indemnified Tax Person of any such requirement or
any change in any such requirement as soon as such Credit Party becomes aware
thereof;
(ii) such Credit Party shall pay such Indemnified
Tax prior to the date on which penalties attach thereto, such payment to be made
(to the extent that the
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liability to pay is imposed on such Credit Party) for its own account or (to the
extent that the liability to pay is imposed on such Indemnified Tax Person) on
behalf and in the name of such Indemnified Tax Person;
(iii) such Credit Party shall pay to such
Indemnified Tax Person an additional amount such that such Indemnified Tax
Person shall receive on the due date therefor an amount equal to the Required
Payment had no such deduction or withholding been required; and
(iv) such Credit Party shall, within 30 days
after paying such Indemnified Tax, deliver to the Administrative Agent and such
Indemnified Tax Person satisfactory evidence of such payment to the relevant
Governmental Authority.
(b) Other Indemnified Taxes. If any Indemnified Tax
Person or any affiliate thereof is required by any law, rule, regulation, order,
directive, treaty or guideline to pay any Indemnified Tax (excluding an
Indemnified Tax which is subject to Section 3.9(a)) with respect to any sum paid
or payable by any Credit Party to such Indemnified Tax Person under the Loan
Documents, then, within five days after such Indemnified Tax Person shall have
notified such Credit Party thereof, such Credit Party shall pay to such
Indemnified Tax Person the amount of such Indemnified Tax.
(c) Exception for Existing Taxes. No amount shall be
required to be paid to any Indemnified Tax Person under Section 3.9(a) or (b)
with respect to any Indemnified Tax to the extent that (i) such Indemnified Tax
shall not be attributable to any sum paid or payable by any Credit Party under
the Loan Documents in respect of any Revolving Credit Loan which shall be
denominated in a Currency other than the Currency of the jurisdiction under the
laws of which the applicable Borrower shall have been organized and in which it
has its principal office, and (ii) such Indemnified Tax would have been required
to have been paid under any law, rule, regulation, order, directive, treaty or
guideline in effect on the Relevant Date or, to the extent that such amount
relates to any Bid Loan, the date of the applicable Bid therefor.
(d) U.S. Tax Certificates. Each Lender that is organized
under the laws of any jurisdiction other than the United States or any political
subdivision thereof shall deliver to the Administrative Agent for transmission
to the Parent Borrower, on or prior to the Relevant Date, and at such other
times, as may be necessary in the determination of the Parent Borrower, any
other Credit Party or the Administrative Agent (each in the reasonable exercise
of its discretion), such certificates, documents or other evidence, properly
completed and duly executed by such Lender (including Internal Revenue Service
Form
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<PAGE> 54
1001 or Form 4224) to establish that such Lender is not subject to deduction or
withholding of United States federal income tax under Section 1441 or 1442 of
the Code or otherwise (or under any comparable provisions of any successor
statute) with respect to any payments to such Lender of principal, interest,
fees or other amounts payable under the Loan Documents. No Credit Party shall be
required to pay any additional amount to any such Lender under Section
3.9(a)(iii) if such Lender shall have failed to satisfy the requirements of the
immediately preceding sentence; provided that if such Lender shall have
satisfied such requirements on the Relevant Date, nothing in this Section 3.9(d)
shall relieve any Credit Party of its obligation to pay any additional amounts
pursuant to Section 3.9(a)(iii) in the event that, as a result of any change in
applicable law (including any change in the interpretation thereof), such Lender
is no longer properly entitled to deliver certificates, documents or other
evidence at a subsequent date establishing the fact that such Lender is not
subject to withholding as described in the immediately preceding sentence.
(e) Other Tax Certificates. Each Indemnified Tax Person
agrees to use reasonable efforts to deliver to any Credit Party, promptly upon
any reasonable request therefor from time to time by such Credit Party, such
forms, documents and information as may be required by applicable law,
regulation or treaty from time to time and to file all appropriate forms to
obtain a certificate or other appropriate documents from the appropriate
Governmental Authorities to establish that payments made in respect of any
Alternate Currency Loan by such Credit Party can be made without (or at a
reduced rate of) withholding of Taxes, provided, however, that if such
Indemnified Tax Person is or becomes unable by virtue of any applicable law,
regulation or treaty, to establish such exemption or reduction, such Credit
Party shall nonetheless remain obligated under Section 3.9(a) to pay the amounts
described therein, and provided further that no Indemnified Tax Person shall be
required to take any action under this Section 3.9(e) which, in the sole
discretion of such Indemnified Tax Person, would cause such Indemnified Tax
Person or any affiliate thereof to suffer a material economic, legal or
regulatory disadvantage.
(f) Refunds. If any Lender or the Administrative Agent,
on behalf of such Lender, receives a refund which, in the good faith judgment of
such Lender, constitutes a refund of any Indemnified Tax paid by any Credit
Party from the applicable Governmental Authority which shall have imposed such
Indemnified Tax, such Lender or the Administrative Agent, on behalf of such
Lender, as the case may be, shall promptly pay to such Credit Party an amount
equal to (i) the amount of such refund, plus (ii) all other amounts, if any,
paid by such Credit Party in connection with such Indemnified Tax, minus (iii)
the amount of all out-of-pocket expenses, if any, incurred by such Lender or the
Administrative Agent, on behalf of such Lender, as the case may be, in obtaining
such
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refund; provided, however, that, notwithstanding anything to the contrary
contained herein, such Credit Party shall promptly return such refund to such
Lender or the Administrative Agent, for the benefit of such Lender, as the case
may be, if such Credit Party shall have received notice from such Lender or the
Administrative Agent, on behalf of such Lender, to the effect that such Lender
or the Administrative Agent, on behalf of such Lender, as the case may be, is
required to repay such refund.
(g) Other Taxes. Each Credit Party agrees to pay any
current or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made hereunder or
from the execution, delivery or registration of, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents or otherwise with respect to, the Loan Documents.
3.10. Option to Fund
Each Lender has indicated that, if any Borrower requests a
Eurodollar Advance or a Core Currency Euro Advance, or such Lender makes a Bid
Loan to any Borrower, as the case may be, such Lender may wish to purchase one
or more deposits in order to fund or maintain its funding of its Commitment
Percentage of such Eurodollar Advance or Core Currency Euro Advance or its Bid
Loan, as the case may be, during the Euro Interest Period or Bid Interest
Period, as the case may be, applicable thereto; it being understood that the
provisions of this Agreement relating to such funding are included only for the
purpose of determining the rate of interest to be paid in respect of such
Eurodollar Advance, Core Currency Euro Advance or Bid Loan, as the case may be,
and any amounts owing under Sections 3.4 and 3.6. Each Lender shall be entitled
to fund and maintain its funding of all or any part of each Eurodollar Advance,
each Core Currency Euro Advance and each Bid Loan, as the case may be, in any
manner it sees fit, but all such determinations under Sections 3.4 and 3.6 shall
be made as if each Lender had actually funded and maintained its Commitment
Percentage of each such Eurodollar Advance or such Core Currency Euro Advance,
or the amount of its Bid Loan, as the case may be, during the applicable Euro
Interest Period or Bid Interest Period, as the case may be, through the purchase
of deposits in an amount equal to the amount of its Commitment Percentage of
such Eurodollar Advance or such Core Currency Euro Advance, or the amount of its
Bid Loan, as the case may be, having a maturity corresponding to such Euro
Interest Period or Bid Interest Period, as the case may be. Any Lender may fund
its Commitment Percentage of each Eurodollar Advance or Core Currency Euro
Advance, or each Bid Loan, as the case may be, from or for the account of any
branch, office, affiliate, or correspondent bank of such Lender as such Lender
may choose from time to time.
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3.11. Replacement of Lenders
Notwithstanding the foregoing, if (i) any Lender shall request
compensation pursuant to Section 3.5 or 3.6, (ii) any Lender shall give any
notice to the Parent Borrower or the Administrative Agent pursuant to Section
3.7, or (iii) any Borrower shall be required to pay any additional amounts
pursuant to Section 3.9 in respect of any Lender, then, in each such case, the
Parent Borrower may require that such Lender transfer all of its right, title
and interest under the Loan Documents to any lender identified by the Parent
Borrower (a "Proposed Lender") if such Proposed Lender agrees to assume all of
the obligations of such Lender for consideration equal to the outstanding
principal amount of such Lender's Loans, together with interest thereon to the
date of such transfer and all other amounts payable under the Loan Documents to
such Lender on or prior to the date of such transfer (including any fees accrued
hereunder and any amounts which would be payable under Section 3.4 as if all of
such Lender's Loans were being prepaid in full on such date). Subject to the
execution and delivery of an instrument of assignment and assumption, and such
other documents as such Lender may reasonably require, such Proposed Lender
shall be a "Lender" for all purposes hereunder. Without prejudice to the
survival of any other agreement of the Borrowers under the Loans Documents, the
agreements of the Borrowers contained in Sections 3.4, 3.5, 3.6, 12.5 and 12.7
(without duplication of any payments made to such Lender by any Borrower or the
Proposed Lender) shall survive for the benefit of any Lender replaced under this
Section 3.11 with respect to the time prior to such replacement.
3.12. Changes of Lending Offices
(a) With respect to any Loan of any Lender, such Lender
agrees that upon the occurrence of any event giving rise to the operation of
Section 3.4, 3.5, 3.6, 3.7 or 3.9 with respect to such Loan, it will, if
requested by the applicable Borrower or, if such Borrower is a Subsidiary
Borrower, the Parent Borrower, on behalf of such Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another office of such Lender for such Loan affected by such event, provided
that such designation is made on such terms that such Lender suffers no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section shall affect or postpone any of the obligations of any Borrower
or the right of any Lender provided in Sections 3.4, 3.5, 3.6, 3.7 and 3.9.
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(b) Each Lender shall have the right at any time and from
time to time to transfer any of its Loans to a different office thereof,
provided that such Lender shall promptly notify the Administrative Agent and the
Parent Borrower of any such change of office, provided, however, that such
Lender shall not be entitled to receive any greater amount under Sections 3.4,
3.5, 3.6, 3.7 or 3.9 as a result of such transfer than it would be entitled to
immediately prior thereto unless such claim would have arisen even if such
transfer had not occurred.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into
this Agreement, and the Lenders to make the Loans, the Parent Borrower makes the
following representations and warranties to the Agents and each Lender:
4.1. Subsidiaries; Jurisdictions
As of the Effective Date, the Parent Borrower has only the
Subsidiaries set forth on, and the jurisdiction of formation of each such
Subsidiary is as set forth on, Schedule 4.1.
4.2. Existence and Power
Each Credit Party is duly organized or formed and validly
existing in good standing under the laws of the jurisdiction of its
incorporation or formation, has all requisite power and authority to own its
Property and to carry on its business as now conducted, and is in good standing
and authorized to do business in each jurisdiction in which the nature of the
business conducted therein or the Property owned by it therein makes such
qualification necessary, in each case except where such failure to qualify could
not reasonably be expected to have a Material Adverse Effect.
4.3. Authority and Execution
Each of the Parent Borrower and each of its Subsidiaries has
full legal power and authority to enter into, execute, deliver and perform the
terms of the Loan Documents to which it is a party all of which have been duly
authorized by all proper and necessary corporate, partnership or other
applicable action and are in full compliance with its Organizational Documents.
The Parent Borrower and each of its Subsidiaries has duly executed and delivered
the Loan Documents to which it is a party.
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4.4. Binding Agreement
The Loan Documents constitute the valid and legally binding
obligations of each of the Parent Borrower and its Subsidiaries, in each case,
to the extent it is a party thereto, enforceable in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally.
4.5. Litigation
Except as set forth on Schedule 4.5, there are no actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority (whether purportedly on behalf of the Parent Borrower or any of its
Subsidiaries) pending or, to the knowledge of the Parent Borrower, threatened
against the Parent Borrower or any of its Subsidiaries or maintained by the
Parent Borrower or any of its Subsidiaries or which may affect the Property of
the Parent Borrower or any of its Subsidiaries or any of their respective
Properties or rights, which (i) could reasonably be expected to have a Material
Adverse Effect, or (ii) call into question the validity or enforceability of, or
otherwise seek to invalidate, any Loan Document.
4.6. Required Consents
Except for information filings required to be made in the
ordinary course of business which are not a condition to the performance by the
Parent Borrower or any of its Subsidiaries under the Loan Documents to which it
is a party, no consent, authorization or approval of, filing with, notice to, or
exemption by, stockholders or holders of any other equity interest, any
Governmental Authority or any other Person, which has not already been obtained
or made, is required to be obtained or made by the Parent Borrower or any of its
Subsidiaries in order to authorize, or is required to be obtained or made by the
Parent Borrower or any of its Subsidiaries in connection with the execution,
delivery or performance of, the Loan Documents to which the Parent Borrower or
any of its Subsidiaries is a party, or is required to be obtained or made by the
Parent Borrower or any of its Subsidiaries as a condition to the validity or
enforceability of the Loan Documents to which any of the same is a party. Each
Borrower, prior to each borrowing by it hereunder in any jurisdiction, has
obtained all necessary approvals and consents of, and has filed or caused to be
filed all reports, applications, documents, instruments and information required
to be filed pursuant to all applicable laws, rules, regulations and requests of,
all Governmental Authorities in connection with such borrowing in such
jurisdiction.
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4.7. Absence of Defaults; No Conflicting Agreements
(a) None of the Parent Borrower or any of its
Subsidiaries is in default under any mortgage, indenture, contract or agreement
to which it is a party or by which it or any of its Property is bound, the
effect of which default could reasonably be expected to have a Material Adverse
Effect. The execution, delivery or carrying out of the terms of the Loan
Documents will not constitute a default under, or result in the creation or
imposition of, or obligation to create, any Lien upon any Property of the Parent
Borrower or any of its Subsidiaries or result in a breach of or require the
mandatory repayment of or other acceleration of payment under or pursuant to the
terms of any such mortgage, indenture, contract or agreement.
(b) None of the Parent Borrower or any of its
Subsidiaries is in default with respect to any judgment, order, writ,
injunction, decree or decision of any Governmental Authority which default could
reasonably be expected to have a Material Adverse Effect.
4.8. Compliance with Applicable Laws
Each of the Parent Borrower and each of its Subsidiaries is
complying in all material respects with all statutes, regulations, rules and
orders of all Governmental Authorities which are applicable to it, a violation
of which could reasonably be expected to have a Material Adverse Effect.
4.9. Taxes
Each of the Parent Borrower and each of its Subsidiaries has
filed or caused to be filed all material tax returns required to be filed and
has paid, or has made adequate provision for the payment of, all taxes shown to
be due and payable on said returns or in any assessments made against it (other
than those being contested as required under Section 7.4) which would be
material to the Parent Borrower and its Subsidiaries, taken as a whole, and no
tax Liens have been filed with respect thereto. The charges, accruals and
reserves on the books of the Parent Borrower and each of its Subsidiaries with
respect to all taxes are, to the best knowledge of the Parent Borrower, adequate
for the payment of such taxes, and the Parent Borrower knows of no unpaid
assessment which is due and payable against the Parent Borrower or any of its
Subsidiaries or any claims being asserted which could reasonably be expected to
have a Material Adverse Effect, except such
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thereof as are being contested as required under Section 7.4, and for which
adequate reserves have been set aside in accordance with GAAP.
4.10. Governmental Regulations
Neither the Parent Borrower, any of its Subsidiaries nor any
Person controlled by, controlling, or under common control with, the Parent
Borrower or any of its Subsidiaries, is subject to regulation under the Public
Utility Holding Company Act of 1935, as amended, the Federal Power Act, as
amended, or the Investment Company Act of 1940, as amended, or is subject to any
statute or regulation which prohibits or restricts the incurrence of
Indebtedness, including statutes or regulations relative to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone, telegraph
or other public utility services.
4.11. Federal Reserve Regulations; Use of Loan Proceeds
Neither the Parent Borrower nor any of its Subsidiaries 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.
4.12. Plans
Except as could not reasonably be expected to have a Material
Adverse Effect, (i) each Employee Benefit Plan is in compliance with ERISA and
the Code, where applicable, and (ii) no liability to the PBGC has been, or is
expected by the Parent Borrower, any of its Subsidiaries or any ERISA Affiliate
to be, incurred by the Parent Borrower, any such Subsidiary or any ERISA
Affiliate. Liability, as referred to in this Section includes any joint and
several liability.
4.13. Financial Statements
The Parent Borrower has heretofore delivered to the
Administrative Agent and the Lenders copies of its Form 10K for the fiscal year
of the Parent Borrower ending October 31, 1996, containing the audited
Consolidated Balance Sheets of the Parent Borrower and its Subsidiaries as of
October 31, 1996, and the related Consolidated Statements of Operations,
Stockholder's Equity and Cash Flows for the such fiscal year, and its Form 10Q
for the fiscal quarter of the Parent Borrower ended January 31, 1997, containing
the unaudited Consolidated Balance Sheet of the Parent Borrower and its
Subsidiaries for such fiscal quarter, together with the related Consolidated
Statements of Operations and Cash
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Flows for such fiscal quarter (with the applicable related notes and schedules,
the "Financial Statements"). The Financial Statements fairly present in all
material respects the Consolidated financial condition and results of the
operations of the Parent Borrower and its Subsidiaries as of the dates and for
the periods indicated therein and have been prepared in conformity with GAAP.
Except as reflected in the Financial Statements or in the footnotes thereto,
neither the Parent Borrower nor any of its Subsidiaries has any material
obligation or liability of any kind (whether fixed, accrued, Contingent,
unmatured or otherwise) which, in accordance with GAAP, should have been shown
in the Financial Statements and was not. Since October 31, 1996, there has been
no Material Adverse Change.
4.14. Property
Each of the Parent Borrower and each of its Subsidiaries has
good and marketable title to, or a valid leasehold interest in, all of its real
Property, and is the owner of, or has a valid lease of, all personal property,
in each case except where the failure so to have or so to be could not
reasonably be expected to have a Material Adverse Effect, subject to no Liens,
except Permitted Liens.
4.15. Authorizations
Except, in each case with respect to the matters referred to
in this sentence, as could not reasonably be expected to have a Material Adverse
Effect, each of the Parent Borrower and each of its Subsidiaries possesses or
has the right to use all franchises, licenses and other rights as are material
and necessary for the conduct of its business, and with respect to which it is
in compliance, with no known conflict with the valid rights of others. No event
has occurred which permits or, to the best knowledge of the Parent Borrower,
after notice or the lapse of time or both, or any other condition, could
reasonably be expected to permit, the revocation or termination of any such
franchise, license or other right which revocation or termination could
reasonably be expected to have a Material Adverse Effect.
4.16. Environmental Matters
Neither the Parent Borrower nor any of its Subsidiaries (i)
has received written notice or otherwise learned of any claim, demand, action,
event, condition, report or investigation indicating or concerning any potential
or actual liability which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect, arising in connection with (a) any
non-compliance with or violation of the requirements of
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any applicable federal, state, local or foreign environmental health or safety
statute or regulation, or (b) the release or threatened release of any toxic or
hazardous waste, substance or constituent, or other substance into the
environment, (ii) to the best knowledge of the Parent Borrower, has any
threatened or actual liability in connection with the release or threatened
release of any toxic or hazardous waste, substance or constituent, or other
substance into the environment which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect, (iii) has received
notice of any federal, state, local or foreign investigation evaluating whether
any remedial action is needed to respond to a release or threatened release of
any toxic or hazardous waste, substance or constituent or other substance into
the environment for which the Parent Borrower or any of its Subsidiaries is or
would be liable, which liability would reasonably be expected to have a Material
Adverse Effect, or (iv) has received notice that the Parent Borrower or any of
its Subsidiaries is or may be liable to any Person under the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
Section 9601 et seq., or any analogous state law, which liability would
reasonably be expected to have a Material Adverse Effect. The Parent Borrower
and each of its Subsidiaries is in compliance with the financial responsibility
requirements of federal, state, local and foreign environmental laws to the
extent applicable, including those contained in 40 C.F.R., parts 264 and 265,
subpart H, and any analogous state law, except in those cases in which the
failure so to comply would not reasonably be expected to have a Material Adverse
Effect.
5. CONDITIONS TO FIRST LOANS
In addition to the conditions precedent set forth in Section
6, the obligation of each Lender to make Revolving Credit Loans on the first
Borrowing Date shall be subject to the fulfillment of the following conditions
precedent:
5.1. Evidence of Action
The Documentation Agent shall have received a certificate,
dated the first Borrowing Date, of the Secretary or Assistant Secretary or other
analogous counterpart of each Credit Party (i) attaching a true and complete
copy of the resolutions of its Managing Person and of all documents evidencing
all necessary corporate, partnership or similar action (in form and substance
satisfactory to the Documentation Agent) taken by it to authorize the Loan
Documents to which it is a party and the transactions contemplated thereby, (ii)
attaching a true and complete copy of its Organizational Documents, (iii)
setting forth the incumbency of its officer or officers or other analogous
counterpart who may sign the
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Loan Documents, including therein a signature specimen of such officer or
officers and (iv) attaching a certificate of good standing of the Secretary of
State of the jurisdiction of its formation and of each other jurisdiction in
which it is qualified to do business, except, in the case of such other
jurisdiction, when the failure to be in good standing in such jurisdiction would
not have a Material Adverse Effect.
5.2. Absence of Litigation
There shall be no injunction, writ, preliminary restraining
order or other order of any nature issued by any Governmental Authority in any
respect affecting the transactions provided for in the Loan Documents and no
action or proceeding by or before any Governmental Authority has been commenced
and is pending or, to the knowledge of the Parent Borrower, threatened, seeking
to prevent or delay the transactions contemplated by the Loan Documents or
challenging any other terms and provisions hereof or thereof or seeking any
damages in connection therewith, and the Documentation Agent shall have received
a certificate, in all respects satisfactory to the Documentation Agent, of an
executive officer of the Parent Borrower to the foregoing effects.
5.3. Approvals and Consents
All approvals and consents of all Persons required to be
obtained in connection with the consummation of the transactions contemplated by
the Loan Documents shall have been obtained (without the imposition of any
conditions which are not acceptable to the Agents and the Lenders) and shall be
in full force and effect, and all required notices shall have been given and all
required waiting periods shall have expired, and the Documentation Agent shall
have received a certificate, in all respects satisfactory to the Documentation
Agent, of an executive officer of the Parent Borrower to the foregoing effects.
5.4. Opinion of Counsel to the Parent Borrower
The Documentation Agent shall have received an opinion of
Simpson Thacher & Bartlett, counsel to the Parent Borrower, dated the first
Borrowing Date, substantially in the form of Exhibit F.
5.5. Opinion of Special Counsel
The Documentation Agent shall have received an opinion of
Special Counsel, dated the first Borrowing Date, substantially in the form of
Exhibit G.
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5.6. Fees of Agents and the Lenders
All fees payable to the Agents and the Lenders on or prior to
the first Borrowing Date in connection with this Agreement shall have been
paid.
5.7. Fees and Expenses of Special Counsel
The reasonable fees and expenses of Special Counsel in
connection with the preparation, negotiation and closing of the Loan Documents,
to the extent invoiced in reasonable detail, shall have been paid.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Loan on a Borrowing Date is
subject to the satisfaction of the following conditions precedent as of the
date of such Loan:
6.1. Compliance
On each Borrowing Date and after giving effect to the Loans to
be made thereon (i) there shall exist no Default, and (ii) the representations
and warranties contained in the Loan Documents shall be true and correct in all
material respects with the same effect as though such representations and
warranties had been made on such Borrowing Date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date. Each borrowing by the Parent
Borrower shall constitute a certification by the Parent Borrower as of such
Borrowing Date that each of the foregoing matters is true and correct in all
respects.
6.2. Borrowing Request
With respect to the Revolving Credit Loans to be made on each
Borrowing Date, the Administrative Agent shall have received a Borrowing Request
duly executed by the applicable Borrower or, if such Borrower is a Subsidiary
Borrower, the Parent Borrower, on behalf of such Borrower.
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7. AFFIRMATIVE COVENANTS
The Parent Borrower agrees that, so long as this Agreement is in
effect, any Loan remains outstanding and unpaid, or any other amount is owing
under any Loan Document to any Lender or either Agent, the Parent Borrower
shall:
7.1. Financial Statements and Information
Maintain a standard system of accounting in accordance with
GAAP, and furnish or cause to be furnished to the Administrative Agent and each
Lender:
(a) Compliance Certificate. Within 60 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Parent Borrower (105 days after the end of the last fiscal quarter of each such
fiscal year), a Compliance Certificate, certified by a Financial Officer of the
Parent Borrower.
(b) Form 10K. As soon as available, but in any
event within 105 days after the end of each fiscal year of the Parent Borrower,
a copy of the annual audited financial statements of the Parent Borrower and its
Subsidiaries, prepared on a Consolidated basis in accordance with GAAP, as filed
with the SEC. Such financial statements shall be certified without qualification
by the Accountants, which certification shall (i) state that the examination by
such Accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards and, accordingly, included
such tests of the accounting records and such other auditing procedures as were
considered necessary in the circumstances, and (ii) include the opinion of such
Accountants that such financial statements have been prepared in accordance with
GAAP in a manner consistent with prior fiscal periods of the Parent Borrower,
except as otherwise specified in such opinion.
(c) Form 10Q. As soon as available, but in any
event within 60 days after the end of each fiscal quarter (except the last
fiscal quarter of each such fiscal year) of each fiscal year of the Parent
Borrower, copies of the unaudited financial statements of the Parent Borrower
and its Subsidiaries, prepared on a Consolidated basis in accordance with GAAP,
as filed with the SEC.
(d) Projections; Annual Business Plans. As soon
as available, but in any event within 105 days after the end of each fiscal year
of the Parent Borrower, copies of the projected Consolidated Balance Sheets and
Consolidated Statements of Income, Stockholders' Equity and Cash Flows, in each
case of the Parent Borrower and its Subsidiaries, for the next fiscal year of
the Parent Borrower, together with any business
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plan adopted by the Parent Borrower (other than those which shall have been
prepared solely for internal purposes).
(e) Other Information. Such other information as
the Administrative Agent or any Lender may reasonably request from time to time.
7.2. Certificates; Other Information
Furnish to the Administrative Agent:
(a) Prompt written notice if: (i) any
Indebtedness of the Parent Borrower or any of its Subsidiaries in an aggregate
amount in excess of $5,000,000 is declared or shall become due and payable prior
to its stated maturity, or is called and not paid when due, (ii) the holders of
any notes (other than any notes issued hereunder), certificate, security or
other evidence of Indebtedness, or any obligees with respect to any other
Indebtedness of the Parent Borrower or any of its Subsidiaries, have the right
to declare Indebtedness in an aggregate amount in excess of $5,000,000 due and
payable prior to its stated maturity, or (iii) there shall occur and be
continuing a Default;
(b) Prompt written notice of: (i) any citation,
summons, subpoena, order to show cause or other document naming the Parent
Borrower or any of its Subsidiaries a party to any proceeding before any
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect or which calls into question the validity or enforceability of
any of the Loan Documents, and include with such notice a copy of such citation,
summons, subpoena, order to show cause or other document, (ii) any lapse or
other termination of any license, permit, franchise or other authorization
issued to the Parent Borrower or any of its Subsidiaries by any Person or
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect, and (iii) any refusal by any Person or Governmental Authority to
renew or extend any such material license, permit, franchise or other
authorization, which lapse, termination, refusal or dispute could reasonably be
expected to have a Material Adverse Effect;
(c) Promptly upon becoming available, copies of
all (i) regular, periodic or special reports, schedules and other material which
the Parent Borrower or any of its Subsidiaries may now or hereafter be required
to file with or deliver to any securities exchange or the SEC and (ii) annual
reports relating to the Parent Borrower or any of its Subsidiaries;
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(d) Prompt written notice in the event that the
Parent Borrower, any of its Subsidiaries or any ERISA Affiliate knows, or has
reason to know, of any of the following events which could reasonably be
expected to have a Material Adverse Effect: (i) any Termination Event with
respect to a Pension Plan has occurred or will occur, (ii) any condition exists
with respect to a Pension Plan which presents a material risk of termination of
the Pension Plan, imposition of an excise tax, requirement to provide security
to the Pension Plan or other liability on the Parent Borrower, any of its
Subsidiaries or any ERISA Affiliate, (iii) the Parent Borrower, any of its
Subsidiaries or any ERISA Affiliate has applied for a waiver of the minimum
funding standard under Section 412 of the Code with respect to a Pension Plan,
(iv) the Parent Borrower, any of its Subsidiaries or any ERISA Affiliate has
engaged in a Prohibited Transaction with respect to an Employee Benefit Plan, or
(v) the assessment of a civil penalty under Section 502(c) of ERISA, together
with a certificate of a Financial Officer of the Parent Borrower setting forth
the details of such event and the action which the Parent Borrower, such
Subsidiary or such ERISA Affiliate proposes to take with respect thereto,
together with a copy of all notices and filings with respect thereto.
(e) Prompt written notice in the event that
Parent Borrower, any of its Subsidiaries or any ERISA Affiliate shall receive a
demand letter from the PBGC notifying the Parent Borrower, such Subsidiary or
such ERISA Affiliate of any final decision finding liability which could
reasonably be expected to have a Material Adverse Effect and the date by which
such liability must be paid, together with a copy of such letter and a
certificate of a Financial Officer of the Parent Borrower setting forth the
action which the Parent Borrower, such Subsidiary or such ERISA Affiliate
proposes to take with respect thereto.
(f) Such other information as the Administrative
Agent or any Lender shall reasonably request from time to time.
7.3. Legal Existence
Except as may otherwise be permitted by Sections 8.3 and 8.4,
maintain, and cause each of the Credit Parties to maintain, its corporate,
partnership or analogous existence, as the case may be, in good standing in the
jurisdiction of its formation and in each other jurisdiction in which the
failure so to do could reasonably be expected to have a Material Adverse Effect;
provided, however, that, notwithstanding anything to contrary contained in this
Section, any Subsidiary Borrower may fail to maintain its corporate, partnership
or analogous existence, as the case may be, in good standing or otherwise in
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any jurisdiction at any time when its Subsidiary Borrower Obligations shall have
been paid in full.
7.4. Taxes
Pay and discharge when due, and cause each of its Subsidiaries
so to do, all Taxes upon or with respect to the Parent Borrower or such
Subsidiary and all Taxes upon the income, profits and Property of the Parent
Borrower and its Subsidiaries, which if unpaid, could reasonably be expected to
have a Material Adverse Effect or become a material Lien on Property of the
Parent Borrower or such Subsidiary (other than a Lien described in Section
8.2(i)), unless and to the extent only that such Taxes shall be contested in
good faith and by appropriate proceedings diligently conducted by the Parent
Borrower or such Subsidiary and provided that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
7.5. Insurance
Maintain, and cause each of its Subsidiaries to maintain, with
financially sound and reputable insurance companies, or pursuant to
self-insurance, insurance on all its Property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies engaged in the same or a similar business; and furnish to the
Administrative Agent, upon written request, full information as to the insurance
carried.
7.6. Condition of Property
At all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each of
its Subsidiaries so to do, all Property necessary to the operation of the Parent
Borrower's or such Subsidiary's business, except where the failure so to do
could not reasonably be expected to have a Material Adverse Effect.
7.7. Observance of Legal Requirements
Observe and comply in all respects, and cause each of its
Subsidiaries so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time hereafter
may be applicable to it, a violation of which could
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reasonably be expected to have a Material Adverse Effect, except such thereof as
shall be contested in good faith and by appropriate proceedings diligently
conducted by it, provided that the Parent Borrower shall give the Administrative
Agent prompt notice of such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
7.8. Inspection of Property; Books and Records; Discussions
At all reasonable times, upon reasonable prior notice
(delivered as provided in Section 12.2), permit representatives of the
Administrative Agent and each Lender to visit the offices of the Parent Borrower
and each of its Subsidiaries, to examine the books and records thereof and
Accountants' financial reports relating thereto, and to make copies or extracts
therefrom, to discuss the affairs of the Parent Borrower and each such
Subsidiary with the respective officers thereof, and to examine and inspect the
Property of the Parent Borrower and each such Subsidiary.
7.9. Authorizations
Maintain, and cause each of its Subsidiaries to maintain, in
full force and effect, all licenses, franchises, permits, licenses,
authorizations and other rights as are necessary for the conduct of its
business, except where the failure so to do could not reasonably be expected to
have a Material Adverse Effect.
7.10. Capitalization Ratio
Maintain as of the last day of each fiscal quarter of the
Parent Borrower a Capitalization Ratio of not more than 0.50:1.00.
7.11. Subsidiaries
Except as may otherwise permitted by Sections 8.3 and 8.4, at
all times cause each Subsidiary Borrower to be a Subsidiary.
8. NEGATIVE COVENANTS
The Parent Borrower agrees that, so long as this Agreement is in
effect, any Loan remains outstanding and unpaid, or any other amount is owing
under any Loan Document to any Lender or either Agent, the Parent Borrower shall
not, directly or indirectly:
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8.1. Indebtedness
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any of its Subsidiaries so to do, except (i)
Indebtedness due under the Loan Documents, (ii) Indebtedness existing on the
Effective Date as set forth on Schedule 8.1 (other than the Existing
Indebtedness which is to be repaid on the Effective Date), together with any
refinancings thereof, but excluding any increases thereof, (iii) Intercompany
Indebtedness, (iv) Indebtedness (a) in respect of capital leases, (b) secured by
Liens on Property (including, in the event such Property constitutes capital
stock of a newly acquired Subsidiary, Liens on the Property of such Subsidiary)
acquired by the Parent Borrower or any of its Subsidiaries after the Effective
Date, provided that such Liens are in existence on the date of such acquisition
and were not placed on such Property in contemplation of such acquisition, (c)
other Indebtedness of any Operating Entity acquired by the Parent Borrower or
any of its Subsidiaries after the Effective Date, provided that such
Indebtedness is in existence on the date of such acquisition and was not
incurred in contemplation of such acquisition, together with any refinancings
thereof, but excluding any increases thereof, and (d) other purchase money
Indebtedness, provided that, in each case under this Section 8.1(iv), the Lien
securing such Indebtedness is permitted by Section 8.2, and (v) other
Indebtedness, provided that (a) no Default would exist as a result of the
incurrence thereof, (b) each Lien, if any, securing any such Indebtedness shall
be permitted by Section 8.2(xi), and (c) the aggregate outstanding principal
amount of all such Indebtedness incurred by the Subsidiaries of the Parent
Borrower shall not exceed $50,000,000 at any time.
8.2. Liens
Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, or permit any of its
Subsidiaries so to do, except (i) Liens for Taxes in the ordinary course of
business which, in the case of Liens which are material, are not delinquent or
which are being contested in accordance with Section 7.4, provided that
enforcement of such Liens is stayed pending such contest, (ii) Liens in
connection with workers' compensation, unemployment insurance or other social
security obligations (but not ERISA), (iii) deposits or pledges to secure bids,
tenders, contracts (other than contracts for the payment of Indebtedness of the
type described in clauses (i) through (v) of the definition thereof), leases,
statutory obligations, surety and appeal bonds and other obligations of like
nature arising in the ordinary course of business, (iv) easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount
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and which do not in any case materially detract from the value of the Property
subject thereto or materially interfere with the ordinary conduct of the
business of the Parent Borrower or such Subsidiary, as the case may be, (v)
Liens arising by operation of law such as mechanics', materialmen's, carriers',
warehousemen's liens incurred in the ordinary course of business which are not
more than 60 days delinquent or which are being contested in good faith and by
appropriate proceedings diligently conducted by the Parent Borrower or the
applicable Subsidiary, as the case may be, and provided that such reserve or
other appropriate provision as shall be reasonably required by the Accountants
in accordance with GAAP shall have been made therefor, and provided further that
enforcement of such Liens is stayed pending such contest, (vi) Liens arising out
of judgments or decrees which are being contested in good faith and by
appropriate proceedings diligently conducted by the Parent Borrower or the
applicable Subsidiary, as the case may be, and provided that such reserve or
other appropriate provision as shall be reasonably required by the Accountants
in accordance with GAAP shall have been made therefor, and provided further that
enforcement of such Liens is stayed pending such contest, (vii) statutory Liens
in favor of lessors arising in connection with the Property leased to the Parent
Borrower or any of its Subsidiaries, (viii) Liens under capital leases and Liens
on Property (including, in the event such Property constitutes capital stock of
a newly acquired Subsidiary, Liens on the Property of such Subsidiary) acquired
after the Effective Date and either existing on such Property when acquired, or
created substantially contemporaneously with such acquisition to secure the
payment or financing of the purchase price thereof, provided that such Liens
attach only to the Property so purchased or acquired and provided further that
the Indebtedness secured by such Liens is permitted hereunder, (ix) Liens on
Margin Stock to the extent that a prohibition on such Liens would result in the
Agents and the Lenders being deemed to be "indirectly secured" by Margin Stock
under Regulation U of the Board of Governors of the Federal Reserve System, as
amended, taking into account the value of Margin Stock owned by the Parent
Borrower and its Subsidiaries and any other relevant facts and circumstances,
(x) Liens on Property of the Parent Borrower and its Subsidiaries existing on
the Effective Date as set forth on Schedule 8.2, as renewed from time to time,
but not any increases in the amounts secured thereby or extensions thereof to
additional Property, and (xi) other Liens on Property of the Parent Borrower and
its Subsidiaries securing Indebtedness and other obligations permitted hereunder
having, in the aggregate at any time outstanding, an amount not in excess of
$25,000,000.
8.3. Consolidations and Mergers
Consolidate or merge into or with any Person, or enter into
any binding agreement to do so which is not contingent on obtaining the consent
of the Required Lenders, or permit any other Credit Party so to do, except any
one or more of the following:
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(a) the Parent Borrower may at any time consolidate
or merge into or with any Person, provided that (except in the case of any such
consolidation or merger entered into solely for the purpose of effecting a
re-incorporation of the Parent Borrower in another jurisdiction within the
United States) the Parent Borrower shall be the survivor thereof;
(b) any Subsidiary Borrower may at any time
consolidate or merge into or with any Person, provided that (i) such Subsidiary
Borrower is the survivor thereof, or (ii) immediately after giving effect
thereto, the Subsidiary Borrower Obligations of such Subsidiary Borrower shall
have been paid in full;
(c) any Subsidiary Borrower which is a Domestic
Borrower may at any time consolidate or merge into or with the Parent Borrower,
provided that the Parent Borrower is the survivor thereof; and
(d) any Subsidiary Borrower may at any time
consolidate or merge into or with any other Subsidiary Borrower, provided that
(i) such other Subsidiary Borrower shall be organized under the laws of, and
have its principal office in, the same national jurisdiction as such Subsidiary
Borrower, and (ii) such other Subsidiary Borrower shall have assumed in a
manner in all respects reasonably satisfactory to the Administrative Agent all
of the obligations and liabilities of such Subsidiary Borrower under the Loans
Documents, in each case whether fixed, contingent, then existing or thereafter
arising, created, assumed, incurred or acquired, and whether before or after
the occurrence of any Event of Default under Section 9.1(g) or (h).
8.4. Acquisitions
Make any Acquisition, or enter into any binding agreement to
make any Acquisition which is not contingent on obtaining the consent of the
Required Lenders, or permit any of its Subsidiaries so to do, except (i)
Acquisitions by the Parent Borrower or any of its Subsidiaries of Investments
permitted by Section 8.6, and (ii) other Acquisitions, provided that (e) no
Default would exist as a result of any such Acquisition, and (f) if any such
Acquisition is an Acquisition of one or more Operating Entities, such
Acquisition shall be non-hostile.
8.5. Dispositions
Make any Disposition, or permit any of its Subsidiaries so to
do, except:
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(a) Dispositions of Property which, in the
reasonable opinion of the Parent Borrower or such Subsidiary, is obsolete or no
longer useful in the conduct of its business;
(b) Intercompany Dispositions; and
(c) other Dispositions made on or after the date
hereof, provided that, immediately after giving effect to each such other
Disposition, (i) no Default would result therefrom, and (ii) the aggregate book
value of the Property sold, assigned, transferred or otherwise disposed of in
connection with all such other Dispositions shall not exceed an amount equal to
50% of the Adjusted Consolidated Net Worth at such time.
8.6. Investments
At any time on or after the date hereof, purchase or otherwise
acquire or invest in the Capital Stock of, or any other interest in, any
Non-Affiliate, or make any loan or advance to, or enter into any arrangement for
the purpose of providing funds or credit to, or make any other investment,
whether by way of capital contribution, time deposit or otherwise, in or with
any Non-Affiliate (all of which are sometimes referred to herein as
"Investments"), or permit any of its Subsidiaries so to do, except Investments
made on or after the date hereof in one or more Non-Affiliates, provided that,
immediately after giving effect to each such Investment, the aggregate
outstanding principal balance at such time of all such Investments constituting
debt Investments, plus the aggregate consideration paid for all such Investments
constituting equity Investments shall not exceed an amount equal to (i)
$50,000,000, plus (ii) the aggregate net cash proceeds of all returns of capital
received by the Parent Borrower or any of its Subsidiaries from all such
Investments, plus (iii) the aggregate consideration paid for all such
Investments constituting Investments in any Non-Affiliate which shall have
become a direct or indirect Subsidiary of the Parent Borrower.
9. DEFAULT
9.1. Events of Default
The following shall each constitute an "Event of Default"
hereunder:
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(a) Any payment of principal with respect to any
Loan shall not be made on the date when due and payable; or
(b) Any payment of interest, fees, expenses or
other amounts payable under any Loan Document or otherwise to either Agent with
respect to the loan facilities established hereunder shall not be made within
three Business Days of the date when due and payable; or
(c) The failure of any Credit Party to observe
or perform any covenant or agreement contained in Section 2.9, 7.2(a)(i) or
(a)(ii) (in each case to the extent that such failure would occur if the amount
"$5,000,000" were deleted where it appears in such Section and the amount
"$10,000,000" were inserted in its place), 7.3, 7.10 or 7.11, or Section 8; or
(d) The failure of any Credit Party to observe
or perform (i) any term, covenant, or agreement contained in Section 7.2(a)(i)
or (a)(ii) (in each case to the extent that such failure would not occur if the
amount "$5,000,000" were deleted where it appears in such Section and the amount
"$10,000,000" were inserted in its place) and such failure shall have continued
unremedied for a period of 30 days after the Administrative Agent shall have
notified the Parent Borrower in writing thereof, or (ii) any other term,
covenant, or agreement contained in any Loan Document and such failure shall
have continued unremedied for a period of 30 days after the Administrative Agent
shall have notified the Parent Borrower in writing thereof; or
(e) Any representation or warranty made by any
Credit Party (or by an officer thereof on its behalf) in any Loan Document or in
any certificate, report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant thereto, shall prove to have been
incorrect or misleading (whether because of misstatement or omission) in any
material respect when made; or
(f) Indebtedness of the Parent Borrower (other
than Indebtedness under the Loan Documents) or any of its Subsidiaries, in an
aggregate amount in excess of $10,000,000, (i) shall become or shall be declared
to be due and payable prior to the expressed maturity thereof or (ii) shall not
be paid when due or within any grace period for the payment thereof; or
(g) Any Credit Party shall (i) suspend or
discontinue its business (except as may otherwise be permitted hereunder), (ii)
make an assignment for the benefit of creditors, (iii) generally not be paying
its debts as such debts become due, (iv) admit in
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writing its inability to pay its debts as they become due, (v) file a voluntary
petition in bankruptcy, (vi) become insolvent (however such insolvency shall be
evidenced), (vii) file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief under any present or future statute, law or
regulation of any jurisdiction, (viii) petition or apply to any tribunal for any
receiver, custodian or any trustee for any substantial part of its Property,
(ix) be the subject of any such proceeding filed against it which remains
undismissed for a period of 60 days, (x) file any answer admitting or not
contesting the material allegations of any such petition filed against it or any
order, judgment or decree approving such petition in any such proceeding, (xi)
seek, approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, sequestrator, custodian, liquidator, or
fiscal agent for it, or any substantial part of its Property, or an order is
entered appointing any such trustee, receiver, custodian, liquidator or fiscal
agent and such order remains in effect for 60 days, or (xii) take any formal
action for the purpose of effecting any of the foregoing or looking to the
liquidation or dissolution of such Credit Party (except as may otherwise be
permitted hereunder); or
(h) An order for relief is entered under the
bankruptcy or insolvency laws of any jurisdiction or any other decree or order
is entered by a court having jurisdiction (i) adjudging any Credit Party
bankrupt or insolvent, (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or in
respect of any Credit Party under the bankruptcy or insolvency laws of any
jurisdiction, (iii) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of any Credit Party or of
any substantial part of the Property of any thereof, or (iv) ordering the
winding up or liquidation of the affairs of any Credit Party, and any such
decree or order continues unstayed and in effect for a period of 60 days; or
(i) Judgments or decrees against the Parent
Borrower or any of its Subsidiaries (excluding any portion thereof covered by
insurance) aggregating in excess of $10,000,000 shall remain unpaid, unstayed on
appeal, undischarged, unbonded or undismissed for a period of 60 days; or
(j) Any Loan Document shall cease, for any
reason, to be in full force and effect, or any Credit Party shall so assert in
writing or shall disavow any of its obligations thereunder; or
(k) (i) Any Termination Event shall occur; (ii)
any Accumulated Funding Deficiency, whether or not waived, shall exist with
respect to any Pension Plan;
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(iii) any Person shall engage in any Prohibited Transaction involving any
Employee Benefit Plan; (iv) the Parent Borrower, any of its Subsidiaries or any
ERISA Affiliate shall fail to pay when due an amount which is payable by it to
the PBGC or to a Pension Plan under Title IV of ERISA; or (v) any other event or
condition shall occur or exist with respect to an Employee Benefit Plan, which,
in the case of clauses (i) through (v) of this Section 9.1(k), would,
individually or in the aggregate, have a Material Adverse Effect; or
(l) The occurrence of a Change of Control.
9.2. Contract Remedies
(a) Upon the occurrence of an Event of Default or at any
time thereafter during the continuance thereof,
(i) if such event is an Event of Default specified in
Section 9.1(g) or 9.1(h) above with respect to any Domestic Borrower,
the Commitments of all of the Lenders shall immediately and
automatically terminate and the Loans, all accrued and unpaid interest
thereon and all other amounts owing under the Loan Documents shall
immediately become due and payable, and the Administrative Agent may,
and, upon the direction of the Required Lenders shall, exercise any and
all remedies and other rights provided in the Loan Documents,
(ii) if such event is an Event of Default specified in
Section 9.1(g) or 9.1(h) above with respect to any other Borrower, the
Commitments of all of the Lenders with respect to Loans to be made to
such Borrower shall immediately and automatically terminate and the
Subsidiary Borrower Obligations of such Borrower shall immediately
become due and payable, and, in each case, the Administrative Agent
may, and, upon the direction of the Required Lenders shall, exercise
any and all remedies and other rights provided in the Loan Documents,
and
(iii) if such event is any other Event of Default, any or
all of the following actions may be taken: (A) with the consent of the
Required Lenders, the Administrative Agent may, and upon the direction
of the Required Lenders shall, by notice to the Parent Borrower,
declare the Commitments of all of the Lenders terminated forthwith,
whereupon such Commitments shall immediately terminate, and (B) with
the consent of the Required Lenders, the Administrative Agent may, and
upon the direction of the Required Lenders shall, by notice of default
to the Parent Borrower, declare the Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents
to be due and payable forthwith, where-
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upon the same shall immediately become due and payable, and the
Administrative Agent may, and upon the direction of the Required
Lenders shall, exercise any and all remedies and other rights provided
in the Loan Documents.
Except as otherwise provided in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived. Each Credit Party
hereby further expressly waives and covenants not to assert any appraisement,
valuation, stay, extension, redemption or similar laws, now or at any time
hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
(b) In the event that any Commitments shall have been
terminated, or any Loans, any accrued and unpaid interest thereon or any other
amounts owing under the Loan Documents shall have been declared due and payable,
in each case pursuant to the provisions of this Section, any funds received by
the Agents and the Lenders from or on behalf of the Parent Borrower shall be
applied by the Agents and the Lenders in liquidation of the Loans and the other
obligations of the Parent Borrower under the Loan Documents in the following
manner and order: (i) first, to the payment of interest on, and then the
principal portion of, any Loans which the Administrative Agent may have advanced
on behalf of any Lender for which the Administrative Agent has not then been
reimbursed by such Lender or the Parent Borrower; (ii) second, to the payment of
any fees or expenses due each Agent from the Parent Borrower, (iii) third, to
reimburse the Agents and the Lenders for any expenses (to the extent not paid
pursuant to clause (ii) above) due from the Parent Borrower pursuant to the
provisions of Section 12.5; (iv) fourth, to the payment of accrued Fees and all
other fees, expenses and amounts due under the Loan Documents (other than
principal and interest on the Loans), (v) fifth, to the payment, pro rata
according to the outstanding principal amount of the Loans, of interest due on
the Loans of each Lender; (vi) sixth, to the payment, pro rata according to the
outstanding principal amount of the Loans, of principal outstanding on the
Loans; and (vii) seventh, to the payment of any other amounts owing to the
Agents and the Lenders under any Loan Document.
10. THE AGENTS
10.1. Appointment
Each Lender hereby irrevocably designates and appoints Bank of
Montreal as the Documentation Agent and Fleet as the Administrative Agent of
such Lender under the Loan Documents and such Lender hereby irrevocably
authorizes each Agent to take
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such action on its behalf under the provisions of the Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to such
Agent by the terms of the Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, neither
Agent shall have any duties or responsibilities except those expressly set forth
herein or therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into the Loan Documents or otherwise exist against any Agent.
10.2. Delegation of Duties
Each of the Agents may execute any of its duties under the
Loan Documents by or through agents or attorneys-in-fact and shall be entitled
to rely upon and shall be fully protected in, and shall not be under any
liability for, relying upon, the advice of counsel concerning all matters
pertaining to such duties.
10.3. Exculpatory Provisions
Neither Agent nor any of its respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except for its own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Credit Party
contained in the Loan Documents or in any certificate, report, statement or
other document referred to or provided for in, or received by any Agent under or
in connection with, the Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of the Loan
Documents or for any failure of any Credit Party or any other Person to perform
its obligations thereunder. Neither Agent shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, the Loan Documents, or to inspect
the Property, books or records of any Credit Party. The Lenders acknowledge that
no Agent shall be under any duty to take any discretionary action permitted
under the Loan Documents unless such Agent shall be instructed in writing to do
so by the Required Lenders and such instructions shall be binding on all
Lenders; provided, however, that neither Agent shall be required to take any
action which exposes it to personal liability or is contrary to law or any
provision of the Loan Documents. Neither Agent shall be under any liability or
responsibility whatsoever, as Agent, to any Credit Party or any other Person as
a consequence of any failure or delay in per-
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formance, or any breach, by any Lender of any of its obligations under any of
the Loan Documents.
10.4. Reliance by the Agents
Each of the Agents shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by a proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to any Credit Party), independent accountants and other experts selected
by such Agent. Each Agent may treat each Lender or the Person designated in the
last notice filed with the Administrative Agent under this Section, as the
holder of all of the interests of such Lender in its Loans, until written notice
of transfer, signed by such Lender (or the Person designated in the last notice
filed with the Administrative Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent. No
Agent shall be under any duty to examine or pass upon the validity,
effectiveness, enforceability or genuineness of the Loan Documents or any
instrument, document or communication furnished pursuant thereto or in
connection therewith, and each Agent shall be entitled to assume that the same
are valid, effective and genuine, have been signed or sent by the proper parties
and are what they purport to be. Each Agent shall be fully justified in failing
or refusing to take any action under the Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate. Each Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance with a request or
direction of the Required Lenders, and such request or direction and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans.
10.5. Notice of Default
Neither Agent shall be deemed to have knowledge or notice of
the occurrence of any Default unless such Agent has received written notice
thereof from a Lender or the Parent Borrower. In the event that an Agent
receives such a notice, such Agent shall promptly give notice thereof to the
other Agent, each Lender and the Parent Borrower. Each Agent shall take such
action with respect to such Default as shall be directed by the Required
Lenders, provided, however, that unless and until such Agent shall have received
such directions, such Agent may (but shall not be obligated to) take such
action,
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or refrain from taking such action, with respect to such Default as it shall
deem to be in the best interests of the Lenders.
10.6. Non-Reliance on the Agents and Other Lenders
Each Lender expressly acknowledges that neither Agent nor any
of its respective officers, directors, employees, agents, attorneys-in- fact or
affiliates has made any representations or warranties to it and that no act by
either Agent hereinafter, including any review of the affairs of the Parent
Borrower or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by such Agent to any Lender. Each Lender represents
to each Agent that it has, independently and without reliance upon either Agent
or any Lender, and based on such documents and information as it has deemed
appropriate made its own evaluation of and investigation into the business,
operations, Property, financial and other condition and creditworthiness of each
Credit Party and the value and Lien status of any collateral security and made
its own decision to enter into this Agreement. Each Lender also represents that
it will, independently and without reliance upon either Agent or any Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, evaluations and decisions in
taking or not taking action under any Loan Document, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, Property, financial and other condition and creditworthiness of each
Credit Party and the value and Lien status of any collateral security. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by either Agent hereunder, such Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, Property, financial and other condition or
creditworthiness of any Credit Party which at any time may come into the
possession of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7. Indemnification
Each Lender agrees to indemnify and hold harmless each Agent
in its capacity as such (to the extent not promptly reimbursed by the Parent
Borrower and without limiting the obligation of the Parent Borrower to do so),
pro rata according to (i) at any time prior to the Commitment Termination Date,
its Commitment Percentage, and (ii) at all other times, (a) if no Loan is
outstanding, its Commitment Percentage, and (b) if any Loan is outstanding, the
percentage equal to the fraction, the numerator of which is the outstanding
principal amount of the Loans of such Lender (determined, in the case of each
Alternate Currency Loan, on the basis of the Dollar Equivalent thereof), and the
denomi-
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nator of which is the Aggregate Credit Exposure, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever including any amounts
paid to the Lenders (through either Agent) by any Credit Party pursuant to the
terms of the Loan Documents, that are subsequently rescinded or avoided, or must
otherwise be restored or returned) which may at any time (including at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against either Agent in any way relating to or arising out of the Loan Documents
or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
such Agent under or in connection with any of the foregoing; provided, however,
that no Lender shall be liable to either Agent for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements to the extent resulting primarily from
the finally adjudicated gross negligence or willful misconduct of such Agent.
Without limitation of the foregoing, each Lender agrees to reimburse each Agent
promptly upon demand for its pro rata share (calculated as set forth in the
first sentence of this Section) of any costs and expenses (including reasonable
fees and expenses of counsel) payable by any Credit Party under Section 12.5, to
the extent that such Agent has not been reimbursed for such costs and expenses
by any Credit Party, provided, however, that, in the event of such reimbursement
by such Credit Party, such Agent shall promptly remit to each Lender which shall
have reimbursed such Agent for such costs and expenses under this Section 10.7
its pro rata share (according to the amount of such reimbursement by such
Lender) of the amount of such reimbursement by such Credit Party. The failure of
any Lender to reimburse such Agent promptly upon demand for its pro rata share
(as so calculated) of any amount required to be paid by the Lenders to such
Agent as provided in this Section shall not relieve any other Lender of its
obligation hereunder to reimburse such Agent for its pro rata share (as so
calculated) of such amount, but no Lender shall be responsible for the failure
of other Lender to reimburse such Agent for such other Lender's pro rata share
(as so calculated) of such amount. The agreements in this Section shall survive
the termination of the Commitments of all of the Lenders and the payment of all
amounts payable under the Loan Documents.
10.8. Lenders in Their Respective Individual Capacities
Each of Bank of Montreal, Fleet, each Lender and the
respective affiliates thereof may make secured or unsecured loans to, accept
deposits from, issue letters of credit for the account of, act as trustee under
indentures of, and generally engage in any kind of business with, any Credit
Party as though Bank of Montreal were not Documentation Agent hereunder, Fleet
were not Administrative Agent hereunder, and each Lender were not a Lender
hereunder. With respect to the Commitments made or
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renewed by each of Bank of Montreal and Fleet and the Loans made it, it shall
have the same rights and powers under the Loan Documents as any Lender and may
exercise the same as though it were not the Documentation Agent or the
Administrative Agent, as the case may be, and the terms "Lender" and "Lenders"
shall in each case include Bank of Montreal or Fleet, as the case may be.
10.9. Successor Agents
If at any time either Agent deems it advisable, in its sole
discretion, it may submit to each of the Lenders a written notification of its
resignation as such Agent under this Agreement, such resignation to be effective
on the earlier to occur of (i) the thirtieth day after the date of such notice,
and (ii) the date upon which any successor to such Agent, in accordance with the
provisions of this Section 10.9, shall have accepted in writing its appointment
as such successor Agent. If Fleet resigns as Administrative Agent, Bank of
Montreal shall have the right to become the Administrative Agent if it is then
the acting Documentation Agent, and, if Bank of Montreal resigns as
Documentation Agent, Fleet shall have the right to become the Documentation
Agent if it is then the acting Administrative Agent. If Bank of Montreal or
Fleet does not succeed the retiring Agent as set forth above, upon any such
resignation, the Required Lenders shall have the right, with the consent of the
Parent Borrower, which consent shall not be unreasonably withheld, to appoint
from among the Lenders a successor Agent. If no such successor Agent shall have
been so appointed by the Required Lenders and accepted such appointment within
30 days after the retiring Agent's giving of notice of resignation, then the
retiring Agent may, with the consent of the Parent Borrower, which consent shall
not be unreasonably withheld, on behalf of the Lenders, appoint a successor
Agent therefor. Upon the written acceptance of any appointment as an Agent
hereunder by a successor Agent, such successor Agent shall automatically become
a party to this Agreement and shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent's rights, powers, privileges and duties as an Agent under this
Agreement shall be terminated. The Parent Borrower and the Lenders shall execute
such documents as shall be necessary to effect such appointment. After any
retiring Agent's resignation as an Agent, the provisions of this Section 10
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was an Agent under this Agreement. If at any time there shall not be a
duly appointed and acting Administrative Agent, upon notice duly given, each
Credit Party agrees to make each payment when due hereunder and the other Loan
Documents directly to the Lenders entitled thereto during such time. Any such
successor Agent shall be a commercial bank organized under the laws of the
United States or of any State thereof.
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11. GUARANTY OF THE PARENT BORROWER
In order to induce the Agents and the Lenders to enter into this
Agreement, and the Lenders to make the Loans, the Parent Borrower hereby agrees
as follows:
11.1. Guaranty
The Parent Borrower hereby absolutely, irrevocably and
unconditionally guarantees the full and prompt payment when due in the
applicable Currency, whether at stated maturity, by acceleration, by mandatory
prepayment, by notice of intention to prepay or otherwise, of all of the
obligations and liabilities of each Subsidiary Borrower under the Loan
Documents, in each case whether fixed, contingent, now existing or hereafter
arising, created or assumed, incurred or acquired, and whether before or after
the occurrence of any Event of Default under Sections 9.1(g) or (h), including
any obligation or liability in respect of any breach of any representation or
warranty, and all post-petition interest, funding losses and make-whole
premiums, whether or not allowed as a claim in any proceeding arising in
connection with any Event of Default under Sections 9.1(g) or (h) (collectively,
the "Borrower Obligations"). This Section 11 constitutes a guaranty of payment,
and none of the Agents or the Lenders shall have any obligation to enforce any
Loan Document or exercise any right or remedy with respect to any collateral
security thereunder by any action, including making or perfecting any claim
against any Person or any collateral security for any of the Borrower
Obligations prior to being entitled to the benefits of this Section 11. The
Administrative Agent may, at its option, proceed against the Parent Borrower, in
the first instance, to enforce any of the obligations and liabilities of the
Parent Borrower under this Section 11, whether fixed, contingent, now existing
or hereafter arising, created, assumed, incurred or acquired (collectively, the
"Guarantor Obligations") without first proceeding against any Subsidiary
Borrower or any other Person, and without first resorting to any other rights or
remedies, as the Administrative Agent may deem advisable. In furtherance hereof,
if either Agent or any Lender is prevented by law from collecting or otherwise
hindered from collecting or otherwise enforcing any Obligation in accordance
with its terms, such Agent or such Lender, as the case may be, shall be entitled
to receive hereunder from the Parent Borrower after demand therefor, the sums
which would have been otherwise due had such collection or enforcement not been
prevented or hindered.
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11.2. Absolute Obligation
Subject to Section 11.4, the Parent Borrower shall not be
released from liability hereunder unless and until the Commitment Termination
Date shall have occurred and either (a) each Subsidiary Borrower shall have paid
in full the outstanding principal amount of the Loans made to it, together with
all accrued interest thereon and all other sums then due and owing by it under
the Loan Documents, or (b) the Guarantor Obligations shall have been paid in
full. The Parent Borrower acknowledges and agrees that (i) none of the Agents
and the Lenders has made any representation or warranty to the Parent Borrower
with respect to any Subsidiary Borrower, the other Subsidiaries of the Parent
Borrower, any Loan Document, or any agreement, instrument or document executed
or delivered in connection therewith, or any other matter whatsoever, and (ii)
the Parent Borrower shall be liable hereunder, and such liability shall not be
affected or impaired, irrespective of (A) the validity or enforceability of any
Loan Document or any agreement, instrument or document executed or delivered in
connection therewith, or the collectability of any of the Borrower Obligations,
(B) the preference or priority ranking with respect to any of the Borrower
Obligations, (C) the existence, validity, enforceability or perfection of any
security interest or collateral security under any Loan Document or the release,
exchange, substitution or loss or impairment of any such security interest or
collateral security, (D) any failure, delay, neglect or omission by either Agent
or any Lender to realize upon or protect any direct or indirect collateral
security, indebtedness, liability or obligation, any Loan Document or any
agreement, instrument or document executed or delivered in connection therewith,
or any of the Borrower Obligations, (E) the existence or exercise of any right
of set-off by either Agent or any Lender, (F) the existence, validity or
enforceability of any other guaranty with respect to any of the Borrower
Obligations, the liability of any other Person in respect of any of the Borrower
Obligations, or the release of any such Person or any other guarantor of any of
the Borrower Obligations, (G) any act or omission of either Agent or any Lender
in connection with the administration of any Loan Document or any of the
Borrower Obligations, (H) the bankruptcy, insolvency, reorganization or
receivership of, or any other proceeding for the relief of debtors commenced by
or against, any Person, (I) the disaffirmance or rejection, or the purported
disaffirmance or purported rejection, of any of the Borrower Obligations, any
Loan Document or any agreement, instrument or document executed or delivered in
connection therewith, in any bankruptcy, insolvency, reorganization or
receivership, or any other proceeding for the relief of debtor, relating to any
Person, (J) any law, regulation or decree now or hereafter in effect which might
in any manner affect any of the terms or provisions of any Loan Document or any
agreement, instrument or document executed or delivered in connection therewith
or any of the Borrower Obligations, or which might cause or permit to be invoked
any alteration in the time, amount, manner or payment or performance of any of
the obligations and liabilities of any Subsidiary Borrower (including the
Borrower Obligations), (K) the merger or consolidation of any Subsidiary
Borrower
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into or with any Person, (L) the sale by any Subsidiary Borrower of all or any
part of its assets, (M) the fact that at any time and from time to time none of
the Borrower Obligations may be outstanding or owing to either Agent or any
Lender, (N) any amendment or modification of, or supplement to, any Loan
Document, or (O) any other reason or circumstance which might otherwise
constitute a defense available to or a discharge of any Subsidiary Borrower in
respect of its obligations or liabilities (including the Borrower Obligations)
or of the Parent Borrower in respect of any of the Guarantor Obligations (other
than by the performance in full thereof).
11.3. Repayment in Bankruptcy
If, at any time or times subsequent to the payment of all or
any part of the Borrower Obligations or the Guarantor Borrower Obligations,
either Agent or any Lender shall be required to repay any amounts previously
paid by or on behalf of any Subsidiary Borrower or the Parent Borrower in
reduction thereof by virtue of an order of any court having jurisdiction in the
premises, including as a result of an adjudication that such amounts constituted
preferential payments or fraudulent conveyances, the Parent Borrower
unconditionally agrees to pay to the Administrative Agent within 10 days after
demand a sum in cash equal to the amount of such repayment, together with
interest on such amount from the date of such repayment by such Agent or such
Lender, as the case may be, to the date of payment to the Administrative Agent
at the applicable after-maturity rate set forth in Section 3.1.
11.4. No Subrogation
The Parent Borrower expressly waives any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution or any other
claim which Parent Borrower may now or hereafter have against any Subsidiary
Borrower, any other guarantor or any other Person directly or contingently
liable for the Borrower Obligations, or against or with respect to such
Subsidiary Borrower's or such other guarantor's Property, arising from the
existence or performance of this Section 11 until the Borrower Obligations have
been paid in full and the Commitments shall have been terminated. In
furtherance, and not in limitation, of the preceding waiver, the Parent Borrower
agrees that in the event that any money or Property shall be transferred to
either Agent or any Lender by the Parent Borrower pursuant to this Section 11 in
reduction of the Borrower Obligations or the Guarantor Obligations, such
transfer shall be deemed to be a contribution to the capital of such Subsidiary
Borrower (in the case of the transfer of Property, in an amount equal to the
fair market value of the Property so transferred) as of the date of such
transfer, and any such transfer shall not cause the Parent Borrower to be a
creditor of such Subsidiary
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Borrower until the Borrower Obligations have been paid in full and the
Commitments shall have been terminated.
12. OTHER PROVISIONS
12.1. Amendments and Waivers
Notwithstanding anything to the contrary contained in any Loan
Document, with the written consent of the Required Lenders, the Administrative
Agent and the appropriate parties to the Loan Documents (other than the Lenders)
may, from time to time, enter into written amendments, supplements or
modifications thereof and, with the consent of the Required Lenders, the
Administrative Agent on behalf of the Lenders may execute and deliver to any
such parties a written instrument waiving or consenting to the departure from,
on such terms and conditions as the Administrative Agent may specify in such
instrument, any of the requirements of the Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such
amendment, supplement, modification, waiver or consent shall (i) increase the
amount or length of any Lender's Commitment, reduce the amount or extend the
maturity of any Loan, or reduce the rate of interest or extend the time of
payment of interest thereon, or reduce any fee (including the Facility Fee)
payable to any Lender under the Loan Documents, in each case without the prior
written consent of the Lender directly affected thereby, (ii) amend, modify or
waive any provision of Section 2.1(a), 2.10(a)(i)(B) or this Section 12.1, amend
or modify the definition of "Core Currency", reduce the percentage specified in
the definition of Required Lenders, consent to the assignment or transfer by any
Credit Party of any of its rights and obligations under the Loan Documents, or
release all or substantially all of the obligations of the Parent Borrower under
Section 11, in each case without the prior written consent of each Lender, (iii)
increase the Aggregate Commitment Amount or amend, modify or waive any provision
of Section 7.10 without the consent of the Super-majority Lenders, or (iv)
amend, modify or waive any provision of Section 10 without the prior written
consent of each Agent directly affected thereby. Any such amendment, supplement,
modification, waiver or consent shall apply equally to each of the Lenders and
shall be binding upon the parties to the applicable agreement, the Lenders, the
Agents and all future holders of the Loans. In the case of any waiver, the
parties to the applicable agreement, the Lenders and each Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default waived shall not extend to any subsequent or other
Default, or impair any right consequent thereon.
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12.2. Notices
All notices and other communications under the Loan Documents
shall be given to each party hereto, initially, at the following address, and,
thereafter, such other address through which it may from time to time be
accepting notices, as designated by it in writing to each Agent and the Parent
Borrower:
(a) if to the Parent Borrower or any other Borrower, the
office, branch or affiliate thereof designated as its address for notices in
Exhibit O or the Borrower Addendum, if any, executed and delivered with respect
to such Borrower pursuant to Section 2.10, as the case may be;
(b) if to any Lender, the office, branch, affiliate, or
correspondent bank thereof designated as its address for notices in Exhibit N;
(c) if to the Administrative Agent, the office, branch,
affiliate, or correspondent bank thereof designated as its address for notices
in Exhibit M; and
(d) if to the Documentation Agent, at the following
address:
Bank of Montreal
430 Park Avenue
14th Floor
New York, New York 10022
Attention: Jordan Fragiacomo,
Director
Telephone: (212) 605-1663
Telecopy: (212) 605-1455
Such notices and other communications will be effective only if and when given
in writing, and shall be deemed to have been given three days after deposit in
the mail, designated as certified mail, return receipt requested,
postage-prepaid, at the applicable address specified above, or when delivered at
the applicable address specified above, or when sent by telecopy addressed to
the party to which such notice is directed at its address determined as provided
above and receipt is confirmed, except that any notice, request or demand by any
Borrower to or upon either Agent or the Lenders pursuant to Sections 2.3, 2.4,
2.7, 2.8 or 3.3 shall not be effective until received. Any party to a Loan
Document may rely on signatures of the parties thereto which are transmitted by
fax or other electronic means as fully as if originally signed.
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12.3. No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part
of either Agent or any Lender, any right, remedy, power or privilege under any
Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
under the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
12.4. Survival of Representations and Warranties and Certain
Obligations
(a) All representations and warranties made under the
Loan Documents and in any document, certificate or statement delivered pursuant
thereto or in connection therewith shall survive the execution and delivery of
the Loan Documents.
(b) The obligations of the Credit Parties under Sections
3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 12.5 and 12.7 shall survive the termination
of the Commitments and the payment of the Loans and all other amounts payable
under the Loan Documents.
12.5. Expenses
The Parent Borrower agrees, promptly upon presentation of a
statement or invoice therefor, and whether any Loan is made (i) to pay or
reimburse the Documentation Agent for all its out-of-pocket costs and expenses
reasonably incurred in connection with the development, preparation and
execution of, the Loan Documents and any amendment, supplement or modification
thereto (whether or not executed or effective), any documents prepared in
connection therewith and the consummation of the transactions contemplated
thereby, including the reasonable fees and disbursements of Special Counsel,
(ii) to pay or reimburse the Agents and the Lenders for all of their respective
costs and expenses, including reasonable fees and disbursements of counsel,
incurred in connection with (a) any enforcement or collection proceedings
resulting from any Default or in connection with the negotiation of any
restructuring or "work-out" (whether consummated or not) of the obligations of
any Credit Party under any of the Loan Documents, including any amendment,
supplement or modification thereto or any waiver or consent thereunder (in each
case whether or not executed or effective) in connection therewith, and (b) the
enforcement of this Section, (iii) to pay, indemnify, and hold each of the
Lenders and the Agents harmless from and against, any and all recording and
filing fees and any and all liabilities
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with respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Loan Documents and any such
other documents, and (iv) to pay, indemnify and hold each of the Lenders and the
Agents and each of their respective affiliates, officers, directors and
employees harmless from and against any and all other liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever (including reasonable counsel
fees and disbursements) with respect to the enforcement and performance of the
Loan Documents, the use of the proceeds of the Loans and the enforcement and
performance of the provisions of any subordination agreement involving the
Agents and the Lenders (all the foregoing, collectively, the "Indemnified
Liabilities"), and, if and to the extent that the foregoing indemnity may be
unenforceable for any reason, the Parent Borrower agrees to make the maximum
payment not prohibited under applicable law; provided, however, that the Parent
Borrower shall have no obligation to pay Indemnified Liabilities to either Agent
or any Lender, as the case may be, arising from the gross negligence or willful
misconduct of such Agent or such Lender, as the case may be, or claims between
one indemnified party and another indemnified party. The agreements in this
Section shall survive the termination of the Commitments and the payment of all
amounts payable under the Loan Documents.
12.6. Assignments and Participations
(a) The Loan Documents shall be binding upon and inure to
the benefit of the Parent Borrower, the Lenders, the Agents, all future holders
of the Loans, and their respective successors and assigns, except that neither
the Parent Borrower nor any other Credit Party may assign, delegate or transfer
any of its rights or obligations under the Loan Documents (other than in
connection with a dissolution or a transaction involving a merger, consolidation
or Disposition, in each case otherwise permitted by this Agreement) without the
prior written consent of the Administrative Agent and each Lender.
(b) In addition to its rights under Section 12.6(f), each
Lender shall have the right to sell, assign, transfer or negotiate (each an
"Assignment") one hundred percent, or any lesser percentage, of its rights and
obligations under the Loan Documents to any subsidiary or affiliate of such
Lender, to any other Lender, or to any other bank, insurance company, financial
institution, pension fund, mutual fund or other similar fund (each an "Eligible
Assignee"), provided that (i) each such Assignment shall be of a constant, and
not a varying, percentage of all of the assignor Lender's rights and obligations
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under the Loan Documents, (ii) the Commitment assigned shall be not less than
$10,000,000, or the full Commitment Amount of such assignor Lender's Commitment,
(iii) unless the assignee is another Lender or a Subsidiary or affiliate of any
Lender (in which case no claims may be made by such assignee pursuant to Section
3.5, 3.6, 3.7, 3.8 or 3.9, in each case except to the extent that the assignor
Lender would otherwise have the right to do so), the Parent Borrower and the
Administrative Agent shall have consented thereto in writing (which consents
shall not be unreasonably withheld or delayed and, in the case of the Parent
Borrower, shall not be required upon the occurrence and during the continuance
of an Event of Default), and (iv) the assignor Lender and such assignee shall
deliver to the Administrative Agent three copies of an Assignment and Acceptance
Agreement executed by each of them, along with an assignment fee in the sum of
$5,000 for the account of the Administrative Agent. Upon receipt of such number
of executed copies of each such Assignment and Acceptance Agreement, together
with the assignment fee therefor and the Parent Borrower's and the
Administrative Agent's consents to such Assignment, if required, the
Administrative Agent shall record the same and execute not less than two copies
of such Assignment and Acceptance Agreement in the appropriate place, deliver
one such copy to the assignor and one such copy to the assignee, and deliver one
photocopy thereof, as executed, to the Parent Borrower. From and after the
effective date specified in such Assignment and Acceptance Agreement, the
assignee thereunder shall be a party hereto and shall for all purposes of this
Agreement and the other Loan Documents be deemed a "Lender" and, to the extent
provided in such Assignment and Acceptance Agreement, the assignor Lender
thereunder shall be released from its obligations under this Agreement and the
other Loan Documents. The Administrative Agent shall be entitled to rely upon
the representations and warranties made by the assignee under each Assignment
and Acceptance Agreement.
(c) In addition to the participations provided for in
Section 12.10(a), each Lender may grant participations in all or any part of its
rights under the Loan Documents to one or more Persons, provided that (i) such
Lender's obligations under this Agreement and the other Loan Documents shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties to this Agreement and the other Loan Documents for the performance of
such obligations, (iii) the Borrowers, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents, (iv) the granting of such participation does not require that any
additional loss, cost or expense be borne by any Borrower at any time, and (v)
the voting rights of any holder of any participation shall be limited to the
voting rights of such Lender under Section 12.1(i).
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(d) No Lender shall, as between and among the Credit
Parties, the Agents and such Lender, as the case may be, be relieved of any of
its obligations under the Loan Documents as a result of any Assignment or the
granting of any participation in all or any part of its rights under the Loan
Documents, except that it shall be relieved of its obligations to the extent of
any such Assignment of all or any part of its rights and obligations under the
Loan Documents pursuant to Section 12.6(b).
(e) Subject to Section 12.6(d), any Lender may at any
time or from time to time assign all or any portion of its rights under the Loan
Documents to a Federal Reserve Bank, provided that any such assignment shall not
release such assignor from its obligations thereunder.
12.7. Indemnity
The Parent Borrower agrees to defend, protect, indemnify, and
hold harmless each Agent, and each and all of the Lenders, each of their
respective affiliates and each of the respective officers, directors, employees
and agents of each of the foregoing (each an "Indemnified Person") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including the reasonable fees and disbursements of counsel
to such Indemnified Persons in connection with any investigative, administrative
or judicial proceeding, whether direct, indirect or consequential and whether
based on any federal or state laws or other statutory regulations of any
jurisdiction, including securities and commercial laws and regulations, under
common law or at equitable cause, or on contract or otherwise, including any
liabilities and costs under Environmental Laws, federal, state or local health
or safety laws, regulations, or common law principles, arising from or in
connection with the past, present or future operations of the Parent Borrower,
any other Credit Party, or their respective predecessors in interest, or the
past, present or future environmental condition of the Property of the Parent
Borrower or any of its Subsidiaries, the presence of asbestos-containing
materials at any such Property, or the release or threatened release of any
Hazardous Substance into the environment from any such Property) in any manner
relating to or arising out of the Loan Documents, any commitment letter or fee
letter executed and delivered by the Parent Borrower or any of its Subsidiaries
and/or the Agents, the capitalization of the Parent Borrower or any of its
Subsidiaries, the Commitments, the making of, management of and participation in
the Loans, or the use or intended use of the proceeds of the Loans hereunder,
provided that the Parent Borrower shall have no obligation under this Section to
an Indemnified Person with respect to any of the foregoing to the extent
resulting primarily out of the gross negligence or wilful misconduct of such
Indemnified Person or arising solely from claims between
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one such Indemnified Person and another such Indemnified Person. The indemnity
set forth herein shall be in addition to any other obligations or liabilities of
the Parent Borrower to each Indemnified Person under the Loan Documents or at
common law or otherwise, and shall survive any termination of the Loan
Documents, the expiration of the Commitments and the payment of all Indebtedness
under the Loan Documents.
12.8. Limitation of Liability
No claim may be made by the Parent Borrower, any of its
Subsidiaries, any Lender or other Person against either Agent, any Lender, or
any directors, officers, employees, or agents of any of them for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or any other theory of liability arising out of or related to the
transactions contemplated by any Loan Document, or any act, omission or event
occurring in connection therewith, and each of the Parent Borrower, its
Subsidiaries, each Lender and each such other Person hereby waives, releases and
agrees not to sue upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor.
12.9. Counterparts
This Agreement may be executed by one or more of the parties
thereto on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same document. It shall
not be necessary in making proof of any Loan Document to produce or account for
more than one counterpart signed by the party to be charged. A counterpart of
any Loan Document or to any document evidencing, and of any an amendment,
modification, consent or waiver to or of any Loan Document transmitted by
telecopy shall be deemed to be an originally executed counterpart. A set of the
copies of the Loan Documents signed by all the parties thereto shall be
deposited with each of the Parent Borrower and each Agent. Any party to a Loan
Document may rely upon the signatures of any other party thereto which are
transmitted by telecopy or other electronic means to the same extent as if
originally signed.
12.10. Adjustments; Set-off
(a) If any Lender (a "Benefited Lender") shall at any
time receive any payment of all or any part of the principal of its Loans owing
to such Lender, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Sections 9.1(g) or (h), or otherwise), in a greater
proportion than any such payment to and collateral received by any other
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Lender in respect of the principal of such other Lender's Loans to such other
Lender, or interest thereon, such Benefited Lender shall purchase for cash from
each of the other Lenders such portion of each such other Lender's Loans, and
shall provide each of such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders, provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. Each
Credit Party agrees that each Lender so purchasing a portion of another Lender's
Loans may exercise all rights of payment (including rights of set-off, to the
extent not prohibited by law) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the acceleration
of the obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default under
Section 9.1(a) or (b), each Lender shall have the right, without prior notice to
the Parent Borrower or any other Credit Party, any such notice being expressly
waived by the Parent Borrower and each other Credit Party to the extent not
prohibited by applicable law, to set-off and apply against any indebtedness,
whether matured or unmatured, of the Parent Borrower or such other Credit Party,
as the case may be, to such Lender any amount owing from such Lender to the
Parent Borrower or such other Credit Party, as the case may be, at, or at any
time after, the happening of any of the above-mentioned events. To the extent
not prohibited by applicable law, the aforesaid right of set-off may be
exercised by such Lender against the Parent Borrower or such other Credit Party,
as the case may be, or against any trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor of the Parent Borrower or such other Credit
Party, as the case may be, or against anyone else claiming through or against
the Parent Borrower or such other Credit Party, as the case may be, or such
trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit
of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the Parent Borrower and the Administrative Agent after
any such set-off and application made by such Lender, provided that the failure
to give such notice shall not affect the validity of such set-off and
application.
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12.11. Construction
Each party to a Loan Document represents that it has been
represented by counsel in connection with the Loan Documents and the
transactions contemplated thereby and that the principle that agreements are to
be construed against the party drafting the same shall be inapplicable.
12.12. Governing Law
The Loan Documents and the rights and obligations of the
parties thereunder shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York, without regard to
principles of conflict of laws, but including Section 5-1401 of the General
Obligations Law.
12.13. Judgment Currency
(a) Each Credit Party's obligations under the Loan
Documents to make payments in the applicable Currency (the "Obligation
Currency") shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other than
the Obligation Currency, except to the extent that, on the Business Day
immediately following the date of such tender or recovery, either Agent or the
applicable Lender, as the case may be, may, in accordance with normal banking
procedures, purchase the Obligation Currency with such other currency. If for
the purpose of obtaining or enforcing judgment against any Credit Party in any
court or in any jurisdiction, it becomes necessary to convert into any currency
other than the Obligation Currency (such other currency being hereinafter
referred to as the "Judgment Currency") an amount due in the Obligation
Currency, the conversion shall be made at the rate of exchange at which, in
accordance with normal banking procedures in the relevant jurisdiction, the
Obligation Currency could be purchased with the Judgment Currency as of the day
immediately preceding the day on which the judgment is given (such Business Day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If the amount of Obligation Currency purchased
pursuant to the last sentence of Section 12.13(a) is less than the sum
originally due in the Obligation Currency, the applicable Credit Party covenants
and agrees to indemnify the applicable recipient against such loss, and if the
Obligation Currency so purchased exceeds the sum originally due to such
recipient, such recipient agrees to remit to the applicable Credit Party such
excess.
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12.14. International Banking Facilities
(a) The Parent Borrower and the other Credit Parties
acknowledge that some or all of the Lenders may, in connection with the Loan
Documents, utilize an International banking facility (as defined in Regulation
D).
(b) Each Credit Party which is an entity located outside
the United States (i) understands that it is the policy of the Board of
Governors of the Federal Reserve System that deposits received by International
banking facilities may be used only to support the non-U.S. operations of a
depositor (or its foreign affiliates) located outside the United States and that
extensions of credit by International banking facilities may be used only to
finance the non-U.S. operations of a customer (or its foreign affiliates)
located outside the United States, and (ii) acknowledges that the proceeds of
its borrowings hereunder from an international banking facility will be used
solely to finance its operations outside the United States, or that of its
foreign affiliates.
12.15. Incorporation by Reference
To the extent that any covenant or other similar agreement in
respect of any Indebtedness of the Parent Borrower or any of its Subsidiaries
is more restrictive than any covenant or other similar agreement contained in
the Loan Documents, it shall be incorporated by reference in the Loan Documents
as if fully set forth therein, including the definitions of capitalized terms
so incorporated, mutatis mutandis.
12.16. Headings Descriptive
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
12.17. Severability
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
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12.18. Integration
All exhibits to a Loan Document shall be deemed to be a part
thereof. Except for agreements between either Agent and the Parent Borrower
with respect to certain fees, the Loan Documents embody the entire agreement
and understanding among the Credit Parties, the Agents and the Lenders with
respect to the subject matter thereof and supersede all prior agreements and
understandings among the Credit Parties, the Agents and the Lenders with
respect to the subject matter thereof.
12.19. Consent to Jurisdiction
Each party to a Loan Document hereby irrevocably submits to
the jurisdiction of any New York State or Federal court sitting in the City of
New York over any suit, action or proceeding arising out of or relating to the
Loan Documents. Each party to a Loan Document hereby irrevocably waives, to the
fullest extent permitted or not prohibited by law, any objection which it may
now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Each Credit Party hereby agrees that a final judgment in any such suit, action
or proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it.
12.20. Service of Process
Each party to a Loan Document hereby irrevocably consents to
the service of process in any suit, action or proceeding by sending the same by
first class mail, return receipt requested or by overnight courier service, to
the address of such party set forth in Section 12.2 of the applicable Loan
Document executed by such party. Each party to a Loan Document hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
12.21. No Limitation on Service or Suit
Nothing in the Loan Documents or any modification, waiver,
consent or amendment thereto shall affect the right of either Agent or any
Lender to serve process in any manner permitted by law or limit the right of
either Agent or any Lender to bring pro-
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ceedings against any Credit Party in the courts of any jurisdiction or
jurisdictions in which such Credit Party may be served.
12.22. WAIVER OF TRIAL BY JURY
EACH OF THE AGENTS, THE LENDERS AND THE CREDIT PARTIES HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN.
FURTHER, EACH CREDIT PARTY HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF
EITHER AGENT OR THE LENDERS, OR COUNSEL TO THE EITHER AGENT OR THE LENDERS, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENTS OR THE LENDERS WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL PROVISION. EACH CREDIT PARTY ACKNOWLEDGES THAT THE AGENTS AND THE LENDERS
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS
OF THIS SECTION.
12.23. Parent Borrower as Agent for Subsidiary Borrowers
Each Subsidiary Borrower hereby irrevocably designates and
appoints the Parent Borrower as its agent under the Loan Documents and such
Subsidiary Borrower hereby irrevocably authorizes the Parent Borrower to take
such action on its behalf under the provisions of the Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Parent Borrower by the terms of the Loan Documents, together with such other
powers as are reasonably incidental thereto.
12.24. Effective Date
This Agreement shall be effective at such time (the "Effective
Date") as (i) executed counterparts hereof shall have been delivered to the
Documentation Agent by the Parent Borrower, each Lender and the Administrative
Agent, and the Documentation Agent shall have executed and delivered a
counterpart hereof to the Parent Borrower, each Lender and the Administrative
Agent, (ii) the Existing Indebtedness shall have been fully repaid by the Parent
Borrower, the Existing Promissory Note shall have been cancelled or terminated,
and all Liens, if any, securing the Existing Indebtedness shall have been
terminated, and the Documentation Agent shall have received satisfactory
evidence thereof,
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and (iii) all fees payable to the Agents and the Lenders in connection herewith
on or prior to the Effective Date shall have been paid.
12.25. Treatment of Certain Information
Each of the Agents and the Lenders agrees to use reasonable
precautions to keep confidential, in accordance with its customary procedures
for handling confidential information of the same nature, all non-public
information (i) provided to it by or on behalf the Parent Borrower or any of its
Subsidiaries pursuant to or in connection with any Loan Document or (ii)
obtained by it based on a review of the books and records of the Parent Borrower
or any of its Subsidiaries, provided, however, that nothing herein shall limit
the disclosure of any such information (c) to the extent required by statute,
rule, regulation or judicial process, (d) on a confidential basis, to counsel
for any of the Lenders or either of the Agents, (e) to bank examiners, auditors
or accountants, and any analogous counterpart thereof, (f) to either Agent or
any Lender, (g) in connection with any litigation to which any one or more of
the Lenders or one or both of the Agents is a party, (h) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) agrees to keep such
information confidential on substantially the same basis as set forth in this
Section, or (i) to affiliates of either Agent or any Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
BOWNE & CO., INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE> 100
BANK OF MONTREAL,
Individually and as Documentation Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE> 101
FLEET BANK, NATIONAL
ASSOCIATION, Individually and
as Administrative Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE> 102
FIRST UNION NATIONAL BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE> 103
THE BANK OF TOKYO-MITSUBISHI,
LTD., NEW YORK BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE> 104
ABN AMRO BANK N.V., NEW YORK BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE> 105
WACHOVIA BANK, N.A.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE> 106
NATIONAL WESTMINSTER BANK PLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
